On Feb. 24, Oakland Mayor Libby Schaaf stood in front of television cameras and informed city residents that “multiple sources” had told her that U.S. Immigration and Customs Enforcement (ICE) officers were planning raids across the Bay Area in the next few days. Schaaf explained this announcement as her “moral and ethical duty” to “protect public safety” and allow residents “to live without fear or panic and know their rights and responsibilities as well as their recourses.” ICE Deputy Director Thomas Homan disagreed, stating that hundreds of “criminal aliens” remained at large “thanks to the mayor’s irresponsible decision.”

There are, of course, political implications to Schaaf’s decision to publicly alert residents of upcoming federal law enforcement operations. An example of the political sensitivity of this topic can perhaps be found in the abrupt resignation of ICE spokesman James Schwab, who quit over statements made by Homan and Attorney General Sessions regarding Schaaf’s actions that Schwab said were “false” and “misleading.” For the purposes of this article, however, I am interested only in the legal questions that might be raised by the Oakland mayor’s (quasi-)official actions and the state and local policies reflected in this context.

While many Trump administration policies have generated significant backlash from citizens and advocacy groups, it is noteworthy just how much resistance some state and local governments have exhibited toward President Donald Trump’s immigration policies. Immigration-related federalism questions predate the current administration, of course, but prior to the current administration, they generally followed a model where state or local authorities inserted themselves into immigration policy and enforcement by creating new criminal and civil laws designed to regulate immigration at the state and local level. For example, in 2010, the Arizona state legislature passed S.B. 1070, the purpose of which was to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States,” and, inter alia, gave state and local law enforcement the power to arrest without a warrant anyone “the officer has probable cause to believe…has committed any public offence that makes the person removable from the United States.” Similarly, between 2006 and 2007, the city of Hazleton, Pa., enacted ordinances that made it unlawful for any person to “knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct” any person without work authorization “to perform work in whole or in part within the City,” and also made legal immigration status a condition precedent to entering into a housing rental agreement within Hazleton.

In both of the above examples, federal courts held that the relevant statutes were preempted by federal immigration law. Briefly, federal preemption doctrine originates in the Supremacy Clause of the U.S. Constitution (art. VI, cl. 2), and renders any state or local law unenforceable that either conflicts with existing federal law or seeks to regulate in a field where Congressional regulation “left no room for the States to supplement it.” In Arizona v. United States, 567 U.S. 387 (2012), the federal government challenged S.B. 1070 as preempted. The Court, in a 5 to 3 decision (Justice Elena Kagan did not take part), held that the provisions that created a state law crime for being unlawfully present in the United States, for working or seeking work when not authorized to do so, and authorizing the warrantless arrests of anyone the officer reasonably believed to be removable from the United States were preempted. In Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013), plaintiffs challenged the city’s immigration ordinances, and the Third Circuit Court of Appeals, citing Arizona, held that Hazleton’s immigration-based housing and employment provisions were preempted, as well. The City of Hazleton appealed the court’s decision, but the Supreme Court denied certiorari.

Examples like Arizona and Hazleton illustrate efforts by some state and local governments to expand their authority to enforce immigration laws as a reaction to Obama administration immigration policies those local governments felt were too lax. In contrast, current state and local reactions to Trump administration immigration policies are based on a widespread perception that federal immigration policy under Jeff Sessions’ leadership of the Justice Department has become overzealous, racist, and xenophobic, and serves to destabilize communities, creating more problems for states and cities than they solve.

Some city governments have reacted by enacting ordinances that limit their agencies’ participation in certain federal immigration efforts, joining efforts by cities and counties throughout the United States that began in the 1980s as challenges to the Reagan administration’s policy of denying asylum to refugees of the wars in Central America. The rationale behind these “sanctuary city” policies is based on the local governments’ desire for safer communities by fostering trust and cooperation between immigrant communities and the police. It should be noted that “sanctuary city” is not a legal term, and often carries with it the implication that cities enacting such ordinances prohibit all cooperation with ICE and other federal immigration authorities, which is not the case. Rather, these policies, variations of which have been adopted in cities such as Chicago, Seattle, San Francisco, Philadelphia, and New York, are based on the idea that communities are both safer and better off when immigrants do not fear adverse consequences to themselves or to their families from interacting with local law enforcement officers. These policies do not, however, limit cooperation with federal agencies in criminal justice efforts.

