Attorney General Jeff Sessions, whose future in his job is a bit uncertain right now, issued a memo two weeks ago clarifying that he'd employ a narrow definition of sanctuary cities when determining which cities to target for defunding. This might make it easier for the Trump administration to defend its executive order cracking down on these cities in court. However, that doesn't mean that its efforts to coax, cajole and coerce local cooperation for immigration enforcement are constitutionally unproblematic. In fact, they may pose the biggest challenge to federalist principles since the Civil Rights era.
Following the July 2015 murder of Kate Steinle by a clearly deranged undocumented immigrant in San Francisco, a sanctuary city, then-candidate Trump declared that he would end sanctuary cities. "Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars," he assured.
But exactly which jurisdiction counts as a sanctuary city is up for debate. There is no definition in law or regulation. According to the most common usage of the term, these are cities that refuse to honor "detainers" issued by the Immigration and Customs Enforcement agency to hold undocumented Immigrants until its agents can take them away. However, several federal courts have ruled that local authorities can't detain anyone—even undocumented immigrants—for longer than warrants based on the infraction for which they were brought in without running afoul of the Fourth Amendment.
This opens communities to lawsuits, which they are understandably eager to avoid. But that's not the only reason that many of them decline to honor these detainers. They also argue that detainers distort their crime fighting priorities, forcing them to divert precious law enforcement resources from bigger violent crimes to minor non-violent infractions. And in immigrant-heavy communities, such efforts breed fear and distrust of the local police, discouraging people from reporting serious crimes.
More to the point, as a matter of law, detainers are merely requests, not legal orders. And the federal government cannot defund cities for not honoring something that it cannot order.
That's why a California judge last month halted the implementation of the administration's executive order, noting that, as written, it was too ambiguous and could potentially target jurisdictions that merely refuse to obey detainers.
Sessions' new guidance tries to address that objection by clarifying that the order's defunding threat would apply only to localities that violate 8 U.S.C. Section 1373. This law prohibits jurisdictions from barring their officials from sharing immigration and citizenship information with federal authorities.
This likely makes the executive order more defensible in court. But here's the thing: it'll apply only to a handful of cities since there are very few cities that actually bar such information sharing. But even they can ultimately escape the defunding threat by simply opting not to collect this information in the first place. The Justice Department last week asked the court to vacate its order based on this exact argument—the order, and the memo, essentially do nothing.
Even though the prospects of a legal defeat may have forced this administration to water down its anti-sanctuary city executive order, that does not mean that it has given up on trying to commandeer a local immigration enforcement force. Earlier this year, ICE started issuing—and updating every week—a "shame list" of jurisdictions that decline to honor its detainer requests. However, it paused updating this list in April after only three weeks when some cities objected that the list contained significant errors, including on the list cities that honored detainers.
But that does not exhaust the administration's efforts. Its recently released budget calls Congress to pass laws that would make detainers mandatory and expand the list of federal funds for which immigration cooperation is legally required. But even with the blessing of Congress, the law itself would be subject to constitutional challenge because of the 10th Amendment's anti-commandeering principle.
Additionally, the administration is reinstating the 287(g) program that allows cities and states to voluntarily sign up with the feds for immigration enforcement activities. Indeed, for every sanctuary city that refuses to cooperate with the feds, the administration is trying to sign up a 287(g) city.
Under this program, state and local law enforcement agencies can receive training in immigration law from the Department of Homeland Security and act as immigration agents to investigate, arrest and detain immigrants. The program itself has withstood court challenge, since it is voluntary, but that does not mean it has not met problems in implementation. In fact, the Obama administration had ended most of these agreements after charges of civil rights abuses surfaced not just by the likes of Arizona Sheriff Joe Arpaio who notoriously used his powers to tyrannize the Latino community—but other jurisdictions also faced civil rights lawsuits due to overzealous or inadequately trained officers making ill-advised immigration arrests based on little more than racial profiling.
And there's more. For the first time, the Trump executive order would use such deputized officers not just in the interior to apprehend criminal aliens but also at the border to snag unlawful entrants, something that has been an uncontroverted federal responsibility. Some states, notably Texas, have tried on their own to "assist" federal Border Patrol agents by deploying state law enforcement personnel along the border. However, the Border Patrol has in the past been deeply uncomfortable and skeptical about such assistance because state police lack the training to properly coordinate operations, especially in remote areas sometimes resulting in conflicting operations and confusion as to who the real authority is. (Hence, even when National Guard troops were deployed on the U.S.-Mexico border in the early 2000s, they were mostly placed in subordinate roles such as back office administrative work and fence-mending.)
The Trump administration is trying to augment federal immigration agents with state and local law enforcement by hook or by crook. Even though Attorney General Sessions watered down his sanctuary cities executive order to avoid getting into constitutional hot water, DHS continues to push 287(g) agreements. Those efforts, along with the other new measures the administration is proposing to co-opt local resources for federal ends, will raise their own constitutional and legal problems.
No matter how you look at it, trying to turn local cops into a federal deportation force is likely to mean many more legal showdowns.
Theresa Cardinal Brown is director of immigration policy at the Bipartisan Policy Center and a former policy advisor at U.S. Customs and Border Protection and the Department of Homeland Security.