February 13, 2017

Trump Executive Order Targets Sanctuary Cities—But How Will it Be Implemented?

On January 25, President Trump signed an Executive Order (EO) on Enhancing Public Safety in the Interior of the United States. The EO is primarily intended to reduce the independent authority of “sanctuary cities” across the country and boost the enforcement of laws against undocumented immigrants.

Broadly speaking, the EO prioritizes the deportation of undocumented immigrants who have been connected to criminal activity, have been found to have abused public benefits, or who otherwise have been deemed a threat to national security. Furthermore, the EO states that any jurisdiction which willfully refuses to comply with federal immigration law enforcement priorities (that is, directs local and state law enforcement not to enforce federal immigration laws) shall not be eligible for federal grants.

Since its release, the EO has prompted both support and pushback from many cities and local enforcement groups, although there is still a great deal of confusion as to how “sanctuary cities” will be categorized. Many legal experts believe that policies that pressure state and local governments to take part in federal immigration enforcement—as well as the proposed withholding of federal funding—will face significant legal challenges under the current interpretation of the Tenth Amendment and Spending Clause of the U.S. Constitution.

From a legal standpoint, there is no clear definition of what constitutes a “sanctuary jurisdiction.” The EO classifies “sanctuary jurisdictions” as those that do not comply with 8 U.S.C. 1373, a law that prohibits state and local governments from limiting communication with the Department of Homeland Security (DHS) regarding an individual’s immigration status. The EO also categorizes them as jurisdictions that have a specific policy in place that hinders the enforcement of federal law. In most cases, cities do not have a defined policy in place that prevents cooperation with federal authorities, but instead have policies that either ban law enforcement from asking a person about their immigration status or prohibit keeping a person in jail beyond the time they’re required to be there upon receipt of a federal immigration detainer request. Ultimately, Attorney General Jeff Sessions and the Secretary of Homeland Security John Kelly will have broad discretion to designate cities and localities that would fall into this category.

The EO has also received criticism from law enforcement agencies who note that law enforcement agencies are some of the main recipients of federal grants. The EO does allow for the AG and DHS Secretary to exempt some federal law enforcement grants from the withheld funds, but this provision is also subject to a great deal of interpretation.

While cities have been the primary focus of the administration’s efforts, counties across the country will also be most impacted by the provisions of this EO. In the majority of the U.S., jails and sheriff’s departments are managed by the county-level government, and as such are usually the primary jurisdictions to engage with federal immigration authorities. Most counties provide Immigrations and Customs Enforcement (ICE) with any assistance that is requested, and county policy is sometimes at odds with that of the cities within their jurisdiction. It is unclear how this EO will distinguish between these two entities for the purposes of withholding federal funding.

In Congress, several party-line bills have been introduced that would further restrict the availability of federal funding for sanctuary jurisdictions in the field of higher education, infrastructure and economic development. At the state level, several legislatures are moving forward with sanctuary city legislation that would either supplement or go against the EO, depending on party control. While the Texas Senate recently passed a bill that would strip some state funding to sanctuary cities in addition to the federal punishments, the California legislature is working on a bill that would further restrict local law enforcement from aiding federal immigration authorities.

The issue of “sanctuary jurisdictions,” and the interpretation and enforcement of the nation’s immigrations laws will be at the forefront of the Trump administration and Congress. The situation remains fluid and a number of battles are expected to be decided by the courts. Additionally, the Department of Justice, led by Sessions, is expected to have significant influence on the application of federal enforcement mechanisms.

We will continue to track new developments as they occur, but please contact the author for more specific guidance.

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