The Volokh Conspiracy

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The 'sanctuary cities' executive order: Putting the bully back into 'bully pulpit'


[UPDATED BELOW, 5-11-17]

Co-blogger Ilya Somin has thoroughly reviewed the decision by the ND Cal. court to enjoin enforcement of President Trump's "sanctuary cities" executive order; I commend his posting to you, and I agree wholeheartedly with his analysis and with his conclusion (see also here) that the decision represents "an important victory for both federalism and separation of powers." [Also worth reading, if you like that sort of thing, is Judge William Orrick's opinion in the case—it's an impressive piece of judicial work.]

I realize that these days we lurch from one crisis to the next from day to day and that the order is already stale news. But I just want to focus on one small point, because it nicely illustrates, I think, the intellectual dishonesty, the disrespect for the niceties of the English language, and the "malevolence tempered by incompetence," in Ben Wittes's memorable phrase, that have characterized so much of what this administration has said and done during the first 100 days of its existence.

The most extraordinary and telling sentence in Orrick's opinion is this one:

The Government's primary defense is that the Order does not change the law, but merely directs the Attorney General and Secretary to enforce existing law.

That was the government's primary defense? That the executive order, as the court put it later, "carries no legal force" and says only that "we're going to enforce existing law"? Did we really need an executive order (not to mention all the hoopla surrounding it) to say that? The executive order itself says that "sanctuary cities" (which it does not define—see below) "have caused immeasurable harm to the American people and to the very fabric of our Republic," and their response is: "We're going to enforce the law"? That's what all the fuss was about?

Well, yes and no. Yes, in that this was indeed the position that the government attorneys took in the litigation, in a desperate attempt to save the order from being struck down. To see how and why this makes sense, let's start with the operative language from the order:

Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. … It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373. 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 Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law. [emphasis added]

It seems pretty straightforward: The attorney general will take "appropriate enforcement action" against jurisdictions that don't "comply with 8 USC 1373" or "hinder the enforcement of federal law," including "ensur[ing]" that they are "not eligible to receive Federal grants."

The Justice Department lawyers candidly conceded that if you read it that way—the way it's actually written—it's a substantial change in the law. Under current law, jurisdictions that "refuse to comply with 8 USC 1373" or "hinder enforcement" of federal immigration law are not ineligible to receive federal grants.

Furthermore, the executive order cannot, constitutionally, make them so; the Justice Department lawyers conceded that as well, that the president has no unilateral right to impose conditions on federal funding and that the order is blatantly unconstitutional to the extent it purports to do that.

So if it doesn't mean what it seems to say, what does the administration think it means?

Only that jurisdictions that are not complying with sec. 1373 shall be ineligible to receive federal grants in those programs that are already made conditional on compliance with sec. 1373.*** The Order, as the Justice Department "explained for the first time at oral argument," is "merely an exercise of the President's 'bully pulpit' to highlight a changed approach to immigration enforcement."

There are three relatively minor programs that already condition receipt of funds on compliance with sec. 1373: the State Criminal Alien Assistance Program ("SCAAP"), the Edward Byrne Memorial Justice Assistance Grant Program ("JAG"), and the Community Oriented Policing Services Grant Program (COPS).

[Oh, and that language about the attorney general taking enforcement actions against any jurisdiction that "prevents or hinders" enforcement of federal immigration law? No change there either, because the order only authorizes "appropriate" enforcement action against such jurisdictions—i.e., whatever we're already authorized to do, we will do.]

So it's just the "bully pulpit." No change in the law. It's a press release masquerading as an executive order: "We're gonna get tough with all those sanctuary cities, by enforcing existing law against them."

But that, too, is bluster and baloney. The administration would like you to think that "sanctuary cities" are "violating federal law" when they "willfully refuse to comply with 8 USC 1373." But take a closer look at sec. 1373:

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

Notice that it doesn't require jurisdictions to do anything. Sec. 1373 prohibits a prohibition; jurisdictions may not "prohibit" or "restrict" government officials from sending information "regarding the citizenship or immigration status … of any individual" to the INS. It does not require the transmission of such information—it simply prohibits jurisdictions from prohibiting the transmission of such information.

That's a pretty important distinction, because—again, incontrovertibly, even in the eyes of the Justice Department lawyers—the Constitution prohibits the federal government from requiring states and localities to expend their resources on assisting federal law enforcement, under well-established constitutional law under the 10th Amendment.

UPDATE 5-11-17: George Will said it better than I:

The executive order is either a superfluous nullity or it is constitutional vandalism. It says cities "that fail to comply with applicable federal law" shall "not receive federal funds, except as mandated by law." A U.S. district judge in Northern California has held that the executive order is "toothless" if it pertains to merely a few federal grants, and even they do not unambiguously state in their texts that funding is conditional on active cooperation with federal immigration enforcement. If, however, the order extends to other federal grants, it violates the separation of powers: The spending power is vested in Congress, so presidents cannot unilaterally insert new conditions on funding.

The administration does not want you to understand this. It wants you to think that sec. 1373 requires jurisdictions to cooperate with federal ICE agents (it does not) and that a jurisdiction that doesn't cooperate is "refusing to comply" with sec. 1373 (it is not), and that those jurisdictions are going to lose billions of dollars of federal money (they will not).

More to the point, it wants city managers, and city council members, and county commissioners, and local police officials, to believe all that BS, because if they believe all of that, they'll enter into "voluntary" arrangements with ICE to help them enforce federal immigration law lest they lose federal money—the way, for instance, that Miami-Dade County did right after the order was promulgated.

Miami-Dade commission votes to end county's 'sanctuary' status; First 'sanctuary city' caves to Trump demands

Trump signed an executive order on Jan. 25 to withhold federal grants from jurisdictions that don't comply with federal immigration authorities….The next day, [Miami-Dade County Mayor Carlos] Gimenez issued a directive to the head of his jail to begin honoring all "detainers" issued by ICE—requests that ICE makes to a local jail to detain somebody for up to 48 hours to give federal agents time to investigate the person's immigration status or pick them up. Gimenez said the move was necessary to ensure that the county doesn't lose out on $355 million it receives in federal funding. The county commission agreed, voting 9-3 on Feb. 17 to adopt Gimenez's decision.

It is bullying, plain and simple. We'll scare you into thinking the consequences of noncooperation will be dire (though we know—at least, our lawyers know—that that is bluster and BS) so that you'll cave in to our demands, notwithstanding the costs that it will impose on you (for which we will not reimburse or indemnify you) and the wreckage it imposes on your immigrant communities. It is reprehensible, and, once again, we have a federal judge to thank for pushing back against it.