Ilya Somin is a professor of law at George Mason University. During the Spring 2020 semester, he is serving...
Philip L. Torrey is managing attorney of the Harvard Immigration and Refugee Clinical Program, and a lecturer on law....
J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law school, his...
On February 26, 2020 the 2nd Circuit Court of Appeals in Manhattan ruled that the Department of Justice could withhold funding from “sanctuary cities”, the common term for cities and states that refuse to cooperate with the Trump administration’s crackdown on undocumented immigrants.
On today’s Lawyer 2 Lawyer, host Craig Williams is joined by Ilya Somin, professor of Law at George Mason University, and Philip L. Torrey, managing attorney of the Harvard Immigration and Refugee Clinical Program, to discuss President Trump’s intent to withhold federal funding to sanctuary cities. They take a look at this recent ruling, the legal issues that could arise from the withholding of federal funding, and the impact this could have on state/local rights and immigration.
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Federal Funding and Sanctuary Cities
Philip L. Torrey: The federal government of course does have plenary power when it comes to immigration policy and immigration enforcement, but that plenary power has to operate within constitutional limits, including the reserve powers of the states as it relates to the welfare of their very own citizens.
Ilya Somin: Our immigration policies in some ways make pandemics worse both because immigration detention is a place where viruses can spread easily and because having a large undocumented population that is scared to report for testing for understandable reasons that could be a problem as well.
Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.
I write a legal blog named ‘May It Please the Court’ and have two books out titled ‘How to Get Sued’ and ‘The Sled’.
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On February 26, 2020, the Second Circuit Court of Appeals in Manhattan ruled that the Department of Justice could withhold funding from sanctuary cities, the common term for cities and states who refuse to cooperate with the Trump administration’s crackdown on undocumented immigrants.
Back in 2017 New York City and seven states, Connecticut, Rhode Island, Massachusetts, New Jersey, New York, Virginia and Washington sued the federal government stating that the Trump administration is trying to unlawfully force sanctuary communities to engage in federal immigration enforcement if they want funding to combat crime.
In response to the ruling President Trump tweeted “As per recent Federal Court ruling, the Federal Government will be withholding funds from Sanctuary Cities. They should change their status and go non-Sanctuary. Do not protect criminals!”
So today on Lawyer 2 Lawyer we are going to discuss President Trump’s intent to withhold federal funding to sanctuary cities. We will take a look at this recent ruling, the legal issues that could arise from withholding federal funding and the impact it could have on state and local rights as well as immigration and criminal matters.
To do that, we have got two great guests today. Our first guest is Ilya Somin. He is a Professor of Law at George Mason University. During the spring 2020 semester he is serving as a Visiting Scholar at Georgetown Center for the Constitution at Georgetown University Law Center. His research focuses on constitutional law, property law and the study of popular political participation and its implications for constitutional democracy. Professor Somin also writes regularly for the popular Volokh Conspiracy Blog. Welcome to the show Ilya.
Ilya Somin: Thank you very much for having me.
Welcome to the show Phil.
Philip L. Torrey: Thanks so much for having me.
Ilya Somin: Strangely enough given that we have been talking about sanctuary cities for many years now, there is no one single legal or even political definition of what counts as one, but generally speaking there are jurisdictions, some cities, but also some states like California or New York which limit their cooperation with federal immigration enforcement, that is at least in certain situations they don’t help the federal government try to catch and deport undocumented immigrants.
I think the sanctuary movement dates back at least to the 1980s when some private individuals attempted to help refugees who were fleeing Central America, but had entered the US illegally. In more recent years that has been taken up by various local and state governments as well. The issue predates the Trump administration; it existed under the Bush and Obama administrations too, but obviously it has been ramped up with the Trump administration’s much more aggressive immigration enforcement efforts.
What’s the legal basis for being a sanctuary city? Well, there are a number of different legal issues involved, but the most fundamental basis is in a series of Supreme Court decisions, ironically in this case mostly supported by conservative justices, have ruled that state and local governments are not required to help the federal government enforce federal laws, that is if the federal government says we would like you to use your local police force to help catch violators of some federal law or to help enforce the federal law, the state or locality can say no, we don’t want to help. That’s part of their autonomy as a state government.
And in fact, more conservative jurisdictions in the 90s and since then have sometimes used this to refuse to help with enforcement of some federal firearms laws and more liberal jurisdictions are doing it with immigration laws as well.
There is also issues that I am sure we will discuss which arise in the Second Circuit decision in many other cases about whether if states and localities refuse to cooperate in this way the Trump administration can deny them various kinds of federal funds, in many cases they are trying to do so even without any congressional authorization to do it.
