When the going gets tough, the Trump White House talks tough on the undocumented. Following the untimely death of Trumpcare last Friday, Steve Bannon promised Politico that the administration would reestablish its vitality through a week of “action, action, action.” On Monday afternoon, Attorney General Jeff Sessions appeared to deliver on that promise, when he threatened to deny Justice Department grants to so-called “sanctuary cities.”
“The Department of Justice has a duty to enforce our nation’s laws, including our immigration laws,” Sessions said. “Unfortunately, some states and cities have adopted policies designed to frustrate the enforcement of our immigration laws. This includes refusing to detain known felons under federal detainer requests, or otherwise failing to comply with these laws.”
The attorney general went on to note instances in which sanctuary cities had refused to detain undocumented immigrants who had then gone on to commit murder. After lamenting the “gang crimes, rapes,” and “crimes against children” that liberal cities are enabling out of a misguided aversion to deporting their undocumented residents, Sessions finally got down to policy.
“Today I am urging all states and local jurisdictions to comply with all federal laws,” the attorney general said. “Moreover, the Department of Justice will require jurisdictions seeking or applying for Department grants to certify compliance with section 1373 as a condition for receiving these awards … The Department of Justice will also take all lawful steps to claw back any funds awarded to a jurisdiction that willfully violates section 1373.”
Taken together, Sessions’s remarks sounded like the announcement of a bold new action — one that would put teeth in President Trump’s early executive order condemning sanctuary cities.
But there’s reason to think it was all sound and fury, signifying not much.
“Sanctuary city” is a catch-all denoting any municipality that does not fully cooperate with federal immigration authorities. But most cities earn that designation due to a single policy: They refuse to spend local law-enforcement funds to detain criminal suspects who are in violation of immigration law. The Atlantic’s Priscilla Alvarez offers a concise summary of how this plays out in practice:
The process goes as follows: Police officers arrest immigrants for matters unrelated to their immigration status, and they are booked in local jails, where their fingerprints are taken and eventually shared with Immigration and Customs Enforcement, as is required by law. ICE will ask officials to hold individuals if they are in violation of immigration laws while ICE obtains a warrant. County and municipal policies dictate whether officials will comply, or instead release the individuals in question.
Sanctuary cities argue that honoring such requests inhibits the ability of police departments to gain the trust of immigrant communities. This, in turn, makes it more difficult to stop violent crime — witnesses are unlikely to cooperate with police if doing so could get them deported. There is some empirical evidence to support this rationale: University of California, San Diego political scientist Tom Wong found that, on average, counties that don’t comply with ICE requests have lower crime rates than those that do.
Anyhow, while Sessions spent the bulk of his statement imploring cities to honor detainer requests, his actual policy proposal appears to have nothing to do with them: The attorney general threatened to withhold grants from cities that violate U.S. Code 1373 — but most sanctuary cities don’t violate U.S. Code 1373.
What’s more, Sessions maintained that his new policy is “entirely consistent” with the Obama-era DOJ’s past guidance on these matters; last July, the Obama administration issued a rule requiring any cities applying for Justice Department grants to be in compliance with federal immigration law.
So it seems that, for all his bluster, Sessions merely reiterated his intention to enforce a preexisting Obama-administration policy.
That being said, if the attorney general does intend to take aggressive action against sanctuary cities, he may find himself betrayed by two of his favorite things: states’ rights and Antonin Scalia.