When Trump came for sanctuary cities during his first term, federal courts resoundingly ruled against him. The Supreme Court has reaffirmed its anti-commandeering doctrine on multiple occasions. The precedent, derived from the Tenth Amendment, holds that state and local governments cannot have their resources usurped to enforce federal law. Although it has roots in 17th-century jurisprudence, the high court’s rulings in New York v. United States and Printz v. United States officially established the anti-commandeering doctrine.
It appears Attorney General Pam Bondi didn’t get the memo.
Under her leadership, the Justice Department has filed several lawsuits against states, cities, and counties with sanctuary jurisdictions. “Sanctuary policies impede law enforcement and put American citizens at risk by design,” she said in an August 5 statement coinciding with the publication of a list of 35 sanctuary jurisdictions nationwide, while promising to file more and more lawsuits.
Critics argue that the Trump administration is attempting to scare sanctuary jurisdictions into submission, threatening prosecution and federal funding freezes, despite the clear Tenth Amendment precedent. “It’s a thuggish tactic by an openly racist administration trying to cow cities that rightfully protect their residents from groups of armed, masked thugs with guns running through the street kidnapping people,” Andrew Case, supervising counsel of criminal justice at LatinoJustice, told the Prospect.
That doesn’t mean it won’t work. The threat of legal action was enough to convince the mayor of Louisville, Kentucky, to discard the city’s sanctuary policies last month. But a legal victory, as opposed to simply striking fear and scoring political points, would be something new.
On July 25, the U.S. District Court for the Northern District of Illinois dismissed the Justice Department’s lawsuit against the state, Cook County, and the city of Chicago over their sanctuary policies. The presiding judge determined the Trump administration’s argument “lacks standing” and would allow it to “commandeer States under the guise of intergovernmental immunity,” which protects the federal government from state laws that interfere with its operations.
On the heels of the loss, Department of Homeland Security Secretary Kristi Noem smeared Illinois elected officials at a press conference in Chicago on Friday. “They’re being obstructionists when it comes to getting dangerous criminals off of their streets,” she said. “They’d rather be a sanctuary city and put those individuals above American citizens.” But this bluster won’t change the verdict.
Partnership agreements between ICE and local law enforcement can undermine public trust while detracting from crime prevention and resolution.
The lawsuits appear to be more about punishing sanctuary jurisdictions and deterring other cities from adopting similar policies than improving public safety. Cook County State’s Attorney Eileen O’Neill Burke said as much in a statement last week: “The Trump administration’s continued attempts to bully local communities into adopting their preferred policies are not only unlawful, but counter to our values and ability to fight crime effectively.”
The Trump administration has their own countermeasure to sanctuary policies. Hundreds of law enforcement agencies across the country have inked 287(g) partnership agreements with Immigration and Customs Enforcement (ICE) since Trump reactivated and expanded the program on the first day of his second term. In essence, the program deputizes state and local law enforcement as ICE agents, albeit to varying degrees. Under the jail enforcement model, deputized officers can interrogate imprisoned individuals to determine their legal status. These officers may also issue detainers to extend someone’s detention by 48 hours, giving ICE enough time to assume custody and initiate removal proceedings. The warrant service officer model allows for some cooperation between police officers and ICE, as deputized officers may serve administrative warrants. However, they are not authorized to conduct interrogations or issue detainers. Finally, Trump revived the much-reviled task force model, which grants deputized officers the authority to enforce immigration laws in the field.
Rampant racial profiling and other abuses led ICE to suspend the task force model during the Obama administration. Since the start of Trump’s second term, 445 law enforcement agencies in 40 states have executed task force model agreements with ICE (including every county sheriff in Florida).
SANCTUARY POLICIES ARE DESIGNED TO ENCOURAGE people who may not be citizens to report crimes to the police. Such policies make both American citizens and immigrant communities—who are otherwise vulnerable to predatory crime—safer. Conversely, partnership agreements between ICE and local law enforcement can undermine public trust while detracting from crime prevention and resolution, as immigrant victims of violent or hate-motivated crimes are less likely to step forward due to fear of retribution.
Most sanctuary jurisdictions, including California and New York City, have carve-outs for limited cooperation and information-sharing with ICE. Chicago’s Welcoming City Ordinance was amended in 2021 to eliminate such carve-outs in serious criminal cases, but the policy and others like it do not shield noncitizens from prosecution. Moreover, immigrants do not commit crimes at higher rates than American citizens. According to the Brennan Center for Justice, “immigration is associated with lower crime rates and an increase in structural factors … that are linked to neighborhood safety.”
On July 24, the Justice Department filed a 37-page lawsuit against New York City over its sanctuary policies. It came days after the shooting of an off-duty Border Patrol agent in Manhattan, an incident the Trump administration used to bash liberal cities for supposedly running amok. As it stands, a conviction is required as a prerequisite for the city to collaborate with ICE. Mayor Eric Adams, who has been at odds with the New York City Council over the Big Apple’s sanctuary laws, wants to change that by scrapping the conviction requirement and allowing cooperation on suspected violent crimes. (Adams also tried to implement the jail enforcement model at Rikers Island before a judge blocked the move in June.)
“Our communities have been the economic engine to this state, across the state, not just in New York City. Every wave of immigration has … built the state to what it is today,” Murad Awawdeh, president and CEO of the New York Immigration Coalition, told the Prospect. “Our local economies to this day are sustained by immigrant small businesses and the labor of our communities.”
Four counties in New York have 287(g) agreements with ICE: Rensselaer, Niagara, Broome, and Nassau. On Long Island, the Nassau County Police Department formed a task force model partnership with ICE earlier this year. On June 24, a coalition of advocacy groups and two Long Island residents sued to block the partnership, arguing it “is not just harmful—it is flat-out unlawful.”
The lawsuit, which is the first of its kind to challenge a 287(g) agreement in New York, explicitly references the 2018 ruling in Francis v. DeMarco forbidding state and local law enforcement from detaining people suspected of civil immigration violations. While the outcome of the ongoing litigation will determine whether that precedent still holds up, the plaintiffs—including but not limited to the New York Civil Liberties Union and LatinoJustice—have also argued that Nassau County’s decision to sign the agreement was “arbitrary and capricious.” They contended that the decision is not only “mired in racial prejudice,” but it neglects “clear historical evidence that such arrangements invariably result in rampant racial profiling.”
The proliferation of these agreements is precisely why the New York Immigration Coalition and other advocacy groups have been fighting to pass the New York for All Act in the state legislature. The bill, which did not come up for a vote during the most recent legislative session, would have made information-sharing between law enforcement and immigration authorities contingent on securing a judicial warrant from the federal government.
Awawdeh likened Nassau County’s 287(g) agreement to a publicity stunt, telling the Prospect that the partnership and similar agreements across the country may prove costly for taxpayers. “When they get sued for violating people’s rights in the millions, I think that people will second-guess why they bankrupted their localities, their counties, their cities, and their towns over something so stupid that provided them no benefit … We are not nearing a constitutional crisis. We are already in one,” he said.
Dozens of states, cities, and counties appear to be waking up to that. In February, a multistate coalition led by California sued the Trump administration over its threats to withhold funding from sanctuary jurisdictions. The judge in that case later granted a preliminary injunction preventing the federal government from freezing funding, but the litigation remains active.
“People who are in this country and are not citizens are human beings too,” Case told the Prospect. “We know that law enforcement engaging in immigration [enforcement] harms the community … There’s zero benefit to it. It’s a terrible public policy, and that’s why everyone who’s really thought about it, who isn’t a racist moron, has rejected it.”