On July 31, the U.S. Court of Appeals in New York City handed down a decision in a case brought by a U.S. citizen who, mistakenly and unlawfully, had been imprisoned by the Department of Homeland Security (DHS) as a “removable alien” for nearly three and a half years. The case focused on what was just the latest in an unending stream of detentions that have displayed flagrant disregard for fundamental constitutional safeguards by federal immigration officials and local law enforcement officials acting at their direction.
Unfortunately, a bill pending before the Senate, already passed earlier this summer by the House, could magnify the abuse endemic in our immigration enforcement system. The transparent design of this “No Sanctuary for Criminals Act” is to erect a legal platform for federal immigration enforcers to assert powers eerily close in scale to a monolithic national police state. It would combine Department of Justice (DOJ), DHS, and local law enforcement resources, flouting vital constitutional constraints and court decisions. By undermining local governments’ capacity to resist federal enforcers’ overreach—resistance now widely apparent in red as well as blue state jurisdictions—the No Sanctuary bill would facilitate the administration’s drive to conscript local police officers into its mass deportation machine. Introduced seven days before passage, with neither a hearing nor markup in the House Judiciary Committee, the bill, regrettably, attracted virtually no media attention (one of few exceptions being a June 30 article at this outlet).
To be sure, this potential enforcement monolith would, at least in principle, operate solely in the immigration sphere. But that is no small thing: Even before this administration took office, half of all federal criminal arrests (82,000 out of 165,000 in 2014) were immigration-related. In the first six months of this year, arrests for civil immigration violations were up by nearly 40 percent, with the greatest increase—nearly 150 percent—in arrests of people with no criminal history.
Even without this legislation, the immigration enforcement infrastructure has long displayed a penchant for acting as a law unto itself. At operational and even supervisory administrative levels, DHS’s Immigration and Customs Enforcement (ICE), and allied components of DOJ and other departments, repeatedly treat statutory and constitutional requirements, and court decisions enforcing them, as inconveniences to be ignored or skirted. At the highest political levels, the Trump administration strategically stokes such propensities—inciting local police officers to rough up suspects against their own superiors’ orders, shelving DOJ investigations of race-driven brutality, and, of course, ostentatiously pardoning the poster child of Constitution-be-damned law enforcement, Sheriff Joe Arpaio. All these gambits radiate white nationalist overtones, and abet metastasis beyond the immigration space.
Five days after his inauguration, Trump sought to aggrandize federal immigration enforcement power, with a loudly ballyhooed executive order cracking down on “[s]anctuary jurisdictions” that “attempt to shield aliens” from deportation. The order directed executive branch agencies to ensure that states and localities comply with a 1996 law that requires them to “maintain” and share with federal agencies information on individuals’ “citizenship or immigration status.” Since the law’s enactment, the scope of its information-sharing requirements had been hazy. To put federal financial muscle behind DHS’s expansive interpretation, the executive order declared that jurisdictions out of compliance with that law “are not eligible to receive federal grants.” (The 1996 law is commonly labeled, “Section 1373” after its spot in the federal immigration code.) The administration was promptly challenged before San Francisco federal District Judge William Orrick, who, on April 25, issued a nationwide injunction against enforcing the order. The judge archly lectured the administration that “the Constitution vests the spending powers in Congress, not the president, so the order cannot constitutionally place new [immigration enforcement] conditions on federal funds.”
Backers of the House-passed No Sanctuary bill claim it would fix the “problem” identified by Judge Orrick by providing express congressional authorization to condition the receipt by states and cities of a wide range of DHS and DOJ federal grants on those states’ and cities’ compliance with the requirements in the bill. However, the bill’s requirements go considerably further, and are more ill-defined, than either Trump’s executive order or the 1996 law. The latter merely purports to bar state and local government entities and officials from restricting information exchange with federal officials concerning individuals’ immigration status. Despite unsubstantiated administration hand-wringing, essentially all jurisdictions nationwide are in compliance with these information-sharing requirements and all jurisdictions already provide to the federal government biometric data for every person booked into their custody, which is then run through federal immigration databases.
