Justice Department Warns Sanctuary Jurisdictions of Coming Crackdown
“enough is enough”
Jeff Sessions and the Justice Department are done playing around with sanctuary cities and states. Not only are they telling these jurisdictions to knock it off, they’re demanding proof that they are complying with federal law.
The DOJ just sent out this press release:
Justice Department Demands Documents and Threatens to Subpoena 23 Jurisdictions As Part of 8 U.S.C. 1373 Compliance Review
The Department of Justice today sent the attached letters to 23 jurisdictions, demanding the production of documents that could show whether each jurisdiction is unlawfully restricting information sharing by its law enforcement officers with federal immigration authorities.
All 23 of these jurisdictions were previously contacted by the Justice Department, when the Department raised concerns about laws, policies, or practices that may violate 8 U.S.C. 1373, a federal statute that promotes information sharing related to immigration enforcement and with which compliance is a condition of FY2016 and FY2017 Byrne JAG awards.
The letters also state that recipient jurisdictions that fail to respond, fail to respond completely, or fail to respond in a timely manner will be subject to a Department of Justice subpoena.
“I continue to urge all jurisdictions under review to reconsider policies that place the safety of their communities and their residents at risk,” said Attorney General Jeff Sessions. “Protecting criminal aliens from federal immigration authorities defies common sense and undermines the rule of law. We have seen too many examples of the threat to public safety represented by jurisdictions that actively thwart the federal government’s immigration enforcement—enough is enough.”
Sarah Flores, the spokeswoman for the Justice Department appeared on FOX and Friends Wednesday and explained that there will be consequences for non-compliance:
“If [DOJ] finds out you’re not complying with federal law [on illegal immigration] we’re taking the tax dollars back” –@SarahFloresDOJ pic.twitter.com/5k56IzBQIL
— FOX & friends (@foxandfriends) January 24, 2018
Here’s the list of places which were contacted:
– Chicago, Illinois
– Cook County, Illinois
– New York City, New York
– State of California
– Albany, New York
– Berkeley, California
– Bernalillo County, New Mexico
– Burlington, Vermont
– City and County of Denver, Colorado
– Fremont, California
– Jackson, Mississippi
– King County, Washington
– Lawrence, Massachusetts
– City of Los Angeles, California
– Louisville Metro, Kentucky
– Monterey County, California
– Sacramento County, California
– City and County of San Francisco, California
– Sonoma County, California
– Watsonville, California
– West Palm Beach, Florida
– State of Illinois
– State of Oregon
In reaction to this, mayors from many cities decided to skip a White House meeting with Trump.
NBC News reported:
Mayors’ group calls off Trump meeting after Justice Department threatens sanctuary cities
A prominent group of mayors meeting in Washington called off a scheduled White House meeting with President Donald Trump on Wednesday after the administration again threatened to withhold funding from nearly two dozen local governments they claimed aren’t following immigration laws.
The bipartisan U.S. Conference of Mayors, whose annual winter meeting in the nation’s capital kicked off Wednesday, had been scheduled to sit down with Trump to talk about the opioid epidemic and infrastructure. But the group’s leader canceled the session, citing the White House’s “decision to threaten mayors and demonize immigrants yet again.”
Dozens of mayors still met with the president as scheduled — just not under the banner of the USCM, as had been planned.
I can’t help but remember liberals wagging their fingers at the rest of America over Obamacare and saying it was the “law of the land.” They’ve obviously forgotten those days.
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Comments
Two small problems:
1. 8 USC § 1373 is unconstitutional
2. Only Congress can make compliance with this section a condition for receiving the Byrne JAG awards, and it has not done so. It is unconstitutional for the Attorney General to do so on his own. Further, even Congress must make such a condition unambiguously; it is unconstitutional for Congress to do so in an ambiguous manner, e.g. by saying something like “all grants are subject to compliance with all laws”.
Is it unconstitutional to charge and arrest someone who is in violation of federal law?
Don’t confuse what the Trump says with what the Trump Administration does. Compared to the last President, this one seems much more lawful.
“Is it unconstitutional to charge and arrest someone who is in violation of federal law?”
Clearly not.
It IS, however, unconstitutional to commandeer local or state LEOs to the ends of federal law enforcement.
“Compared to the last President, this one seems much more lawful.”
Truly. But why celebrate such a low bar?
Baby steps.