Ilya Somin: I think it’s only indirectly relevant in that obviously a church is not a state or local government, so it’s constitutional relationships to the federal government is different. On the other hand, some sanctuary jurisdictions, they are particularly worried, for good reason, about raids on churches, courthouses and other important institutions and they are especially unwilling to cooperate with federal enforcement in cases where those kinds of institutions might be involved.
Philip L. Torrey: Thank you for the question. The one thing that I would just add to Ilya’s point, and I agree with everything that he said, but one thing that I think is important and perhaps the reason that the term sanctuary is a bit of a misnomer is the fact that immigration authorities are allowed to and in fact do enforce immigration laws in every jurisdiction of the United States regardless of whether they label that jurisdiction as a sanctuary or not, really the concept boils down to local law enforcement policies and their desire to pursue a public safety agenda that they think is best for their location, which often includes concepts such as community policing and sometimes that involves not intermingling their resources and their criminal law enforcement efforts with immigration enforcement efforts.
And the reason that that’s often so important and the reason why many of these so-called sanctuary jurisdictions are supported by a host of different organizations, including the Fraternal Order of Police and Major Cities Chiefs Association is that police really rely on their communities to communicate with them when a crime has been committed or a witness has come forward and the prosecution needs to hear from that witness in a trial, in a criminal trial and when local law enforcement is working closely with immigration enforcement, then there can be a chilling effect in these communities, particularly amongst the folks who may not have US citizenship status.
And so the reason that many of these policies have been adopted by localities around the country is in fact to improve public safety and not to undermine public safety as the Trump administration has been saying that sanctuary cities do.
In fact, there was a 2017 report that noted that there are fewer crimes in sanctuary jurisdictions of the same demographics as opposed to similar localities without sanctuary policies and so I think it’s sort of important to keep that in mind, the purpose behind a lot of these local law enforcement or sanctuary policies.
Ilya Somin: Yeah, the Second Circuit decision is very disappointing because it’s an outlier and it has many flaws. There have been three other federal circuits which addressed this very same issue, the Ninth Circuit, the Seventh Circuit and the Third Circuit, with both liberal and conservative judges on the panels and those circuits all decided almost completely unanimously that these very same conditions that the Trump administration is trying to impose on recipients of certain federal law enforcement grants that they are unconstitutional for a wide range of reasons, but principally because Congress never authorized the imposition of these conditions and therefore the administration can’t just make up its own conditions and attach them to federal funds.
They also I think have played fast and loose with the Supreme Court’s recent precedent on the commandeering issue that I mentioned earlier. So why did they do it? Obviously I can’t know for sure. The reason is in the minds of the three judges who were on the panel, but I think maybe they didn’t sufficiently think through the implications of some of the things that they said.
So for instance, one of the conditions that the Trump administration wants to impose on recipients of these law enforcement grants is adherence to a law called 8 USC §1373, which forbid states and localities from limiting their subordinates’ cooperation in terms of information sharing with federal immigration enforcement. And nothing in the text of the laws which enact these law enforcement grant says that obeying §1373 is one of the conditions, but there is a provision which says they must obey “applicable federal laws”.
And under the reasoning of the Second Circuit applicable federal laws can mean pretty much any law that regulates states and localities in any way, regardless of what relevance it has to the purpose of the law enforcement grants, regardless of the details of that law and so forth. And that’s just clearly not in line with the Supreme Court’s precedent which says that conditions like this must be clearly stated on the face of the law and if taken seriously it could mean that similar wording could be allowed to give the federal government, the executive the power to condition virtually any grant on almost any other federal law of any kind which constrains states and localities in any way.
And that would both create a big stick for the executive to try to beat states and localities in line in a wide range of issues and it would run roughshod over the Supreme Court jurisprudence which says that spending conditions, even if they are passed by Congress, they have to be at least somewhat significantly related to the purpose for which the grant to which they are attached to was enacted.
So for instance, you can’t attach conditions that have little or nothing to do with law enforcement to law enforcement grants.
There are also other problems with the Second Circuit opinion, including on the commandeering side, but the problems on the spending grant side are particularly severe and it’s an unfortunate decision which goes against the overwhelming consensus of other courts addressing the same issue.
Philip L. Torrey: I think that’s exactly right. I mean police power is reserved to the states and have been so since the time of the founding fathers creating the Constitution. So when you look at these policies through that lens and through the lens in which I discussed earlier and how these are really local law enforcement policing decisions about how best to use their resources and how best to ensure public safety in their communities, it’s an area that the federal government really does not have the authorization to undermine.
