The Trump administration keeps trying to punish sanctuary cities that don't cooperate in enforcing federal immigration policy, even though the feds don't have the authority to demand all that much.
The latest news is that the Department of Justice will attempt to tie a federal crimefighting block grant fund to three demands. Cities or states that want to receive the money must do the following:
- Prove compliance with federal law that bars cities or states from restricting communications between the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) about the immigration or citizenship status of a person in custody.
- Allow DHS officials access into any detention facility to determine the immigration status of any aliens being held.
- Give DHS 48 hours' notice before a jail or prison releases a person when DHS has sent over a detention request, so the feds can arrange to take custody of the alien after he or she is released.
At stake is access to money from the Edward Byrne Memorial Justice Assistance Grants (Byrne JAG) Program, which distributed nearly $275 million in federal funds to state and local law enforcement agencies in 2016.
The first demand is not new. It refers to the only federal law that truly matters when we're talking about sanctuary cities. States and cities cannot be forced to assist DHS and ICE in detaining and removing people who are in the country illegally. Detention "orders" are actually just "requests."
When the Department of Justice actually began investigating sanctuary cities, it turned out that only a handful were even potentially operating in defiance with the federal law referenced above. Only eight cities and one county have policies that conflict with the federal law and block law enforcement officers or other government officials from communicating with the feds about an alien's immigration status. That's it.
The second and third demands are essentially acknowledgments that cities can't be forced to assist. Instead, they're being told to get out of the way if they won't help.
President Donald Trump has already attempted once, via executive order, to threaten to withhold federal grant funding from sanctuary cities. A federal judge blocked that order because it was overly broad, lacked due process, violated the Tenth Amendment, and violated the separation of powers between the legislative and executive branches.
This new guidance is more narrowly tailored, since the Department of Justice has leeway in how it distributes the grant money. But note that the funding is for all sorts of crimefighting and court projects that have nothing to do with immigration enforcement. Some of it also goes to things like drug task forces and prohibition-fueled nonsense, so maybe losing some of that money is for the best. Obviously, the Justice Department is hoping the threat will create enough of a wedge between law enforcement agencies and their ruling cities and states to force cooperation.
Trump and Attorney General Jeff Sessions remain heavily invested in trying to convince (or assure) their basis that illegal immigrants are a threat to Americans. Sessions in his announcement of this new guidance cynically attempted to blame the existence of sanctuary cities for the terrible weekend human trafficking tragedy where 10 people died after being stuck in the trailer of a truck in a San Antonio parking lot. But it's not sanctuary cities that cause human trafficking. The trafficking is the direct result of how difficult the federal government makes it for immigrants to cross borders legally.
Meanwhile, in a speech in Ohio last night, Trump presented illegal immigrants essentially as the monsters under your teenage daughters' beds:
The predators and criminal aliens who poison our communities with drugs and prey on innocent young people, these beautiful, beautiful, innocent young people will, will find no safe haven anywhere in our country. And you've seen the stories about some of these animals. They don't want to use guns, because it's too fast and it's not painful enough. So they'll take a young, beautiful girl, 16, 15, and others and they slice them and dice them with a knife because they want them to go through excruciating pain before they die. And these are the animals that we've been protecting for so long.
That's not even remotely close to true. In fact, ICE's own attempt to document all the criminals allegedly being protected by sanctuary cities has showed otherwise. Their report showed that many of the people the federal government claimed were being shielded from deportation had been charged but not actually convicted of crimes, or had been charged with nonviolent crimes like prostitution or drug possession. Even taking all that into account, sanctuary cities generally don't just discount detainer requests out of hand. Many of them simply also require a court order or a warrant before they'll cooperate.
In fact, Massachusetts' Supreme Court just ruled on Monday that the state's officers do not have the authority to detain people just on the basis of request to do so from ICE officials. The court ruled that continuing to hold a man after his criminal case was dismissed in order to hand him over to ICE was tantamount to an arrest, and that court officers lacked legal authority to hold him.
Such a ruling doesn't necessarily conflict with the new DOJ guidance because it doesn't require local police to honor detainer requests. But it does raise the question of how its 48-hour notification rule can possibly be adhered to in cases where a person's charges get dismissed.