Justice Dept.’s Threatening Letter to Sanctuary Cities Is Less Than It Seems, and That’s Good

The Department of Justice has sent threatening letters to eight American cities and one county warning them that they face having their federal grants withheld because of their behavior as “sanctuary cities”—but it’s not exactly how it might appear.

President Donald Trump famously campaigned on a promise to eject illegal immigrants and to go after the cities that were protecting them. This has in turn prompted a massive effort by pro-immigration forces in major cities to resist the federal government’s deportation efforts.

So let’s be very clear what’s going on, because both sides have good political reason to overemphasize what’s happening in order to appeal to their voting bases: These letters are not demanding that police and municipal governments assist Immigration and Customs Enforcement (ICE) in rounding up illegal immigrants subject to deportation orders.

The federal government cannot force cities to help them enforce immigration laws. It’s important to understand that, just as they can’t force cities to enforce the federal ban on marijuana possession or consumption. In both cases, federal officials can (and frequently do) go into these cities and enforceme these laws themselves. Through the use of detainer requests, ICE can ask police, prisons, and jails to hold immigrants they believe are subject to deportation orders, but these are requests.

There is, however, a federal immigration regulation that this small group of cities may be violating. Federal regulations forbid any state or local government from prohibiting its employees from communicating with the feds about any person’s immigration status. So, for example, if a local police officer arrests somebody he knows is an immigrant in the United States illegally, he cannot be prohibited from passing that information along to ICE.

The targets of these letters are cities—New Orleans, Miami, Chicago (and Cook County), Philadelphia, Las Vegas, Milwaukee, New York City, Sacramento (California)—that have policies or ordinances that prohibit this communication. An inspector general’s report written back when Barack Obama was president determined these cities may be out of compliance with the law. The Justice Department is ordering them to make sure they are following this one code if they want to keep getting grants.

The regulation also doesn’t require the local governments even keep track of the residency status of people living within their boundaries. “Sanctuary cities” get their identities partly because officials simply refuse to determine whether the people who live there are legal residents of the United States during interactions or arrests. So even those rules won’t change. But in the event local law enforcement officers actually do know the immigration status of a citizen, the city or county can’t stop him from communicating that information to the feds.

The Justice Department put out a short press release announcing the demand that the affected cities and county prove their compliance with the law. There’s a bit of “editorializing” in the press release:

Additionally, many of these jurisdictions are also crumbling under the weight of illegal immigration and violent crime. The number of murders in Chicago has skyrocketed, rising more than 50 percent from the 2015 levels. New York City continues to see gang murder after gang murder, the predictable consequence of the city’s “soft on crime” stance. And just several weeks ago in California’s Bay Area, after a raid captured 11 MS-13 members on charges including murder, extortion and drug trafficking, city officials seemed more concerned with reassuring illegal immigrants that the raid was unrelated to immigration than with warning other MS-13 members that they were next.

The punchline here is that none of the cities in the California Bay Area are recipients of these letters or are accused of being out of compliance with the law. It’s just a swipe at the officials there.