The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[UPDATE 3-31-17 A couple of responses to reader comments. To begin with, I didn't mean to give short shrift to the argument that the Administration's attack on "sanctuary cities" is based on an (unconstitutional) attempt to co-opt, or commandeer, local law enforcement resources for purposes of assisting federal law enforcement activities, in violation of the 10th Amendment. Or rather, I did mean to give it short shrift, but I didn't mean to thereby imply that it's not a very powerful and important argument against what the Adminstration is doing; it's just that (a) I have nothing to add on that beyond what Ilya Somin, in the blog postings I cited, has already put together on that score in his earlier posts, and (b) I wanted to focus attention on a different issue surrounding the "sanctuary city" question.
Second, I have a few thoughts about two of the arguments put forward by those who disagreed with my assessment of Administration policy: First, that I vastly overstate the significance of judicial oversight over probable cause determinations in the real world; the police throw people in jail all the time without a pre-arrest probable cause determination of any kind, and whatever showing they need to make won't take place until several days after the arrest, at arraignment. So we're already "detaining" people without the participation of the judiciary—so what's the big deal about these ICE detention requests? And second, these are undocumented non-citizens we're talking about here—"illegal aliens." Who says that the 4th Amendment protections extend to them?
On the first: sure, I'm just giving an idealized picture of how the 4th Amendment works; in practice, the exigencies of police and prosecutorial procedures being what they are, one hardly ever actually sees any real judicial oversight until after there's been a "detention period," and even then, that oversight is almost always cursory at best. All true. But it's one thing to admit that we rarely live up to the ideal, and quite another to enshrine that as a kind of prosecutorial entitlement in federal law. The principle embedded in the Administration position is: when the federal prosecutor (ICE) says someone is a Bad Guy, you should detain him, on that say-so alone, for up to 48 hours. That's not a principle I'm comfortable with. It would not, by itself, turn the U.S. into a police state. But it takes what I believe would be a significant step along that path.
On the second: while the law surrounding the extent to which the 4th Amendment protects undocumented aliens while they are in the United States is complicated and messy at the margins, there is no question that many, perhaps most, of the individuals who are subject to ICE detainer requests are fully protected by both the due process clause of the 14th Amendment and the 4th Amendment protection against unreasonable seizures. The governing standard, from United States v. Verdugo-Urquidez, holds that the constitutional protections apply to "persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." See also Zadvydas v. Davis ("[C]ertain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent"). There is little doubt that a large number of persons subject to ICE detention orders have a "sufficient connection" to the country—having, for example, lived here, whether lawfully or otherwise, for years—to meet the standard.
And that is true even if they are, in fact, "illegal aliens." That is, I suppose, part of my point: ICE may believe Mr. X is violating US immigration law, but just because ICE says so, that doesn't make it so.
Finally, some commenters suggested that I'm not sufficiently mindful of the cases of illegal aliens who have committed all manner of serious crimes—murders, rapes, assaults, etc. It's true that illegal aliens commit crimes, some of them serious. So do US citizens. I've got no problem, generally speaking, with adding deportation to the punishment for anyone who has been convicted of a serious crime who is in the country unlawfully. But the ICE detainer requests aren't targeted to people convicted, or even suspected, of committing a serious crime; they're targeted against those suspected of violating US immigration law, e.g., overstaying their visa. Unless you think that people in this undocumented immigrant category are, as a class, more likely to commit such serious crimes—and the data we have strongly suggests otherwise—this argument can hardly justify these detention procedures.]
Or perhaps "Fourth Amendment-abiding cities," or "PSR cities" (police-state resistant). Calling them "sanctuary cities" is misleading, because it makes it sound as though they're taking some extraordinary step, drawing a line in the sand and declaring that the law cannot enter inside the boundary, in the manner of, say, the "sanctuary" provided by churches in the Middle Ages.
