¿Qué fue primero, la gallina o el huevo? Which came first? The chicken or the egg – politics or the law?
Religion and comedy aside, I think we can all attest to how the axiom sometimes doesn’t even matter given the reality on the ground.
And the reality on the ground today is that national politics and law have thrust into the national spotlight the undeniable role local governments play in the lives of our people. Whether and how cities choose to react to the immigration debate and the policy pronouncements coming out of Washington, DC is a decision unique to, and uniquely suited for, the men and women elected at the local level to ensure that government serves the needs of the people.
This edition of the Ethics Advisor will give you a brief lowdown on what the law provides with respect to so-called “sanctuary cities,” so that you can make policy decisions more fully informed of the legal landscape, confident that a policy choice can be an ethical choice when it is made in full awareness of what the law requires and allows.
The federal government has the exclusive authority to enforce the civil provisions of federal immigration law relating to issues such as admission, exclusion, and deportation. Current law generally allows the federal government to permit, but not require, the assistance of local officials in such efforts.
The Immigration and Nationality Act (INA) includes both civil and criminal provisions. Most people arrested by the U.S. Immigration and Customs Enforcement (ICE) go through civil administrative proceedings to determine whether they should be deported. Violations of the INA that result in deportation are civil in nature and are only enforceable by the federal government.
Sometimes ICE will issue “detainers” to local police requesting that they hold individuals for no more than 48 hours beyond the time when the detainee would otherwise be eligible for release to allow ICE to assume custody. There is no legal requirement that agencies comply with these requests.
On January 25, 2017, President Trump issued an Executive Order entitled “Enhancing Public Safety in the Interior of the United States.” This order focuses on immigration and is directed at eliminating access to federal funding to “sanctuary jurisdictions.”
Although Federal immigration law provides a framework for Federal–State partnerships in enforcing our immigrations laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility.
In furtherance of this policy the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.
In addition to the requirements under Section 1373, it is unclear how the Secretary of Homeland Security will determine what constitutes a “sanctuary jurisdiction.” Although the order specifically includes jurisdictions that violate Section 1373, it also appears to include jurisdictions that do not comply with detainer requests.
The inclusion of jurisdictions that do not comply with detainer requests creates uncertainty for many local agencies because, under federal case law, local agencies are not required to comply with detainers. Further, holding individuals beyond the time they are eligible for release creates potential civil rights liability.
The term “sanctuary jurisdiction” is not defined in the Executive Order. Although the term “sanctuary city” is not defined by federal or state law, it is often used to refer to jurisdictions that have policies that restrict local enforcement of federal immigration laws and limit the expenditure of local resources in cooperating with ICE’s enforcement efforts.
Some cities, including the City and County of San Francisco and the County of Santa Clara, are challenging the Executive Order as it pertains to local government on Tenth Amendment grounds. The Tenth Amendment states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
These challenges, and others, remain in progress, and so, the issue remains unresolved. Given the uncertain state of the law, then, cities and other local jurisdictions must weigh their own policy objectives and community values against the risk that the federal government will either seek to cut off funding outright or prevail in the various legal challenges currently pending.
Ruben Duran serves as general and special counsel to public agencies throughout Southern California, including cities, special districts, school districts and special-purpose entities in health care, job training and development and air quality management. He is a member of the Cannabis Working Group at Best Best & Krieger, which advises the firm’s clients on all aspects of marijuana laws and regulations.