The federal government of course does have plenary power when it comes to immigration policy and immigration enforcement, but that plenary power has to operate within constitutional limits, including the reserve powers of the states as it relates to the welfare of their very own citizens. And so that’s an argument that has been used and successfully used in a lot of these other lawsuits concerning sanctuary jurisdictions as well as lawsuits concerning its operating — or being prevented from operating in courthouses in other locations.
Ilya Somin: I think the fact that there is a circuit split makes it more likely that it will be taken by the Supreme Court. There is now an effort in which I am participating in full disclosure to try to get the en banc Second Circuit to reconsider what the panel did and reverse it. I think it may not be easy to do that, but it could happen.
If the Second Circuit decision stays in place, then there will be a split and that certainly at least makes it more likely than before that this issue would go to the Supreme Court. If it does go to the Supreme Court, it’s hard to know what will happen for certain. I do think it’s more likely than not that the Second Circuit would be reversed, at least on most of the issues, if not all of them, because I do think that the decision that it made runs into principles that are pretty firmly established in recent Supreme Court decisions, including many supported by conservative Supreme Court justices and I think while there might not be complete unanimity on the Supreme Court in this subject, I don’t think the most likely scenario is that there would be five votes to uphold something like the Second Circuit decision.
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We have been talking about federal funding and sanctuary cities and their legalities. Philip, let’s turn to you and talk about how Trump is playing into this whole thing. Is this a political move? Does he have — obviously we have been talking about the legalities of his ability to be able to do this, but what’s the effect of withholding this money from the various cities and states?
Philip L. Torrey: Well, I think it’s certainly a political move on the Trump administration’s part to basically coerce states and localities around the country to leverage their own resources to increase the number of individuals who are apprehended and moved into removal proceedings and eventually deported from the United States. It was a big campaign promise that he had obviously going into the 2016 election and something that he is looking to capitalize on and further energize his base as we go into the 2020 election at the end of this year.
Shortly after he was inaugurated he issued a series of Executive Orders including an Executive Order that specifically targeted sanctuary cities for repealing or for preventing federal resources from being sent to those sanctuary jurisdictions. And his then Attorney General Jeff Sessions issued a series of policy statements basically threatening to prevent federal funds from going to certain jurisdictions that supposedly did not comply with the statutory provision that Ilya was talking about earlier, meaning §1373 of Title 8. The Trump administration now I think is going to attempt to leverage the Second Circuit decision and increase pressure on these jurisdictions that have adopted the local law enforcement policies we have talked about in terms of community policing and protecting their own resources from use by immigration enforcement individuals. But I do think ultimately it’s a political move and it is something that the Trump administration is hoping to leverage for votes coming this November.
Ilya Somin: The Second Circuit decision only concerns conditions attached to this one program called the Edward Byrne Memorial Justice Grants Fund which I think in the year 2016 only distributed a total of $275 million. So if the Trump administration prevails in this litigation then many sanctuary jurisdictions could just say, and I hope they will say, we are just not willing to accept these conditions and we just won’t try to get this particular grant.
If on the other hand they do accept the conditions and otherwise cooperate with federal immigration enforcement, then you have some of the problems that were talked about earlier in this podcast, namely that there is often a conflict between immigration enforcement and ordinary law enforcement, both because there is a diversion of resources from one to the other and because in communities where there are a lot of undocumented immigrants, people in those areas will be very reluctant to cooperate with the police if they think they might be deported or if friends or relatives of theirs might be deported.
And I should note that because of the lack of due process in the deportation system, all too often even actual US citizens or permanent residents get arrested, put in detention and in some cases even deported before ICE or other federal authorities figure out they have made a mistake. And so even if you yourself are a US citizen but you look like you are of an ethnicity or race similar to those people who might be undocumented, if you live in one of these areas you might be reluctant to cooperate with law enforcement if you think doing so would attract the attention of immigration enforcers and as a result there is this tradeoff and of course there are sometimes dire consequences for the undocumented immigrants themselves. Here there is obviously a question of morality and justice, but I think there is a strong argument that the deportation of most of these people is not actually morally justified even though it is permissible under the law.
Philip L. Torrey: Well, traditionally in most jurisdictions outside of places like Massachusetts, which is a little bit of an outlier that I can talk about in a moment, but often what happens is ICE will show up at a courthouse and enter the courthouse, which is obviously a public location and sit in the gallery and wait for individuals that they have targeted specifically for removal, for their cases to be called and once they have been called and either bail has been set or the individual walks out of the courthouse, ICE then apprehends that person and puts them into removal proceedings.
