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Just days after taking office, President Trump issued Executive Order 13768 to block certain federal funds from flowing to sanctuary jurisdictions—that is, municipalities, cities and states which deliberately choose not to enforce federal immigration law within their borders.
Yet, in what seems to be a contradictory effort, Department of Homeland Security Secretary Kirstjen Nielsen has just approved $1.7 billion in federal grant funding to these same cities.
How and why are sanctuary cities still receiving money in contravention of the president’s order? The answer lies in a complex thicket of legal cases that are still working their way through the court system.
But to Trump’s supporters, the issue is clear. Speaking to McClatchy earlier this week, Ralph King, co-founder of the Main Street Patriots put it this way: “If you don’t want to enforce the federal laws of this country . . . you don’t get the federal funding.”
King’s statement reflects the frustration of many around the country who wonder why their tax dollars are going to fund the well-being of cities who willfully flout federal immigration laws. Moreover, many of these same folks pulled the lever for Trump precisely because of his promise to do something about it.
For their part, the Trump administration is making a genuine effort, but once again has been immobilized by low-level federal judges seeking to amplify their own self-importance.
Setting aside the nuances of the legal questions, however, what the Trump administration is seeking to do is actually fairly straightforward. And, in some areas, already settled law.
Put simply, the Department of Justice and the Department of Homeland Security are trying to bar immigration enforcement-specific federal grants from going to municipalities, counties and states that, according to DOJ, “willfully refuse to comply” with federal immigration law.
In other words, the DOJ is attempting to implement as a policy the very sentiment expressed by Ralph King: Jurisdictions that deliberately flout the law will not receive funds that are statutorily conditioned upon following that same law.
Though the flurry of legal activity would have you believe otherwise, the law in question here is actually quite clear. At the center of the DOJ’s argument is 8 U.S.C. § 1373, which expressly prohibits states from barring or restricting communication and cooperation between state and local law enforcement and federal Immigration and Naturalization Services.
Yet that is exactly what these sanctuary jurisdictions are doing. Approximately 300 sanctuary jurisdictions throughout the country prohibit their law enforcement agencies from complying with Immigration and Customs Enforcement (ICE), denying ICE access to interview incarcerated aliens, and impeding the exchange of information about immigrant arrests.
What does this look like, in practice? In California, jurisdictions have withdrawn cooperation with federal officials on sex-slavery and drug-smuggling cases. Cities and towns plagued by an opioid epidemic that has 80 percent of its roots in Mexican drug smuggling refuse to help the federal government arrest those responsible. In March, the mayor of Oakland, California, went so far as to warn illegal immigrants in advance that ICE was planning an operation in the Bay Area, thus helping criminal aliens avoid arrest.
In aggregate, the Center for Immigration Studies estimates that since 2014, approximately 10,000 criminal aliens who were released due to sanctuary policies were arrested—again—for new crimes.
Sanctuary policies make the country less safe, to say nothing of making an open mockery of the rule of law. This is exactly what the DOJ is trying to get at — using the authority of the executive to compel states to follow immigration law.
Though this is the subject of an active court challenge, the question of whether or not the executive has this authority, to a great extent, has already been settled. As one of the U.S. District Court judges opposing the Trump administration grudgingly admitted in a recent opinion, “Through the Immigration and Nationalization Act, Congress granted the executive branch near-plenary power over the regulatory and enforcement of immigration laws in the U.S.” (Emphasis added.)
There is a key distinction here that liberals, in particular, often fail to make. While the executive cannot make immigration law, as President Obama did by constructing the Deferred Action for Childhood Arrivals program quite literally out of thin air, the executive has tremendous authority to apply regulations that work to enforce the existing laws that Congress has already passed.
Whether the Trump administration should feel bound by the various court decisions as they continue to wind their way through the justice system is another question. In authorizing $1.7 billion in federal grants to sanctuary cities, Nielsen deferred to the courts in an as-yet-unsettled legal matter. At least one report indicates that she did so in contradiction to the advice from her top aides, who urged her to withhold money from sanctuary jurisdictions.
While one can only speculate on Nielsen’s reasons for failing to follow through on a top Trump commitment, it certainly counts as a missed opportunity for the administration to underscore its priorities. As Roy Beck, president of Numbers USA put it, Nielsen’s position “does sound a bit like backing down.”
Nielsen’s billion-dollar sign off, coupled with the plodding pace of the courts, means the swiftest way to resolve this issue is to insist on congressional action. While the administration has running room to regulate and enforce immigration laws, only Congress has the authority to impose meaningful consequences on sanctuary jurisdictions. Lawmakers have a key opportunity to address this in their upcoming funding bills, which they must pass before September 30.
Congressional Republicans already missed a key opportunity to restrict funding for sanctuary jurisdictions when they failed to address it in the $1.3 trillion omnibus spending bill passed in March. They should not treat this next opportunity as flippantly—if not because of a genuine commitment to the policy, then at least for the integrity of their own political promises. Just like Trump, nearly all congressional Republicans campaigned on a stricter approach to jurisdictions that openly violate immigration law. Over a year into a full Republican majority, voters are still waiting for them to follow through.
Until they do, sanctuary jurisdictions across the country will continue to receive taxpayer money while deliberately violating the federal laws on which the funds are based—openly mocking the country’s laws while making its citizens less safe.
Photo credit: Andrew Lichtenstein/ Corbis via Getty Images