The Hill (Op-Ed)
By Negar Katirai
May 12, 2017
Shortly after signing his January 25, 2017 Executive Order threatening to cut federal funding to so-called sanctuary cities, President Trump said he was willing to use the order as a weapon” to make sanctuary cities change their policies.
But if this is a weapon, it is firing blanks.
There is no official definition of a sanctuary city. The term is not defined anywhere in our countries’ laws. Trump and his staff use it to refer to cities like San Francisco that refuse to cooperate with “detainer requests” by the Immigration and Customs Enforcement (ICE) to jail suspects without warrant until ICE can pick them up. San Francisco, for example, has a policy of prohibiting its law enforcement officials from holding someone who is otherwise eligible for release solely on the basis of an ICE request.
A critical fact is largely missing from this debate: our Constitution does not allow the President to withhold federal funding from sanctuary cities without congressional authorization. That is why a federal court blocked Trump’s executive order:
First, the Constitution only grants Congress the power to make federal funds conditional. The President does not have the power to place conditions on federal funds to sanctuary cities and cannot delegate this power to DHS or any other executive agency.
Second, even if the President had the power to condition federal funds, conditions on federal funds must be connected to the funded program. Here, that means that only funds related to immigration enforcement can be withheld. Neither the President nor Congress can cut federal funding related to things like Medicare, child welfare services, or emergency preparedness because they are upset that the San Francisco Police Department does not jail immigrants for ICE agents.
Third, Congress cannot place conditions on federal funds retroactively. The Supreme Court has held that Congress cannot make new conditions after a state has voluntarily decided to participate in a federal funded program. Trump’s executive order is an unconstitutional bait and switch that denies fund recipients fair notice of what they have agreed to do.
Other constitutional infirmities of the executive order are laid out in the Federal Court’s decision here
Judge William Orrick observed in his ruling that the Trump administration’s own lawyers grasp that the President lacks power to punish sanctuary cities by cutting federal funding. Instead of defending the executive order on the merits, they argued that the order was nothing more than the President’s use of the bully pulpit. In other words, the order is a paper tiger. It creates no new law or regulation, and it is unconstitutional if construed otherwise.
So why does President Trump say the executive order is a weapon, when his lawyers portray it as a rhetorical device? Because Trump hopes this fake order will scare cities and other locales into compliance where he lacks constitutional power to command that compliance.
This end run around the constitution is working in some jurisdictions, especially those that are so cash-strapped they cannot risk the loss of federal funds or sustain the costs of litigation to defend against this executive overreach. The day after the President issued his executive order Miami-Dade Mayor Carlos Giménez ordered county officials to comply with “detainer requests”.
The impact of the fake order goes beyond cities and counties. It affects vulnerable individuals.
Our law clinic at the University of Arizona represents intimate partner violence survivors. I have clients who are intimidated by the President’s rhetoric to the point where they are forgoing basic needs. One client said she is afraid to leave the house because she does not want to risk being deported for a minor traffic violation.
We told her that Tucson Police Chief Chris Magnus is a proponent of only detaining those immigrants convicted of significant criminal offenses. Another client asked if she should cancel her food stamps and health insurance because she did not want to risk being reported to ICE. We assured her that as a green card holder, she is legally eligible for these benefits, and does not risk her immigration status by receiving them.
The “weapon” is working in one sense. It has caused some localities and individuals to forgo their legal rights. It has created a deceptively simple sound bite: sanctuary cities are “out of control” and he intends to stop them. But the constitutional truth is more complex. It is Trump’s fake order, not the conduct of sanctuary jurisdictions, that is lawless.
To understand and resist such lawlessness, we Americans must understand the limits of presidential power. Non-partisan respect for the separation of powers between the federal and local governments is built into our Constitution. Fundamental federalism principles make it clear that state and local jurisdictions should only heed legitimate federal authority. They need not – and should not — knuckle under Presidential bullying based on blatantly flawed constitutional reasoning.
Federal-state cooperation in law enforcement is a worthy goal. We should commend it. Bending to federal autocratic will is not. We should resist it.
Negar Katirai is an Assistant Clinical Professor and the Director of the Community Law Group at the University of Arizona’s James E. Rogers College of Law. Katirai is a Tucson Public Voices Fellow with The OpEd Project.
The views of contributors are their own and are not the views of The Hill.
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