The House’s No Sanctuary bill would empower federal officials to compel collaboration across a far wider sweep of activities. The bill would bar local jurisdictions from “in any way, restrict[ing]” subordinate entities or personnel “from assisting or cooperating with Federal law enforcement entities, officials, or other personnel”—no ifs, ands, or buts. More important, these vaguely defined requirements would be enforced by vaguely defined financial sanctions—ineligibility for any grant “substantially related to law enforcement, terrorism, national security, immigration, or naturalization.” Finally, the No Sanctuary bill would levy these sanctions on jurisdictions that refuse to comply with ICE “requests” to “detain” people in their custody for 48 to 96 hours beyond the time when they would otherwise be entitled to release. To date, compliance with such “detainers,” though long and widely issued by ICE, has been understood as purely voluntary. This is because the statutory basis for ICE detainers is tenuous at best, and because of well-established constitutional limitations on federal power to order states and localities around, or deprive individuals of liberty without due process guarantees absent from current detainer practice.
But, while the terms of the new bill are far-reaching, it in no way would resolve the administration’s legal difficulties. Judge Orrick, after all, concluded that lack of statutory authorization was hardly the only infirmity of Trump’s executive order. Belittling “implausible” attempts by DOJ litigators to save the executive order by narrowly interpreting its terms, he held that the order violated Tenth Amendment constitutional protections that constrain Congress no less than the Executive, “because it attempts to conscript states and local jurisdictions into carrying out federal immigration law.” Orrick noted that the Tenth Amendment forbids the federal government from “commandeer[ing]” states or their political subdivisions “to administer or enforce a federal regulatory program.” Further, he held that threatening, as the order does, to deprive “sanctuary jurisdictions of all federal grants, hundreds of millions of dollars on which [they] rely, is unconstitutionally coercive.”
Orrick’s decision followed a spate of federal court decisions rebuffing aggressive ICE interpretations of its authority. All these decisions rely on landmark Supreme Court rulings—in particular, a 1997 decision by Justice Antonin Scalia, which held that “[t]he federal Government may [not] command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Indeed, the House bill appears, if anything, more likely to run afoul of anti-commandeering strictures than the existing, more limited, 1996 law. Orrick also noted that there must be a reasonable relationship between the conditions placed on federal funds and the purpose of the grant program itself. And just as he found no nexus between Section 1373 and the federal funds jeopardized by the executive order, which included funds tied to Medicare, child-welfare services, and emergency preparedness, it’s unclear what nexus the administration could find between cooperating in federal immigration enforcement efforts and funds to help clear rape kit backlogs, which are within the broad ambit of grant programs targeted by the No Sanctuary bill.
So, why are anti-immigration leaders on the Hill and in the administration apparently bent on beating their heads against this decades-old wall of precedent? Clues appear in the multiple court decisions rejecting DHS immigration policies and practices, and actions of state and local governments following them, before as well as after the new administration took office. Apart from the sheer volume and repetitive basis for these judicial rebuffs, the facts of individual cases reinforce the appearance of a pattern of stubborn adherence to unlawful policies and practices. One common circumstance, for example, involves the detention of individuals, including U.S. citizens, with “neither a warrant, an affidavit of probable cause, nor a removal order,” according to a 2014 decision. This extends, according to a 2015 decision, to detentions by local officials acquiescing in ICE’s detainer request without any effort to interview the person, “request documentation,” or “search federal immigration databases” to confirm citizenship before ordering detention. In its coverage of the case described at the beginning of this article, involving the unlawful three-and-a-half-year detention of Davino Watson, a U.S. citizen, NPR reported that an ICE official said, “It is not that agency’s job to determine citizenship.” Indeed, as Judge Robert Katzmann observed in his opinion dissenting from the court’s conclusion that Watson was not entitled to damages for his unlawful detention, “ICE officers apparently did not feel they were obligated to pursue any leads before detaining Watson and subjecting him to removal proceedings.” Judge Katzmann added that “Watson’s experience is far from unusual,” primarily because persons targeted for removal have no right to counsel. Instead, most detainees must, on their own, obtain documentary evidence of their citizenship or right to remain in the country, and persuade frequently indifferent ICE or local operatives, or administrative law judges, to read and act on it, a process that can take days, months, or years.
