Trump’s ‘Sanctuary Cities’ Order Violates The Republican Parts Of The Constitution Too
Take progressive thought out of it, for the moment. Just try to think like a conservative person who isn’t otherwise blinded by an irrational dislike of foreigners. The fight over so-called “sanctuary cities” is a fight over whether the federal government can commandeer state resources to carry out federal directives without paying for them. It’s not about immigration, it’s not about border security, it’s about the central government trampling over states’ rights.
It’s ironic, isn’t it? Trump and the Bannonites want local cops to enforce federal immigration laws, instead of putting federal forces (and dollars) on the ground to do the work. Nobody is stopping the FBI from combing the streets of New York trying to check up on my immigration status, if that’s what the Trumpkins think is a good use of the FBI’s time. The issue is that the NYPD also has better things to do than rounding up brown people to make Republicans in Washington, D.C. happy. It’s a pretty basic use of “local control.” It would be almost impossible to explain why the GOP, who has built its house around the concept of “states’ rights,” would be so eager to trample them on this issue, without noticing the race of the people being targeted.
If Trump’s position here wasn’t so covered in racism, it’d be funny. Instead, to find the real comedy, you have to look at what an attack on sanctuary cities would do to policing. Then you see that the “law and order” president is giving snitches more reasons to keep their mouths shut than any number of stitches could accomplish.
See, you have to ask yourself how we’ve gotten to a point where police forces in most urban centers look the other way about an individual’s immigration status. Newsflash: it’s not because cops are “nice” or have “compassion” for the travails of the illegal resident. Cops would use status as a way to coerce people into giving up information, if it worked.
But it doesn’t work. In fact, the opposite happens. When local cops become the deportation force, NOBODY talks to local cops. Nobody trusts them. Nobody works with them. Good cops and investigators need to “live off the land” in a sense. They need to be able to rely on concerned citizens giving them tips and information about what is going on in the streets. If people think the cops will use that information to deport people, or deport the tipsters, well, then that information runs dry. Cops are on an island, and they can’t do their jobs effectively.
Sanctuary cities exist because local law enforcement officials are trying to do their jobs, not because those people are shirking their responsibilities. Sanctuary cities exist to HELP law enforcement, in those cities. If Trump or his supporters could get over their xenophobia, they’d see that, plain as day.
Instead of promoting policies that keep us safe, we have an executive order titled (wait for it) “Enhancing Public Safety in the Interior of the United States.” See? See what I mean? THAT’S FUNNY ‘CAUSE IT DOES THE OPPOSITE.
The order requires law enforcement to share information on the status of individuals they pick up, and hold people here illegally until ICE can get to them. It relies on 8 U.S.C. 1373, which says that local officials cannot stop federal immigration agents from doing their thing. This is a major sticking point. It would mean that people here illegally who are stopped for, say, a traffic violation, would have to be incarcerated, for who knows how long, until federal officials were able to deport them. It’s a community destroyer. But it mostly affects brown communities, so you can see why Trump would be eager to get on with that.
But the order would also require Homeland Security to publish a “list of crimes” committed by illegal residents in sanctuary cities. Can we just stop for a second and think about how STUPID AND RACIST that is? Homeland Security is in charge of preventing the building I’m writing in from crumbling under an ocean of jet fuel. You’re telling me they’re supposed to take time out of their (hopefully busy) day to publish a list of bad acts by brown people? For what purpose? Just to keep the white people who DON’T live anywhere near illegal residents terrified enough to keep voting Trump into office? HOW DOES THAT KEEP ME SAFE WHEN I GET ON THE SUBWAY?
The much-discussed “stick” to all of this is Trump’s threat to pull “federal funding” from “sanctuary cities.” What constitutes a “sanctuary city” for the purposes of losing their funding? Only Trump knows. I’m not being flip. There’s no legal definition of what constitutes a sanctuary city, so it can be pretty much whoever is pissing Trump off at that moment. New York and San Francisco, sure, we already know we’re in the opening week of a four-year war of orange aggression. But freaking Topeka could be on this list if they don’t cheer loud enough when Trump is in need of adulation.
But it’s precisely because Trump would be able to use this action to coerce cities that it is unlikely to be upheld by the courts. Again, normal Republicans can see that. Here’s Ilya Somin:
There are two serious constitutional problems with conditioning federal grants to sanctuary cities on compliance with Section 1373. First, longstanding Supreme Court precedent mandates that the federal government may not impose conditions on grants to states and localities unless the conditions are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” Few if any federal grants to sanctuary cities are explicitly conditioned on compliance with Section 1373. Any such condition must be passed by Congress, and may only apply to new grants, not ones that have already been appropriated. The executive cannot simply make up new conditions on its own and impose them on state and local governments. Doing so undermines both separation of powers and federalism.
Even aside from Trump’s dubious effort to tie it to federal grants, Section 1373 is itself unconstitutional. The Supreme Court has repeatedly ruled that the federal government may not “commandeer” state and local officials by compelling them to enforce federal law. Such policies violate the Tenth Amendment.
The Tenth Amendment is to Republicans what the Fourteenth Amendment is to liberals: it’s the thing that justifies everything else. Trump’s executive action against sanctuary cities is unconstitutional based on entirely conservative and Republican legal theory.
And we haven’t even talked about how liberals who actually run these cities might object.
Why Trump’s executive order on sanctuary cities is unconstitutional [Washington Post]
Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at email@example.com. He will resist.
Published at Fri, 27 Jan 2017 00:14:53 +0000
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