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Sanctuary policies pit state and local governments against federal immigration officials

By Lee Rawles

August 11, 2017, 5:34 pm CDT

Sanctuary cities are in the news—and the courts—as federal, state and local governments find themselves in conflict over immigration enforcement.

It is this quandary that prompted “Sanctuary Cities: The New Federalism and Role of the State & Local Govts in Addressing Undocumented Immigrants,” a CLE session sponsored by the Section of State and Local Government Law on Friday at the ABA Annual Meeting in New York City.

One of the primary misunderstandings about sanctuary cities is the term itself. There is no standard definition for what constitutes a sanctuary city or state. According to Ron Kramer, the vice chair of the section and moderator of the panel, although between 200 and 300 sanctuary cities exist, some that proudly declare themselves sanctuary cities cooperate more with federal immigration officials than others that do not.

Before the concept of a sanctuary city was applied to immigrants living here without legal permission, cities had often sheltered other groups, such as freed slaves, civil rights workers or young men fleeing from the draft during the Vietnam War, panelists said. They all agreed that the modern usage of the idea of sanctuary cities dated back to the 1980s, when many people were fleeing from violence in Central America.

On Jan. 25, President Donald Trump issued an executive order stating that “sanctuary jurisdictions across the United States willfully violate federal law in an attempt to shield aliens from removal from the United States” and that these immigrants represent “a significant threat to national security and public safety.”

Two of the three guest speakers were employees of sanctuary cities: Bitta Mostofi, assistant commissioner of the Mayor’s Office of Immigration Affairs in New York City; and Dennis Herrera, city attorney of San Francisco. Both argued that on the local level, making state and local officials responsible for enforcing federal immigration laws actually harmed public safety.

Mostofi said that as the top terrorism target in the country, New York City is extremely concerned about public safety. But under both Republican and Democratic mayoral administrations, the city has seen it in its best interest to build trust in immigrant communities and to protect the health and well-being of all city residents regardless of immigration status. She says that these community policing methods have led to a decline in crime rates.

Herrera, who has taken the Trump administration to court over the January executive order, says that San Francisco has proudly been a sanctuary city since 1987. Up to 600 counties and cities have similar policies, he says. “Why? Because they work for the public safety of communities.”

Were Trump to follow through on his threat to try to suspend federal funds to sanctuary cities, Herrera says, that would endanger $2 billion of San Francisco’s $10 billion budget. U.S. District Judge William H. Orrick of the Northern District of California has so far maintained a preliminary injunction he granted the city, despite additional motions from U.S. Attorney General Jeff Sessions. Herrera hinted to the crowd at the CLE session that more legal action may soon be taken by the city to push back against the administration’s immigration orders.

Much of the recent publicized conflict between federal immigration officials and sanctuary cities has been over detainers issued by U.S. Immigrations and Customs Enforcement. An immigration detainer is a request by ICE to state or local law enforcement officials to keep immigrants suspected of living here without legal permission in their custody for up to 48 hours after that person would ordinarily have been released based on whatever criminal charges or convictions they had. Mostofi and Herrera say that their cities do comply with these voluntary requests when it is in the interest of public safety.

Michael Hethmon, senior counsel at the Immigration Reform Law Institute, was at the panel to represent what he termed the “pro-enforcement” side of the argument.

The litigation over the issue of sanctuary cities tends toward four areas, he said. They are spending power, the Fourth Amendment, the 10th Amendment and the doctrine of pre-emption—the doctrine that federal law pre-empts state law when the laws conflict.

The doctrine of federal pre-emption “is the 800-pound gorilla in the room, in terms of legal analysis,” Hethmon said.

He said that since immigration violations are civil matters, not criminal, different standards for seizure apply, and sanctuary cities are trying to make the federal government meet the more difficult standards that apply in criminal cases. He also said the liability concerns raised by sanctuary cities for violating the rights of immigrants living here without legal permission are not relevant because the cities would be protected by federal immunity.

Herrera and Mostofi disagreed, saying that municipal governments had suffered real monetary losses from suits by people who were awarded damages in Fourth Amendment cases over immigration enforcement actions.

Kramer asked the panel whether Congress could tie federal grant funding to state and local government cooperation with immigration enforcement. Herrera responded that President Trump did not properly have the power to do so. But Congress does, provided that the restrictions are germane; that there is a rational relationship between the program to be funded and the goal of the restrictions; that the financial incentives are not unnecessarily coercive; and that the restrictions are constitutional. However, those restrictions can only apply going forward, not to funds that had already been granted, he said.

An audience member asked the panelists about recent reports and rumors that plainclothes ICE officers were going to courthouses to detain suspected undocumented immigrants. Mostofi and Herrera said that they are very concerned about the chilling effect on the willingness of people to appear in court. Hethmon said that under 8 U.S. Code § 1357, it is immigration officers’ right to interrogate any alien or suspected alien wherever they chose, and to challenge that would raise serious constitutional issues.

Mostofi said that in 2011, the federal government had issued a memo (PDF) stating that it did not make sense to conduct immigration enforcement at schools, hospitals, houses of worship or other sensitive locations, and that that memo was still operable and good policy.

“Just because you may have the legal authority does not mean it’s smart to create fear in a sensitive institution,” Herrera said.

Follow along with our full coverage of the 2017 ABA Annual Meeting.