Did shot at sanctuary cities misfire?
Culberson says funds cut; briefs show otherwise
WASHINGTON — Last July, a year after the shooting death of California resident Kate Steinle intensified the national debate over illegal immigration, Houston Republican John Culberson declared a single-handed victory against sanctuary cities like San Francisco.
Employing a stealth budget maneuver as chairman of a House panel that controls Justice Department spending, Culberson announced that jurisdictions like San Francisco — nay the entire state of California — would be denied millions of dollars in law enforcement grants unless they complied with federal law on sanctuary cities.
“Today this law is being fully enforced for the first time,” Culberson said at the time. “State and local governments must now choose between receiving federal law enforcement grant money or protecting dangerous criminal aliens. They can no longer do both.”
Except that state and federal records tell a much different story.
Officials in California, Connecticut and other jurisdictions in Culberson’s cross-hairs say nothing has changed. Though Culberson claims to be “judge and jury” in the matter, government briefs filed in recent lawsuits challenging President Donald Trump’s threatened funding cuts for sanctuary cities also show that officials have yet to take action — and likely face lengthy litigation if they do.
The 10 cities and states targeted by Culberson — including New York City,
Chicago and the state of Connecticut — continued to get law enforcement grants worth a total of $96 million in late 2016, even though Culberson says the Justice Department had “certified” them as sanctuary city violators last July.
No Texas cities are on the list, although Culberson has said that Travis County is a sanctuary.
Officials from two of the largest jurisdictions that were implicated — California and Connecticut — say they wholly comply with all federal laws and fully expect to receive their 2017 allocations.
“San Francisco is eligible to receive federal grants, and we will continue to apply for them,” said San Francisco City Attorney Dennis Herrera.
Connecticut officials say the Justice Department asked them to outline their policies, but they received no indication they are cut off or ineligible for grants.
“Nobody’s had any grants withheld,” said Mike Lawlor, the state’s undersecretary for criminal justice policy and planning.
Culberson insists they’re wrong and that starting this year, they’re “in for a very unpleasant surprise.”
“I’ve already had them certified as violators,” Culberson said in an interview last week in which he claimed a “quasi-judicial role as chairman of a subcommittee … using the power of the purse to enforce the law.”
Culberson, in his ninth term in Congress, says he has opened a new front in the GOP battle against jurisdictions that don’t fully cooperate with federal Immigration and Customs Enforcement agents, a gambit that he says is now being copied on a wider scale by Trump, who also has threatened to block funding to localities with so-called sanctuary city policies.
“What I’ve done here is totally novel,” Culberson said. “I’m blazing a new trail.”
Over the past five years, local and state governments across the nation have received over $3.4 billion in federal law enforcement grants. California got more than $68 million last year. Connecticut got some $2.7 million.
Officials in the targeted states, however, say they foresee no cutoff in government aid from Culberson’s move. They note that Trump’s January order mandating a review of funding for sanctuary cities specifically exempts grants “deemed necessary for law enforcement purposes.”
Privately, some of Culberson’s critics see him working to protect his right flank against potential primary rivals looking for a quick victory in a messy standoff over immigration. Various efforts to crack down on deportees and sanctuary cities have been stymied in Congress, including “Kate’s Law,” which was named after Kate Steinle.
“I’ve been working on this for years,” Culberson said. “But Kate Steinle’s murder just pushed me over the edge.”
While Republicans have focused on the threat to public safety posed by criminals coming over the border illegally, Democrats see it as counterproductive to turn local police into immigration agents. Immigrants who witness or suffer crimes, they argue, are less likely to call the cops if it might lead to a visit from ICE.
But for Culberson, as for most Texas Republicans, his most pressing political threat does not come from the left. One of his GOP primary opponents last year was Maria Espinoza, co-founder of The Remembrance Project, a nonprofit group that advocates for the families of people killed by immigrants living in the U.S. illegally.
She was on hand in Washington when Trump signed his executive order on immigration. She also has been critical of Culberson, accusing him of supporting former President Barack Obama’s “executive amnesty” by voting for a 2016 government spending bill that did not cut off funds to sanctuary cities. ‘CFO of Justice’
Culberson’s maneuver was rolled out in July with little fanfare, receiving scant attention outside of the conservative press, including Breitbart.com, the alt-right platform of Trump strategist Steve Bannon.
But Culberson recently has started to remind voters that the blueprint for action is his.
“I personally made sure that money is cut off to these sanctuary cities,” he told constituents in a March 1 tele-town hall. “I didn’t get a lot of publicity about it, because I was concerned that once President Obama heard about it or (U.S. Rep. Nancy) Pelosi of the Democrats, that they’d go down to the floor and start waving their arms and raising Cain.”
“I’m like the CFO of the Department of Justice,” he continued. “I was able to cut off money to sanctuary cities beginning last summer. So it’s done, and now the Trump administration has expanded that policy nationwide.”
The disconnect stems in part from different readings of a 1996 law intended to ensure local cooperation with federal immigration agents.
To Culberson, the law bars state and local officials from interfering “in any way” with requests for personal immigration information by federal authorities.