Except that there is no commandeering occurring speaking strictly to this statue. It is not requiring states or local governments to provide information (and thus act as federal agents), rather it is prohibiting them from enacting local policies that restrict the sharing of data with the federal government. Whether those employees (or policies) voluntarily share information is immaterial.
Yes, there is commandeering. 8 USC §1373 denies states control over their own resources. It commandeers the services of those state employees who wish to cooperate with ICE. Those employees’ services are state resources, and — unlike the employees themselves — the state does not want the feds to have their resources, and this statute purports to order the state to let the feds have those resources. That’s commandeering.
Go back to Prigg v Pennsylvania. State officers were free to voluntarily help slave catchers, unless the state by legislation forbids it. How is that not exactly the current situation?
Sessions isn’t talking about arresting anyone. This isn’t a criminal matter; it’s about complying with conditions to qualify for free bags of Federal money.
If there’s a quid pro quo, Sessions didn’t author it (at least not as AG).
There’s no such thing as “free bags of money” anymore than there’s such a thing as a “free lunch”.
But Milhouse is correct. There certainly CAN be restrictions on these grants. But the courts have ruled they have to be Congressional restrictions and very clearly drawn.
To date, they have not been.
The courts have also ruled that the President must continue administrative policy that conflicts with Congressional legislation, so you’ll understand if some laymen may come to the conclusion that Justice is not only blind, she’s something of a whore.
Make that *NOT* blind. I, OTOH, am rapidly approaching blindness.
Totally.
Nobody claimed Sessions is talking about arresting anyone. It’s precisely about those bags of money, and Sessions making up conditions for handing them out, which is completely illegal. Under the US constitution he has no right to attach conditions to state funding that Congress has voted. Only Congress itself can do so, and even then only under tight restrictions.
No, ironically Eric Holder authored it, but Sessions is pushing it. It’s unconstitutional for either of them to do so.
Actually you are missing the fact that they have to sign a certificate of compliance.
https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm
If they sign this to get the funds then wantonly fail to follow the requirements, doesn’t that constitute fraud??
No. Any jurisdiction can certify they comply with the statue in question, and do it truthfully.
Again, there is no requirement that the “information” be collected in the first place.
Complying with a statue seems like a tedious proposition.
As long as the California state law barring communicating with the federal authorities over immigration law enforcement exists, sign an affidavit which claimed compliance with 1373 would be a gross misrepresentation and could be chargeable.
The requirement is unconstitutional and therefore void. They don’t have to sign, and Sessions may not punish them by withholding the money. Only Congress can say that if they don’t sign they don’t get the money, and it must do so unambiguously. And even its power to do that is only because the cut is relatively small; if it were a huge cut then even Congress could not use it as a weapon to compel compliance with its wishes.
Milhouse a correction: “8 USC § 1373 is unconstitutional” if and only if a court of competent jurisdiction rules 8 USC § 1373 unconstitutional and higher courts either explicitly or simplicity affirm. You Milhouse may merely “argue” that it is unconstitutional.
Sorry. I’ll disagree to this extent–regardless of how even the Supremes rule, a law may be clearly unconstitutional. I know you can think of several examples in our history.
My feeling on the constitutionality of 8 U.S.C. 1373 is utterly nugatory. I have been known to passionately disagree with Supreme Court opinions on occasion. Back in the day, in the midst of passionate class discussion, more than one Professor referred us to a putative quote from Justice Jackson:
But they aren’t “infallible” or even “final”. They are reversed, and sometimes rightly so.
That’s ridiculous. Statutes that contradict the constitution are unconstitutional from the moment they pass, not from when a court strikes them down. If they weren’t unconstitutional from the beginning, no court could make them so. Courts can’t change the constitution, they can merely discover what the constitution has always said, but nobody noticed.
The Supreme Court has already ruled that states can do precisely what this statute forbids. Therefore I feel completely comfortable in saying that it is unconstitutional.
Reading the statute, I see one big hole; there’s no requirement that the “information” referenced has to be collected. It requires that it be “maintained”, but it doesn’t require its collection.
And it cannot. That would clearly be “commandeering” non-federal resources.
That’s one hole, but a far greater one is what it requires on its face — it requires states to allow the feds to use their resources, provided those resources wish to be used. The resources may wish it, but the state doesn’t, so the statute commandeers them from the state.
