Sanctuary Cities Executive Order: A Battle For Hearts, Not Minds

When local government, or a college campus, announces it’s a Sanctuary, they rely primarily on one thing: emotional people having no clue what it means. Plenty of words about respect of immigrants, with a caveat that says to the extent permitted by law. The goal of the announcement is a good one, to calm the fears of its residents, whether rational or irrational. Its secondary goal is to not let Trump’s gaming immigration fears undermine the ability of a locality to function.

But it’s largely a publicity stunt. And so too was the Executive Order purporting to threaten loss of federal funds to Sanctuary Cities. In its argument to Judge William Orrick, the government admitted as much.

The Government does not respond to the”>Counties’ constitutional challenges but argues that the Counties lack standing because the Executive Order did not change existing law and because the Counties have not been named “sanctuary jurisdictions” pursuant to the Order. It explained for the first time at oral argument that the Order is merely an exercise of the President’s “bully pulpit” to highlight a changed approach to immigration enforcement.

In other words, it was a big show put on for Trump’s supporters to create the appearance of doing something different than what was done for decades. There’s no mileage to be gained from saying, “we’re going to do pretty much what the federal government has always done.”

At the same time, the whole Sanctuary Cities claim was a dog and pony show as well. Notably, the EO neglects to define what a Sanctuary City is. To the extent there is a definition beyond a city calling itself one, Dara Lind has put together a ‘splainer.* The only gap are arrestees who are processed but aren’t prosecuted.

The law, whether you like it or not, is not only pretty clear, but has been in place and working for decades.

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

Cities may not prohibit their police or corrections staff from providing ICE with immigration information. The flip side, referred to as anti-commandeering, as held by the Supreme Court in NFIB v. Sebelius, is that the feds can’t require state or local government to do its job, its bidding. This is based on federalism and separation of powers. No Executive Order can change any of this.

So Sanctuary Cities can’t do anything to prevent their cops and corrections staff from providing immigration info to the feds, and the feds can’t force local cops to cooperate. For decades, local cops fully cooperated because that’s what they wanted to do. When they had a criminal defendant or prisoner with an immigration hold in their clutches, they were more than happy to hold them until ICE showed up to haul them away.

Shockingly, the local cops didn’t shed sad tears at cooperating with the feds when it came to deporting people they considered bad dudes. It was one, big, happy synergistic system. And that system was completely in place and functioning long before anyone, outside of a small circle of friends, gave a damn about deporting immigrants.

The “big deal” challenged in the EO is section 9(a):

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law,shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement

This gives the appearance of a huge threat, to pull monies allocated by Congress from cities that piss off the government by being too Sanctuary-ish, but it’s silly. The AG can’t pull the plug on allocated funds to use as a bludgeon. It’s flagrantly unconstitutional. To the extent federal funds were given with conditions, they can be yanked. To the extent they weren’t, they can’t. Notice that caveat at the top, “to the fullest extent of the law”? That means it’s all malarkey except to the extent the law allows. And it allows what it allows, regardless of how many other words are murdered in furtherance of the PR stunt.

Judge Orrick’s opinion is being breathlessly reported as if it’s a crushing defeat for Trump. The judge got it.

The Counties have demonstrated that they are likely to succeed on the merits of their challenge to Section 9(a) of the Executive Order, that they will suffer irreparable harm absent an injunction, and that the balance of harms and public interest weigh in their favor. The Counties’motions for a nationwide preliminary injunction, enjoining enforcement of Section 9(a), are GRANTED. The defendants (other than the President) are enjoined from enforcing Section 9(a)of the Executive Order against jurisdictions they deem as sanctuary jurisdictions. This injunction does not impact the Government’s ability to use lawful means to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing regulations or preparing guidance on designating a jurisdiction as a “sanctuary jurisdiction.”

So the Sanctuary Cities won? Well, yes, but they didn’t win anything they didn’t already have, and the feds didn’t lose anything they didn’t already have. Judge Orrick’s order says “feds, you can’t do what’s unconstitutional, but otherwise, do whatever the law allows.” That was always the case. The upshot is that the “nationwide injunction” does no more than tell the federal government it can do what the law always allowed it to do.

Naturally, the White House is spinning this as yet another “unelected judge” (all federal judges are unelected, because that’s how our Constitution works) who “unilaterally rewrote immigration policy for our Nation.” Utter nonsense used to wage the war for America’s tears, just like cities claiming to be sanctuaries is utter nonsense. This is just another dog and pony show, put on by competing political theater groups, to win the hearts of supporters, relying on the hope that neither side’s supporters will realize it’s all just a publicity stunt.

*There’s no inherent reason for local police to run the prints of a criminal complainant, so they wouldn’t have a reason to fear ICE being notified of their existence. The feds can’t commandeer them to do so. On the other hand, the local police can’t be forbidden from doing so if that’s their choice, in which case complainants would have a good reason to fear ICE being notified.

10 thoughts on “Sanctuary Cities Executive Order: A Battle For Hearts, Not Minds

  1. Keith

    And that system was completely in place and functioning long before anyone, outside of a small circle of friends, gave a damn about deporting immigrants.

    Sweating in the ghetto with the colored and the poor
    The rats have joined the babies who are sleeping on the floor
    Now wouldn’t it be a riot if they really blew their tops?
    But they got too much already and besides we got the cops
    https://youtu.be/dMeG6dAFqXw

  2. Justin

    Please forgive my ignorance, but weren’t highway funds withheld from states that didn’t adopt the 21 year old age limit on alcohol sales with the National Minimum Drinking Age Act? States that didn’t increase their purchase age to 21 lost ten percent of federal revenue, and this was challenged in South Dakota v Dole.

    Is the difference actual legislation versus an executive order? As a non-lawyer it would seem that these methods are similar but not identical, which makes this ruling confusing to me. If the feds were able and allowed to withhold funds for raising the drinking age, how is this case with sanctuary cities different?

    1. SHG Post author

      Congress holds constitutional authority over the power of the purse, so they can impose any damn conditions on federal money they want. The problem here is that the exec can’t create and impose conditions after the fact that Congress didn’t provide for. It’s a separation of powers thing.

      1. Keith

        Wasn’t “any damn conditions” challenged in NFIB v Sebelius and narrowed to non-coercive and with a nexus between the program and the fund purpose?

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