Donald Trump’s early attempts to implement his nativist immigration policies have hit a wall. The President’s aides and lawyers have struggled to interpret and implement his recent executive orders because Trump’s policy directives have been quite vague. For example, on Jan. 25, President Trump signed Executive Order 13768, which purports to withdraw federal funding from sanctuary cities. Funding withdrawal threats can be quite coercive because many local jurisdictions depend on these resources to balance their budgets and provide essential public services. Santa Clara and San Francisco Counties, for example, each receive more than $1 billion in federal funds every year and depend on these outlays to fund safety net programs, care for the poor and elderly and fund earthquake and terrorist disaster relief.
On balance, sanctuary cities have a positive impact on surrounding communities because they foster healthier relationships between immigrant neighborhoods and local law enforcement, protect undocumented individuals from unjust and racially charged deportation raids and allow immigrants to live in peace without constant fear of removal. However, these immigration enclaves also come with costs because they can serve as safe harbors for criminals. On July, 1, 2015, for example, Juan Francisco Lopez-Sanchez, an undocumented immigrant, gunned down Kathryn Steinle, in eastern San Francisco. This murder was particularly heinous because Lopez-Sanchez had been deported five times prior to the incident but re-entered the country after each expulsion. Most undocumented immigrants have not committed serious crimes warranting deportation such as murder or rape, but, those who have should not be here.
Executive Order 13768, however, is a step in the wrong direction. On April 25, United States District Judge William Orrick III entered an order temporarily prohibiting the government from enforcing its policy against Bay Area sanctuary cities because it is riddled with several problems. The order usurps Congress’ right to set conditions on the receipt of federal funds, imposes unexpected, unclear and coercive conditions on state and local governments and denies sanctuary cities any chance to challenge a decision withdrawing federal funding.
Only Congress can create federal programs and provide conditional funding to state and local governments. Federal law mandates that these conditions be unambiguous, have a clear relationship to federal immigration policy, be non-coercive and cannot be retroactively imposed after a local government has taken federal money.
Executive Order 13768 violates each requirement. First, the executive order is vague — it does not even define what a sanctuary city is. Indeed, the President’s Homeland Security Secretary, John Kelly, stated that he has “no clue” how his agency will define the term in enforcement proceedings. Nor does the executive order give state and local governments any guidance on which policies will result in funding withdrawals. Trump’s own lawyers even conceded that they have no idea how a local jurisdiction could comply with his executive order, which is shocking because government lawyers have a collective reputation for being the best and brightest advocates in the profession. Second, the order is non-germane. It punishes sanctuary cities by cutting funding for transportation, vaccination, emergency preparedness and other programs that have absolutely nothing to do with immigration policy. Third, the order is coercive. It threatens to deny sanctuary jurisdictions all federal grants, amounting to hundreds of millions of dollars on which Santa Clara and San Francisco Counties alone rely. Finally, the order imposes retroactive conditions. Federal authorities originally agreed to provide bay area sanctuary cities with federal funding without also requiring local police to cooperate with federal immigration agents.
Congress is also constitutionally barred from commanding state and local officials to enforce federal regulatory programs. But, Trump’s executive order does just this by forcing Bay Area police to detain undocumented criminals that federal officials suspect violated California criminal laws. This requirement isn’t just illegal — it’s unfair. Several police departments around the country have refused to cooperate with federal immigration agents because detention orders can ruin lives since they can be issued without strong evidence that someone committed a crime. The federal government also does not reimburse state governments for detention costs, which can be quite expensive. Trump needs to call his lawyers again.
Contact Habib Olapade at holapade ‘at’ stanford.edu.