Not a lawyer – but as I understand the trajectory of US law vs. US regulation over the past few decades more and more US “law” is determined by administrative agencies as time has gone by rather than legislative bodies.
Example – Did congress ever intend for someone’s backyard to be covered by “wetland” laws and/or regulations even if it is only waterlogged once a year? Did congress ever intend for agencies to have the same power to address natural exhalations (ie CO2) as they do to address actiual toxic pollution like automobile exhaust? Not that I ever heard of, that was more a case of regulators changing the rules than legislators doing so. And yes, legislators (theoretically) can address such overreaching – but they mostly don’t, instead ceding more and more of their authority to unelected (and hence personally unaccountable) govt drones.
The president (theoretically) heads those agencies, and (again theoretically) has the authority to have his appointees address such regulation issues. The “Deep State” notwithstanding.
I don’t know Milhouses take on the historical fact that regulations have been trumping (no pun) legislative law for so long, but big L Liberals in general have been quite happy to let regulators (and courts) set out what is and is not legal for so long that any cries of “I am shocked, SHOCKED to find gambling going on at this casino” falls a bit flat.
Anyhow, I’m pretty certain there’s going to be a shithouse full of administrative regulations that can be legally reinterpreted by administrative agencies to punish local govts that fail to follow federal law. Unless Millhous NOW wants to admit that agency regulators have been violating the constitution by their overreaching previously, he has little leg to take that stance at this late date.
You seem to be laboring under the peculiar delusion that I’m a “liberal” (in the common modern usage, meaning a sort of mild socialist).
Congress’s intent doesn’t matter; what matters is the text of the laws it actually passes, regardless of whether they correctly reflect the intentions of the congressmen who voted for them.
Many of these regulations are of course ridiculous, and don’t reflect the text of the statutes they pretend to implement or the intent of those who passed them. Maybe Gorsuch will succeed in killing off Chevron and we can revisit them.
actually your are wrong, we have had this discussion before, the funds would fall under the same rule as the highway trusts, and the supreme court held that the feds could with hold funds if the states did not comply.
The precedent for the federal government holding its highway funding hostage goes back to a 1987 Supreme Court case. The case, South Dakota v. Dole, dealt with the national drinking age, and found one of the Constitution’s articles butting up against one of its amendments. The Court found that, under the spending clause of the Constitution, the federal government could withhold highway funds, thereby exerting its control over the states.”
Possibly, the Constitution is unconstitutional.
See my comment above. Certainly there CAN be restrictions, but only on meeting certain conditions that…so far…are not met.
As a possible point of interest, South Dakota statute still says that the drinking age was raised “under the duress of a funding sanction imposed by the United States Department of Transportation.”
http://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=35-9-4.1
If it were truly duress it would be unconstitutional. But the Supreme Court considered that very question, and decided the threatened cut was small enough that South Dakota could afford to do without the money if it really wanted to keep its drinking age. Without that finding the cut would indeed have been unconstitutional.
You need to lighten up. Neither my post nor the statute mention anything about constitutionality. In fact, the statute explicitly defers to SCOTUS judgement.
However, it’s somewhat unusual reading for a law, which some folks might enjoy. Probably written more for constituents than for judges. Nothing deep, just a possible point of interest.
And I’m telling you that the Supreme Court says the claim is a lie. If it were true, then the funding cut would have been struck down.
Lol. You really do need to lighten up.
Ron, you are wrong. S Dakota v Dole is indeed very much on point, but you have clearly never read it, since your claim is the exact opposite of what it says. In fact the case says exactly what I wrote above, and so does every other case on this topic.
The federal government can not withhold highway funds from states to make them comply with Congress’s wishes; only Congress can do so. Even Congress must do so explicitly, with no ambiguity. And even Congress, if attaching such a cut to existing funding, must keep the cut low enough that it is merely persuasive, not compelling. If the cut is so steep that the states are left with no real choice but to comply, it is unconstitutional, even if Congress itself explicitly made it.
