A Standoff on Immigration Enforcement – A Conversation about Sanctuary Cities and Local Enforcement of Immigration Law

By Anna Jarman

Photo: U.S. Immigration and Customs Enforcement, Creative Commons License

On September 25, 2017, Georgetown University Law Center hosted the 14^th Annual Immigration Law and Policy Conference in partnership with the Migration Policy Institute (MPI) and Catholic Legal Immigration Network, Inc.  The conference addressed immigration policy changes under the Trump administration, including the crack-down on “sanctuary cities.” 

Muzzafar Chishti, director of MPI’s office in New York, moderated a discussion on sanctuary cities and local law enforcement’s role in immigration with Hiroshi Motomura, a law professor at the University of California, Los Angeles, School of Law; Daron Hall, the Sheriff of Davidson County, Tennessee; and J. Thomas Manger, the Chief of Police of Montgomery County, Maryland.

The Executive Order

Five days after taking office, President Trump issued an executive order blocking federal funding to “sanctuary cities” -- municipalities which restrict cooperation between local law enforcement and federal immigration agents.

President Trump’s stance on sanctuary cities fits neatly inside his “America First” foreign policy, which he campaigned on and which has guided his administration since he took office.  President Trump promised that he would put American workers first in all aspects of policy, whether that was negotiating favorable trade agreements or ensuring that illegal immigrants did not deprive American citizens of jobs, drain government benefits, or threaten public safety.

Many lawmakers, including President Trump, believe sanctuary cities threaten public safety by allowing criminals who could have been deported to go free and commit future crimes.  Local law enforcement officials counter that sanctuary measures are necessary to promote trust between illegal immigrants and police.

Sanctuary Cities: Testing Issues of Federalism

Motomura said this standoff over sanctuary cities between federal law and local officials is “testing issues of federalism.”  Immigration was, until recently, a federal issue.  However, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act began to involve state and local governments in immigration enforcement, particularly through section 287(g) of the Act, which deputizes local law enforcement personnel to enforce federal immigration law. 

Some state and local governments have also passed laws on immigration.  For instance, Arizona passed S.B. 1070 which made immigration offenses state crimes and empowered the police to make warrantless arrests of aliens.  In Arizona v. United States, the Supreme Court held these provisions of S.B. 1070 preempted by federal law. 

Motomura explained that while Arizona reduced local governments’ power in immigration enforcement, it did not address the 10^th Amendment issues of coercion and deputizing local police that sanctuary cities implicate.  The Supreme Court has previously held in Printz v. United States that the federal government may not order local officials to enforce federal law.  Additionally, National Federation of Independent Business v. Sebelius, concerning the Affordable Care Act, held that the government cannot use the threat of large funding cuts to “coerce” states into adopting federally demanded policies.  Given the importance of these issues, Motomura expects the federal government to weigh in on these issues as they continue to pressure sanctuary cities.

Practical Issues of Enforcement: Local Law Enforcement’s Perspective

The lack of clarity surrounding law enforcement’s role in immigration enforcement presents a great challenge to local law enforcement agencies, which find themselves embroiled in a divisive political issue and faced with difficult decisions about how best to police their communities.

Sheriff Hall does not think immigration should be something he should be doing, but “since the federal government doesn’t do a good job, [he has] to step in.”  Under his leadership, Davidson County eventually left the controversial 287(g) program.  The program that replaced it, Secure Communities, does not deputize local police but instead requires participating jails to submit arrestee’s fingerprints to the U.S. Immigration and Customs Enforcement’s (ICE) immigration database.  The problem with this approach, Sheriff Hall said, is that an arrestee’s fingerprints will be identifiable only if he has already had an encounter with ICE.  This means that an undocumented immigrant could have committed twenty crimes but remain unknown to ICE.

For both Sheriff Hall and Chief Manger, the challenge is finding a balance between public safety and limiting the harmful effects of deportations on individuals and the community.  Chief Manger worries about the danger created when a portion of the population fears the police and won’t come forward to report crimes or act as witnesses.  In its attempt to strike the right balance, Montgomery County does not comply when ICE asks the county jail to detain an illegal immigrant until they can be taken into ICE custody, but does respond when ICE inquires about individuals held in the county jail.