Sanctuary city battle is heating up

On Jan. 1, California formalized its position of intransigent and controversial opposition to the immigration policies of the Trump administration. On that date Senate Bill 54, passed by both houses of the legislature and signed by the governor, became law, and enacted the "sanctuary" policies adopted by cities and counties across America.

The new law, which bears the heading "Law enforcement sharing data," adopts in statutory form the policies of the many "sanctuary cities" which have likewise declared their opposition the administration's immigration policies. A recent count found that there are 246 cities and counties nationwide that have taken the same position. They tend to be concentrated on both coasts with pockets in Middle America.

The specific actions (or refusals to act) taken by these jurisdictions vary. They include, among others, not informing Immigration and Customs Enforcement of the pending release from incarceration of noncitizens, not inquiring into residency status in connection with arrests, barring federal agents from local jails and refusing to enter into detention agreements with ICE.

By adopting the foregoing as policy, these municipalities, and California, have created a major constitutional confrontation, pitting the rights of states to govern their internal matters against the express powers of the federal government.

The U.S. Constitution provides, in Article I, Section 8 that Congress has the power to "establish a uniform rule of Naturalization." This provision has been interpreted broadly to mean that legislation in the immigration and citizenship areas are solely within the power of the federal government. That power is fortified by Article VI, creating federal supremacy, providing that the constitution and "all laws made under the Authority of the United States are the supreme Law of the Land." Congress also is granted the spending power.

But the Constitutional Convention in 1787 expressly recognized the sovereignty of the states within their own domestic realms. The 10th Amendment says that matters not granted to the national government, nor prohibited to the states, are left to the states or the people. This amendment is the basis for the U.S. Supreme Court's 1997 decision in Printz v. United States, which held that the federal government could not "commandeer" state officials to perform legislatively mandated functions.

In Printz, Justice Antonin Scalia quoted The Federalist [Papers]: "Although the States surrendered many of their powers to the new Federal Government, they retained 'residual and inviolable sovereignty.'"

The new California statute expressly repealed the state law that required arresting agencies to notify the appropriate federal agency if a state agency arrested on drug charges a person whom it suspected might not be a U.S. citizen. The new law affirmatively prohibits all state agencies from investigating or taking other action for immigration enforcement purposes.

"Sanctuary" is of course a misnomer, as the term is being used. A sanctuary is a safe place (originally a church) in which an individual can be free from arrest or other harm. As used in this context, it simply means that the governmental entity will give no aid to federal authorities in enforcing immigration laws. The power of federal agencies to enforce federal immigration law and deport noncitizens remains.

The administration's response to sanctuary declarations was immediate and has been unequivocal. The president has repeatedly accused the sanctuary jurisdictions of protecting criminals, and endangering the public. He has made an example of a San Francisco woman killed by a bullet fired by an undocumented person later acquitted of the killing. And there has b to publish list of victims of crimes committed by persons in this country illegally, despite the fact that there is no evidence of disproportionate lawbreaking by the undocumented.

The battle is heating up. On Jan. 2, the director of ICE announced that in light of the state law the agency would beef up its California enforcement personnel. His statement: "California better hold on tight."

But the key weapon the administration has invoked is the threat to cut off all federal funding from the sanctuary jurisdictions. Several (California counties and Chicago most prominently) have gone into court to enjoin any such efforts, and federal judges have granted injunctions against such federal efforts. Preliminary injunctions remain in effect. On Jan. 3, the Justice Department moved the court in an attempt to dismiss the Chicago lawsuit in which an injunction was granted.

The government's brief argued that sanctuary communities should not be able to demand their entitlement to federal funds when they refused to share information with federal officials.

These communities have argued that local law enforcement cooperation with ICE results in alienation of the police from minority groups, drying up information and cooperation, and inhibiting local law enforcement.

Both sides invoke constitutional principles, but the real issue is one of immigration policy, setting the administration's nativism against the progressive belief in a diverse society that welcomes immigrants.

Like all federalism arguments, federalism is not the issue. This confrontation is just one part of the underlying political debate, a product of the current Congress' inability to function in an ideologically divided country. It reflects and exaggerates the differences between the parties, and intensifies the problems that immigration issues wreak on our society.

As we have noted, the federalism arguments have already been made in several courts. One court has made a definitive holding.

On Nov. 20, 2017, the federal district court in San Francisco granted Santa Clara and San Francisco Counties' motion for summary judgment and a permanent injunction in their suit to enjoin the federal government's attempt to deny those funds because of their sanctuary policies. (The cased is Santa Clara County v. Trump.) At issue was the broad executive order denying all federal funds to sanctuary jurisdictions, whether or not the program related to immigration matters.

In a lengthy opinion clearly intended as a definitive statement of constitutional law, citing a number of governing U.S. Supreme Court precedents, Judge William Orrick found that the plaintiff jurisdictions had shown that the government's proposed action violated basic constitutional doctrine. He cited the Constitution's separation of powers principles, the unambiguous requirements of the spending clause, the 10th Amendment, the Fifth Amendment's due process clause, and the Fifth Amendment's procedural due process requirements.

The financial stakes involved in the suit demonstrate the magnitude of the contest, and the deliberately coercive nature of the federal action. Santa Clara County stands to lose in one fiscal year $1.7 billion, 35 percent of its annual budget; the comparable figures for San Francisco (City and County) are 1.2 billion and 20 percent.

Space precludes extensive consideration of each of the court's constitutional holdings. All are soundly based constitutional language and precedent.

Judge Orrick summed up his opinion in one paragraph: "The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses n immigration enforcement strategy of which the President disapproves. Because the Executive Order violates the separation of powers doctrine and deprives the Counties of their Tenth and Fifth Amendment rights, I GRANT the Counties' motions for summary judgment and permanently enjoin the defunding and enforcement provisions of [the Executive Order.]"

The decision is being appealed. The government may correct some of its strategic and tactical errors, and will no doubt argue that states have no right to have am "immigration enforcement strategy" of their own. And other suits will be brought, with other courts will chiming in.

But the opinion is based on sound constitutional principles and precedent, and could have a major impact on the resolution of the underlying issues.