On Thursday, the House passed the No Sanctuary for Criminals Act, which proposes to withhold federal funding from localities that refuse to cooperate with Trump administration immigration measures aimed at criminal noncitizens and other undocumented people. The bill would also allow individuals and close family members of individuals who are victims of felonies committed by undocumented immigrants who have been released from local or state custody against the advice of federal authorities to file suit against states.
The day before, New Orleans Mayor Mitch Landrieu, the new president of the U.S. Conference of Mayors, called on Congress to work on bipartisan immigration and criminal justice law reforms, adding that cities could use more federal assistance to fight terrorism and crime, and provide mental illness, substance abuse, and reentry programs.
Landrieu said in a letter to House members that local leaders do not want their law enforcement officers involved in federal immigration detention activities, nor do they want to be put in legal jeopardy for possible violations of the Fourth Amendment’s prohibitions against unreasonable searches and seizures. (A related bill known as Kate’s Law would establish new mandatory minimum prison terms for deported criminals who return to the United States.)
The sanctuary cities battle, like so many of Trump’s hastily conceived and poorly executed policies, appears headed for another showdown, either when the bills arrive in the Senate, or, in the unlikely event that the upper chamber drums up the 60 votes needed to approve them, almost certainly in the courts.
While the Trumpian turmoil is new, past presidents’ attempts to compel localities to comply with federal policies have met with mixed success. A new report, “Reagan vs. Cities: The 20th Century Battle Over South African Apartheid & Lessons for the Trump Era,” from Jobs to Move America and the Center for Media and Democracy, details the 40th president’s efforts to stamp out the U.S. anti-apartheid movement by several means, including denying federal funds to cities and states that took actions against companies that did business in South Africa.
The report explores the mixed outcomes for two cities that sought to stand their ground against this federal overreach. In 1984, the U.S. Department of Transportation, with the backing of the Justice Department, threatened New York City with the loss of transportation dollars unless the city revoked a local ordinance preventing city officials from contracting with businesses that operated in South Africa or used materials from the country. Although Mayor Ed Koch complained all the way up to President Ronald Reagan, the feisty New Yorker finally backed down, declined to take the matter to the courts, and finally reworked the measure to satisfy federal officials and preserve the city’s federal funding.
Two years later, Baltimore, which had crafted a local ordinance requiring city pension funds to divest $1.1 billion from entities that did business with South Africa, also came under fire. The trustees of the pensions funds and the funds’ beneficiaries (who feared significant financial losses in the short timeframe the funds had to comply with the divestment ordinance) joined forces to take the city to court.
The State Department and the National Security Council submitted briefs supporting the trustees and beneficiaries. But Baltimore ultimately prevailed in the state courts, and the Supreme Court decided not to hear the case. By 1991, nearly 100 cities in 28 states had taken a variety of actions against companies doing business in South Africa.
Although an early attempt by Trump to deny federal funding to sanctuary cities was roundly criticized as unconstitutional (the president aimed to usurp powers granted to Congress) and ultimately blocked by a federal judge, Republicans in Congress have stepped up to take their turn at the issue. Federal courts likely will have the final word on whether the federal government can compel states to assist in immigration enforcement activities or whether such provisions infringe on state powers.
Congress can indeed attach conditions to funding, especially if the funding is related to a specific purpose like law enforcement. Since the Supreme Court has indicated its willingness to consider wider immigration questions like those posed by the administration’s travel ban, it is unlikely that the high court would decline to weigh in, as it did in the Baltimore pension funds question.
Like the anti-apartheid activists, sanctuary cities supporters may find that public response to the crisis may compel different responses from Washington. Grassroots efforts to protect undocumented people have sprouted up all over the country; nearly 650 of the country’s more than 3,000 counties have placed limitations on local law enforcement assistance to federal immigration detention efforts.
But the support for such measures is far from solid in the country at large. Lawmakers in more than 30 states have introduced bills to curb cities’ abilities to weigh in on immigration enforcement. A new Gallup poll shows that Americans’ interests in decreasing the numbers of immigrants admitted to the country have not shifted dramatically.
The “Reagan vs. Cities” report also notes that in addition to cutting off federal funds and other measures, Trump’s tactics include “a public relations strategy aimed at vilifying opponents.” The court of public opinion, however, isn’t always malleable. Reagan may have been the “great communicator,” but he was mostly unable to compel cities and states to abandon divestment and other economic strategies aimed at crippling South African apartheid. Trump, if anything, is more of a great alienator than communicator, who will ultimately run up against the numerical impossibility of deporting millions of undocumented people.