Trump's sanctuary cities order could reach the Supreme Court, experts say

FILE -- The nearest Immigration and Customs Enforcement Office is in Atlanta. They don't have data for individual states, but have combined data for North and South Carolina and Georgia. Between Donald Trump's Inauguration Day in January through April 2016, the Atlanta ICE office arrested 4,246 people in the region. That is compared to 2,429 over the same time period last year. In 2017 66.1 percent of the people arrested had prior criminal convictions. That is down from 89.4 percent in 2016. (Photo credit: U.S. Immigration and Customs Enforcement)

Since taking office Donald Trump has tried to reign in so-called sanctuary city policies where local jurisdictions limit their cooperation with federal immigration authorities. In recent weeks, the Trump administration has been dealt several blows as it tries to force states, counties and cities to comply with federal immigration laws it says are critical to public safety.

Federal judges in Chicago and Philadelphia recently ruled against the Department of Justice, arguing that the Trump administration's threat to cut off millions of dollars in specific law enforcement assistance grants exceeded the president's constitutional authority. These are the latest legal challenges to the Trump administration's efforts to enforce federal immigration law and stop local jurisdictions from shielding illegal immigrants who have been convicted of crimes.

The debate over sanctuary city policies has become a national issue and was even central to the recent gubernatorial campaigns in Virginia and New Jersey. With such intense public interest, experts say it is likely the issue will eventually be heard by the Supreme Court. At stake is determining to what extent local and state law enforcement have to cooperate with Immigration and Customs Enforce (ICE) and other federal immigration authorities and whether the federal government can cut off specific funds to force states to comply.

"I think we're in new territory," said Matt O'Brien, director of research at the Federation for American Immigration Reform. "This is not a slam dunk on either side," he said of the recent rulings in Chicago and Philadelphia. Among the unresolved issues, he said, is "does the federal government have to fund jurisdictions that are deliberately encouraging people to violate federal law?"

The Trump administration has raised the issue, O'Brien said, but it has not been definitely addressed by any courts looking at it.

Lena Graber, a staff attorney with the Immigrant Legal Resource Center said it is "very likely" the Supreme Court will eventually hear a high-profile case on sanctuary cities. That is, unless the lower courts continue to rule against the Trump administration, as they have done consistently since the president's first executive order on sanctuary cities in January.

"The trend in the Trump administration is that they have not been winning in court," Graber noted.

That may not stop the administration from pursuing the issue all the way to the Supreme Court, she added. "It seems like the federal government is going to fight this issue and keep trying even in the face of consistently losing in court."

In January, the administration made its first attempt to coerce so-called sanctuary cities to open lines of communication and cooperate with the feds with an executive order. In that order, Trump included a broad threat to cut off federal funds for jurisdictions that fail to comply with federal immigration law.

The state of California quickly filed suit and successfully blocked the full implementation of the executive order. Seattle and Portland, Oregon also sued and got a similar injunction.

This initial challenge sent the Trump administration back to the drawing board to craft a narrower rule that Attorney General Jeff Sessions announced in August.

Under the rule, jurisdictions would have to comply with three "new conditions" for local jurisdictions to qualify for the Edward Byrne Memorial Justice Assistant Grants (JAG), a leading source of federal justice funding that supports state and local law enforcement programs.

Fulfilling these conditions, Sessions said, "is consistent with long-established cooperative principles among law enforcement agencies. This is what the American people should be able to expect from their cities and states, and these long overdue requirements will help us take down MS-13 and other violent transnational gangs, and make our country safer."

The Department of Justice, Sessions said, would only provide the grants if cities and states first, certify that they are in compliance with federal law, second, allow federal immigration access to detention facilities, and third, provide Immigration and Customs Enforcement (ICE) with 48 hours notice before they release an illegal alien wanted by federal authorities.

In Philadelphia, U.S. District Judge Michael Baylson ruled that imposing those three conditions on the award of the Byrne JAG grants is "contrary to law, unconstitutional, and arbitrary and capricious." He then moved to block any such action. In Chicago, U.S. District Judge Harry Leinenweber ruled similarly, but upheld the Department of Justice demand that a jurisdiction certify its compliance.

With the issue stuck in the courts, the Department of Justice is pressing forward. Last week, the Department increased the pressure on 29 cities, counties and states who are suspected of having sanctuary city policies. The DOJ sent letters warning the jurisdictions that their access to millions of dollars in Byrne Justice Assistance Grants is at stake unless they can prove they are in compliance by December 8.

Sheriff Bob Gualtieri of Pinellas County, Florida sees the Department of Justice using the leverage they have to get jurisdictions who have stopped sharing information with the feds, back on track. "What DOJ is trying to do is to get these noncomplying jurisdictions to comply with what should be common sense in effect of public safety. Just communicate!"

Legal opponents of the sanctuary city policy have also argued the requirements are onerous and require states to expend resources. In Chicago's lawsuit, Mayor Rahm Emmanuel argued that the federal government was trying to "commandeer local law enforcement" to essentially act as federal immigration enforcement agents.

Gualtieri called such arguments "disingenuous."

"All it requires is picking up the phone and calling ICE and cooperating with them," he said.

Gualtieri has taken the lead on sanctuary cities policy for the National Sheriffs' Association. He explained that most sheriffs want to help federal immigration enforcement, particularly when it means protecting the public from convicted criminals who are in the United States illegally. But the issue that is so clear to sheriffs has been muddied in the course of a heated political debate.

"For those jurisdictions that have these [sanctuary] policies, I think the line is being blurred between criminal illegals and the general illegal population, and there's a big difference," Gualtieri explained. "The criminal illegals are the ones causing havoc and causing problems and committing serious crimes, but some of these jurisdictions are not cooperating with the federal government across the board, including with criminal illegals. We think that is wrong and they should cooperate."

The majority of the American public is on the side of Gualtieri and the law enforcement agents who say local officials have an obligation to follow federal immigration law.

According to a February Harvard-Harris poll, an overwhelming 80 percent of voters said local authorities should have to comply with immigration laws by reporting to federal agents about illegal immigrants they come into contact with.

However, when it comes to punishing the states and localities that fail to comply with immigration laws, voters were split. In a recent poll, 45 percent of likely voters do not think the Justice Department should take legal action against sanctuary jurisdictions. The polls found only 42 percent support the DOJ punishment, a number that is down from 50 percent in 2016.

In the coming months, the issue will continue to be debated in the courts.

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