President Trump’s “Sanctuary City” Executive Order managed to re-open an old wound. This is quite remarkable since there is no official definition for the term “Sanctuary City” in immigration policy or law; therefore, it’s impossible to know what constitutes a “Sanctuary City.” What we do know is that the President leads a group of mostly Republicans opposed to something called “Sanctuary Cities.” However, their line of reasoning seems a bit fuzzy. 

In January, President Trump issued an Executive Order intended to crack down on “Sanctuary Cities.” The order argued that sanctuary communities are running afoul of Section 1373 of Title 8 of the US Code. Of course, the President’s order did not provide a definition for the term “Sanctuary City.”

In April, a federal judge, responding to a lawsuit brought by the city of San Francisco, disagreed with Trump. He issued a preliminary injunction blocking the Trump administration from enforcing Section 9 of the Executive Order. Section 9 empowered the Secretary of Homeland Security to create his own definition of a “Sanctuary City” and to then apply it to cities he is trying to coerce into complying with the Executive Order. 

So what is a “Sanctuary City?” Legally speaking, there is no such thing. In the past, there was a “Sanctuary Movement” but it has been dormant for decades. The network of religious congregations that became known as the “Sanctuary Movement” started with a Presbyterian church and a Quaker meeting in Tucson, Arizona in 1980. The Christian values of these two congregations were so deeply offended by American refugee policy that they openly defied the former Immigration and Naturalization Service by extending legal and humanitarian assistance to Salvadoran and Guatemalan refugees. 

At its height, the “Sanctuary Movement” developed a strong Christian following. Then, over 1,000 local Christian and Jewish congregations, several major Protestant denominations, the Conservative and Reform Jewish associations, and several Catholic orders all endorsed the sanctuary concept and openly challenged the Republican administration by publicly sponsoring and supporting non-immigrated Salvadoran or Guatemalan refugee families. Today, offering to clamp down on something called a “Sanctuary City” as a panacea for our immigration and national security troubles is a bit hard to swallow. 

The President’s Executive Order directed that grant money provided to jurisdictions the Department of Justice (DOJ) has unilaterally dubbed “Sanctuary Cities” be retroactively pulled back and that they be prohibited from receiving future federal funding for willfully refusing to comply with 8 USC § 1373. So what does 8 USC § 1373 require? 

Generally speaking today, there are two types of entities that might run afoul of 8 USC § 1373. There are cities that develop rules restricting state and local governments from alerting federal authorities about people who may be in the country without an immigration status. This means, if you’re a city government employee and you believe a non-immigrated resident has fraudulently applied for a benefit program and you want to report that person to Immigration and Customs Enforcement (ICE), the government cannot forbid you from doing so without violating Section 1373. 

Conversely, under section 1373, the federal government cannot compel any city or county government to report such a person’s information to ICE. Your boss can’t stop you from reporting non-immigrated residents to ICE and the government can’t force you to report non-immigrated residents to them. That’s the law.

There are also entities that enact policies which do not honor immigration detainers. The Justice Department also refers to them as “Sanctuary Cities.” Immigration detainers are tools used by ICE officials so they can be notified prior to release of individuals, in jails or prisons nationwide, which have been identified as potentially deportable. Immigration detainers are requests made by ICE; compliance with the requests is strictly voluntary. Law enforcement agencies have absolute discretion to decide which detainers, if any, to honor and under what circumstances.

Through 8 USC § 1373, Congress, not the Executive Branch, has the ability to influence the behavior of state and city immigration policies by setting limits on the use of federal grants. In this case, the Supreme Court has also weighed in by articulating a number of limitations to the conditions Congress, not the DOJ, can place on federal grants. President Trump’s Executive Order appears to violate at least three of these restrictions: (1) the conditions of grants must be unambiguous and cannot be imposed after funds have already been accepted; (2) there must be a nexus between the federal funds at issue and the federal program’s efforts to deport non-immigrated residents; and (3) the financial inducement cannot be coercive. 

Attorney General Sessions, just back from his trip to the “Presidential Woodshed”, is now clear eyed, focused and determined to do the President’s bidding, even if it means having an indifferent relationship with the truth. As part of his atonement, he sent letters to cities the DOJ has dubbed “Sanctuary Cities” telling them federal grant money will be pulled back unless they accede to DOJ’s coercion and notify immigration agents before releasing inmates suspected of possible immigration violations. Chicago quickly joined a growing list of cities that have filed suit against this measure.  

Attorney General Sessions quickly hit back against Chicago saying: “They have demonstrated an open hostility to enforcing laws designed to protect law enforcement and reduce crime, and instead have adopted an official policy of protecting criminals who prey on their own residents.” The Attorney General indicated the Trump administration is committed to the rule of law and to enforcing the laws established by Congress. But are they?

Congress has exclusive authority over the nation’s immigration laws. If the Attorney General believes the law governing allocation and use of federal grants is exacerbating our immigration woes he should be looking to Congress for relief. He shouldn’t be trying to turn public sentiment against so called “Sanctuary Cities” by browbeating and defaming them. 

Personally, I don’t believe local law enforcement belongs in the immigration business so it makes me more than a little suspicious when the Attorney General sets out to vilify so called “Sanctuary Cities” by trying to scare us into believing they hold the key to solving our immigration problems. Congress has wisely kept federal and local law enforcement separate when it comes to immigration control. Here are some of the safe guards Congress has written into 8 USC § 1373:   

  • The federal government is precluded from coercing state or local governments to use their resources to enforce federal regulatory programs, such as immigration. 
  • Policies which limit or prohibit compliance with immigration detainers and requests for notice of release dates do not violate 8 USC § 1373. 
  • Immigration detainers are explicitly not mandatory. Electing not to respond to them is entirely within the discretion of local law enforcement. 

Whether or not they are referred to as “Sanctuary Cities, “thousands of cities and counties throughout America have local policies barring their agencies from expending local capital and resources on immigration enforcement. These are wise and lawful exercises of local authority. Local governments are protected by the nation’s legal and constitutional structure. I don’t believe they can be stripped of federal grant money without due process and clear guidance from Congress.

Clearly, this is a divisive and complex issue that will be settled by the courts. Playing the shame and blame game doesn’t help matters. I know the Attorney General is still pouting from his Presidential tongue lashing, so instead of arguing from the facts, he is using the language of fear, hyperbole and deception as tools to muster public support for this ill-conceived notion.  

Fear is notoriously contagious. Used skillfully by politicians looking to manipulate voters, it’s toxic and capable of driving a wedge between well-meaning citizens. Deliberately arousing public fear makes me wonder what this spectacle is doing to the ray of hope so many have always seen in America. The ray of hope so many pray will be expressed in our leadership.

More than ever, we need leadership that calms and unites, not leadership that agitates and incites.

Ricardo Inzunza, a native of San Diego, California, was appointed Deputy Commissioner of the former Immigration and Naturalization Service (INS) by President Ronald Reagan. During his 8-year tenure, his office was the central source for the development, implementation and oversight of all immigration service policies and practices. Now as CEO of RIA International, Ltd, Ricardo is often asked to serve as a business consultant to clients such as the World Bank and the Peoples Republic of China. He can be reached at 662 418 0913 (O), 202 664 3274 (M), or riatria@aol.com