Trump sanc­tu­ary tac­tic may back­fire

Fed­eral law at­tack is based on risks be­ing ruled un­con­sti­tu­tional by U.S. Supreme Court

San Francisco Chronicle - Late Edition (Sunday) - - BAY AREA - By Tal Kopan

WASH­ING­TON — On July 1, 2015, a sin­gle gun­shot rang out on San Fran­cisco’s Pier 14, fa­tally wound­ing 32-year-old Kate Steinle. By July 3, then­pres­i­den­tial can­di­date Don­ald Trump was tweet­ing about it. An un­doc­u­mented im­mi­grant and five-time de­por­tee who had been re­leased from San Fran­cisco Jail was charged with her mur­der, though he was ac­quit­ted two years later. By the time he went on trial, the in­ci­dent had be­come a ral­ly­ing cry for con­ser­va­tives in gen­eral and Trump in par­tic­u­lar. He took ac­tion just days into his pres­i­dency to block fed­eral funds to sanc­tu­ary

cities, a catchall term that de­scribes ju­ris­dic­tions that limit co­op­er­a­tion with fed­eral im­mi­gra­tion en­force­ment.

And then Trump’s ad­min­is­tra­tion be­gan to lose — re­peat­edly

— in court.

Now, ex­perts say that by con­tin­u­ing to press the is­sue, the ad­min­is­tra­tion’s strat­egy could back­fire — pos­si­bly jeop­ar­diz­ing the co­op­er­a­tion that fed­eral au­thor­i­ties now re­ceive from many lo­cal gov­ern­ments and pre­vent­ing Con­gress from even pass­ing leg­is­la­tion on the topic.

Trump’s first le­gal set­back came in re­sponse to the ex­ec­u­tive or­der he is­sued to block any fed­eral fund­ing to sanc­tu­ary cities, when a fed­eral judge

in San Fran­cisco ruled in April 2017 that he could not broadly with­hold money to force co­op­er­a­tion with im­mi­gra­tion agents.

Trump, via then-At­tor­ney Gen­eral Jeff Ses­sions, then tried to im­pose more tar­geted pun­ish­ment, mak­ing law-en­force­ment grant money con­di­tional on cities’ co­op­er­a­tion with im­mi­gra­tion en­force­ment. Courts in Chicago, Philadel­phia, Los An­ge­les and San Fran­cisco again blocked his ef­forts. The Jus­tice Depart­ment also sued Cal­i­for­nia to try to pre­empt its state sanc­tu­ary law. A fed­eral judge in Sacra­mento blocked that as well.

But it’s not just the grants that are at stake — the ad­min­is­tra­tion is at risk of los­ing the one law on which it has hung all its ef­forts.

The key de­vel­op­ment came in May in an un­re­lated case, when the Supreme Court ruled that a fed­eral law pro­hibit­ing states from le­gal­iz­ing sports gambling was un­con­sti­tu­tional. The jus­tices said the law il­le­gally “com­man­deers” states to fol­low fed­eral pol­icy and in­trudes on their law­mak­ing au­thor­ity.

The de­ci­sion had ma­jor ram­i­fi­ca­tions for sanc­tu­ary cities lit­i­ga­tion.

The Trump ad­min­is­tra­tion’s an­ti­sanc­tu­ary cam­paign is based on a piece of im­mi­gra­tion law com­monly re­ferred to by its code num­ber, 1373. That law pro­hibits state and lo­cal gov­ern­ments from re­strict­ing in­for­ma­tion about an im­mi­grant’s sta­tus from fed­eral of­fi­cials.

For­mer Pres­i­dent Barack Obama’s ad­min­is­tra­tion made some law en­force­ment grant money con­di­tional on com­pli­ance with 1373. The Trump ad­min­is­tra­tion seized on that and sought to ex­pand the in­ter­pre­ta­tion of what was re­quired of cities and states.

The law, gov­ern­ment lawyers ar­gued, cov­ered more than just a per­son’s im­mi­gra­tion sta­tus. They said it also re­quired lo­cal gov­ern­ments to share the date im­mi­grants would be re­leased from cus­tody, so fed­eral agents could pick them up. The law be­came the un­der­pin­ning of the gov­ern­ment’s law­suit over Cal­i­for­nia’s sanc­tu­ary leg­is­la­tion.

How­ever, lower courts fol­low­ing the Supreme Court’s rul­ing in the gambling case have ap­plied it to 1373-re­lated law­suits — and have found that the im­mi­gra­tion law also vi­o­lates lo­cal gov­ern­ments’ rights.

