President Lincoln once warned that a house divided against itself cannot stand. Illegal immigration in the United States today is threatening to pose such a challenge, dividing the nation and creating a checkerboard of law enforcement that is undermining the rule of law. While President Trump seeks to enforce federal immigration laws to remove all illegal aliens, his opponents seek to shelter illegal immigrants from what they perceive are unjust laws that are leading to unfair results.
Nowhere is the conflict better presented than in an extraordinary exchange of letters a few weeks ago between Justice Tani G. Cantil-Sakauye, the Chief Justice of the State of California and Attorney General Jeff Sessions and Secretary of Homeland Security John Kelly. As I pointed out in a previous column, Cantil-Sakauye started the exchange by writing, “Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws.”
In their joint response Sessions and Kelly replied that courthouse detentions have been made necessary by so-called “sanctuary” policies that limit cooperation with federal immigration enforcement at the local, county and state level. According to their view,
Some jurisdictions, including the State of California and many of its largest counties and cities, have enacted statutes and ordinances designed to specifically prohibit or hinder ICE from enforcing immigration law … As a result, ICE officers and agents are required to locate and arrests these aliens in public places, rather than in secure jail facilities.
They added that courthouses offer a safe alternative for Immigration and Customs Enforcement (ICE) because visitors are typically screened upon entry.
Cantil-Sakauye issued a reply to Sessions and Kelly saying that, “… making arrests at courthouses, in my view, undermines public safety because victims and witnesses will fear coming to courthouses to help enforce the law.” She further stated that she was disappointed that courthouses are not added to ICE’s ‘sensitive areas’ list that includes schools, churches, and hospitals.”
This exchange between some of this countries highest officials is a microcosm of the larger national conflict being played out over illegal immigration in the United States. The argument presented is that federal officials can enforce immigration laws, but not at courthouses, schools, churches and hospitals. Some parts of the country according to this viewpoint are above law enforcement. Another part of the problem has been that since 2014 the law on immigration detainers has changed. Detainers are ICE documents that seek to prevent the release of arrested accused until federal officials have had a chance to identify and review the immigration status of someone in jail. Several federal court decisions have found key aspects of ICE’s detainer system unconstitutional and in violation of federal statutes. Thus not all jurisdictions are cooperating in removals. In short – patchwork enforcement is the norm with immigration laws.
In the most recent Trump-defying move, California’s Senate passed a sanctuary state bill in a 27-12 vote along party lines with Democrats in support and Republicans in opposition. The immigration issue looms large in California because nearly a quarter of the US population of undocumented immigrants reside there. Estimates range from 2.35 to 2.6 million, according to the Public Policy Institute of California. The Senate also passed Senate Bill 6 in a 28-11 vote that creates a $12 million legal defense fund for immigrants who are facing deportation, except for those convicted of a violent felony.
While the term “Sanctuary City” has no legal meaning, the essence is that the city does not devote municipal funds or resources to help enforce federal immigration laws. These cities normally do not permit police or municipal employees to inquire about one’s immigration status. A patchwork of four states, 39 cities and 364 counties have now adopted pro-immigrant policies inspired by the Sanctuary Movement. A map of the country that portrays the current status can be found here.
Concerned about the growth of sanctuary cities in the United States, President Trump signed an Executive Order on January 25th, 2017 essentially attempting to cut off the flow of federal funds to cities that do not assist federal immigration officials seeking to enforce immigration laws. That’s what ignited the fireworks.
A recent report indicates that sanctuary cities in 32 states could lose $870 million this year if Trump is allowed to enforce his order. California stands to lose the most at $240 million, followed by $191 million for New York, and $91 million for Illinois. Trump’s attack on sanctuary jurisdictions has made some cities adopt pro-undocumented immigrant policies, while those that have historically been considered sanctuaries, including San Francisco, Chicago, and Los Angeles, have doubled down. Miami-Dade County in Florida, however, went in the opposite direction and retracted its position as a sanctuary county after the mayor ordered county jails to honor ICE hold requests a day after Trump signed his order.
Meanwhile U.S. Mayors and Police Chiefs have expressed concern with the sanctuary cities executive order. They pointed out that U.S. Supreme Court has held that denying federal funds to cities to coerce compliance with federal policies may be unconstitutional. They added that Trump’s executive order does not provide a clear definition of what constitutes a sanctuary jurisdiction. Furthermore, they said that the order gives undefined discretion to the Secretary of Homeland Security to designate sanctuary jurisdictions.
What started out as a war of words on the Presidential campaign trail has morphed into a financial battle pitting the federal government against state, county and local jurisdictions. Legal challenges have arisen. The courts have become the battleground where this contest is being played out. Meanwhile millions of illegal immigrants hold their breath awaiting what will happen next while uncertainty prevails in the country at large.