A Republican staffer holds President Donald Trump's budget proposal. Pablo Martinez Monsivais/AP

The White House’s proposal could drive a wedge between local governments and their own employees when it comes to immigration policy.

If "sanctuary cities" thought they had legal protection from the Trump administration, the president's budget proposal could totally change the game.

Tucked inside the 1,200-page document is an attempt to change the law that many cities cite as their legal justification for not cooperating with federal officials on immigration enforcement.

Specifically, the White House has included a few paragraphs that would amend a 1996 immigration law in a way that would make “sanctuary cities” explicitly illegal. Should Congress adopt this language from the White House, it would drastically undermine the authority of local governments to exercise discretion in certain areas of local law enforcement. “This not even a political issue,”says Rick Su, a professor of immigration and local government law at the University of Buffalo. “This is [a question of], can a city—as an employer—define the responsibilities and the jobs of the people they hire.”

Sanctuary cities v. Trump: the backstory

The term “sanctuary cities,” as I’ve previously written, is pretty nebulous. It refers to jurisdictions that have put in place an array of policies that keep local policing separate from federal immigration enforcement. For example: Los Angeles police officers stopped checking immigration status in the field in 1979. The city also declines some Immigration and Customs Enforcement’s (ICE) requests to detain people for extra time. San Francisco, on the other hand, ignores all detainer requests. It also passed an ordinance barring any municipal funds from being spent on federal immigration enforcement. Other jurisdictions have their own variations of these rules. (Important note: anyone who’s booked into a jail—anywhere—has their fingerprints and other information shared with federal authorities.)

In January, President Donald Trump signed an executive order directing members of his cabinet to find a way to withhold federal grants from “sanctuary cities.” It defined these as jurisdictions that “willfully violate” a federal statute (U.S. Code Section 1373), which says that local governments cannot prohibit any other government entity from maintaining or sharing information about a person’s immigration status with federal immigration authorities. This move faced legal pushback: San Francisco and other cities sued. In April, a federal judge ruled in their favor, blocking the order.

In April, Attorney General Jeff Sessions sent letters to nine “sanctuary” jurisdictions, asking for proof that they were, in fact, complying with Section 1373. So, let’s scrutinize the statute itself for a second. Legal scholars like Ilya Somin at George Mason University have argued that this statute, in its current form, constitutes “commandeering,”—that is, it forces a gun to the head of local governments and violates the federalism clause of the Constitution. (Because of its roundabout phrasing, though, others feel it sidesteps that concern.)

What the statute doesn’t say is also important here—it doesn’t say that law enforcement must actively collect immigration-related information, accept detainer requests, or do other types of active immigration enforcement. In other words, it doesn’t say that what sanctuary cities are currently doing is illegal.

“1373 itself prevents ‘don't tell’ policies—that if someone wants to exchange information with the federal government, a state or local government can't stop them from doing it,” Su says. “But what many localities did to write around it is that they implemented ‘don't ask,’ and ‘don't use municipal resources’ policies.’”

The second issue in the legal battle concerns the punishment for sanctuary cities: namely, how big is the stick and who wields it? According to the Supreme Court, the White House does not have the authority to add conditions to federal grants; Congress does that. And it can’t just put any grant on the chopping block either. The conditions have to be related to the type of grant, and explicitly laid out, so that local governments know what they are before they accept. The federal judge in California who recently blocked the executive order referenced this interpretation.

In this case, that means that administration can threaten to block very few grants related to law enforcement and immigration, and only if those grants have not already been appropriated.

The budget proposal intends to sidestep legal hurdles

By expanding the scope of 1373, the government wants to make sanctuary cities, quite plainly, illegal. “What the Trump administration tried slipping in here is a complete and radical rewriting of that section of the law of 1373,” Phil Wogin, director of immigration at the Center for American Progress, a left-leaning policy organization, tells CityLab. “Basically what they're saying is, under current law, we can't actually penalize sanctuary cities, so we're just going to change the law.”

Here’s some relevant changes CityLab has highlighted:

Here’s the TL;DR version:

  1. The provision seeks to expand the type of information that can be shared with the federal government.
  2. In addition to maintaining and sharing information, it says that local governments can’t stop law enforcement from collecting it.
  3. It requires local governments to comply with all detainer requests.
  4. Perhaps surprisingly, it limits 1373 to law enforcement officials. (Previously, cities couldn’t restrict any “government entity” from sharing information.)
  5. Finally, it delegates the authority to condition grants related to immigration, law enforcement, and national security to the executive branch.

For cities, this is bad news  

The proposed amendment runs into constitutional issues. It “exacerbates the commandeering problems with the original Section 1373 because of the fact that it could potentially cover a lot more things,” Somin, at George Mason, says. It also opens doors for lawsuits by requiring that cities honor detainer requests and hold individuals without probable cause.

To really understand what the ground-level impact on a city might be, consider this scenario: A parking official is walking up and down a street. But instead of looking for parking violations, and giving out tickets, he decides to question the immigration status of pedestrians he comes across. Then, he compiles this information, verifies it, and sends it to the feds. Under the proposed 1373 expansion, the city may not be able to tell him to stop.

“This is what I like to call a rogue official bill, because it empowers rogue officials to blow off command by their city and by their commanding officers,” Su says. “It’s a huge federalism intrusion on the ability of a state and local government to manage their own bureaucracy.”

And here’s another angle to the federalism glitch, he says. Even if the federal government says, “Hey, you can’t stop your officers from collecting this information and passing it on to us,” that prohibition doesn’t mean that officers are automatically required to carry out those tasks. “A ban on a ban doesn't necessarily mean authority to do something,“ Su says, especially since cities are "creatures of the state"—they draw their powers from the state and not the federal government, so the federal government can’t force their hand. (Of course, some states might be ready to delegate this authority.)  

This provision may not end up being in the final budget, but immigrant advocates fear that it might be tucked into other bills that reach the president’s desk. Needless to say, that could usher in a significant legal backlash from local governments. Meanwhile, cities stand to lose: both money and the power to govern.

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