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On January 25 President Donald Trump issued an Executive Order on “Enhancing Public Safety in the Interior of the United States.”  The Executive Order takes steps to “ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed.”

That same day, the National League of Cities (NLC), the national affiliate of the League, hosted a conference call with most State League executive directors and NLC staff to identify concerns and questions with the Executive Order.  It is unclear if there is a new affirmative obligation to provide local law enforcement personnel to conduct immigration investigations, which potentially creates an unfunded mandate.  It is also unclear what is considered to be a sanctuary jurisdiction.  It appears they are reinstating the Secure Cities program but it is further unclear whether participation will continue to be voluntary or mandatory.  There is uncertainty regarding what federal funds and how much federal funds are at stake.  It is also unclear regarding the impact on previous legally declared sanctuary jurisdiction.

NLC will engage with the administration to get answers and clarification on the executive order on various outstanding questions and concerns with the Executive Order.   As we learn more detail we will continue to advise you.

The Executive Order:

  • Gives the Secretary of Homeland Security (Secretary) up to 1 year to issue rules and guidance to ensure the assessment and collection of all fines and penalties from individuals unlawfully in the country and from those who facilitate their presence;
  • Directs the Secretary to engage with Governors as well as local officials to enter into section 287(g) agreements, which allows the US Immigration and Customs Enforcement (ICE) to enter into agreements with state and local law enforcement agencies and train officers to carry out immigration law enforcement functions;
  • Instructs the Secretary, with the consent of local officials, as appropriate, to take appropriate action to authorize State and local law enforcement officials to perform the functions of immigration officers in relation to the investigation, apprehension, or detentions of individuals illegally in the United States;
  • States that any agreement structured by the Secretary shall ensure that any jurisdiction that fails to comply with applicable federal law does not receive Federal funds, except as mandated by law;
  • Requires the Secretary to prioritize removal of individuals illegally in the United States based on federal statute;
  • Obliges the Attorney General and the Secretary to ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373, which states that a Federal, State or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual;
  • Directs the Secretary to hire 10,000 additional immigration officers;
  • Requires the Secretary to weekly make public a comprehensive list of criminal actions committed by individuals illegally in the United States and any jurisdiction that ignored or otherwise failed to honor any detainers;
  • Directs the Office of Management and Budget to obtain and provide relevant and responsive information on all Federal grant money that is currently received by any sanctuary jurisdiction;
  • Directs the Attorney General and the Secretary to develop and implement a program to ensure that adequate resources are devoted to the prosecution of criminal immigration offense in the United States;
  • Directs the Secretary to establish within ICE an office to provide proactive, timely, adequate, and professional services to victims of crime committed by removable individuals illegally in the United States and requires quarterly reporting studying the effects of victimization by criminals illegally in the United States;
  • Requires the Attorney General and the Secretary to submit a 90 day report and 180 report on the progress of the directives under the Executive Order.

Depending on how the Executive Order is implemented, the Order could raise Constitutional concerns.

In 1984, the United States Congress passed the National Minimum Drinking Age Act, which withheld 5% of federal highway funding from states that did not maintain a minimum legal drinking age of 21. South Dakota, which allowed 19-year-olds to purchase beer containing up to 3.2% alcohol, challenged the law, naming Secretary of Transportation Elizabeth Dole as the defendant.

In its 1987 decision, the Supreme Court held that the statute represented a valid use of Congressional authority under the Spending Clause and that the statute did not infringe upon the rights of the states. The Court established a five-point rule for considering the constitutionality of expenditure cuts of this type:

  1. The spending must promote “the general welfare.”
  2. The condition must be unambiguous.
  3. The condition should relate “to the federal interest in particular national projects or programs.”
  4. The condition imposed on the states must not, in itself, be unconstitutional.
  5. The condition must not be coercive.

Writing for the majority, Chief Justice William Rehnquist wrote that the Congress did not violate the Tenth Amendment because it merely exercised its right to control its spending. Rehnquist wrote that the Congress did not coerce the states because it cut only a small percentage of federal funding. It thus applied pressure but not irresistible pressure.

And more recently, in NFIB v. Sibelius (2012), Chief Justice Roberts famously described the federal government’s plan to withhold all Medicaid funding, if states refused to agree to the Obamacare Medicaid expansion as a coercive “gun to the head.” In that case, states stood to lose over 10 percent of their overall budget by not agreeing to the Medicaid expansion. Many sanctuary jurisdictions would stand to lose that percent of their budget—and more—if they lost all federal dollars.

NLC will engage with the administration to get answers and clarification on various outstanding questions and concerns with the Executive Order.   As we learn more details we will continue to advise you.

Contact:

Michael Cerra, Assistant Executive Director, mcerra@njslom.org, 609-695-3481 x120.

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