A fed­eral judge in Philadel­phia ruled in June that not only were the im­mi­gra­tion-re­lated con­di­tions on grants un­con­sti­tu­tional, so was 1373 it­self. A fed­eral judge in Chicago fol­lowed suit in July. In Oc­to­ber, U.S. Dis­trict Judge Wil­liam Or­rick in San Fran­cisco agreed, rul­ing in fa­vor of San Fran­cisco and strik­ing down 1373. On Fri­day, a judge in New York did the same, say­ing a pre­vi­ous ap­pel­late court de­ci­sion in the re­gion also would have to fall af­ter the Supreme Court’s rul­ing.

If the ad­min­is­tra­tion leaves those cases where they are, the ef­fects will be rel­a­tively min­i­mal. Each of those lower court rul­ings ap­plies only to the cities that sued the Trump ad­min­is­tra­tion — they would not be­come na­tion­ally bind­ing prece­dent un­less fed­eral lawyers ap­peal the de­ci­sions to higher courts and lose.

“If I were them, I would not want this at the Supreme Court, and would just leave it, leave th­ese de­ci­sions as they are and just let the rest of the coun­try con­tinue to think that 1373 is con­sti­tu­tional,” said Bill Hing, pro­fes­sor of law and mi­gra­tion stud­ies at the Univer­sity of San Fran­cisco.

Some is­sues in the cases have been heard on ap­peal, but those were de­cided be­fore the Supreme Court’s gambling rul­ing. The Jus­tice Depart­ment has filed a pend­ing ap­peal in the Chicago case, look­ing not to over­turn the judge’s de­ci­sion but to seek a rul­ing that it and the ad­min­is­tra­tion’s other court­room de­feats should ap­ply only to the in­di­vid­ual cities and not na­tion­wide.

Josh Black­man, a pro­fes­sor at the South Texas Col­lege of Law Houston and con­trib­u­tor to the con­ser­va­tive le­gal group the Fed­er­al­ist So­ci­ety, ar­gues that win­ning on the is­sue of lim­it­ing na­tion­wide rul­ings would be worth it, even if the ad­min­is­tra­tion jeop­ar­dizes 1373 in the process. He ar­gues that ap­pel­late courts can de­cide th­ese cases with­out need­ing to weigh in on 1373, which he called a “use­less statute.”

“If that statute’s de­clared un­con­sti­tu­tional, then so what?” Black­man said. “The gov­ern­ment of­ten en­acts poli­cies that they know have a greater than av­er­age chance of fail­ing, but if it ad­vances the agenda of the ex­ec­u­tive branch, it’s worth tak­ing the chance.”

Hing, though, called that strat­egy risky in light of the high court’s gambling de­ci­sion. If the Trump ad­min­is­tra­tion keeps los­ing, he said, cities that co­op­er­ate now with fed­eral im­mi­gra­tion au­thor­i­ties could be sued by sanc­tu­ary ad­vo­cates with le­gal prece­dent on their side.

Jus­tice Depart­ment spokesman Steven Stafford said it was “ab­surd” to ar­gue that sanc­tu­ary ju­ris­dic­tions should re­ceive fed­eral law en­force­ment fund­ing. The agency, he says, wants lo­cal au­thor­i­ties to “stop ac­tively ob­struct­ing fed­eral law en­force­ment.” That position “is not only al­lowed by the Con­sti­tu­tion, it is de­manded by the Con­sti­tu­tion,” Stafford said. “The Supreme Court’s de­ci­sion in (the gambling case) has no bear­ing on the fed­eral gov­ern­ment’s abil­ity to place con­di­tions on fund­ing.”

Im­mi­gra­tion at­tor­ney Leon Fresco, who served in the Jus­tice Depart­ment un­der Obama, said the Trump ad­min­is­tra­tion may have never be­lieved it would pre­vail on sanc­tu­ary cities, but pur­sued the case to win a po­lit­i­cal talk­ing point and po­ten­tially spur con­gres­sional ac­tion. But he warned that if courts make clear it’s un­con­sti­tu­tional for the fed­eral gov­ern­ment to force state and lo­cal gov­ern­ments to co­op­er­ate with im­mi­gra­tion agents, it could give con­gres­sional Democrats cover for not act­ing.

“They’re mak­ing it eas­ier for Democrats to say, ‘It’s not I’m not for solv­ing this is­sue, it’s that we legally can’t,’ ” Fresco said. “The more (Trump of­fi­cials) tease this out and make it true, the more likely they are to lose not just the le­gal is­sue, but the po­lit­i­cal is­sue.”

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.