Cutting off federal funding to sanctuary cities won't be easy

Published on December 17, 2016

Both before and after his election as President of the United States, Donald Trump has vowed to cut federal funding to sanctuary cities. Though there are several different ways that he could attempt to do so, each is fraught with complications and opposition.

Sanctuary city policies have existed for decades, primarily as public safety measures in places home to large numbers of undocumented immigrants. Effective law enforcement is dependent on the co-operation of witnesses and victims. In a city like Los Angeles, today home to over 1 million undocumented immigrants, it’s imperative that undocumented immigrants can talk to law enforcement officials without fearing repercussions.

Actual implementation of sanctuary policies vary widely by jurisdiction, and have changed substantially over time. One cornerstone of any sanctuary policy is to ensure that people can interact with local services and law enforcement without fear that their immigration status will be communicated to the federal government. However, the Immigration Reform Act of 1996 introduced Section 1373, which prohibits state and local policies that restrict information flow to immigration authorities. This means that if a city employee asks about someone’s immigration status, they can’t withhold that information from federal agencies, but it doesn’t mean that employee must ask about immigration status in the first place. Now many jurisdictions have policies simply not to ask.

The other cornerstone of sanctuary policy is to ignore detainer requests made by Immigration and Customs Enforcement. It’s standard procedure for local police departments to send the fingerprints of arrestees to the FBI to check for outstanding warrants and criminal history. The FBI then shares these fingerprints with ICE, and ICE may request to the police that they detain the person until ICE agents arrive. However, in a test case brought by the ACLU, it was ruled that these requests must be optional, as compulsory orders would violate judicial precedent around the Tenth Amendment. Many cities and states have policies to simply ignore these requests.

So what can the federal government do to punish cities and states that do not help them enforce immigration policy? Any laws that undermine the federal government supremacy over matters of immigration can be challenged in court, as the Obama administration did to Arizona’s infamous S.B. 1070. However, the rhetorical focus has been on using federal funding to these cities and states as leverage to force compliance.

In summer 2016, a bill by Senator Pat Toomey that proposed to exclude sanctuary jurisdictions from Economic Development Administration grants garnered 53 votes, short of the 60 votes needed to proceed. Although the Republicans held a majority in both houses of Congress, they did not have enough votes to push through legislation against sanctuary cities. After Inauguration Day 2017, their majority will have shrunk by two seats, making the chance of such legislation even more remote.

However, the aforementioned Section 1373 has already been invoked by the executive branch to try and force sanctuary jurisdictions to communicate with immigration enforcement. In 2016, Rep. John Culberson of Houston prodded the Department of Justice to clarify the terms of Section 1373 to its grant recipients. That prodding led to a report by the Inspector General that found that many of their sampled jurisdictions did not comply with the spirit, and in some cases the letter, of Section 1373. The Department of Justice has now clarified that certain FY 2017 grants are contingent on certified compliance with the Section 1373.

In an appearance on Fox News, Culberson crowed that this certification represented “an off-switch” for all federal law enforcement funding to sanctuary cities. In reality, the policy changes apply only to the Byrne Justice Assistance Grants (JAG) and State Criminal Alien Assistance Program (SCAAP). Across the entire country, SCAAP awarded $210 million in grants for FY 2016 to fund states’ housing of aliens in custody, and JAG awarded $86 million nationwide for a broad array of criminal justice functions. To put the programs in perspective, for its 2015-2016 budget Los Angeles received $8.2 million between JAG and SCAAP, and took in $148 million from parking fines - almost twenty times as much.

Though the fiscal impact of law enforcement cuts is small, the symbolic impact is much greater. The threat of these cuts drew the condemnation of the Fraternal Order of Police, the police union that endorsed Trump during the election. In fact, funds for policing is perhaps the last thing that Trump, who pitched himself as the “law and order” candidate, would want to withhold. However, there is strong judicial precedent that while federal funds can come with conditions, those conditions must be related to the programs they fund. That means that Section 1373, which concerns law enforcement practices, cannot be used to condition, say, health care financing.

Which isn’t to say that they won’t try. Indeed, that same judicial precedent could invalidate Toomey’s Senate bill, but he introduced it anyway. Any such withholding would be challenged vigorously in court, but the opportunity for delays of funds could wreak some havoc.

It is mildly reassuring to step back and recognize that this is where the battle lines have been drawn. The issue in contention is not whether ICE can directly deputize state and local law enforcement to carry out workplace raids and the like. Even Section 1373 only mandates sharing information gathered, not gathering information in the first place. Cities and states even have further options to protect their immigrants, such as guaranteeing a right to attorney for deportation cases.

But though this is where the battle lines have been drawn, it will require great political will and legal diligence to hold them fast. The federal government has the ultimate power on immigration and massive amounts of financial leverage, and is led by a man with few scruples and an authoritarian streak. It remains to be seen if our courts, our constitution, and our local institutions will be able to hold up.