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AG Sessions: Local Governments Refusing to Properly Communicate with Feds on Immigration Could Lose Funding

AG Sessions: Local Governments Refusing to Properly Communicate with Feds on Immigration Could Lose Funding

Is there a legal remedy to cut funding to sanctuary cities?

Monday, Attorney General Jeff Sessions urged state and local governments to participate fully with federal officials in immigration matters.

Failure to do so, he said, could result in loss of federal funding.

“This guidance requires local jurisdictions to comply and certify compliance with Section 1373 in order to be eligible for OJP grants,” said Sessions. “It also made clear that failure to remedy violations could result in withholding grants, termination of grants, and disbarment or ineligibility for future grants. The Department of Justice will also take all lawful steps to claw back any funds awarded to a jurisdiction that wilfully violates 1373.”

Sessions cited federal regulation, 8 U.S. Code § 1373, which reads:

(a) In general
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) Additional authority of government entities
Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.

(c) Obligation to respond to inquiries
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

1373, which predates DHS and was created in 1996, deals specifically with communication between local law enforcement and federal immigration officials.

According to federal guidance:

while state and local governments are authorized under section 1373 to inquire into immigration status on individual cases, state and local governments cannot mandate the use of the procedures described by that section for purposes of enforcing the INA’s immigration provisions in a manner that conflicts with policies and priorities of DHS. Any such state-directed mandate would function as direction designed to compete with the Secretary’s direction as to how to enforce immigration law, thereby impermissibly challenging the Federal Government’s exclusive authority over immigration enforcement, interfering with federal enforcement discretion, and forcing the Federal Government to divert resources away from the enforcement priorities it has set.

If there is a legal mechanism to penalize sanctuary cities, we haven’t found it. It’s likely none exists because, despite threats, no administration has carried out a threat to withhold federal monies from disobedient rogue local governments.

There’s speculation aplenty as to how the Supreme Court might interpret a legal challenge to anti-sanctuary city guidance. Printz v. United States (highly cited in relation to this particular part of immigration discussion) held, “Congress may not compel a state or local government to implement federal regulatory programs, even if they are temporary functions.” Enforcing federal law is the responsibility of the federal government, thus immigration enforcement cannot and should not be delegated to local law enforcement. However, as 1373 indicates, local law enforcement are expected and required to communicate certain information to federal authorities.

Trump’s administration doesn’t seem afraid of legal tests, given his first immigration executive order, but it’s clear that sanctuary cities are in the crosshairs.

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LibraryGryffon | March 27, 2017 at 4:16 pm

If we don’t send any money to California, even if they withhold everything they’re supposed to send to DC, including all payroll taxes (which will piss off a lot of the remaining employed taxpayers in that state), are we still going to be ahead?

    Federal employment taxes (Social Security, Medicare and Fed Unemployment)as well as withholding amounts are sent directly from the employer to the Federal government.

    But, the state and the local governments could opt out of sending payments to the feds.

      LibraryGryffon in reply to Liz. | March 27, 2017 at 5:41 pm

      Knowing what we do about some of those state and local government loons, they’d probably not send any of the required federal withholding taxes.

        Milhouse in reply to LibraryGryffon. | March 27, 2017 at 5:51 pm

        You mean for their own employees. But the IRS would treat them exactly the same way it treats any employer who doesn’t forward the money it withholds from its employees.

          Liz in reply to Milhouse. | March 27, 2017 at 6:04 pm

          Yes, I was referring to the state & local governments failing to remit their required taxes for their own employees to the federal govt.

          However, if I worked in CA, I think I would adjust my withholdings so nothing was withheld and then send directly to the IRS.

          It would be fun to see the IRS go after the state of California.

First, complete the process of getting Gorsuch on the Supreme Court (though no guarantee that anti-socialist actions will win, as most GOP nominations to the bench are usually progressive Republicans, not conservatives). Start with Boulder (CO), Portland (OR), and Austin (TX). That’s a broad enough ‘shot across the bow’ of liberal anti-Americans in their ‘safe place’ that the cockroaches will have to react.

According to the court case cited above, the federal government cannot compel a state or a city to implement a federal program.

But, where is there a rule that the federal government has to fund a specific grant? It is part of the federal discretionary funding, right? Can you imagine the squealing from the universities if their research grants are denied and the funds sent to universities in other states?

One part of the budget proposes to eliminate the community block grant. I wonder how much has been sent to CA and other places which are sanctuary locations?

    Milhouse in reply to Liz. | March 27, 2017 at 5:54 pm

    New funding can indeed be made conditional on compliance, if it’s related to the subject of the noncompliance. Hence Sessions’s warning that applications for OJP grants would be denied. But existing funding can’t be significantly cut, and nor can funding that has nothing to do with the area of dispute.

      Liz in reply to Milhouse. | March 27, 2017 at 6:18 pm

      I agree that current grants are a contract, but I sure would tighten up documentation requirements to get the payments.

