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President Trump’s decision to pardon former Maricopa County sheriff Joe Arpaio on Friday wasn’t just an act of political patronage (though it was that, too). It was a subtle message to a constituency that’s been unexpectedly resistant to the administration’s maximalist agenda on immigration enforcement: sheriffs currently serving in office, who are worried about the courts.
Arpaio was convicted of criminal contempt of court, after refusing to adhere to a federal court order to stop immigration enforcement activities that the court suspected of using racial profiling. Trump just sent a message not to worry about any of that.
The Trump administration has spent its first several months in office steadily ramping up immigration enforcement. But it’s running into a couple of big obstacles — and one of them is that many local sheriffs are wary of holding immigrants for ICE pickup.
Scooping up unauthorized immigrants who’ve been booked into local jails is an important ICE strategy: It allows them to claim they’re going after “criminal aliens,” without having to do the work of tracking anyone down or causing the outcry they get for conducting home raids. For all the administration’s complaints about “sanctuary cities,” the linchpin of this strategy isn’t actually city police forces: it’s county sheriffs, who operate the overwhelming majority of jails.
But many sheriffs are worried that holding people after they’d otherwise be released from jail, in order for ICE agents to pick them up, could get them in trouble with the courts for violating the Fourth Amendment.
“If we violate the law by doing what they ask us to do, we’re subjecting ourselves, no question, to civil liability and civil rights violations,” sheriff Bob Gualtieri of Pinellas County, Florida, told the Daily Beast’s Betsy Woodruff.
Gualtieri felt the Trump administration was oblivious to sheriffs’ concerns: He told Woodruff that officials “are saying, ‘What are you sheriffs doing? Why aren’t you cooperating?’ when they don’t know that it is clearly a problem and that we can’t do it.”
Other reports indicate that the administration is trying to solve the court problem by going around the courts — either by finding some way to “contract” sheriffs to hold immigrant detainees, as the New York Times reported on Monday, or by forcing the courts to decide that holding immigrants for ICE pickup is constitutional. (The administration is trying to intervene in a case in the Third Circuit, which includes Florida, to argue just that.)
There’s no guarantee that any of these strategies will work. The judicial branch — which has been less than deferential to the Trump administration — might hold firm in decreeing that people have a constitutional right to be released from jail when they have posted bail or been cleared, regardless of their immigration status.
That’s where the pardon power comes in. When Trump pardoned Arpaio of a criminal conviction he got for aggressively enforcing immigration law — including holding immigrants for ICE pickup — it sent a very clear message to the sheriffs like Gualtieri who are worried about court liability through the rest of the country. It indicates to them that if they get aggressive, and get in trouble with the law for it, the administration will have their back.
The Trump administration can’t promise total impunity to sheriffs who run into legal trouble for cooperating with federal agents on immigration. For one thing, pardons can’t protect people from civil penalties.
But nothing can stop President Trump from pardoning the next sheriff who takes a hard line on immigration enforcement, and runs afoul of racial-profiling prohibitions for it. And for sheriffs who wanted to help the administration on immigration enforcement but needed an excuse to do it, this could be the time.
