Sessions’ Targeting of Sanctuary Cities Not Exactly What It Appears

When Immigration and Customs Enforcement (ICE) put out its first President Donald Trump-administration-ordered report detailing sanctuary cities that refused to cooperate with the feds by detaining illegal immigrants charged or convicted of crimes, attention fell on Travis County, Texas, home of Austin.

The majority of the immigrants listed on the first report had been jailed or held in Austin. So when Attorney General Jeff Sessions announced yesterday that the Department of Justice was going to crack down and threaten the federal DOJ grants to sanctuary cities, naturally people might be curious as to how much this is going to hurt that particular progressive island in generally conservative Texas.

Turns out, perhaps not so much. The Austin American–Statesman asked local law enforcement officials, and they said Sessions’ actions probably won’t affect them because they’re actually complying with the federal regulation he’s pointing to: U.S. Code 1373. Furthermore, even if the DOJ does yank grants, they calculated it affected about $1 million dollars for three programs.

So what gives here? As is thoroughly typical when politicians give a speech, the actual policies don’t really match the rhetoric. When Sessions spoke yesterday, he definitely wanted people to make a connection here that the Department of Justice was planning to punish sanctuary cities that refused to help the feds enforce immigration laws and deport illegal immigrants who had been charged or convicted of crimes:

The American people are justifiably angry. They know that when cities and states refuse to help enforce immigration laws, our nation is less safe. Failure to deport aliens who are convicted for criminal offenses puts whole communities at risk – especially immigrant communities in the very sanctuary jurisdictions that seek to protect the perpetrators.

DUIs, assaults, burglaries, drug crimes, gang crimes, rapes, crimes against children and murders. Countless Americans would be alive today – and countless loved ones would not be grieving today – if the policies of these sanctuary jurisdictions were ended.

Not only do these policies endanger the lives of every American; just last May, the Department of Justice Inspector General found that these policies also violate federal law.

The President has rightly said that this disregard for the law must end. In his executive order, he stated that it is the policy of the executive branch to ensure that states and cities comply with all federal laws, including our immigration laws.

That sounds very much like Sessions is saying that sanctuary cities are violating federal law by not helping deport immigrants. But that’s not what U.S. Code 1373 says. That code is merely about communication about immigration status between various law enforcement agencies and immigration services. It says that government entities may not prohibit communications between law enforcement agencies and immigration officials about somebody’s status as an immigrant or citizen. The code does not require local law enforcement agencies to assist the federal government in deporting immigrants, nor does it require them to honor federal requests to hold illegal immigrants so that ICE can pick them up.

So when Austin officials say they’re in compliance with this federal regulation, it means that they’re not prohibiting communication about an immigrant’s legal status. But since the code doesn’t require their police to assist immigration officials otherwise, they’ve declined to do provide further assistance and ended up on the administration’s list.

When Sessions says some sanctuary cities may be violating federal law, what he means are municipal regulations that attempt to prohibit even communications between law enforcement officials or city employees and the feds about a person’s status as an immigrant. That’s what the federal inspector general’s report was actually about. It states that municipal regulations that prohibit employees from passing along information to immigration officials about a person’s status as an immigrant violate federal law. The same report also makes it very, very clear that even ICE accepts that requests for cities to detain illegal immigrants for them to deport are exactly that—requests, not orders.

Chicago is used in the report as an example of a city violating this federal regulation, so noncompliance is a thing that’s actually happening and could potentially threaten some cities’ federal funding. But this action from Sessions is not as broad as he and Trump likely want us to believe.

Earlier today, Damon Root explored the constitutional issues—which are a completely separate matter—surrounding Sessions’ orders. Read here.