Is SF inviting the ire of the President-elect?
City defends sanctuary status
Santa Fe seems to be painting a big target on its back, daring Donald Trump to take a shot.
The president-elect, it should be said, fired the first salvo. Trump, during his campaign, said he wants to withhold federal funding from “sanctuary cities,” which include Santa Fe, with policies against assisting the federal government in prosecution of immigration laws.
In response, Santa Fe has done much more than duck and cover. First, Mayor Javier Gonzales became the national face of sanctuary cities after the presidential election, giving several interviews to major news outlets defending the goals and results of sanctuary policies.
Then a City Council resolution was introduced to re-affirm and strengthen the city’s sanctuary stance. The coup de grace came from Councilor Joseph Maestas. When the city’s advisory Immigration Committee recently took up the sanctuary city measure, Maestas said Santa Fe was “thumbing its nose” at the incoming Trump administration.
That comment made its way into a headline at Breitbart News, which could well mean that Trump himself has taken notice of Santa Fe’s nose-thumbing. Stephen K. Bannon, who went on leave from his job as Breitbart’s chairman to help run the president-elect’s campaign, is now Trump’s chief White House strategist and senior counselor.
One question is how much it could cost for Santa Fe to take a stand against a president. Santa Fe gets about $6 million in federal funding. Around the country, the issue of how Trump could inflict financial damage on sanctuary cities is being much discussed. There seems to be somewhat of a legal consensus that federal funding for law enforcement is most at risk if the Republican-controlled Congress and Trump move to cut funding for sanctuary cities.
One side argues that two key U.S. Supreme Court decisions, ironically ones that conservatives hailed when they were issued, restrict how
Trump can use federal funding as a hammer to push cities or states into following federal mandates. On the other side, there’s thinking that Trump in fact has leeway to inflict financial pain on sanctuary cities.
The simple answer, according to a couple of local lawyers who’ve looked into the existing legalities, is that there is no simple answer — the legal situation is fluid. As a USA Today story about sanctuary cities from earlier this week said, “In what could become a major conflict between the new president and local governments, the showdown likely will result in legal challenges testing how far the White House can go in dictating its priorities.”
1996 law at issue
There is, in fact, an existing 1996 statute requiring local jurisdictions to grant federal access to information about an individual’s immigration status. New York City filed a legal challenge that was unsuccessful at the federal appeals court level, but immigrant rights advocates say the appeal was poorly framed and the case was decided on issues that weren’t definitive.
Just last year, U.S. Rep. John Culberson, a Texas Republican chairing a subcommittee with oversight of Department of Justice appropriations, formally asked Attorney General Loretta Lynch if sanctuary city recipients of DOJ grants were in compliance with the 1996 statute and other federal laws.
It should be noted that Santa Fe and other cities have policies that try to avoid conflict with that ’96 statute by instructing the police not to ask people about immigration status, so there’s no information to share with the feds.
Another issue is local governments — like Santa Fe County, operator of the local jail — that refuse to honor “detainer” requests to hold locally arrested prisoners who’ve been flagged by Immigration and Customs Enforcement for possible immigration violations. A federal appeals court has held the detainer requests violate constitutional protections against forcing local governments to enforce federal law.
In May, in response to Culberson’s letter, the DOJ’s inspector general issued a report that looked at 10 sanctuary jurisdictions, including New York, California and Cook County, Ill. It essentially said that any local laws against information-sharing are inconsistent with the 1996 statute and that refusing detainer requests also may “be inconsistent with at least the intent” of the law.
Later, the DOJ — remember, this is part of the Obama administration — published guidance for its Office of Justice Programs (OJP) grants and compliance with the 1996 law, saying: “Failure to remedy any violations could result in a referral to the Department of Justice Office of the Inspector General, the withholding of grant funds or ineligibility for future OJP grants or subgrants, or other administrative, civil, or criminal penalties, as appropriate.”
All of this may not affect Santa Fe — if it doesn’t obtain or keep information on immigration status.
‘Ain’t constitutional law grand?’
There are legal scholars who say the Supreme Court has come down clearly against using federal funding as a weapon against states or cities, protecting sanctuary cities against being required to help enforce federal immigration law.
