By Reid Wilson
April 9, 2017
Immigration hard-liners are threatening to hold potentially billions of dollars in state grants hostage as they seek to compel so-called sanctuary cities to cooperate with federal law enforcement officials.
Legislators in 33 states have introduced measures to limit or prevent cities from acting as sanctuaries for undocumented immigrants. Only one state this year, Mississippi, has enacted a ban on sanctuary jurisdictions, but several others, including Texas, Indiana, Iowa, Florida and Georgia, are advancing their own bills.
Sanctuary cities and counties often defy requests from federal Immigration and Customs Enforcement officials to hold undocumented immigrants so they can be picked up later for deportation. While there is no technical legal definition of a sanctuary city, many of the bills under consideration would require cities to swear under penalty of perjury that they comply with federal detainer requests.
“If a city calls itself a sanctuary city, that means a lot of different things to a lot of different cities,” said Pennsylvania State Sen. Guy Reschenthaler (R), who has sponsored a ban on what his legislation calls “municipalities of refuge.”
Reschenthaler’s bill, which has passed the state Senate and is awaiting action in the Republican-led state House, would withhold state grants from any city that does not agree to hold detainees for up to 48 hours at ICE’s request. It would also deny those cities sovereign immunity.
In Texas, Gov. Greg Abbott (R) has withheld millions of dollars in grants to Travis County, which includes Austin. State Sen. Charles Perry (R), who has sponsored one of the 23 bills dealing with sanctuary city legislation, said state grants make up a substantial portion of many city and county budgets, which means local officials pay attention when a state moves to block those funds.
“The only way you can get a jurisdiction’s attention is if you withhold the money,” Perry said. “We have several jurisdictions in Texas that, either implicit or explicit, have become sanctuary cities.”
Virginia legislators passed a ban on sanctuary cities earlier this year, though Gov. Terry McAuliffe (D) vetoed that measure. Gov. Tom Wolf (D) is likely to do the same to Reschenthaler’s bill in Pennsylvania if it passes the state House.
Republican legislators are taking cues from Attorney General Jeff Sessions, who has said the Justice Department may hold back federal grant money from cities that do not comply with ICE detainer requests. President Trump signed an executive order early in his tenure that sought to force localities to comply with the federal requests.
“The Department of Justice will require jurisdictions seeking or applying for Department grants to certify compliance” with the section of federal law that requires cities to cooperate, Sessions said last week. “Failure to remedy violations could result in withholding of grants, termination of grants, and disbarment or ineligibility for future grants.”
City officials have voiced concern over the lack of legal clarity. Officials in sanctuary jurisdictions say only the federal government can enforce federal immigration law and that conscripting local law enforcement officials for those efforts — a practice known legally as commandeering — is unconstitutional.
“It’s invading our sovereignty. It’s trying to commandeer local resources to apply federal law,” Seattle City Attorney Pete Holmes told The Hill. “The federal government doesn’t have the right to commandeer, to say we’re going to conscript [Seattle Police Department] officers to enforce federal immigration laws.”
Holmes’s office filed suit in federal court last week seeking to compel the Justice Department to say whether the city is in compliance with federal law. Seattle does not operate a jail, which means its law enforcement officers would not receive detainer requests, even though the city considers itself a sanctuary.
“It’s completely anathema to say all of your federal funding is at risk because you’ve labeled yourself a sanctuary city,” Holmes said. “When we receive funds, we are either authorized to receive them under some federal enactment or via a contract with the federal government. To add new conditions is either legislating or rewriting the contract.”
Other jurisdictions are forging ahead with plans to protect undocumented immigrants. This week, the Michigan cities of Lansing and Ann Arbor both voted to prohibit their police departments from asking about someone’s immigration status. Maryland is considering becoming a sanctuary state.
The California Senate advanced a measure that would block state law enforcement officials from acting in concert with federal immigration authorities. The Assembly is likely to pass the bill in coming weeks; one leadership source told The Hill.
“Our precious local law enforcement resources will be squandered if police are pulled from their duties to arrest otherwise law-abiding maids, busboys, laborers, mothers and fathers,” California Senate President Kevin de León (D) said Monday.
Those who advocate for bans on sanctuary jurisdictions say many of the new bills advancing through legislatures this year specifically target colleges that refuse to ask their students about immigration status.
Sarah Rehberg, director of state and local issues at the Federation for American Immigration Reform, said many of the bills would require colleges and universities to allow ICE officers on campus or risk their state funding. At least 25 bills in state legislatures would force campuses to allow access to ICE agents.
The clash between states seeking to impose their will and the cities that want to harbor undocumented immigrants is likely to head to court in many jurisdictions. Civil rights groups believe they will have the upper hand in at least some cases.
“There is a whole body of case law that, among other things, establishes that the federal government can’t force or require states and localities to become appendages of the federal government’s own regulatory goal,” said Cody Wofsy, a staff attorney with the American Civil Liberties Union's Immigrants’ Rights Project in San Francisco.
But sanctuary city opponents have already seen some jurisdictions back down in the face of threats over lost funding. In recent months, Florida's Miami-Dade County and Dayton, Ohio, have both reversed sanctuary policies and said they will comply with federal detainer requests.