Atty. Gen. Jeff Sessions must be getting tired of so much winning in his campaign to punish cities and states with the temerity to challenge his attempted crackdown on immigration.
In the latest episode, U.S. Judge Manuel L. Real of Los Angeles enjoined him from withholding more than $1 million in federal law enforcement assistance funding from L.A. because the city declared itself a “sanctuary” community. Real ruled that Sessions was way out of line in attempting to add conditions to a federal grant program designed to be based strictly on a community’s population and crime rates.
Real's injunction tracks a nationwide injunction issued in April by the U.S. 7th Circuit Court of Appeals in Chicago. In that case, brought by the city of Chicago, the appellate panel ruled 2-1 that Sessions’ actions “evince … a disturbing disregard for the separation of powers” principle enshrined in the Constitution.
“The power of the purse does not belong to the Executive Branch,” the majority reminded Sessions. “It rests in the Legislative Branch,” which in this case didn’t delegate to Sessions the authority to impose conditions on the law enforcement grants.
Several federal courts have slapped down Sessions’ efforts to bludgeon local communities into doing the federal government’s dirty work of immigration enforcement, so it’s proper to take a quick look at Sessions’ viewpoint.
Sessions started throwing conniptions about sanctuary communities in March 2017, a couple of months after President Trump issued an executive order calling for federal funds to be withheld from communities that he said were out to thwart immigration agents. "Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States,” Trump asserted.
Trump’s order recognized that the law might constrain how the Department of Justice might act, so Sessions attempted to gin up a legal rationale. He asserted that jurisdictions across the nation were actively violating federal immigration laws, pumping undocumented immigrants back onto the streets even after their convictions for serious crimes. Sessions has cited two provisions of federal law, "Section 1373" and immigration detainers.
The first, enacted in 1996 under Bill Clinton, prohibits anyone from interfering with the exchange of information with federal authorities about the immigration status of any person. The law says merely that once local officials have that information, they can't be stopped from trading it to the feds. Nothing in the law, however, requires local officials to collect information about the immigration status of anyone they have in custody in the first place.
"Detainers" are requests by immigration officials that local police hold immigrants who are in the U.S. illegally and suspected or accused of a serious crime for 48 hours, or until the immigration authorities can decide if they want to take further action themselves. The Congressional Research Service found in 2015 that local policies vary widely about when to honor detainers, with many honoring those for people held for serious felonies but not for suspects in minor misdemeanor cases. Some require commitments from the federal government to cover the cost of detention or even the locality's legal liability. Demanding compliance with all detainers, some experts say, raises the possibility of federal commandeering of local resources for federal purposes, which happens to be unconstitutional.
Since Sessions began griping about sanctuary laws — many of which were enacted decades before Trump became president — federal judges have recognized consistently that localities have a legitimate interest in creating a trustful relationship between the police and the communities they serve. In communities with large populations of immigrants, that relationship can be easily destroyed if the cops become viewed as immigration agents. Residents will be reluctant to report crimes, much less help police find wrongdoers or testify against them. The result is more dangerous, not safer, communities.
In July, for example, Federal Judge John Mendez of Sacramento rejected the administration’s attempt to block three sanctuary laws enacted by the state Legislature in 2017. Mendez found that for the most part the laws fell squarely within the state’s authority to manage its own law enforcement resources and keep them from being “commandeered” by the federal government for its own purposes.
Nothing in the sanctuary laws “actively obstructs” federal officials, Mendez found; they only required state officials not to participate in federal immigration enforcement, except on their own terms. “Standing aside,” he wrote, “does not equate to standing in the way.”
Sessions hasn’t had any more success in trying to block federal funds for sanctuary cities. That’s the subject of the appeals court and Los Angeles cases. Both pertain to the Edward Byrne Memorial Justice Assistance Grant, a federal program enacted in 2005 and named after a New York police officer slain while guarding an immigrant who had agreed to testify against drug dealers.
Congress established a strict formula for the Byrne funds, requiring that 50% be disbursed each year to states in amounts proportionate to their population and crime levels, with the remaining 50% tied to states’ proportions of violent crime. The city and county of Los Angeles, which were to receive a combined $1.9 million in the current fiscal year, planned to use the money for anti-gang programs, among other things.
Before making the disbursements, however, the DOJ said that applicants would have to certify their compliance with Section 1373 and agree to other forms of cooperation with immigration officials.
The appeals court in Chicago thought little of the DOJ’s arguments. “The Attorney General repeatedly characterizes the issue as whether localities can be allowed to thwart federal law enforcement,” the majority observed. “That is a red herring.” They ridiculed Sessions for being “incredulous that localities receiving federal funds can complain about conditions attached to the distribution of those funds.” But that was just too bad, they concluded: He simply doesn’t have the authority to attach any conditions to the program, other than those dictated by the formula.
Judge Real came to the same conclusion. Sessions’ policy faced Los Angeles with “an impossible choice: Either it must certify compliance with unconstitutional and unlawful directives that impinge on the City’s sovereignty, damage community trust, and harm public safety, or it will lose congressionally authorized Byrne JAG funding.” Real wasn’t inclined to force the city to make that choice.