This week the White House rolled out the bully pulpit. Attorney General Jeff Sessions threatened to withhold or strip away Department of Justice grant money to "sanctuary cities" if they do not tell federal authorities about undocumented immigrants in their custody.
"I urge our nation's states and cities to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws and to rethink these policies," Sessions said. "Such policies make their cities and states less safe, and put them at risk of losing valuable federal dollars."
Sessions' view is misguided and potentially unconstitutional. Cities and states have carefully considered the well-being of their citizens and concluded that immigration enforcement is a job best done by federal agents. Contrary to Sessions' assertion, sanctuary policies help make cities safer - and courts have repeatedly held that localities cannot be forced into cooperating with federal immigration actions.
It might surprise some people to learn that sanctuary cities are not a haven for the undocumented. Unauthorized immigrants can be deported from any of the states, cities, and counties that identify as sanctuary jurisdictions. Generally speaking, a sanctuary city is a locality where officials decline to assist federal authorities with immigration enforcement actions. This can mean anything from not asking people their immigration status to declining a request to hold suspected undocumented immigrants for federal agents. As one blogger put it, sanctuary cities are the immigration equivalent of "Don't ask, don't tell."
In sanctuary jurisdictions, officials have decided that they don't want their law enforcement officers to serve as immigration agents. They would rather have the trust of their communities and leave immigration enforcement to the feds. That's why many police chiefs and sheriffs support sanctuary policies. There is a liability factor at play here, too. If a person is wrongfully held by local authorities for immigration agents, that person can turn around and sue - and it is the local jurisdiction that bears liability in such instances.
Jeff Sessions is threatening sanctuary jurisdictions with a loss of up to $4.1 billion in federal grant money. That's an odd argument for any Republican to make, as conservatives usually do not like the federal government telling the states what to do. It is also a legally problematic proposition. Just as the Supreme Court has held, as recently as 2012, that immigration is a federal matter, and it follows that the federal government cannot force this responsibility upon the states.
What's more, the Supreme Court's interpretation of Congress' Spending Clause power says that the federal government may not impose conditions on grants to states and localities unless they are clearly and prospectively stated. As nearly 300 constitutional scholars noted in a recent letter to President Trump, the executive branch of government cannot make up new conditions for federal funding and impose them retroactively on local jurisdictions.
When conditions are attached to federal funding, the high court has held that they must be related to the federal interest in the particular project or program. That is not the case here, as Sessions is putting money for gang and crime reduction efforts, opioid abuse programs, and sexual assault kits at risk. Because these programs have little to do with illegal immigration, the Attorney General cannot hold the funds hostage until cities and states cooperate on immigration enforcement.
Legal arguments aside, consider that the Trump administration is targeting sanctuary cities as a threat to public safety by threatening to withhold funds that help communities stay safe. This flies in the face of common sense. In fact, there is research that shows that sanctuary jurisdictions are actually safer than non-sanctuary jurisdictions.
True, many Americans were outraged by the killing of Kate Steinle by an undocumented immigrant in San Francisco, a sanctuary city, in 2015. And there are legitimate concerns over how far some cities go in their sanctuary policies. But the sanctuary cities debate should be seen in the context of states' rights, and the Tenth Amendment rights of local jurisdictions must be respected.
Besides, attempting to bully state and local governments into cooperation is not going to bring about consensus on these issues. If the Trump administration tries to use the power of the purse strings to force local governments to cooperate with immigration officials, the likely result is a slew of legal challenges (Seattle filed its lawsuit on Wednesday). These will drag on, just as the lawsuits over Trump's travel bans have, and in the mean time no one will be any safer.
A more reasonable approach would be to start with a convening of state and local officials, rather than take such an autocratic approach.
Attorney General Jeff Sessions is wrong to threaten local jurisdictions by withholding funding if they do not take on immigration enforcement duties. Sanctuary cities are a lawful exercise of local government authority.