UNIVERSITY NEWS LAST UPDATED : 02 MAY 2018
Donald Trump's presidency has dominated the news headlines since his inauguration, especially when it comes to his policies on immigration. In our latest academic blog, Law lecturer Ilaria di Gioia talks about how these policies have impacted the US's 'sanctuary cities'.
American federalism is in turbulence again. Several local jurisdictions do not like President Trump’s hard-line immigration policies and refuse to enforce them. It is not only about the well-known travel ban; President Trump also issued an Executive Order that threatens to withdraw federal funding to all jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373” - i.e. those jurisdictions that refuse to share information regarding the citizenship or immigration status of any individual with the Immigration and Customs Enforcement (ICE).
Federal law requires local jurisdictions to transmit any information to the ICE that was collected in the course of providing critical services or benefits. Furthermore, local jurisdictions are required to provide the ICE with advanced notice that an individual will be released from custody in order to allow the ICE to carry out immigration status checks. This means that local jurisdictions are required to hold a detainee due for release in custody for an extra 48 hours. According to sanctuary cities, there are two issues with this request. Firstly, they argue that compliance with the ICE detainer requests violates the Fourth Amendment of the U.S. Constitution (“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”). Secondly, they complain that the ICE does not provide them with reimbursement for the expenses incurred beyond detainee usual release dates.
Several local jurisdictions (at least 633 counties) oppose Trump’s stringent immigration policies and expressly declared non-cooperation with the federal government requests. They believe that participating in federal immigration enforcement makes it much more difficult for them to fulfil their role in protecting the safety of the community because, they argue, local law enforcement agencies rely on the trust and respect of the community—including immigrant community members—who provide critical information needed to investigate and solve crimes. On the other front, the New York Times reports that Mr. Trump and many Republicans say sanctuary cities allow criminals to go free, leading to crimes that could have been avoided if the immigrants had been deported.
The jurisdictions that refuse to enforce Trump’s immigration policies are generally called sanctuary cities but there is no single definition of what a sanctuary city is. Some cities, like Detroit, prefer to call themselves welcoming cities.
The dispute has already reached the courts and in November 2017 Judge Orrick blocked Trump’s executive order on denying funding to sanctuary cities. The decision has been appealed and is now pending before the Ninth Circuit Court of Appeals. It is likely that the case will reach the Supreme Court. In this event, the Supreme Court will be confronted again, six years after Sebelius, with a case involving the extent to which the federal government can threaten to withdraw federal funding to states and local authorities that do not comply with its policies. The justices will arguably be deciding the extent to which the Anti-Commandeering doctrine, developed in New York and Printz, forbids President Trump to request the collaboration of local jurisdictions. The case is of particular interest because state rights and related doctrines have been so far espoused by conservative justices. Will liberal justices buy into a conservative doctrine for a bigger cause? It all remains to be seen; this blog will post updates as they are available.
By Ilaria di Gioia
The content above is the opinion of the author(s), and does not represent the views or opinions of Birmingham City University.