Noah Feldman, a professor of constitutional and international law at Harvard, wrote a recent Bloomberg View column on this point, saying: “Behold the revenge of conservative federalism: Judge-made doctrines developed to protect states’ rights against progressive legislation can also be used to protect cities against Trump’s conservative policies. Ain’t constitutional law grand?”
Feldman and others who’ve written on the subject cite two U.S. Supreme Court decisions: the landmark 2012 ruling that upheld Obamacare, but eviscerated its federal mandate that states had to expand Medicaid or face eventual loss of all Medicaid funding; and a 1997 decision on the Brady gun control law that struck down a requirement that local law enforcement agencies perform background checks on gun buyers.
In the Obamacare decision, Chief Justice John Roberts wrote that, under the constitution’s Tenth Amendment barring the federal government from “commandeering” state government for federal purposes, Obamacare’s Medicaid mandate was an overly coercive “gun to the head” of the states.
“The ‘gun to the head’ doctrine alone would be enough to render Trump’s proposal (on sanctuary cities) unconstitutional,” Feldman wrote.
Roberts also said Congress can’t create a funding condition that is unrelated to the original purpose of the funding. This portion of the Roberts opinion is now cited by advocates as protecting most federal funding to sanctuary cities, such as money for roads or housing, from cut-off — on grounds that only money received for law enforcement purposes would be related to immigration enforcement.
In its 2016 budget, Santa Fe includes only $19,631 in funding from the federal Department of Justice and about $250,000 from the U.S. Department of Homeland Security, according to City Hall.
In the 1997 Brady Bill decision, it was the late Justice Antonin Scalia, a conservative icon, who opined that the Brady law violated the constitutional system of federalism — power-sharing among the federal and state governments — by trying to force local police to do federally required background checks for gun buyers.
“That’s exactly what Trump wants to make city officials do — cooperate in the enforcement of federal law,” wrote Feldman.
In an opinion piece for the Washington Post, Erwin Chemerinsky and other professors at the University of California at Irvine School of Law agreed, saying, “Under the anti-commandeering principle, the federal government can no more require state governments to help it carry out mass deportations than it can require local officers to investigate and enforce federal gun laws.”
What’s a ‘gun to the head?’
This view was contested in a Los Angeles Times column by two Washington, D.C., constitutional lawyers, David Rivkin and Elizabeth Price Foley. (Rivkin served at the DOJ and the White House Counsel’s office in the Reagan and George H.W. Bush administrations.)
They say the“anticommandeering” principle doesn’t apply when the feds ask only for information about people. They acknowledge cities like Los Angeles, as does Santa Fe, “instruct city employees not to ask about immigration status, but they may still have access to that information.”
They suggest that Congress could specify that drivers licenses issued to undocumented immigrants include a distinguishing feature. (New Mexico’s driving authorization cards, part of a compromise over licenses for undocumented immigrants, can be obtained by any qualified resident, including citizens who don’t want to go to the trouble of getting a “Real ID” license meeting federal standards.)
Rivkin and Foley also say Justice Robert’s Obamacare decision leaves Trump leeway to withhold some federal funds. They note that, in the 1980s, the Supreme Court upheld cutting off 5 percent of states’ federal highway funding if they didn’t raise the drinking age to 21, while the Medicaid funding “gun to the head” that the Supreme Court rejected as overly coercive in 2012 could have eliminated over $233 billion dollars in Medicaid dollars, more than 20 percent of states’ budgets.
So Rivkin and Foley reason that Trump can, in fact, cut off some federal dollars to sanctuary cities, as long that amount doesn’t reach the 20 percent portion of a jurisdiction’s budget that they describe as the “threshold” established in the Obamacare ruling.
Santa Fe city government is waiting for Trump to make the first move before talking strategy or the cost of litigation. “At this point, the onus is on Mr. Trump to fill in the details of this dangerous proposal,” said Mayor Gonzales in a statement. “Until he does we can only reiterate our commitment to fight for our values with all the tools we have on hand. What we won’t do is be bullied into just walking away from seeking federal investments to make this community stronger.” He added, “And because we are on the side of history, we believe we will eventually prevail.”
Maybe the best-case scenario, as far as costs go, is that New York City or California do the heavy lifting in a court fight.