President Donald Trump recently signed an Executive Order denying federal funding to sanctuary cities – jurisdictions that choose not to cooperate with federal efforts to deport undocumented immigrants. The order states that sanctuary cities “that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.”

What is a Sanctuary City?

Sanctuary city is a name given to a city in the United States that follows certain procedures that shelters undocumented persons and do not permit municipal funds or resources to be applied in furtherance of enforcement of federal immigration laws. These cities generally do not permit police or municipal employees to inquire about a person’s immigration status.

Most often, sanctuary policies prevent or otherwise limit state and local officers’ ability to cooperate with U.S. Immigration and Customs Enforcement (ICE) detainer requests. A detainer request asks for local law enforcement agencies to notify ICE prior to releasing an individual from local custody, and to hold him for up to 48h, excluding weekends and holidays, so that ICE can arrange to take over custody enforcement. Some sanctuary policies allow for notification to ICE about an individual charged or convicted of certain offences or is a sex or arson registrant.

The sanctuary movement started in the 1980’s when about a million Central Americans, mainly from El Salvador and Guatemala, crossed the U.S. border-seeking asylum from their repressive governments and seemingly never-ending civil wars. The Reagan administration was supporting these governments’ (especially the governments of El Salvador and Guatemala) attempts to fight communist rebels and therefore, the administration would only characterize Salvadorans and Guatemalans as “economic migrants, not eligible for asylum.” Hundreds of churches in the U.S. openly defied the U.S. government and its immigration policy by providing safe havens for Central Americans.  Influenced by the sanctuary movement, San Francisco passed the “City and County of Refuge” Ordinance in 1989, which barred city money from being used to enforce immigration law. Hundreds of U.S. cities and counties have followed suit and adopted similar “sanctuary” laws or policies.

The procedures that establish a sanctuary city can be by law or by action (de facto). A sanctuary city is created by law when there is a written policy enacted by a local government body in the form of a resolution, ordinance, or administrative action. San Francisco currently has one of the most detailed written policies regarding its status as a sanctuary city.

Are Sanctuary Cities in Compliance with the Law?

Sanctuary cities exemplify the principle of separation of powers between the federal and state governments stated in the Tenth Amendment to the US Constitution. The Tenth Amendment limits the power of Congress to regulate by directly compelling local jurisdictions to enact and enforce a federal regulatory program (New York v. United States (1992) 505 U.S. 144, at 161). Since the federal government has the exclusive authority to enforce the civil provisions of federal immigration law relating to issues such as admission, exclusion, and deportation, Congress is prohibited by the Tenth Amendment from passing laws requiring states to administer civil immigration.

In 1996, the federal government enacted two pieces of legislation which prohibit state or local governments from restricting voluntary communication with the federal government regarding the immigration status of any individual: § 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, 8 U.S.C. § 1644) and § 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, 8 U.S.C. § 1373). Both pieces of legislation were designed to authorize communication by state and local law enforcement agencies with federal immigration authorities regarding the status and presence of undocumented immigrants, but they did not mandate communication or reporting.

The Supreme Court has held that states can enact laws that promote cooperation between local law enforcement and the federal government on immigration matters. In 2012, the United States Supreme Court in U.S. v. Arizona upheld state legislation that requires state and local law enforcement officers to make a reasonable attempt to ascertain the immigration status of persons involved in a lawful stop when officers have a reasonable suspicion that the person is unlawfully present. The Court found that the state provision did not conflict with federal law, but instead fostered the cooperation expressly encouraged in federal law between federal officials and state and local officials.

Thus, although states can choose to cooperate with the federal government on immigration matters, they are not required to do so, and sanctuary cities, insofar as they refuse to cooperate with ICE on immigration enforcement, are in their legal right to do so.

The Constitutionality of the recently signed Executive Order

The new Executive Order signed by President Trump specifically mandates that “the Attorney General and the [Homeland Security] Secretary, in their discretion and to the extent consistent with the law, shall ensure that jurisdictions (sanctuary cities) that willfully refuse to comply with 8 U.S.C. 1373 Communication between government agencies and the Immigration and Naturalization Service, are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Section 1373 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.”

There are serious constitutional problems with conditioning federal grants to sanctuary cities on compliance with Section 1373, and in fact, unless interpreted very narrowly, the Executive Order might be unconstitutional. In the case of Pennhurst State Sch. & Hosp. v. Halderman, the Supreme Court held 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. That condition must be passed by Congress, and may only apply to new grants, not ones that have already been appropriated. The executive is not permitted to, at any time, make up new conditions and impose them on state and local governments without prior notice. Doing so undermines two constitutional principles that are basic to the US system of government, the separation of powers and federalism.