Federal immigration law enforcers appear willing to flaunt their indifference toward legal constraints not just to hapless private individuals, but to federal judges as well. In 2016, an Illinois federal district court rejected the government’s motion to disband a class action on behalf of individuals incarcerated on the basis of detainers issued without warrants. After the suit was filed, DHS “rescinded” the detainers applicable to the two lead plaintiffs, a U.S. citizen and a lawful permanent resident, in an attempt to have the class action dismissed. The court rejected that ploy. Next, DHS attempted to moot the plaintiffs’ claim that its detainer program violates the Fourth Amendment’s ban on search and seizure without probable cause. DHS revised the form ICE agents must complete before issuing a detainer to include a box to check that ICE had “reason to believe” that the detainee “is subject to removal.” The court dismissed this revision as a change on paper but not in practice: “ICE witnesses testified that the actual process for issuing detainers had not changed.” To this claim, ICE responded that continuing routinely to issue detainers without warrants was lawful, because of a statutory exception waiving the probable cause or warrant requirement if a subject is likely to imminently escape. ICE insisted that it was entitled to assume that all potentially removable aliens, if released from local custody, are, “without exception,” likely to vanish. The court rejected this remarkable assertion as unsubstantiated, factually implausible, and effectively gutting the statutory and constitutional probable cause safeguard.
To be fair to ICE, it has been egged on to play this cat-and-mouse game with the courts by the Justice Department, itself pushed by influential leaders in Congress. Under pressure from Texas Representative John Culberson, Chair of the House Appropriations Subcommittee responsible for funding DOJ, who urged the department to defund jurisdictions allegedly acting in defiance of the 1996 law, DOJ issued a “guidance” in the spring of 2016, stating that a “grantee is required to assure and certify compliance with … Section 1373, as well as all applicable federal regulations, policies, guidelines, and requirements.” Neither the guidance, nor an inspector general memorandum on which it was based, acknowledged constitutional constraints on Section 1373, let alone the separation-of-powers fundamentals that bar an executive agency from financially penalizing alleged non-compliance with statutory provisions or its own “policies,” without clear statutory authorization.
Unsurprisingly, the current DOJ regime has ratcheted up its predecessors’ assertions of power, and mimicked—at the top—their indifference to statutory and constitutional limitations on any such power. On July 25, Attorney General Sessions announced that, henceforth, state and local jurisdictions seeking grants from one of the department’s most important local law enforcement funding programs, which in 2016 provided state and local jurisdictions with over $4 billion in total funds, must permit ICE personnel to interrogate individuals in the jurisdiction’s custody and notify ICE at least 48 hours in advance of a targeted individual’s scheduled release time. On August 3, Sessions pushed the envelope further. He announced that, to qualify for participation in a DOJ training and technical assistance program aimed at enhancing communities’ ability to address violent crime, interested governments would have to adopt a “statute, rule, regulation, policy, or practice” ensuring that it will “honor” a detainer—heretofore entirely voluntary—requesting that it “hold a foreign national for up to 48 hours beyond the scheduled release date.” (Disarmingly shameless, this past Tuesday, Sessions rationalized Trump’s termination of the popular “DACA” [“Deferred Action for Childhood Arrivals”] program, by asserting that Obama’s DACA “circumvented” existing statutory authority—an assertion broadly disputed on both right and left—with no mention of his administration’s aggressive assaults on local law enforcement independence, with no credible statutory basis.)
If the administration is hell-bent to plunge ahead, regardless of the glaring gaps in its authority, what difference does it make whether the No Sanctuary bill becomes law? To begin with, efforts to defend Trump’s original executive order and other related DOJ directives are continuing. Already, Chicago and California have filed multi-pronged federal lawsuits, challenging DOJ’s July 25 order denying grants to localities it labels sanctuary jurisdictions, and others may follow. DOJ lawyers will argue that this bill, if enacted, provides additional statutory authority for these executive actions.