And as Ilya just mentioned, often that includes putting the person into immigration detention, and when that happens you have a real federalism problem where immigration enforcement, particularly these days, often will not transport the person back to their pending state criminal proceedings which can often result in a default in those criminal proceedings and once that person is removed, getting back into the country with a default on their record as you can imagine is quite difficult to do.
So places like Massachusetts have sued the administration to prevent these kinds of apprehensions at courthouses because they have a number of problematic effects. And what’s interesting is this lawsuit, Ryan v. ICE, which I have been involved in involves both a couple of district attorneys as well as the public defender’s office, both are claiming that ICE operating in courthouses has a detrimental impact on their duties, both as prosecutors and bringing offenses and calling witnesses and prosecuting cases as well as public defenders who are attempting to perhaps bring witnesses as well as defend their defendant clients. When ICE is in courthouses, the sort of chilling effect we described before happens at an exponential level.
And so Massachusetts has recently issued — District of Massachusetts I should say has recently issued a preliminary injunction that prevents ICE from operating in courthouses and I believe it’s a lawsuit that is currently being replicated in other jurisdictions as well. So we will see what happens there.
Ilya Somin: It’s a good question. Under the federal Constitution cities and other local governments have virtually no rights other than whatever these states choose to grant them. While states and localities that are backed by their states or at least not interfered with by their states have various kinds of protections under the federal Constitution. Localities have very little protection against their own state government.
So if a state government wants to require locality to be sanctuary jurisdictions or alternatively forbid them to be so, then as far as the federal Constitution is concerned there is very little that they can do about it. That may be a mistake. That may be a problem with the way the federal Constitution is designed that there is no carve out of any kind of autonomy for localities, but it is the way things are.
So in a state like Texas or Florida which passes laws to constrain sanctuary jurisdiction at the local level, it has fairly broad power to do so at least as far as the federal Constitution is concerned. Conversely, California has broad power to go the other way.
Some of you may know this, a few days ago I wrote a post about immigration and pandemics and I noted that our immigration policies in some ways makes pandemics worse both because immigration detention is a place where viruses can spread easily and because having a large undocumented population that is scared to report for testing for understandable reasons, that could be a problem as well.
I know Phil, you are involved in immigration issues in a bit more direct, hands-on way than I am and one thing to think about is maybe to urge authorities to suspend at least some types of immigration enforcement so that people will be willing to come forward and get tested.
Well gentlemen, it looks like we have just about reached the end of our program so I would like to invite you to take the opportunity to share your final thoughts as well as how our listeners can learn more about you on the Internet.
So first Philip, let’s turn to you.
Philip L. Torrey: Well, thanks so much for having me on the show. I really enjoyed it and enjoyed hearing questions and listening to Ilya as well. I look forward to hopefully a time when these kinds of issues are brought into court where they are not so politicized by the current administration. I think there are certainly arguments on all angles here, but when it comes to the federal government stepping on states and localities’ toes who are pursuing public safety policies that they themselves think are best to pursue and are in the best position to pursue them, then that’s what should be done without the federal government’s interference.
So I am happy to share my contact information if folks have other questions about this work or any of the other work or the crimmigration work that I do. The best way to reach me is via email and my email is [email protected]. Thanks so much.
Ilya, we will turn to you and let you wrap up.
Ilya Somin: So in terms of my contact information, I can best be reached at my website. All you have got to do to find it is just google my name, first name spelled I-L-Y-A, last name S-O-M-I-N. You can also find a lot of my work at The Volokh Conspiracy Blog, where I write regularly at the Reason Magazine website. Volokh is spelled V-O-L-O-K-H.
And in terms of the development of these issues, I think they certainly — it’s extremely important not just for immigration, but for federalism generally. Conservatives who may like the Trump administration trying to beat up on states and localities like this in the immigration area, they should recognize that the same exact thing could be done in other areas, whether environmental law, firearms, education and others and in many cases, particularly if there is a Democratic administration in power, then the conservatives might not be so happy about the results.
Most fundamentally, we are a large and very diverse society and we want to limit the extent to which the federal government can impose one-size-fits-all policies on everybody, including in the area of law enforcement, so I hope over time more people will come to recognize that.
Last thing I will say is I very much appreciate the opportunity to be on this program. Thank you.
Well, if you liked what you heard today, please rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter.
I am Craig Williams. Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.
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