In immigration fight, law may side with state
Stripping funding from ‘sanctuary cities’ may prove difficult.
WASHINGTON — President Trump wasted no time inviting a showdown with California and other liberal states with his threat this week against so-called sanctuary cities, setting off a frenzy of resistance that will test the president’s power to carry out his vision to deport millions of people here illegally.
The executive order Trump issued Wednesday putting cities and counties on notice that they would lose federal funding if they didn’t start cooperating with immigration agents has broad implications for California, a state that aggressively protects its undocumented population from deportation.
But while the order allowed Trump to boast that he is fulfilling a campaign pledge, it also commits him to a fight that he is not necessarily poised to win.
The cities and counties Trump is targeting have many tools to strike back. Among the most potent are high court decisions that have interpreted financial threats like the one Trump is now making as an unlawful intrusion on states’ rights.
In California, elected officials are skeptical about how aggressively Trump’s vague executive order can be enforced. San Francisco has determined it is worded in such a way that it doesn’t even apply there, and other cities will probably argue the same.
Trump left unclear what funding is at stake and what cities and counties are threatened. The administration would be on shaky legal ground going after money allocated for anything other than law enforcement, and taking funds away from local police is a risky proposition for a president promising to restore order in the streets. And even that, attorneys for the state Legislature assert, takes an act of Congress.
“These orders are very Trumpian,” said David Martin, who served as deputy counsel for the Department of Homeland Security early in the Obama administration. “There is a lot of show, a lot of tough rhetoric, and details to follow. Some of those details could take a long time to come.”
And California officials appear ready for a fight. The sanctuary cities order creates myriad opportunities to enmesh the new administration in unending litigation, draining its resources and political capital and ultimately undermining Trump’s ability to pursue his broader agenda.
“He doesn’t have the power to strip funding from local communities simply because we’re sticking up for our immigrant neighbors,” said state Sen. Scott Wiener (D-San Francisco). Wiener, a former San Francisco supervisor, said both his city and the state of California were well-positioned to “litigate until the end of time.”
“People try to pick on California and San Francisco all the time, and we’re tough enough to handle it,” he said.
Democratic lawmakers in the state are trying to move fast to protect more vulnerable cities. Senate leader Kevin de Leon is championing a measure that would essentially make California a sanctuary state by prohibiting police anywhere within its borders from engaging in immigration law enforcement. Doing that could also give the state standing to sue the federal government as soon as it moves to punish a city.
Another measure moving in the state Legislature would provide lawyers to immigrants detained by federal agents, which would force federal authorities to redirect enforcement resources to litigating tedious hearings. Lawmakers are also looking at banning federal agents from raiding workplaces and homes in search of people here illegally unless they have a warrant for a particular person. It’s a policy the administration could choose to ignore, but doing so would invite its own slog in court.
State lawmakers are consulting former U.S. Atty. Gen. Eric H. Holder Jr. and his associates — recently hired as counsel to the Legislature — on many of these moves, seeking their expertise on the legal constraints on federal law enforcement that they can exploit to undermine Trump. They are moving so aggressively that they risk confrontation with some of their own cities, like Fresno, where the new Republican mayor has said publicly he would comply with Trump’s directive. He could ultimately find doing so is illegal in California and have to choose between risking federal funds or the much bigger infusions of cash his city gets from Sacramento.
There are considerable logistical complications confronting Trump’s directive. John Sandweg, who headed U.S. Immigration and Customs Enforcement under President Obama, said the massive cost of detaining all the people Trump is hoping to expel from the country would probably make Congress recoil.
Following through with the sanctuary cities directive and other immigrationrelated orders Trump signed Wednesday would require 150,000 prison beds to house detainees, Sandweg said, nearly five times as many as are available now. He estimates the cost for that alone could be $8 billion. “Just because this order has been issued doesn’t mean this is happening,” he said.
It will probably be late summer, he said, before administration attorneys and staff iron out the details and start testing the waters of threatening sanctuary cities with financial penalties.
When they do, the administration could find itself buried in lawsuits.
The complaints could point to the 2012 Supreme Court decision on Obamacare that restricted the federal government’s ability to force states to expand Medicaid, finding that the federal government cannot coerce a state to enact a policy by threatening its funding, or in the words of Chief Justice John G. Roberts Jr., putting a financial “gun to the head.” They may also cite an earlier decision from the high court during the Clinton administration allowing local governments to opt out of the background checks for gun buyers required by the Brady Act.
The court’s granting of such power to defy Washington is typically heralded by conservative champions of states’ rights. Now it could prove a potent tool to use against Trump.
Also working in the favor of sanctuary cities is the experience of New York in the mid-1990s, when federal agents demanded the city share information on the immigration status of people who had been arrested. The federal courts ordered New York to turn over the information, but then also ruled that the city could opt not to gather the information, and then it would have nothing to turn over. The federal government, the court found, could not force New York to collect it.
San Francisco now says Trump’s order cannot be enforced there for similar reasons. The order punishes cities that prohibit employees from reporting on a person’s immigration status. San Francisco, like most sanctuary cities, doesn’t typically collect that information.
“This executive order is based on the false premise that sanctuary cities are violating federal law,” said John Cote, a spokesman for Dennis Herrera, San Francisco’s city attorney. “San Francisco is in full compliance.”
There still is some money that independent legal experts say the administration could snatch back from cities. The courts have given the federal government authority to impose such punishment if the offense is related to the program being defunded.
For example, money that cities and counties receive to cover the cost of jailing immigrants in the country illegally would be easy for the administration to cancel. Other law enforcement spending could also be at risk since the executive order focuses on the refusal of local police to help immigration agents.
But will the Trump administration want to take money away from urban police forces?
“If they cut law enforcement funding,” Martin said, “states and cities will be able to say that Trump is endangering them in exactly the ways he purports to be concerned about.”