To be sure, the administration’s legal team has good reason for concern about its prospects of success in defending its executive actions in court, with or without passage of the No Sanctuary bill. The federalism doctrines that Judge Orrick referenced were conceived and continue to be promoted by conservative justices and their academic and professional allies, especially libertarians. And the impact on localities attempting to meet federal immigration enforcers’ demands, is, at least in some cases, quite substantial. A 2009 Brookings Institution study found that Prince William County, Virginia, had to increase property taxes and draw money from its emergency funds, and two North Carolina counties incurred more than $10 million in one year, to support their immigration enforcement efforts. Last February, 63 red and blue state senior law enforcement officials signed a letter pushing back against efforts to condition federal grants on cooperation with federal immigration enforcement efforts, arguing that “we can best serve our communities by leaving the enforcement of immigration laws to the federal government.”
Drafters of the House No Sanctuary bill sought to skirt anti-commandeering precedents by phrasing it, as administration defenders argue, not to “affirmatively compel” states and localities to enact or administer a federal program but instead “merely” to prevent them from restricting their employees from “voluntarily” assisting federal immigration officials. But this approach expressly strips state and local government leaders of their ability to direct their own employees. Instead, it effectively enables those employees to work for federal immigration officials. If anything, this circuitous drafting strategy short-circuits states’ ability to govern as sovereigns, even more than the requirement that Justice Scalia struck down on commandeering grounds 20 years ago (at issue then was the question of temporarily requiring that local officials assist in background checks on gun purchasers, pending completion of a federal background check system). Federal district court judge Orlando Garcia, in his August 30 order blocking implementation of much of Texas’s anti-immigrant law, SB4, made a similar point about the penalties imposed by the state law on the actions of police chiefs and sheriffs. Garcia observed that under the law, “[l]ocal officials will be prohibited from effectively guiding, supervising, and directing their employees, and allocating resources to address the most pressing public safety needs of the community.”
Justice Anthony Kennedy has repeatedly stressed the importance of keeping separate and distinct the respective lines of state and federal operational authority, to avoid blurring political accountability and to protect individual liberty. It would be hard to imagine a more compelling illustration of Justice Kennedy’s point than the pattern reflected in cases reviewing immigration detainer practices: local officials perpetuating unjustified detentions, relying blindly on the fact that ICE issued a detainer, itself justified by no warrant or showing of probable cause. Not coincidentally, that sort of ground-level robotic compliance is precisely the modus operandi that federal immigration enforcers appear to want from local personnel. And that is why it is no stretch to characterize their approach as a design for an enforcement monolith.
However much administration lawyers may believe the No Sanctuary bill could shore up their litigation posture, immigration law enforcers no doubt anticipate aggressively deploying the broad provisions of the bill, if enacted, during the years it could take to get a definitive Supreme Court ruling or rulings. Already, as reported by the Wall Street Journal on August 3, ICE currently identifies “as a sanctuary” 137 separate local jurisdictions plus four statewide sanctuaries—California, Colorado, New Mexico, and Rhode Island. To ICE, a “sanctuary” appears to be any jurisdiction that declines to comply with its detainer requests. But state and local jurisdictions are legally entitled not to comply with such requests. Moreover, to comply, without independent state authority, exposes local jurisdictions to monetary liability for violating a detainee’s constitutional rights, as courts have confirmed time and time again, most recently in a Massachusetts' Supreme Judicial Court ruling on July 24. DHS regulations, manuals, and forms acknowledge that ICE has no statutory authority, nor constitutional warrant, to issue detainers on anything but a voluntary basis.
Currently, it appears that Senate Democrats believe they will be able to block the No Sanctuary bill, which ordinarily would need a 60-vote majority to pass. But vigilance is warranted. Presumably, the bill’s proponents may look to fold it into omnibus appropriations, debt ceiling, or other must-pass bills, or, for that matter, in any legislation to codify and extend DACA. Indeed, language to facilitate just such an outcome was buried several hundred pages deep in President Trump’s budget. In the hands of an administration as unabashed as this one is about ignoring established legal constraints, the broad terms of the No Sanctuary bill could offer many avenues toward the monolithic deportation police state that is its all but expressly proclaimed destination.