The Trump administration has reacted to these “sanctuary city” policies by using the power of the federal purse. On Jan. 25, 2017, President Trump issued Executive Order No. 13768, which prevented certain jurisdictions from receiving federal funds if they fail to comply with 8 U.S.C. 1373, which states that:

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.

Further, in July 2017, Attorney General Sessions announced that a federal grant meant to support state and local law enforcement efforts by providing funds for equipment, personnel, and training, would now have two new immigration policy-related conditions. First, local authorities must provide federal agents with advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations. Second, local authorities must provide immigration agents with access to city detention facilities and individuals detained therein.

Many of the “sanctuary jurisdiction” cities targeted by Trump’s Executive Order, including San Francisco, Chicago, Seattle, and Philadelphia, challenged these new conditions on federal funding for local law enforcement as unconstitutional, and went to court seeking preliminary injunctions enjoining the enforcement of the Executive Order and Attorney General Sessions’ pronouncement. While the courts in the respective cases varied somewhat in their reasoning, all but one of the courts (Seattle’s case is still pending) have granted preliminary injunctions against the withholding of federal grant monies based on these new “sanctuary city” conditions. See City of Chicago v. Sessions, 264 F.Supp.3d 933 (N.D. Ill. Sep. 15, 2017); County of Santa Clara v. Trump, 275 F.Supp.3d 1196 (N.D. Cal. Nov. 20, 2017); City of Seattle v. Trump, Case No. 17-497 (W.D. Wash. 2017); City of Philadelphia v. Sessions, 2017 WL 5489476 (E.D. Penn. Nov. 15, 2017). One of the key points of disagreement between these courts relates to whether the Tenth Amendment “anti-commandeering” principle, a federalism doctrine built around questions of state vs. federal sovereignty (the details of which are beyond the scope of this article, but may be addressed in later articles), prohibited federal immigration officials from conscripting state and local authorities into enforcing federal laws.

With this context, could Mayor Schaaf’s public warning of imminent ICE raids result in legal liability for her or her office? It is possible that she could be considered an accessory after the fact if a case could be made that she obstructed justice by warning of impending ICE raids. 18 U.S.C.A. § 3 holds that, “Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” The term “offense” in this context is defined as “any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.” Being in the United States unlawfully is not itself a criminal office, but a civil one.

So, for example, if someone was living in Oakland after overstaying their visa, they would be guilty only of a civil violation. If, however, that person had entered the United States illegally, they would be committing a crime. Schaaf has stated that she consulted legal counsel before making her statement, and because she obtained the information about the impending ICE raids from “unofficial sources” rather than formal government channels, she does not believe she obstructed justice. The question thus becomes whether Schaaf had actual knowledge of people in Oakland who had entered the country illegally.

Homan, the ICE deputy director who is not a fan of Schaaf’s public announcement of impending ICE raids, has in the past also floated the idea that mayors and other government officials in “sanctuary cities” should be held liable under 8 U.S.C.A. § 1324, the statute that addresses the “bringing in and harboring of certain aliens.” This statute attaches criminal penalties to “any person who knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.” Perhaps the most significant question under this statute is whether or not Schaaf actively shielded specific immigrants from ICE activity, a fact that is not at all clear from what I have seen reported thus far.

These questions might be considered moot if raised under the Obama administration, but Trump’s government has shown themselves to be very aggressive on immigration policy, and may well attempt to bring a criminal action against Schaaf. In line with this aggressive posture, on March 6, the Trump administration filed suit against California, asserting that three recently passed state “sanctuary” laws were unconstitutional, making it impossible for federal immigration agencies to do their job, and has asked a federal court to block their enforcement. How this case—and any future case against Schaaf—plays out will no doubt have implications for the other “sanctuary jurisdictions” across the United States, and bear watching.


Image: (Bryan Cox/U.S. Immigration and Customs Enforcement via Getty Images)