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The Trump administration’s first step to defund “sanctuary cities” is surprisingly cautious

They’re asking a handful of cities and states to obey a federal law...that cities already say they comply with.

Photo by Spencer Platt/Getty Images

On Friday, the Department of Justice sent letters to a handful of jurisdictions that currently receive federal funding for law enforcement, with what seems like an innocuous request: they have 2 months to “provide documentation” proving that they’re in full compliance with a federal law about information-sharing, in order to continue qualifying for federal grants in the coming fiscal year.

But that uncontroversial request — asking cities to prove they obey a law that pretty much all of them say they already obey — is the Trump administration’s attempt to turn up the heat on so-called “sanctuary cities.” And it could lend fuel to a political fight that’s much broader than the jurisdictions who got the letters, or the text of the federal law they’re being asked to obey.

Most cities — and critics — have defined “sanctuaries” as places where local police and jail officials don’t always comply with Immigration and Customs Enforcement requests to hold immigrants in jail (after they’d normally be released) so ICE officers can pick them up.

The Trump administration isn't, so far. The places it’s asked to certify compliance are cities that don’t just fail to help enforce federal law but, the administration has implied, actually violate it — with policies that could prohibit municipal employees from giving any information about immigrants to federal agents.

The threat is substantial: DOJ’s state and local grants include Community-Oriented Policing Services grants, on which many local police departments are heavily reliant. Cities aren’t going down without a fight. (Several cities have already filed a lawsuit against the administration to keep their funding; those cities have limited overlap with the jurisdictions being targeted now.)

What’s not yet clear is whether the Trump administration is being so cautious in defining “sanctuary cities” that they won’t end up doing any actual defunding — or whether this is a setup to argue that cities who don’t do what the federal government wants with immigrants are inherently violating the law. The latter sounds aggressive, but it’s possible the administration might win a court battle — or at least drag it out long enough that cities lose their political appetite for a fight.

The Trump administration isn’t defining “sanctuary cities” the way they’re commonly understood

Debates over “sanctuary cities” have been ongoing for years — including during the debate that unfolded in 2015 after the murder of Kate Steinle in San Francisco, helping propel the fledgling candidacy of long-shot Republican Donald Trump. But the biggest challenge may lie in how the administration defines “sanctuary cities.”

When Attorney General Sessions rolled out his department’s “anti-sanctuary” policy in March, he implied these were the cities his Department of Justice would now start targeting. “Some states and cities have adopted policies designed to frustrate the enforcement of our immigration laws. This includes refusing to detain known felons,” Sessions said. “These policies cannot continue. They make our nation less safe by putting dangerous criminals back on our streets.”

His speech was misleading — not just because of the undertones painting all unauthorized immigrants as dangerous criminals. While the Department of Homeland Security and the Department of Justice are reportedly working on a definition of “sanctuary city” to use in future, Sessions’ DOJ is moving ahead with an interim policy in the meantime — based on a definition of “sanctuary” that isn’t about detention at all.

Under federal law, state and local governments can’t prohibit their employees from sharing information with the federal government (if they so choose) about someone’s immigration status. (They’re allowed to have broad confidentiality policies in place that protect immigration information along with other kinds of personal info.)

In 2016, Republican members of Congress asked the Obama administration’s Justice Department to look into whether cities that got federal grants were violating this law. The memo written by the DOJ’s inspector general in response — which Sessions referred to on Monday — concluded the answer could be yes: that many of America’s biggest cities had policies that, depending on how they were applied, could “restrict cooperation with ICE in all respects.”

In Chicago, for example, an ordinance states that “no agent or agency shall disclose information regarding the citizenship or immigration status of any person unless required to do so by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains.”

It’s not at all clear how many “sanctuary cities” exist under this definition. The DOJ sent letters to nine jurisdictions — including the state of California, the cities of Philadelphia, New Orleans, New York and Chicago (and Cook County, IL, the county associated with Chicago); and the counties associated with Milwaukee, Miami and Las Vegas.

That list is nearly identical to the jurisdictions that the Obama administration looked at in 2016 — which makes sense, since Attorney General Sessions cited the Obama administration report in March when announcing a crackdown on “sanctuary city” funding.

The jurisdictions that the Obama-era DOJ looked at represented 63 percent of active (at the time) DOJ grants through three offices. So in theory, the stakes are high.

But in practice, it’s not clear whether the letter does anything. It just asks the jurisdictions to certify that they’re in compliance with the federal information-sharing law. And those jurisdictions argue that they already do.

The Chicago ordinance (and other similar ordinances) has an exception for “applicable federal law” — a clause local officials point to to argue they’re fully in compliance with the federal information-sharing law.

The Obama administration memo concluded that city employees might, in practice, think they were prohibited from answering any ICE request for information — even when they might want (and be legally authorized) to do so. The Trump administration is certainly hinting that it agrees with that assessment. But nothing is stopping the jurisdictions targeted by the letters from just sending replies in the next two months attesting that they comply with federal law — and using the clauses in their ordinances as the “documentation.”

Then, it’ll be up to the DOJ to decide whether they agree — or whether to challenge the cities’ interpretation.

Photo by the Associated Press

Cities are already suing to keep their funding — but the limited definition of “sanctuary cities” gives the federal government a stronger case

The Supreme Court doesn’t let the federal government tell cities and states which laws to prosecute, and it can’t force them to help enforce federal law. That’s called “commandeering,” and the Supreme Court has ruled it violates the 10th Amendment. This is why President-elect Trump can’t just decree that all police officers in the US have to assist federal immigration agents whenever possible.

