A PROPOS OF PRESIDENT’S TRUMP EXECUTIVE ORDER DENYING FUNDING TO SANCTUARY CITIES

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.

THE FEAR OF CYBER ATTACKS, THE GOVERNMENT, AND THE RIGHT TO PRIVACY

In response to a series of major data breaches at US companies in recent months including Sony, Anthem and Target, President Obama unveiled a series of cyber security proposals in his last State of the Union address in January. Obama followed up on this declaration of intent by signing a new executive order during the Summit on Cybersecurity and Consumer Protection organized by the White House at Stanford University in February.

Obama’s executive order encourages the development of Information Sharing and Analysis Organizations (“ISAOs”), providing legal-liability protection to make it easier for businesses and government to share online threat data specific to their industry or geographic region. The order also increases the role of the Department of Homeland Security in the data-sharing process by permitting it to enter into agreements and coordinate the ISAOs.

Mr. Obama’s renewed focus on cyber security has been mostly welcomed by the tech industry, however, the president continues to encounter some of the same suspicions over the privacy of online data that were so effectively highlighted by the Edward Snowden revelations about the NSA in 2013. Although Cyber terrorism is a reality, the concern is that unless there is a balancing between governmental intrusion and the individual’s right to privacy, people’s rights will be violated as they have in the past.

The right to privacy has been affected previously by extraordinary events around the world such as terrorism. While society has not been willing to sacrifice individual civil liberties lightly, it has done so in circumstances where the prevalent belief was that personal security has been threatened. In recent times, surveillance regimes that have been adopted as anti-terrorism measures have had a profound, chilling effect on other fundamental human rights.

The most drastic change affecting privacy in the laws of the United States occurred in response to the 9/11 attacks, when President Bush signed into law the anti-terrorism statute titled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, more commonly known as the USA PATRIOT Act. Among other things, the Patriot Act expanded the wiretapping and electronic surveillance powers of federal law enforcement authorities, and increased the information-sharing powers of investigative agencies. It also allowed law enforcement to demand libraries, bookstores, and businesses to produce tangible items, such as papers, books, and records, about persons of interest, while forbidding disclosure of such a demand. It further authorized searches conducted without giving contemporaneous notice of the search or an actual warrant for the search.

At the end of 2005, an article appeared on the front page of the New York Times chronicling widespread monitoring of telephonic and Internet communications by the NSA—National Security Agency.   These intercepts occurred with the direct authorization President Bush, and were undertaken without approval or oversight by the judiciary, beginning shortly after the 9/11 terrorists attacks. This wide-ranging program targeted interception of email and telephone calls with the number of those targeted ranging from the hundreds to possibly thousands. The effect of such wholesale violation of the right to privacy caused uproar among regular citizens who thought that such governmental intrusion on their personal affairs was overreaching and unwarranted.

Acts of terrorism and a fear for our personal security have historically intersected the privacy protections recognized by governments, and at times, served to take a few steps back in the universal recognition of the right to privacy. However, the government’s unsound arguments positing that the only way to offer protection was to infringe in our right to privacy have not been successful in the long term. People have recognized the obvious flaw with the proposition that there must be a trade off between privacy and security. Our willingness to sacrifice our privacy for security has been short-lived, and eventually, the tide has had to turn back by popular demand.

Upon further reflection and discourse on the effect of excessively curtailing civil liberties, the conclusion must be that a balance between security and respect for human rights is necessary in a civilized society. The two are not mutually exclusive; it is possible to demand cyber security and the protection of the right to privacy at the same time. The government must be very careful not to institute measures that will encroach on peoples’ hard fought civil liberties. The efforts made by Obama through his new initiative must carefully be monitored so that the right to privacy of individuals is sufficiently protected both by government and private entities.