State and local officials are questioning the legality of President Donald Trump’s attempt to crack down on sanctuary cities that don’t help enforce federal immigration laws.
They also question how sweeping it is: The order’s definition of “sanctuary jurisdiction” is unclear, inviting uncertainty about whether it could affect communities that don’t specifically adopt that label, several city and state officials said this week.
Many officials say the federal government is limited in its ability strip federal funding from state and local governments, as Trump’s executive order threatens to do to jurisdictions where policies are seen as hindering enforcement of federal law.
“This starts to creep into the area of state’s rights,” said Tacoma Mayor Marilyn Strickland, whose city doesn’t identify as a sanctuary city, but instead is a “welcoming city” in which police and city officials don’t inquire about people’s immigration status.
Strickland said she wasn’t sure how Trump’s order might affect Tacoma, but she’d join a legal challenge if the Trump administration tries to withhold federal grant funding from her city.
San Francisco announced Tuesday that it is suing Trump over his sanctuary-city order, arguing it is unconstitutional.
Washington Attorney General Bob Ferguson has already filed suit over the president’s executive order that temporarily blocks citizens of Libya, Iran, Iraq, Sudan, Somalia, Syria and Yemen from entering the country and suspends refugee admissions for 120 days. But Ferguson hasn’t taken the same step to challenge Trump’s order on sanctuary cities.
He hinted this week that it could be a possibility.
“We’re exploring our options in regard to that issue,” Ferguson said Monday. “I do have concerns about that.”
Susan Hutchison, who chairs the Washington State Republican Party, expressed support this week for Trump’s order dealing with sanctuary cities, calling jurisdictions that adopted sanctuary-city policies “an experiment that didn’t work.”
“It’s time we take the criminal element of the undocumented and remove them and not protect them in our cities,” Hutchison said. “ ... This is the time now to let the sanctuary city movement die a quiet death. And now we have an opportunity to fix things and see if that works.”
‘NOBODY CAN REALLY FIGURE OUT WHAT IT REALLY MEANS’
Trump’s executive order gives the federal government broad authority to decide what constitutes a sanctuary jurisdiction and what doesn’t, while threatening to withhold federal grant money from states, cities and counties that “fail to comply with applicable federal law.”
The order says many immigrants who enter the United States illegally or overstay their visas “present a significant threat to national security and public safety,” adding that sanctuary jurisdictions “willfully violate federal law” to prevent those individuals’ deportation.
Last week, Democratic Gov. Jay Inslee said Trump’s order was “so poorly written, that nobody can really figure out what it really means.”
But, Inslee told reporters last week, “It is my belief that our local communities, our local police departments, our local city councils and mayors are the ones to decide what their police forces should be doing.
“We know that police forces believe if they’re forced to be agents for Donald Trump, it intrudes on their ability to be good police officers,” Inslee said, citing concerns that people won’t report crimes if they worry police will hassle them about their immigration status.
The Washington State Patrol has a longstanding policy of not collecting information about immigration status when conducting traffic stops, officials said. The agency has no intent to change its policy, and doesn’t think its federal money is at risk, spokesman Kyle Moore said.
Olympia has a similar policy of not inquiring about immigration status when people apply for city services or interact with police. The state’s capital city passed a resolution in December labeling itself a sanctuary city.
“We won’t interfere with the federal government in their enforcing of their laws, but we are going to leave to them what is their responsibility to enforce,” city of Olympia spokeswoman Kellie Purce Braseth said. “If it’s not ours to do, then we will leave it to the federal government to do it.”
Purce Braseth said she doesn’t know if that will put Olympia at risk of losing federal funding.
“Like all the cities that are sanctuary cities, we are waiting to see how that works out,” she said.
An official with U.S. Immigration and Customs Enforcement said that in the past, federal rules haven’t forced local officials to share certain information about individuals who might be in the country illegally, including when those people may be released from a county jail.
Court rulings have made it clear that, absent a judge’s order, cities and counties don’t have to comply with requests from ICE to hold people for additional time to assist with deportation proceedings.
The Department of Homeland Security didn’t respond to inquiries Tuesday about how those policies might change under the executive order Trump issued last week.
In a written statement Monday, Peter King, the chief executive officer of the Association of Washington Cities, said confusion about the order is rampant among Washington’s 281 cities and towns.
“There is no clear definition of a sanctuary jurisdiction, there is broad confusion about which jurisdictions could be included, and the executive order appears to face legal uncertainty,” King said.
Similar ambiguity applies to “welcoming” cities and counties. For instance, the Thurston County Sheriff’s Office and the Pierce County Sheriff’s Department notify ICE when they plan to release a person from jail, if the immigration agency has requested that information, spokesmen for the local agencies said.
But while Thurston County officials identify their jurisdiction as a “welcoming community,” Pierce County officials have not adopted that label, Pierce County spokeswoman Libby Catalinich said.
Hugh Spitzer, a law professor at the University of Washington, said federal officials will undoubtedly face legal barriers if they try to strip funding from cities and counties that don’t assist federal immigration officials.
That’s partly because past court cases have established that the federal government can’t compel local jurisdictions to carry out enforcement of federal laws, he said.
In the U.S. Supreme Court’s 1997 decision in Printz v. United States, former Justice Antonin Scalia wrote that local law enforcement officials didn’t have to carry out handgun background-checks on behalf of the federal government.
The U.S. Supreme Court also has limited the federal government’s ability to coerce states to adopt certain policies by threatening a loss of funding, most notably in the 2012 decision striking down part of the Affordable Care Act, Spitzer said.
In that case, NFIB v. Sebelius, the Supreme Court said Congress couldn’t withhold all of a state’s Medicaid funding if the state didn’t vote to expand its Medicaid program.
The high court has established that to avoid being unconstitutionally coercive, the federal government can withhold only a limited amount of funding that is closely related to a specific program, Spitzer said.
That means federal officials might be able to strip some sanctuary jurisdictions’ grant money dealing with immigration enforcement, but not unrelated grants, such as for roads or school programs, Spitzer said.
“That’s apples and oranges, and they probably would be unsuccessful in doing that,” Spitzer said.