Trump’s executive order on sanctuary cities, decoded

The move on immigration left more questions than answers.

On Wednesday, President Donald Trump signed two executive orders on immigration. The first called for a “large physical barrier” between Mexico and the United States. The other announces plans to remove federal funding from sanctuary cities. 

Sanctuary cities are places that do not cooperate with the federal Immigration and Customs Enforcement agency in the apprehension and detainment of people in the country illegally. 

White House Press Secretary Sean Spicer said in a press conference that the administration was “going to strip federal grant money from the sanctuary states and cities that harbor illegal immigrants. The American people are no longer going to have to be forced to subsidize this disregard for our laws.”

The issue

Many major U.S. cities, including Philadelphia, are sanctuary cities. Leaders say they choose the designation because they want to be welcoming to everyone, regardless of immigration status, and keep the lines of communication open between immigrant communities and law enforcement. They also don’t want to expend city resources doing what they see as the federal government’s job. 

On the flip side, there is a fear that sanctuary cities allow criminals to roam free after they should have been deported. There are a number of horrific stories of crimes committed by people living in the country illegally who have been released multiple times by sanctuary cities. 

In the middle of the debate, though, are the gray-area municipalities. Pennsylvania has 30 counties that do not automatically comply with ICE detainer requests. They’ll send information to ICE, notify them of an inmate’s release and even help ICE coordinate a pick-up. But they won’t detain anyone based on a detainer request alone. It must be accompanied by an arrest warrant or judicial order. 

Most of these counties are hoping to avoid a lawsuit for improperly detaining someone on behalf of ICE. In 2008, Lehigh County was sued by Ernesto Galarza, a U.S. citizen who spent three nights in jail because of an ICE detainer. Since then, ICE has clarified that detainers are always requests, not orders. 

But cities may be forced to cooperate

It’s not clear how Trump will define sanctuary city. His order may affect only Philadelphia or it could affect nearly half the counties in the state. He may also have a hard time stripping funds from any places at all. 

The federal government can apply terms (like cooperating with ICE) to federal funding only when those terms meet four requirements: they must be for the “general welfare” of the affected municipality, they must be stated clearly in the wording of the funding, they must relate to the program’s purpose and be not otherwise unconstitutional.  

The federal government isn’t supposed to be able to use funding to coerce states into cooperating. 

But the bigger sticking point may be the third point: Trump only has the power to withhold federal funds that are related to the issue at hand. He could cut funds for immigration detention, criminal justice or other related programs. He can’t strip funds willy-nilly, or completely exclude these cities from receiving federal grants.

That means grants from the Department of Homeland Security and the Department of Justice are most likely on the table, though the grants themselves would have to be rewritten so that these terms were “stated unambiguously,” per a 1987 Supreme Court ruling. Some constitutional scholars say removing these funds won’t be a problem; others think Trump could be treading on thin ice. 

If it comes to it, cities and counties will have to decide whether keeping those federal funds is worth sacrificing their sanctuary status — and perhaps opening themselves up to lawsuits for following ICE’s directives. 

Secure Communities is back

Spicer also mentioned in the press conference that the administration is planning “to restore the popular and successful Secure Communities program which will help ICE agents target illegal immigrants for removal.”

S-Comm, as it’s known, was ICE’s policy from 2008 until 2014, when President Obama replaced it with the Priority Enforcement Program.

Both programs are the mechanism through which the federal government gets local police departments and prisons to assist with immigration proceedings by submitting fingerprints of all inmates. But PEP was supposed to be an easing of the policy, a middle ground that would encourage sanctuary cities to start cooperating with ICE again. 

In an October 2016 interview with Keystone Crossroads, ICE Field Office Director Tom Decker said, “Working under the Priority Enforcement Program, we have focused on smart, effective immigration enforcement. The difference from Secure Communities is we’re just focusing on individuals who have convictions.” 

Under PEP, ICE won’t ask local officials to detain people whose charges are dropped or who are stopped for no reason (as they could under S-Comm.) Only once a judge rules them to be guilty will ICE get involved. ICE agents are also supposed to use detainers sparingly, compared to requests for notification. 

PEP didn’t always achieve that goal, and immigration activists thought it still went too far. But it did bring some cities back from sanctuary status: former Philadelphia Mayor Michael Nutter reversed the city’s position due to PEP in the final months he was in office. (Current Mayor Kenney reversed it back once he was elected.) 

The move back to Secure Communities won’t make sanctuary cities more likely to reconsider their policy. 

What’s next?

These executive actions may play out in different ways at different speeds. Trump will likely be able to direct ICE to reimplement S-Comm faster than he’ll be able to build a wall, or cut funding from sanctuary counties. 

Pennsylvania U.S. Senator Sen. Patrick Toomey, who has proposed the Stop Dangerous Sanctuary Cities Act bill, released a statement saying, “While this is an important first step, more needs to be done, as President Trump is limited in what he can accomplish through Executive Order.” 

Toomey plans to continue on with his legislative action, which would cut Community Development Block Grants to sanctuary municipalities. The bill failed last time, but with a Republican majority and backing from the President, things could be different this time around.