The United Divided States: San Francisco Sues Donald Trump for Sanctuary Cities Order

Amidst the well-placed outrage over Trump’s Executive Order selectively banning immigrants from seven Muslim-majority countries – including an array of critiques, lawsuits, and court decisions challenging its legality and wisdom – Trump’s Executive Order (EO) on Sanctuary Cities, which threatens to cut off federal funds to so-called “sanctuary cities,” has been somewhat overlooked. While at least one observer notes that what’s become known as the “travel ban” EO has provided cover for the Sanctuary Cities EO, it may well be that the latter turns more on symbolism than substance. Nonetheless, the threatened termination of federal funds prompted San Francisco to file suit against Donald Trump, making it the first city to challenge the president in court over the order, calling the order unconstitutional.

How did we get here? The term “sanctuary city” is itself somewhat of a misnomer today, in the sense that it now applies to a range of cities beyond its original context. It originally grew out of the church-centered movement that responded to the influx of Central American refugees who fled civil wars in the 1980s, but were denied asylum in the United States. Churches, synagogues, and other religious institutions came together to oppose the repatriation of refugees to the countries they had fled because they feared persecution. This movement became known as the Sanctuary Movement. At its height, over 150 congregations publicly defied the federal government, openly sponsoring and supporting undocumented refugee families, largely from El Salvador and Guatemala.

These religious activists drew on the emerging use of international human rights norms by U.S. advocates, invoking the principles of personal accountability developed in the Nuremburg tribunals, to justify what the federal government considered alien smuggling. Others in the movement referred to it as a new “Underground Railroad,” drawing on religious and moral principles of the 19th-century U.S. abolitionist movement, and building off of the experience of the 1960s with civil disobedience campaigns against racial segregation. During the Reagan era, the Department of Justice criminally prosecuted a small handful of the activists in the Sanctuary Movement.

San Francisco became a sanctuary city in 1989 in response to the Central American refugee crisis, but the goals behind its sanctuary city status today are far broader. The city’s Administrative Code Chapter 12H.1., “affirms that the City and County of San Francisco is a City and County of Refuge.” Additionally, Chapter 12I of the San Francisco Administrative Code emphasizes the importance of fostering “respect between law enforcement and residents” in particular “to ensure family unity, community security, and due process for all.”

Such sanctuary jurisdictions are popping up not only in blue states, like California, but even in deep red states, like Georgia, Louisiana, Alabama, as well as in the Rust Belt. As is true of numerous other cities – including New York, D.C., Chicago, Los Angeles, New Orleans, Santa Clara, Minneapolis, and Houston – San Francisco has enacted Sanctuary City laws. While these laws vary from city to city in scope, one element they share in common is a commitment to limit the use of local resources in implementing and enforcing federal immigration laws, which cities view as not only infringing on their sovereignty to define local policy, but as being at odds with local policy goals, such as building trust between local law enforcement and communities to more effectively reduce crime and improve public safety.

But, importantly, as the complaint filed by San Francisco last week points out, the city’s Sanctuary City Law does not “protect criminals or prevent people from being prosecuted for illegal acts.” Instead, the aims of the local laws are to “protect children by ensuring that their parents feel safe taking them to playgrounds, to schools, and to hospitals[;] protect families from being split up when parents of children born in the United States are deported[;] and protect the safety and health of all residents of San Francisco by helping to ensure that everyone, including undocumented immigrants, feels safe reporting crimes, cooperating with police investigations, and seeking medical treatment.” 

A 2009 Police Foundation national report warned that local law enforcement’s cooperation with the federal government’s controversial Immigration and Customs Enforcement (“ICE”) undermined trust that the local police had developed with communities. Moreover, a 2012 study, by University of Illinois researchers of several counties across the country, concluded that the cooperation of the police with ICE’s Secure Communities policy had created fear of local law enforcement among Latinos, further undercutting trust. Under President George W. Bush, the Secure Communities policy developed and created a framework requiring local jails to check fingerprints of everyone they took into custody against an FBI database of known immigrants and then notify ICE if there was a match. ICE could then issue a detainer request for the local jail to hold a suspect up to 48 hours beyond the time the suspect would otherwise be released, giving ICE time to investigate the detainee’s immigration status.

In 2013, deportations reached a high point, infuriating immigration advocates who noted that Secure Communities was not actually targeting dangerous criminals, as it had purportedly sought to do. In fact, more than half of deportees targeted by ICE had not been convicted of a crime. Connecticut paved the way in outlawing cooperation with ICE by enacting a May 2013 law prohibiting local law enforcement from detaining individuals based on ICE detainers once such individuals became eligible for release from custody, unless he/she had been convicted of a serious crime. California soon jumped on board in October 2013, adopting a similar law. Against a tide of rising resistance, President Barack Obama scrapped Secure Communities, replacing it with the Priority Enforcement Program (PEP), reigning in ICE’s ability to issue detainer requests except where individuals had been charged with violent crime. With PEP, deportations dropped by almost half in 2015.

Trump’s Sanctuary Cities EO reinstates Secure Communities. Section 9(a) of the Order also threatens to withhold unspecified federal funding to jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.” Subsection 1373(a) provides that “a local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual.” The Executive Order further defines a “sanctuary jurisdiction” as one “that willfully refuse[s] to comply with 8 U.S.C. 1373.”

