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 generalNotwithstanding 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 entitiesNotwithstanding 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 inquiriesThe 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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