The same is true for the Byrne JAG awards. The awards are small enough that states can afford to turn them down, so the cut is persuasive rather than compelling. That’s good. But Sessions has no right to attach conditions to them. If he wants to withhold the awards from states that don’t voluntarily comply with the unconstitutional §1373, he needs Congress to make a law saying so. Which means it needs to pass the senate, where the Ds can filibuster it.
http://joshblackman.com/blog/2017/04/21/sanctuary-cities-and-the-constitutionality-of-8-u-s-c-1373/
After reading 8 USC § 1373, I do not see any lack of constitutionality anywhere in the law. All it says is that no one in the US can refuse to share any information on the immigration status of a person, which it may have, with any agency which is authorized to have such information under federal law or to order any governmental agency of person from doing so. This also applies to the maintenance of records, regarding the immigration status of person, by local state and federal agencies. It does not require that this information be collected or maintained, only that it must be made available to any agency with an interest in such information if it is collected and maintained.
The problem that these jurisdictions face, at this point, is that they have directed their employees NOT to communicate with federal immigration authorities under ny circumstances. This appears to be a clear cut violation of the this law.
(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.
So it DOES require “maintaining”, as I noted above.
It cannot…so it doesn’t…require its collection.
The whole reason sanctuary jurisdictions have managed to do what they do is that there is a yawning gap in the law. I doubt very much that anyone here likes that, and some deplore it so much they simply won’t acknowledge it’s true.
The path to repairing that gap is through Congress.
Read that again.
Nowhere in that law does it require state or local authorities to either collect or MAINTAIN any information on the immigration status of any person. However, if it is collected and maintained then it must be made available to INS.
As I think you are trying to point out, not collecting or maintaining such information would not be a reason for the Federal government to take any action, punitive or otherwise, against any person or governmental entity. I totally agree with that. However, virtually all of the bills and state and local governmental procedures dealing with assisting the federal government in the enforcement of immigration laws goes far beyond mere record keeping. It either clearly states or infers that employees MAY NOT “communicate” to the federal government any information concerning immigration matters. This is a clear violation of the following:
“(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.
I hope that helps.
As I said.
Your “inference” is not a violation of the law.
This law. About this specific “information”. Which, if they don’t got, they are under NO obligation to convey.
But, hey, let’s watch and see.
What are we talking about here? What inference? This is not about collecting information or maintaining information, the first of which can be legally prohibited by a state or local jurisdiction, unless that jurisdiction continues to collect and maintain such information. This is about PROHIBITING THE COMMUNICATION OF ANY INFORMATION TO THE INS, by federal, state or local governmental entities or governmental employees.
To clarify, the law makes it illegal instruct such agencies or employees NOT TO COMMUNICATE any information concerning the immigration status of a person to the INS. That is the violation. Not the decision not to collect such information in the first place.
“This appears to be a clear cut violation of the this law.”
What part?
And that’s precisely why it’s unconstitutional. States have the right to restrict their employees from providing their services to the feds, even if the employees want to. It’s unconstitutional for Congress to try to prevent this, thus commandeering those employees’ services.
Some 9th circuit judge will issue a TRO against the Feds withholding the funds. More poliitical circus.
Any honest judge would do the same, because the withholding is illegal. The AG has no such discretion, and Congress can’t give it to him. Only Congress can mandate the withholding, and it must do so explicitly.
If a Sanctuary City official releases an illegal immigrant from custody so that federal agents can’t seize him for deportation, and that fugitive later rapes and murders an American citizen, why isn’t that official subject to criminal or civil penalties?
And would it be constitutional for the federal government to make it easier for civilians to sue Sanctuary State officials?
It would not be a question of constitutionality, and in most cases it would be a state court question, since there would be no diversity question.
Except for the really outrageous conduct of that judge in the Northwest, I doubt that any LEO releases an illegal for the purpose of thwarting immigration enforcement. They just release them according the law. In many sanctuary jurisdictions, no local LEOs get in the way of the feds. They just don’t flag prisoners for them.
Again, this is very analogous to non-enforcement by locals of the Volstead Act during Prohibition.
“Except for the really outrageous conduct of that judge in the Northwest, I doubt that any LEO releases an illegal for the purpose of thwarting immigration enforcement. They just release them according the law. In many sanctuary jurisdictions, no local LEOs get in the way of the feds. They just don’t flag prisoners for them.”
This is, unfortunately, not accurate. There have been a number of instances where local authorities have released people from custody who had immigration holds without notifying ICE prior to that person’s release. The most notable is, of course, the man who killed Kate Steinle. The Sheriff, in that case, used the defense that he had no authority to hold the person. However, as that person was subject to court ordered deportation and had been “loaned to San Francisco for trial on state charges, ICE should have been notified BEFORE he was released. I’m sure that they had local agents in the area who could have picked the man up before the Sheriff’s Office finished his out processing. People try to hide behind this lack of enforcement power far beyond what is actually covered by it. This happens all the time in sanctuary cities, counties and states.