San Francisco’s suit against the federal government alleges that it is in danger of losing federal funds under the EO. That is not obvious, however, because San Francisco may not be in violation of Section 1373. It does not appear that the city itself prevents its employees, at least on their own time and dime, from sharing information with the federal government about aliens’ citizenship and nationality. If that is true, then San Francisco is in compliance with section 1373, and there is no risk of any funding cutoff under Section 9(a) of the Executive Order. On the other hand, Chapter 12H.2.(a) of the San Francisco Administrative Code prohibits city employees from “assisting or cooperating, in one’s official capacity, with any investigation, detention, or arrest procedures, public or clandestine, conducted by the Federal agency charged with enforcement of the Federal immigration law and relating to alleged violations of the civil provisions of the Federal immigration law[.]”  That provision of San Francisco law might violate Section 1373, to the extent it prohibits San Francisco employees from sharing information regarding the citizenship or immigration status of any individual with federal immigration officials. If that is a 1373 violation, and if the federal government tells San Francisco that it is, and the city does not amend its practice, then San Francisco may be willfully violating Section 1373.  If that happens, then the EO will allow a funding cutoff, but only “to the extent consistent with law” and “as deemed necessary.” This wiggle-room language in the EO may allow the Trump administration to avoid a show down with state and city governments on the sanctuary jurisdiction issue.

Section 9(a) further empowers the Attorney General to take unspecified “appropriate enforcement action” against any entity that “has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal Law” – a warning that invokes (whether intentionally or not) memories of the Reagan era Justice Department’s criminal prosecutions of Sanctuary Movement activists. The latter part of this – implying that the AG might take “enforcement action” against cities that do not violate 1373 on its face, but that do otherwise “prevent or hinder the enforcement of Federal law” – raises questions.

First, it’s not clear what “enforcement authorities” the Attorney General has with regards to sanctuary jurisdiction, and any challenge to such “appropriate enforcement actions” will presumably have to wait until/if newly-confirmed Attorney General Jeff Sessions takes action. Second, in a memo from the Justice Department’s Office of Inspector General, issued in May 2016 (so under the Obama Administration), the Department endorsed the view that local jurisdictions hinder enforcement of federal immigration law if they do not honor immigration detainer requests.

In its complaint against Trump, San Francisco notes that it is cooperating with ICE under the reinstated Secure Communities policy by running fingerprints against the FBI database. However, California draws the line at enforcement of civil immigration detainer requests by ICE, which former California Attorney General Kamala Harris (now a California senator) interpreted as not mandatory, since they are issued by immigration officers, not judges, and are not supported by probable cause the way criminal warrants are. Other jurisdictions raise similar concerns, along with a concern that detaining individuals for ICE violates their 4th Amendment rights and undermines public safety due to the erosion of trust with local law enforcement.

If and when the Attorney General, in accord with paragraph 9(a), tries to “enforce” a so-called obligation that San Francisco help detain aliens, such enforcement action would likely be impermissible “commandeering,” prohibited under Printz v. United States.

While we have yet to see how the court will rule on San Francisco’s suit, the EO already seems to be backfiring in the court of public opinion. Since Trump’s election – following a campaign in which he promised to “end” sanctuary jurisdictions – more states and cities are declaring that they too are sanctuaries, “from progressive California to deep-red Alabama.” While one sanctuary city/county, Miami Dade, has surrendered to the EO, others, like Aurora, Colorado and Austin are doubling down on a pledge not to honor detainer requests from ICE. The police chief in Aurora contends “Our policy is not based on politics … it is based on public safety [and] our goal to ensure our city remains a safe place for all.” Meanwhile, the sheriff in Travis County says Austin won’t honor detainer requests, unless they’re for violent criminals, notwithstanding Texas Governor Greg Abbott’s controversial decision to cut off state aid to the county. And the number of sanctuary cities continues to grow, with Middletown, CT and Birmingham, Ala., recently joining the ranks following the signing of the EO. As of February 6, there are a staggering number of sanctuary jurisdictions – 39 sanctuary cities, 633 sanctuary counties, and five sanctuary states – perhaps rivaling the number of jurisdictions that adopted laws aimed at divesting funds in South Africa, in opposition to President Reagan’s policy of “constructive engagement” with the apartheid era regime.

Following the Civil War, and during the Civil Rights era, “state rights” was invoked as a way to defeat equal rights. Today, a new assertion of state authority is emerging – one in which state (and local) governments are paving the way to protect rights of individuals where the federal government is failing. This phenomenon of subnational governments asserting more human rights-oriented, immigrant-friendly policies is apparent not only in the United States (in response to President Trump’s “America First” policies), but also in Europe, where, in the aftermath of Brexit, Scotland and Northern Ireland have indicated a desire to maintain greater openness to immigration and more integration with regional neighbors. Far from being “fair-weather federalists,” state (and local) efforts within the United States to put out a welcome mat for politically vulnerable immigrants merely proves the insight of the Framers of the Constitution that dividing power among levels of government (setting “ambition against ambition,” as Madison noted in Federalist Paper No. 51) helps to secure individual rights.

Image: Getty

 

About the Author(s)

Catherine Powell

Professor at Fordham Law School, Adjunct Senior Fellow at the Council on Foreign Relations (CFR), Member of the Board of Editors for the American Journal of International Law. Follow her on Twitter (@ProfCatherine).