In our last blog, we provided an update on the lawsuits addressing the January 25, 2017 Sanctuary City Executor Order, Enhancing Public Safety in the Interior of the United States. While these play out, other sanctuary cities have joined the fray, in response to the US Attorney General Jeff Sessions’ July 25, 2017 announcement setting forth certain requirements for the receipt of federal funds through the Edward Byrne Memorial Justice Assistance Grant Programs (JAG).
JAG is the “leading source of federal justice funding to state and local jurisdictions.” Among the program areas JAG supports are law enforcement, prosecution, indigent defense, courts, crime prevention and education, corrections and community corrections, drug treatment and enforcement, planning, evaluation, technology improvement, and crime victim and witness initiatives and mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams.
Sessions’ July 25 announcement states that “[f]rom now on, the [Justice] Department will only provide…JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities….So-called ‘sanctuary’ policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes. These policies also encourage illegal immigration and even human trafficking by perpetuating the lie that in certain cities, illegal aliens can live outside the law. This can have tragic consequences…”
Opposition to the JAG conditions: Chicago
In response to the July 25 announcement, the City of Chicago initiated a lawsuit against the Attorney General, in federal court in Illinois, on August 7, 2017. City officials want the court to stop the Attorney General from “imposing sweeping new conditions” on the JAG Program, which, for years, has “provided crucial support for law enforcement in Chicago and other cities.”
Chicago further asserts that the new conditions unconstitutionally authorize federal officials to enter city facilities and interrogate arrestees at will. This, in turn, will “force the City to detain individuals longer than justified by probable cause, solely to permit federal officials to investigate their immigration status.” This would damage cooperation between local law enforcement and immigrant communities, hinder access to essential city services for all residents, and sabotage public safety.
In addition, in its complaint, Chicago pointed to previously enacted city ordinances, including one in 2006 called the Welcoming City Ordinance, that prohibits the city’s agents or agencies from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or residency status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.”
The lawsuit explains that in 2012, Mayor Rahm Emmanuel and the Chicago City Council expanded the 2006 Welcoming City Ordinance, because the city was getting more requests from the federal government to “maintain custody” of certain individuals. The expansion called for the detention of such individuals only when “Chicago has an independent reason to believe they might pose a threat to public safety,” and flowed from concerns that undocumented Chicagoans would be denied basic protections “in the face of an ICE detainer request.” The lawsuit goes on to allege that those “concerns have proven to be well founded.”
Two additional jurisdictions recently filed coordinated lawsuits against the JAG funding conditions that Chicago is fighting: the state of California, and the City of San Francisco (its second sanctuary city related complaint). In an August 14, 2017, press release, the City Attorney of San Francisco, Dennis Herrera, declared that this time, he is opposing the U.S. Department of Justice for withholding funds by “instituting unconstitutional new conditions on federal law enforcement grants” buried deep within the budget. California Attorney General Xavier Becerra added that: “[t]he Trump Administration cannot manipulate federal grant fund requirements to pressure states, counties or municipalities to enforce federal immigration laws.”
More specifically, the accusation is that the president is proposing changes, hidden in the budget, to the above-mentioned 8 U.S.C. § 1373. H acknowledged that this section “[c]urrently …provides that state and local jurisdictions may not prohibit or restrict employees from sharing information about someone’s citizenship or immigration status with federal immigration officials,” but also asserted that “it does not, however, require local governments to permit employees to provide any other information or to assist with federal immigration enforcement as a condition for receiving any federal grants.”
Ultimately, immigration enforcement is a job for the federal, not local, government. Herrera denounces Sessions’ new conditions as “a backdoor attempt to coerce states and local governments to carry out federal immigration enforcement… The Trump administration is vilifying immigrants while falsely claiming that sanctuary cities are havens for criminals.”
Herrera and Becerra, the California Attorney General, emphasize research results showing that immigrants are less likely to commit crimes than native residents, and that sanctuary jurisdictions have lower crime and less poverty. “We’re safer when all people, including undocumented immigrants, feel safe reporting crimes to authorities. We’re healthier when all residents access public health programs. We’re economically and socially stronger when all children attend school. And our communities are strengthened when members of the public, including undocumented immigrants, can use transit, visit libraries, take their children to school or visit their neighborhood playground without fear.”
More than 600 localities have some sort of sanctuary city policy.