Can Trump administration punish sanctuary cities like Santa Fe?
Santa Fe seems to be painting a big target on its back, daring Donald Trump to take a shot. Trump, it should be said, fired the first salvo. The Republican, 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 reaffirm 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 nosethumbing. 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 a year in federal funding. Around the country, the issue of how Trump could inflict financial damage on sanctuary cities is being discussed. There seems to be consensus that federal funding for law enforcement is most at risk if the Republicancontrolled Congress and Trump move to cut funding for sanctuary cities.
Santa Fe’s budget for 2016 included $19,631 from the federal Department of Justice and about $250,000 from the U.S. Department of Homeland Security, according to City Hall.
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 matter, is that there is no simple answer — the legal situation is fluid. As a USA Today story about sanctuary cities from earlier this month 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, a 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 then 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 that 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 was part of the Obama administration — published guidance for its Office of Justice Programs 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.”
‘Gun to the head’
All of this may not affect Santa Fe — if it doesn’t obtain information on immigration status.
There are legal scholars who say the Supreme Court has come down clearly against using federal funding as a weapon against states or cities. They cite two Supreme Court decisions: the landmark 2012 ruling that upheld Obamacare and a 1997 decision on the Brady gun control law.
In the 2012 case, Chief Justice John Roberts wrote that the Affordable Care Act’s threat to cut off billions of dollars in Medicaid funding to states refusing to expand Medicaid coverage was an overly coercive “gun to the head.” That part of the health care law was ruled unconstitutional.
“The ‘gun to the head’ doctrine alone would be enough to render Trump’s proposal (to withhold money from sanctuary cities) unconstitutional,” Bloomberg View’s Noah Feldman, a Harvard law professor, wrote.
In the 1997 decision, the late Justice Antonin Scalia opined that the Brady law violated the constitutional system of federalism – powersharing among the federal and state governments
– by trying to force local police to do federally required background checks for gun buyers.
Erwin Chemerinsky and other professors at the University of California at Irvine School of Law, in an opinion piece for The Washington Post, concluded: “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.”
Onus is on Trump
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,” Mayor Gonzales said 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.