If the federal government wants to get states to do something, it has to use funding: making grants to states or cities conditional on certain policies. This is why the legal drinking age is 21 in most states: Thanks to legislation passed in 1984 and pushed by Mothers Against Drunk Driving, the federal government started refusing to give federal highway funds to any state with a lower drinking age.

What the federal government can’t do is place conditions on grants that have nothing to do with the grant’s purpose. (It couldn’t deny Small Business Administration grants, for example, to states that allowed unauthorized immigrants to get driver’s licenses.) Nor can it put conditions on funding to the point of being “coercive” — even if those conditions are relevant to the purpose of the grant. That, too, courts have judged, runs afoul of the 10th Amendment.

This is why the Supreme Court ruled the Medicaid expansion in the Affordable Care Act unconstitutional — it took existing Medicaid funding that states were already receiving, and declared they would stop receiving that money unless they adopted a new, expanded definition for who ought to qualify for the program.

The Medicaid decision was a defeat for progressives when it came down. But in the wake of Trump’s election, many have embraced it — in the belief that Trump’s pledge to defund “sanctuary cities” will also be deemed coercive. Indeed, even before Sessions’s announcement, San Francisco had already filed a lawsuit against the Trump administration to attack the constitutionality of (as yet hypothetical) defunding.

But the Trump Department of Justice might be on much stronger legal footing than the Obama Department of Health and Human Services was. It can argue it’s not putting any new conditions on funding whatsoever — just enforcing existing rules.

As Jessica Vaughan of the Center for Immigration Studies said, according to the inspector general’s memo, “If they are violating federal law, then according to the DOJ rules, they are not eligible for certain DOJ grants.”

This strategy wouldn’t be constitutionally foolproof. (The government would be on much more solid footing, says professor Gabriel Chin of UC Davis, if it replaced existing grants with new ones that had conditions attached — much like Race to the Top grants the Education Department used to pass teacher accountability laws and the adoption of Common Core standards in states — rather than trying to retroactively wedge new conditions into existing funding.) And as we’ve seen in the litigation over the Trump administration’s refugee and visa ban, the judicial branch may be more skeptical of this administration than it has traditionally been of the executive branch.

But even defenders of “sanctuary cities” acknowledged before Trump’s inauguration that a defunding strategy along these lines would be harder to challenge in court. “There is some case law supporting the idea that merely requiring communication is not an impairment of a state’s rights under the 10th Amendment,” says Melissa Keaney of the National Immigration Law Center, which advocates for “sanctuary city”–type policies.

Cities have been defiant. But now the threat of defunding is real.

So far, many local governments are anything but intimidated by the Trump administration’s threats. Dozens of cities that could count as “sanctuaries” have already made it clear that they won’t change their policies even at the risk of losing federal funding.

It’s a way for blue cities to stand up to a suddenly deep-red federal government, and to do so in the name of protecting some of their most vulnerable residents. It doesn’t hurt that because the definition of “sanctuary city” is fuzzy, cities can make it sound like they’re saving their unauthorized immigrant residents from getting turned over to ICE and deported, even if that’s not how it really works.

But cities and agencies that aren’t looking for a big political fight are more cautious. Indeed, the mere threat of defunding has already led one of the targeted jurisdictions — Miami-Dade County — to start complying with federal detainers in February, in the name of turning down the heat from the feds. (This didn’t stop them from getting a DOJ letter Friday.)

Some small towns, like Storm Lake, Iowa, plan to keep protecting their immigrant residents — but avoid the term “sanctuary city.” “We're getting along just fine, we don't need to take on that,” Storm Lake’s city manager told Vice’s Meredith Hoffman.

And local officials who are most directly under threat from federal defunding — police officers — are even more squeamish.

“I don’t think people understand what it would mean to cut off federal assistance,” one California police officer told the Intercept. “I’d lose all my (organized crime task force) funding, my investigative assistance, all the resources we use to go after seriously bad dudes.”

So far, their anxiety hasn’t spilled over to the rest of city governments. But now that the threat of defunding is no longer abstract — even if no jurisdiction has actually lost its grants yet, or been denied requests for new funds — those attitudes could change.

Even cities that respond by challenging defunding in court could lose their appetites over the course of a long and costly legal battle.

And at the end of the day, UC Davis’s Chin says, the federal government could win.

Chin compares the situation to the Solomon Amendment, a statute that prevented universities from getting federal money if they didn’t allow military recruiters access to its campuses (something many schools were loath to do in the era of legalized anti-LGBTQ discrimination in the military). Universities challenged the amendment, but the Supreme Court upheld it — and most schools gave in.

“The cost of noncompliance was too high,” Chin said.

While cities might be willing to fight for the ability to keep both the funding and “sanctuary” policies, if they lose the court case and have to pick one, they might decide they need the former more.

“It’s possible that a cleverly drafted and broadly worded statute could put a lot of state and local funding at risk,” Chin says. “And if that happens, and it was upheld, then I think states and localities would knuckle under.”

That could take years to play out. And it’s going to be harder for the Trump administration to win a legal battle if it doesn’t have backup from Congress in shoring up Sessions’s interpretation of DOJ rules with legislative language. But by choosing the limited definition of “sanctuary,” the Trump administration is picking a fight it could hypothetically win.