Republicans and Democrats in the U.S. Congress are in intense negotiations over what conditions might be imposed on the Department of Homeland Security as part of the approval process for its fiscal 2026 budget, after they separated DHS from other appropriations legislation to end a brief partial government shutdown. That agreement, which allowed the rest of the funding bill to pass and be signed by President Donald Trump, set a new deadline of Feb. 13 to adopt additional legislation for full funding of DHS. The negotiations promise to be difficult, with both sides bringing different and often competing demands to the table.
With the Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) excesses seen – by the world – in Minneapolis, congressional Democrats are seeking certain limits on immigration enforcement operations, from removing facemasks and requiring clear identification, to prohibiting DHS officers from entering homes without a judicial warrant and returning to the former policy of largely avoiding immigration enforcement operations near schools, churches, hospitals, and child care facilities. Senate and House Democrats have said they won’t vote to fund DHS past the Feb. 13 deadline without major restrictions on immigration enforcement activities.
One sticking point sure to arise between the two parties is the issue of so-called sanctuary cities, or sanctuary jurisdictions; it will be tendentious in part because there is no legal definition of the term. Generally, sanctuary policies aim to improve public safety, engender community trust, especially in communities with large immigrant populations, and separate local policing from immigration enforcement. Some Republicans have demanded action against such policies, arguing that they constitute a failure to cooperate with federal law enforcement.
In light of the ongoing negotiations, it’s important to understand what “sanctuary cities” are, and are not, and why it’s impractical – and likely would be unsuccessful — for Congress to demand changes to local laws and ordinances or how they’re enforced. In addition to the undefined use of the term, states, cities, and towns have laws, ordinances, and policies that limit, and in some cases restrict, each jurisdiction’s level of cooperation with federal immigration authorities. Those laws and policies cannot be simply changed by congressional fiat, and in light of DHS’s harsh enforcement tactics, and federal threats, sanctuary jurisdictions have little incentive to change their laws and policies or how they carry them out.
Error-Prone “Lists”
Adding to the confusion, the Department of Justice (DOJ) and DHS can’t even agree on which jurisdictions should be declared “sanctuary.” On May 29, 2025, DHS published a list of nearly 400 counties it considered sanctuary jurisdictions. It was riddled with errors and was withdrawn days after it was published and is no longer available at the DHS webpage where it appeared. Then, on Aug. 5, 2025, DOJ published a list of sanctuary jurisdictions naming 12 states and the District of Columbia, four counties, and 18 cities. A DHS press release dated May 29, 2025, was later updated with a link to a DOJ webpage with its aforementioned list.
DHS’s failed attempt at publishing a list of sanctuary jurisdictions in 2025 is similar to what happened in 2017, at the beginning of the first Trump term, when a published list contained errors and inaccuracies, despite updates, and law enforcement and other officials from some of the named locations complained about their inclusion. I served as press secretary and spokesman for DHS at the time, and the issue of “sanctuary cities” was one of the major flash points between the administration and state and local governments, in addition to the focus on the southwest border and the building of the wall. While administration officials at the White House and DHS threatened to withhold federal funding from those jurisdictions, DHS also published, for a short time, a list of jurisdictions with sanctuary laws and policies it opposed. The list was short-lived because of the number of errors in the initial versions, and because of backlash from state and local law enforcement agencies that felt the “naming and shaming” by the administration was counter to the stated desire for cooperation. Local law enforcement officials also felt it was unfair to “call them out” when they were simply following the laws and ordinances governing their jurisdictions. DHS ultimately pulled down those lists.
While some state and local laws and policies on cooperation with DHS may be similar, they can vary widely. Some local jurisdictions restrict the use of non-federal property such as city parking lots or buildings for immigration enforcement actions or limit the sharing of information on immigrants. Some prohibit local law enforcement from asking individuals their immigration status or from accepting “detainers,” requests from Immigration and Customs Enforcement (ICE) to local law enforcement asking them to hold suspected undocumented immigrants in custody for up to 48 hours after a court orders the person be released, to allow ICE to take control of the detainee, normally for purposes of deportation. ICE prefers to take control of detainees in a secure setting, like a jail or prison, rather than making an arrest in the community. Boston, for example, has regularly refused ICE’s detainer requests. However, like sanctuary policies generally, some jurisdictions will accept some detainers but not all, often based on the types of criminal convictions.
The issue of detainers was also one of federal, state, and local conflict during the first Trump administration. One of the issues for cities and states is that they are requests, not orders; they are not issued by judges or magistrates, but only by designated immigration officers, with approval from ICE. Local laws may prohibit holding individuals in custody after their scheduled release, and those holds may open the local authority to liability for unlawful detention. Furthermore, due to workload and other factors, ICE officials sometimes do not arrive within the 48-hour period to take custody, further putting local authorities in possible legal jeopardy.
Efforts to Force Changes
Those same factors are in place today and will play a key role in Congress’s ability to press for changes in state and local laws or ordinances or seek ways to override them. Trump’s threats to again attempt to use cuts of federal funding to force changes to sanctuary policies are likely to run into strong resistance, not just from congressional Democrats but from state and local officials and, as Minneapolis has shown, the public, which has registered distinct disapproval of ICE tactics in recent weeks. In addition, courts have recently ruled that sanctuary policies are lawful and constitutionally protected. Furthermore, efforts in Trump’s first term, and again in the past year, to cut off federal funding to states and communities with sanctuary policies have repeatedly been blocked by the courts.
With the Feb. 13 deadline fast approaching, both sides have dug in on their competing views and demands. Without a funding agreement – and both parties seem to be firmly opposed to another short extension to buy more time – the parts of DHS not principally involved in immigration, such as the Transportation Security Agency, U.S. Coast Guard, and the Federal Emergency Management Agency, would have to furlough staff deemed non-essential and many of their activities would shut down. Notably, Trump’s “One Big, Beautiful Bill,” signed into law on July 4, 2025, provides multi-year funding for ICE and CBP for border and immigration enforcement activities, so those activities would continue even with a lapse in full appropriations for DHS.
Unless the administration and congressional Republicans back off threats that have proved unsuccessful or been stopped by the courts, and Democrats remain united on changes to ICE and Customs and Border Protection policing policies, full funding for DHS is likely to end on Valentine’s Day.
