Two days ago, our new president signed an Executive Order that threatened to take away funds from so-called “Sanctuary Cities.” So, what does this mean?

First off, what are sanctuary cities?

When police talk to immigrants – or people they think might be immigrants (and this distinction is important) – Immigration and Customs Enforcement (ICE) want them (police) to hold the immigrants until they can run them through their system to see whether they ought to be deported. Seems sort of reasonable, right? But, here’s the rub.

  1. Police talk to people for lots of reasons. Sometimes, it’s as witnesses. Sometimes, it’s as victims. If witnesses and victims are afraid to talk to police, law enforcement is working with their hands tied behind their backs and will not be able to solve crimes that affect ALL people.
  1. Holding people without probable cause violates their Constitutional rights – whether they’re immigrants or not.

So, what happens in sanctuary cities? The police don’t hold immigrants who are victims or witnesses and don’t report them to ICE. Police do hold and report people who commit serious crimes, or are strongly suspected of committing serious crimes and run them through the ICE database.  Why do I keep using the word “serious?” They are not turning over litterers, those who slide through a stop sign, or commit other petty crimes.

In those cities that identify as sanctuary cities, the police and administration feel that this choice makes all of their citizens safer and are willing to take the small risk attached to it. In many cases where they might hold onto immigrants or people they think might be immigrants (thereby complying with ICE’s request), they are also subject to lawsuits because, without probable cause, they are not legally allowed to hold people (which would apply to all of the witnesses and victims). Many courts have already ruled that these holds violate the Constitution, so municipalities are liable for the consequent litigation. This is especially problematic when – gasp – they are wrong, and the person they’re holding turns out not to be an undocumented alien. (This happens often enough.)

Plus, the administration’s request that police turn over every undocumented immigrant to ICE taxes local police forces by asking them to do the fed’s job. It is not the job — or in the budget — of local police to enforce immigration laws.

Okay, that’s what’s going on now. Let’s talk about Trump’s decision to withhold federal funds to self-proclaimed sanctuary cities. There are a few problems with it.

  1. He exempted police from the cuts. Again, seems logical, right? Hurray for law and order! One problem: current court rulings say the federal government can only withhold funds to local jurisdictions if the money is directly tied to the behavior it objects to. So, you can’t cut funding for, say, education (which is part of what his order threatens) for actions taken by the police – especially when you exempt the police from retaliation for an action they are taking.
  1. Trump’s order slashes funding to all municipalities that refuse to share all information with immigration authorities. The director of the American Civil Liberties Union’s Immigrants’ Rights Project said the cities can argue “they are fully in compliance with that statute,” since they do share information with federal authorities, but limit cooperation when it comes to turning over immigrants who are not convicted criminals.
  1. In most federal disbursements, the White House negotiates with states, not cities — nearly 90% of the money the federal government handed out in the most recent fiscal year went to states, according to a Reuters review of federal spending data.

If the Trump administration wanted to cut off Medicaid money to Chicago, for example, it would have to work through Illinois, making this incredibly challenging. Let’s take this one step further: suppose Austin, for example, declared itself a sanctuary city, but Texas wants to play ball with Trump.  As a practical matter, how will we differentiate between states and cities? (The order doesn’t.)

  1. To force sanctuary cities to hold detained immigrants at ICE’s request requires new legislation, but, Congress already rejected similar legislation in 2015. Maybe they can ram it through now, but it isn’t law at the moment.
  1. What happens in case of catastrophe? Several GOP legislators already withheld Sandy relief because they wanted to stick it to the northeast (although they were aghast at the mere notion that turnabout might be fair play when they needed federal funds for lesser catastrophes). What happens when catastrophe happens to a sanctuary city? What are the odds that this president will choose to withhold relief until/unless he gets the compliance he wants?
  1. And then there’s the ironic (I have the feeling I’m going to be using this word a lot in the next few years). The Constitutional source for some of these challenges to Trump’s order is the Supreme Court’s 2012 decision upholding the Affordable Care Act, in which the court rebuked the federal government for threatening loss of funding to states that refused to expand Medicaid programs. In his majority opinion, Chief Justice John Roberts said Congress couldn’t hold “a gun to the head” of the states. So, what supported the GOP position re: the ACA may undo them when it comes to immigrants.

This Executive Order takes away states’ and cities’ rights to self-determine how they keep their citizens safe. There is no federal law requiring local police to turn over every single person they talk to. States do turn over serious offenders. Punishing them for being selective and self-protective undermines their ability to determine what’s best for them. Someone correct me if I’m wrong, but didn’t it used to be a fundamental and sacred tenet of republicanism that states have rights and the feds should defer to them? And then, what about those pesky human rights? Are we throwing those out too?