President Trump in February in the White House. (Saul Loeb/Agence France-Presse via Getty Images)
There's a lot of complicated law here, with many variations on exactly how and what cities are doing, and many important issues—constitutional and statutory—involved. Co-blogger Ilya Somin has provided (here and here) an excellent roadmap and summary for anyone who wants to understand the full constitutional dimensions of the issue.
But we shouldn't let the legal complexity obscure just how terrible, and how violative of cherished constitutional principles, the administration's policies are.
Let's start with first principles. Suppose that law enforcement officers in some local jurisdiction—let's call it "Allentown, Pa."—and take someone—let's call him "Ernesto Galarza"—into custody for violating some provision of Allentown's criminal law.*** They need, of course, to have probable cause to believe that Galarza has committed the crime with which he is being charged before they can "seize" him, and they will have to persuade a neutral magistrate—typically a state court judge—that such probable cause exists before the seizure is deemed to be compliant with the constitutional requirements of due process.
*** See Galarza v. City of Allentown (CA 3, 2014) where the U.S. Court of Appeals for the 3rd Circuit held that Allentown had acted unconstitutionally (and was liable for monetary damages) for complying with the kind of order (an Immigration and Customs Enforcement detention request) that Trump/Sessions are trying to resuscitate, as discussed below.
Probable cause, with judicial oversight. If there is a more fundamental constitutional protection against abusive and tyrannical prosecutorial/police actions, I'm not aware of it. The cops can't just toss you in jail because they think you have committed a crime, or because they don't like you, or because they think that you might have information about someone else's commission of a crime. The involvement of an independent judicial overseer is our first line of protection against police and prosecutorial overreach.
There are places, of course, where the police and prosecutors do have the power to take you into custody without judicial (or any other) acquiescence. We call those places, appropriately enough, "police states."
Back, then, to our "sanctuary cities." Sessions complained about (and threatened to de-fund) "states and cities [that] have adopted policies designed to frustrate the enforcement of our immigration laws":
"This includes refusing to detain known felons under federal detainer requests, or otherwise failing to comply with these laws. For example, the Department of Homeland Security recently issued a report showing that in a single week, there were more than 200 instances of jurisdictions refusing to honor Immigration and Customs Enforcement (ICE) detainer requests with respect to individuals charged or convicted of a serious crime. The charges and convictions against these aliens include drug trafficking, hit and run, rape, sex offenses against a child and even murder."
These "ICE detainer requests" are, not to put too fine a point on it, end runs around those basic constitutional protections against arbitrary prosecutorial action. Here's how they work. ICE enters into agreements with local law enforcement agencies under which it (ICE) is provided with identifying information—name, Social Security Numbers, fingerprints—concerning individuals who have been arrested in the local jurisdiction. If ICE believes that the individual has violated federal immigration law, it issues a detainer request to the local law enforcement agency under 8 CFR 287.7:
(a) Any authorized immigration officer may at any time issue a Form I-247, Immigration Detainer … to any other Federal, State, or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible. . . .
(d) Temporary detention at Department request. Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.
So there you have it. Even if the alien has not been "otherwise detained" by local law enforcement, he/she shall be held in custody just on the say-so of the police (!), for up to 48 hours. No warrant required! No probable cause required! No need to deal with those pain-in-the-ass judges, who keep insisting on "due process" and the like. Hey, it's just 48 hours—and they're aliens, for crying out loud, and who give a damn about their constitutional rights?
If that doesn't scare the bejeezus out of you, you have a very different attitude toward police power, and police states, than I do. Jurisdictions that refuse to honor such requests are not providing "sanctuary" for people who break the law; they are providing "constitutional protections" for those individuals. The administration has started publicizing those jurisdictions here, on the ICE website, to try, I suppose, to shame them into compliance. But to my eyes, the list—Ithaca N.Y.; Travis County, Tex.; Boulder County, Colo.; Iowa City Iowa; Bernalillo, N.M.—is an honor roll of sorts of cities and counties that will not let themselves be swept up into Trump-induced hysteria about undocumented immigrants. More power to them.