In the standoff between “sanctuary cities” and the Trump administration, a memo from the Attorney General this week indicates that so far the cities are winning, hands down.

While there are no hard-and-fast rules for what qualifies as a “sanctuary city,” the local jurisdictions generally referred to as immigration sanctuaries generally have policies or ordinances on the books that do one of two things, or both:

1) Ban law enforcement from asking a person about their immigration status.
2) Prohibit keeping a person in jail beyond the time they’re required to be there, even after receipt of a federal immigration detainer request.

While this covers a majority, there are a few cities that go further; San Francisco being a notable example. The law on the books there, last amended in 2016, implements the two policies above, but goes further by banning the use of any city resources to, “Assist or cooperate with any ICE investigation, detention, or arrest relating to alleged violations of the civil provisions of federal immigration law.”

Rhetoric from the Trump administration led many people to believe that billions of dollars of federal funding to these cities was due to be cut off at any moment.  On Jan. 25, White House press secretary Sean Spicer said, “What the executive order does is, it directs the secretary to … look at funding streams that are going to these cities … and figure out how we can defund those streams.”

Later that day, Pres. Trump signed Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.”

The following day, Miami-Dade Mayor Carlos Gimenez ordered county jails to comply with federal immigration detainer requests, effectively gutting the county’s distinction as a “sanctuary.” Just weeks later, the County Commission voted 9-3 to officially end its “sanctuary” status. USA Today reported that they did so “citing worries about President Trump’s threat to withhold federal funding from communities that refuse to cooperate with federal agents seeking to deport undocumented immigrants.”

But, as I noted in my Jan. 27 column in The Hill, claims about federal funding being pulled were overblown, as Trump’s executive order didn’t target any of the policies listed above, no matter what administration officials or media headlines may have been saying. My analysis suggested that the executive order only threatened to withhold federal funds from local jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.”

On Tuesday, Attorney General Jeff Sessions agreed.

In his memorandum on the implementation of Executive Order 13768, sent to all Department of Justice grant making components, he wrote, “The term “sanctuary jurisdiction” will refer only to jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.” A jurisdiction that does not willfully refuse to comply with section 1373 is not a “sanctuary jurisdiction…”

Section 1373 bans state and local policies that prohibit the sharing of information with the federal government about the immigration status of an individual. In short, it’s a ban on a ban.

But here’s the rub for the Trump administration. There aren’t any local jurisdictions in the country with an active policy in violation of 8 U.S.C. 1373. Additionally, the many jurisdictions with policies banning law enforcement from inquiring about a person’s immigration status have likely done so to ensure they don’t violate section 1373. Local agencies can’t share information they never asked for in the first place.

Additionally, while the executive order also called for the hiring of 10,000 additional immigration enforcement agents, funding for this was notably absent from the $1 trillion spending bill signed by the President earlier this month. A new budget proposal released by the White House this week includes an expansion of section 1373 in an effort to put financial pressure on cities, but there’s no certainty that it will pass, either Congress, or Constitutional muster.

However, it’s not all bad news, or good news, depending on your perspective.

In Texas, Gov. Abbott is hoping to make sure his entire state helps the federal government enforce federal immigration laws. Earlier this month, he signed a wide-reaching ban on “sanctuary” city policies, defining them far broader than the Trump administration has done. The new law, set to go into effect on Sept. 1, is likely to face court challenges from a number of cities.

This kind of law hasn’t fared too well elsewhere, however, with similar bills killed in red-states like Idaho, Arkansas, Montana, and Florida.

So far, the only wins for Pres. Trump have been done on his behalf by Miami-Dade county and the state of Texas.

Everywhere else, he’s facing major setbacks. Even his own executive order and the Attorney General’s memorandum implementing it will have the practical effect of defunding nothing from no one.

Writing in Federalist #46, James Madison advised states and individuals to utilize a “refusal to cooperate with officers of the Union” as an effective method to stop federal programs, whether “unwarranted,” or merely unpopular. Doing so, he said, “would present obstructions which the federal government would hardly be willing to encounter.”

More than two centuries later, around three hundred cities are proving the “Father of the Constitution” right once again.

Michael Boldin

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