      For new grants, regardless of area, can be slow-walked through the system or put at the bottom of the pile and not considered. Don’t award grants for UCLA, USC, etc and give the dollars to scholars at other universities. DOJ, DEd, DOE, EPA, etc probably have more grant applications than available funds (and the dollars will be shrinking), so there is a selection process anyways.

      It’s been done before – see the delays in IRS granting non-profit status to certain political organizations.

I’m sure the liberals are going to run screaming for a friendly Democrat that doesn’t give two shits about the law and orders the government to pay them.

cut off Lost Angels & Frisco first…

Enforcing federal law is the responsibility of the federal government, thus immigration enforcement cannot and should not be delegated to local law enforcement. However, as 1373 indicates, local law enforcement are expected and required to communicate certain information to federal authorities.

If I understand your intention correctly, you seem to have the logic backwards here. The correct order is: §1373 purports to expect and require local law enforcement communicate certain information to federal authorities, however enforcing federal law is the responsibility of the federal government, and thus this mandate is unconstitutional and legally void. Local law enforcement is not required to do these things, and if the state says so then it is prohibited from doing these things, despite anything Congress or the federal government says or does.

As for what the federal government can do to enforce its will, the answer is in the article you cited, if you read it carefully: while it can’t significantly cut existing or unrelated funding, it can deny OJP grant applications, since these are both new funding and clearly related to the topic of the state’s resistance.

    Liz in reply to Milhouse. | March 27, 2017 at 6:26 pm

    A state or local law enforcement agency can enter into agreements with the Federal Government to assist in the enforcement of the immigration law.

    From the EO

    “To the extent permitted by law, and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.”

      Milhouse in reply to Liz. | March 27, 2017 at 9:11 pm

      They can enter into such agreements, or they can just assist without a formal agreement, so long as the feds want the help. But the point is they can also refuse to make such agreements or to offer such assistance, and they can forbid their employees and subsidiaries from doing so, and thus §1373, which says they can’t, is unconstitutional.

Good old oaths of office, on which people stake their honor, just don’t mean much anymore.

That nasty Article VI,

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

“The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution;”

    Milhouse in reply to pfg. | March 27, 2017 at 5:57 pm

    This constitution includes the tenth amendment, which forbids the federal government from commandeering state resources to enforce its will. Thus the constitution, and every federal officer’s and judge’s oath of office, is on the side of the sanctuary states/cities/etc.

Bucky Barkingham | March 28, 2017 at 7:32 am

If local governments can decide not to obey Federal immigration laws and get away with it then what’s next? The Trump agenda could be thwarted by LibDem states not obeying whatever lawsthe Roll-Over Congress finally gets around to enacting, in between long recesses.

    What do you mean by “not to obey”? There are no federal laws they’re disobeying — there can’t be, because anything purporting to be such a law would be unconstitutional. You write as if this were something new, rather than part of the way the United States has always functioned, an integral part of our system of constitutional protections against tyranny. The federal government has never had the authority to commandeer state resources to enforce its laws, and it must never be allowed that authority.

Here’s a hypothetical case of a sanctuary city that ignored an ICE request to hold an illegal immigrant with a record of violence and a deportation order. Immediately after release the illegal murdered an American citizen. Could the family of the murder victim sue the city over the release?

    Milhouse in reply to Chris Mac. | March 29, 2017 at 11:00 am

    No, it could not. The suit would be dismissed immediately, with sanctions. The city has no obligation to comply with such a request, if it chooses not to, and without it the city has no more reason or right to hold the person than you or I do. What the person does afterwards is no more the city’s problem than it is yours or mine.

Deduct the additional cost required to enforce immigration law from the funds that would have been given to the sanctuaries. This can be used to fund federal immigration agents in jails, prisons, courts, and schools. They will question the immigration status of everyone arrested or attending school. Also use these funds to award bounties on every illegal reported who is deported. People could make a great living at $100 per illegal. Due to obtain the lists of illegals give drivers licenses and run the voter registration rolls thru E-verify..

    Milhouse in reply to ConradCA. | March 29, 2017 at 11:05 am

    You can’t deduct it from funds that had already been appropriated with no such condition attached, or from funds that have no rational relationship to immigration enforcement. That leaves you with only a fraction of the money you imagine is available for withholding. also, federal immigration agents have no right to enter jails, prisons, courts, or schools without the city’s permission; if they do they are trespassing and subject to arrest. Nor do they have the right to access state lists of drivers’ licenses or voter registration rolls without the respective local authorities’ permission.

Federal government money nearly always comes with strings, which an be pulled.

I remember reading that the great plan for prosperity in California (from California officials) was to get boatloads of funding from the Federal government. This was placed as research funds for their pet projects. This is separate from funds to compensate for support of illegal immigrants.

However, the Federal budget is a yearly budget, and it is possible to cut all kinds of things.

This will require some forensic accounting. The Obama administration thought they were smart to hide hide funding for anything extremely loosely connected to climate change. There is no reason why they would not have applied the same logic to hiding funding for illegal immigration.