Lawyers for California and Connecticut read the law more narrowly. They say it bars local officials only from restricting “information concerning an individual’s citizenship or immigration status.”
That’s different from enforcing ICE requests to hold immigrants who are subject to deportation, or to notify federal agents about prisoners’ release dates — something most sanctuary cities won’t do without criminal warrants.
That is the reason San Francisco jailers released Steinle’s alleged killer, Juan Francisco Lopez-Sanchez, a felon on probation in Texas who had been deported to Mexico five times.
There is no legal definition of “sanctuary city.” The Trump administration says it is still working on one as part of its executive order. But localities are typically deemed to be sanctuary jurisdictions when they decline to hold or share information about their prisoners for ICE.
That’s the standard the Texas Legislature is using this year as it debates legislation pushed by Gov. Greg Abbott to punish sanctuary cities.
Some state officials say that requiring local jailers to hold immigrants beyond their legal release dates not only violates Fourth Amendment search and seizure protections but also the 10th Amendment rights of states against being “commandeered” by federal authorities. ICE ‘should get warrant’
“Here’s what’s really going on,” said Michael Wishnie, who teaches in Yale Law School’s Worker and Immigrant Rights Advocacy Clinic. “ICE should stop cutting corners and trying to trick local jails and police into joining in illegal immigration round-ups. If ICE wants local police to arrest someone, the agency should get a judicial warrant, just like the FBI, DEA and any other professional law enforcement agency does.”
Wishnie says sanctuary city detention policies don’t violate the law. Culberson maintains that his interpretation of the Justice Department policy on sanctuary cities is beyond dispute.
“They’re welcome to their opinion, but I’m in charge of the federal treasury,” he said. “It’s my responsibility to be judge and jury of when and where federal dollars are allocated.”
It was in Culberson’s role as chairman of the House Appropriations subcommittee on Commerce, Science and Justice that he was able to press then-Attorney General Loretta Lynch last year to assess whether all Justice Department grant recipients complied with the 1996 law — the same law Trump cited in his executive order.
In a behind-the-scenes exchange that Culberson likens to a “chess game,” his cudgel was the Justice Department’s annual funding requests, which go through his committee.
As part of the review, Justice Department Inspector General Michael Horowitz zeroed in on 10 major grant recipients, a group Culberson calls “the Top 10 jurisdictions on the Hit Parade.”
The study, first made public in July, found that the 1996 law “does not specifically address restrictions by state and local entities on cooperation with ICE regarding detainers.” Horowitz also noted that the Department of Homeland Security, which includes ICE, had determined that civil immigration detainers are “voluntary’ — and therefore unenforceable.
Nevertheless, Horowitz concluded that most, if not all, of the 10 jurisdictions in question limited cooperation with ICE in some way. While not necessarily in violation of the 1996 law, Horowitz wrote, “we believe these policies and others like them may be causing local officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE in all respects. That, of course, would be inconsistent with and prohibited by” the 1996 law.
For Culberson, the key word was “inconsistent.”
Despite the careful language in Horowitz’s report, Culberson said the inspector general “made it official” that the 10 jurisdictions violated Justice Department sanctuary city policies, declaring them ineligible for further grants.
“That’s enough. Trust me,” said Culberson, adding that he received a verbal reassurance from Horowitz. “They were reluctant to use stronger language, so I worked it out with the inspector general,” he said.
A spokesman for Horowitz declined comment.
Culberson also relied on a July 7 Justice Department “guidance” clarifying that the 1996 law applies to law enforcement grants. But there was a catch: The memo did not say whether the law specifically required compliance with ICE detainer requests. To the contrary, it noted that the 1996 law imposed no “affirmative obligation” on states and localities to collect information about people’s immigration status, nor to “take specific actions upon obtaining such information.”
The same day, Culberson was notified about the guidance in a letter from thenAssistant Attorney General Peter Kadzik. The letter noted, however, that the Office of Justice Programs “already” required prospective grant applicants to certify that they complied with “all applicable” federal laws, which means they were getting money even if they didn’t honor ICE detainer requests.
To Culberson, it meant only this: “They weren’t enforcing it. They are now.”
But a flurry of lawsuits over Trump’s immigration order suggests that the matter is far from settled. No ‘concrete’ harm
California officials point to the Justice Department’s response this month to a preemptive challenge by Santa Clara County, one of several jurisdictions around the nation — including San Francisco — that are contesting Trump’s threat to yank their federal funds.
One of the Trump administration’s arguments has been that Santa Clara’s action is premature because it has not suffered any “concrete” harm, in part because there has been no finding as to who is a sanctuary city and who is not.
That interpretation was reinforced in a Justice Department letter to several members of Congress on March 7 stating that the administration is still “in the process of identifying … what actions, if any, can lawfully be taken in order to encourage state and local jurisdictions to comply with federal law.”
Culberson says he’s untroubled by the lawsuits.
“Who cares?” he said. “They’re going to lose. I’m the one who’s going to make the final decisions, along with the president. No judge can compel me to release the money.”
“If you want federal money, follow federal law,” he added. “Particularly if you’re dealing with John Culberson and Donald Trump, who will not give you the money unless you follow federal law. You can take that to the bank.”