Federal Funding for Sanctuary Cities Comes Under Threat in Executive Orders

On Wednesday, January 25, amidst a bevy of executive orders, President Trump signed one particular order promising to withhold federal dollars from “sanctuary jurisdictions.” The order, which according to the White House Briefing Room, is officially titled Enhancing Public Safety in the Interior of the United States, states that “the Secretary of Homeland Security shall, by no later than one year after the date of the executive order, ensure that sanctuary jurisdictions are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”

To unpack the provisions of this order, one must first consider the meaning of a “sanctuary city,” as defined by the president’s administration, legal scholars, and immigration officials. Since the term does not necessarily have a set definition, it is important to consider all perspectives. The executive order, for one, leaves it to the secretary of Homeland Security to designate “sanctuary jurisdictions” based on whether they allow local officials to share people’s immigration status with the federal government.

Based on a 1996 law prohibiting localities from withholding such information, the Trump administration believes sanctuary cities to be clear violators of the law. But, long before the issuance of the executive order, there has been much contention surrounding these claims. According to Barry Friedman, a constitutional law scholar who runs the Policing Project at NYU, “The federal government can’t demand that state officials or local officials do their work.”

According to Friedman, this claim is protected by the Tenth Amendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people” as well as a court precedent established by the United States Supreme Court in Printz v. United States.

If such precedent holds, the feds are, in fact, unable to require local police to collect immigration status from suspects, and moreover, local officials are permitted to tell their police not to request such information. According to this claim, as long as sanctuary cities do not cut off communication with immigration officials about the information they don’t have, they are not disobeying the law.

But, the president’s administration isn’t solely irritated by sanctuary cities’ collective refusal to collect and submit immigration status. Another major source of irritation is the choice many local jails have made to disregard “detainer requests,” the process through which Immigration and Customs Enforcement (“ICE”) asks jails to hold people identified as “unauthorized immigrants.” Even in some more notably conservative jurisdictions, jails are disregarding these requests out of a fear of being sued for holding someone illegally. Because Federalism in America gives police departments a strong sense of independence from federal rule, the only real leverage a President has is money, hence the reason President Trump has threatened to cut federal funding for those cities and jurisdictions whose local law enforcement officers do not comply.

Since courts have indicated that the federal government cannot be coercive when it withdraws funding, it is unlikely that the administration will pull all federal funding from a city or state. Legal experts believe that a safer route would be for the administration to hold back money related to the issues at hand, namely immigration and law enforcement. The former co-chair of President Obama’s police reform task force, Laurie Robinson, believes differently. “Donald Trump has been a strong supporter of the cop on the street. And those law enforcement officers need assistance from the federal government,” she told NPR, “It seems ironic that he would be turning around and cutting off that help.”

Some officials are taking the threat more seriously than others. While leaders of cities like New York, Chicago, and Seattle have vowed to hold strong to their policies and disregard the president’s order, other cities which have not claimed the sanctuary label are considering bringing their policies into line with last Wednesday’s executive order, one example of this being Miami-Dade Mayor Carlos Gimenez’s directing the local jail to honor detainer requests from ICE.

Although it is unclear how jurisdictions will resist or comply with the executive order, the threat of withholding funding has inspired a great deal of research surrounding the constitutionality of such an order and the measures that can be taken without seriously harming the day-to-day functions of some of America’s most thriving cities.