It has become popular to equate the fact that most local LE agents did not assist Treasury agents in the enforcement of the Volstead Act with the activities of the sanctuary states and cities in regard to immigration law. However, it ignores two tings.
The first is that the US Government is not asking or requiring local authorities to assist in the location, identification, arrest or detention of suspected illegal aliens. They are merely requiring that local authorities do not hinder their efforts to enforce the laws.
Second, local authorities did, in fact, assist Treasury agents in the enforcement of the Volstead Act with regard to bootleggers, and criminal enterprises, many of which included violations of state law and local ordinance, as well as federal law. This happens in the area of drug enforcement today. The federal government has no authority to investigate a rape. However, it renders assistance to local jurisdictions routinely in the area of suspect identification and other support activities. There is no reason why a local jurisdiction can not assist federal LE, short of arrest and detention.
Rags, your comments and analysis in this thread are have a type I admired and followed many years ago. I hope this pattern continues.
There’s also an often overlooked component of the Roberts Obamacare decision:
Although Congress may attach conditions to federal funds, they concluded, it may not coerce states into accepting those conditions. And in this case, taking away all the states’ funds for the entirety of its Medicaid program just because it disagreed with a piece of the program would be coercive. But the remedy for that constitutional violation is not to declare the expansion unconstitutional – such that even states that want to participate would not have the option. Instead, the plurality held that the provision of the statute that authorized the Government to cut off all funds for non-compliance with the expansion was unconstitutional. The result is that states can choose to participate in the expansion, must comply with the conditions attached to the new expansion funds if they take that new money, but states can also choose to continue to participate only in the unexpanded version of the program if they want.
http://www.scotusblog.com/2012/06/court-holds-that-states-have-choice-whether-to-join-medicaid-expansion/
Exactly. This is completely settled law. Congress cannot compel states to do its bidding by cutting existing funding which they can’t afford to do without. It may make cuts small enough for the states to afford, and it may attach conditions to new funding, which the states by definition can afford to do without, because they’re already doing so. But only Congress may do so, and it must do so explicitly and unambiguously. Sessions is not Congress.
Any “law enforcement” or “government” that permits foreign invaders to run amok deserves treason charges.
Now that Trump is granting amnesty to damn near everybody, what difference does it make?
Finally, ONE action by Sessions I approve of.
It seems to me some here are conflating cities with states under the Constitution.
States are supposed to be sovereign under the Constitution, and therefore Congress and the president have some limitations in what they can try to force the state to do. (Strangely, those limitations only seem to apply to the legislative and executive branches, while the supposedly co-equal judicial branch has no problem dictating to states.)
Cities have no particular sovereignty under the Constitution, and would fall under state jurisdiction. I think how successful the DOJ is in compelling compliance may depend on the individual state. California, for example, would presumably shield its cities from legal consequences for compliance, while Mississippi (on the list only for the city of Jackson) might not shield its cities at all.
So if the federal government tries to compel San Francisco to comply with their mandates or give up their grants, they may well be able to point to state requirements about “sanctuary” policies and tell the DOJ they don’t have to comply. On the other hand, a city like Jackson might be forced to comply because the state has not objected on their behalf.
I don’t think cities have any particular sovereignty under the Constitution, any more than counties or individuals would. So some of the case law quoted to argue that the DOJ is acting unconstitutionally may only apply to so-called sanctuary states rather than so-called sanctuary cities.
Of course, IANAL, so there may be precedent that treats cities as if they were states. But there’s certainly nothing in the Constitution itself that declares cities to be sovereign entities.
Cities are subdivisions of states, and derive their authority and powers entirely from the state. They have no tenth amendment rights themselves, but exercise their state’s tenth amendment rights so long as the state lets them. That’s why, in my opinion, both California’s and Texas’s laws on sanctuary cities are valid. CA law forbids cities from complying with ICE, Texas law requires them to do so; both are equally valid applications of the state’s tenth amendment rights.
If my memory is correct, when states and cities did not comply with integration the national guard was sent in. If cities and states do not comply with immigration laws do the same thing.