There has been a fair amount of news lately about “sanctuary cities” and the Trump administration’s attempt to crack-down on them.

Before we can discuss the topic though, we need to be clear on the definition.

WHAT IS A “SANCTUARY CITY”?

What is a sanctuary city? Unfortunately, as it relates to any legal definition, things are a bit unclear. To begin with, there is no statutory definition for the term “sanctuary city.”

The term “sanctuary city” was coined by groups in favor of more stringent immigration policies. In the legal sense, however, the term is not meaningful.  As it stands right now, the term is, for the most part, simply a political term more than anything else–not actually a legal term.

How can that be? Let us explain…

Let’s start with the statutes.  There is no clear definition of “sanctuary city” to be found within any federal statute.

All we have is common parlance (not legal), where the term has come to describe those jurisdictions (city, town, county, college campus, etc.) perceived not to be adhering to Immigration and Customs Enforcement’s (ICE) requests.  But do they even have to cooperate with ICE requests? Before we answer that question, let’s talk about one more possible place to find a legal definition– President Trump’s executive order on sanctuary cities.

EXECUTIVE ORDER ON SANCTUARY CITIES

In the executive order, at best, we can infer from its text that President Trump intends to define “sanctuary city” as any place where there is “willful refusal to comply with 8 U.S.C. 1373.”  But even still, 8 U.S.C. 1373, in its own language, expressly permits Federal, State, and local laws to prohibit compliance with ICE requests. In other words, according to the very same federal statute in which Trump seems to use to define “sanctuary city,” if a jurisdiction legislatively prohibits or allows for its officials to refuse ICE’s requests, then they can do so (and would thus not fall within Trump’s implicit definition of a “sanctuary city” although certainly falling within the colloquial definition of the term). Only to the extent that a jurisdiction does not have a law allowing its officials to refuse ICE requests would 8 U.S.C. 1373 even matter.

So in the end, Trump’s order may only have the effect of forcing jurisdictions to codify their policies, but it likely won’t do anything further that that.  Consider that those jurisdictions wishing to refuse ICE requests will simply pass a law expressly permitting the policy, then go on refusing ICE requests without penalty.  The only jurisdictions which could conceivably face a penalty could be those jurisdiction’s who’s officials willfully refuse ICE requests without having a law on their books permitting such refusal (and even still, the law may not be in favor of the Trump administration for even that.)

STATES ARE TAKING SIDES

Because Trump’s executive order seems to rest on adherence to a statute which is easily superseded by any other federal, state, or local law, states and local governments are starting to take a statutory position on whether or not their officials can ignore or deny requests made by ICE.

On Sunday (May 7, 2017), the governor of Texas signed a law that banned sanctuary cities in his state and renewed the national conversation on sanctuary cities and immigration policies.  (The lawsuits over the new law began on Monday with the State of Texas preemptively filing against immigrant rights groups to keep them from suing over the law.)

On the other side of the debate, California’s Senate passed a bill that “prohibits local law enforcement agencies from using resources to investigate, detain, report, or arrest people for immigration violations”. Although this law would likely put the entire State of California into the colloquially understood classification as that of a “sanctuary city,” California would still not fall into any legal classification as being a “sanctuary city” (by Trump’s own standard). By simply codifying its decision to refuse ICE requests, California will end up superseding 8 U.S.C. 1373, and thus Trump’s executive order.

WHAT’S GOING TO CHANGE IN THE END?

Simply put, when the dust clouds settle on Trump’s executive order on “sanctuary cities,” the executive order may be seen for what it probably was all along–a politically motivated order that would have the appearance of doing something about undocumented immigration while, in the end, only serving to force states, counties, and cities to codify their immigration policies with respect to ICE requests.

If anything, it could be argued that President Trump’s executive order may have the result of backfiring in that it may end up forcing jurisdictions to plant their flags in the debate, without equivocation.  As we can already see, it is forcing jurisdictions which may have previously only had loose policies in place, into further codifying their policies into actual laws which expressly permit the exact thing President Trump and his supporters were hoping to stop.

We shall see how it all plays out in the end.  Stay tuned.
#Trump, #ImmigrationLaw, #SanctuaryCities, #LegalWriting

+++

For  more articles, check out our law blog.