Weighing the probability and consequences of federal cuts to Philly, other sanctuary cities

As President Donald Trump and Attorney General Jeff Sessions continue threats to clamp down on Philadelphia and other “sanctuary cities” by slashing federal funding, Mayor Jim Kenney is standing firm.

If federal critics of the policy make good on their promises, Philadelphia could be stripped of more than $38 million in Community Development Block Grants — and potentially lose around $26 million in grants from the Department of Justice. 

But what legal hurdles might stand in the way of cutting that federal support? And what consequences could sanctuary cities face in the expected legal fight over their shielding unauthorized immigrants? (Sanctuary city generally refers to municipalities that refuse to comply with detainers from immigration authorities to hold those suspected of being in the country illegally beyond scheduled release times.)

WHYY spoke to immigration and constitutional law expert Peter Spiro about these topics. Spiro teaches at Temple University’s Beasley School of Law and last year wrote a book chronicling the history of dual citizenship

WHYY: Opponents of sanctuary cities often say that local authorities are breaking the law by not honoring U.S. Immigration and Customs Enforcement, or ICE,  holds. Is this really the case?

Spiro: Actually, the law is pretty clear that that’s false. Under constitutional precedent, the federal government has no authority to require state and local law enforcement to detain these individuals any longer than they would otherwise be detained. One thing that’s important to remember here is that these are people who would be released anyway, even though they have been arrested on some allegation or suspicion of illegal activity. If these people were citizens, they would be let go. I think there is a misconception among the public that these are people who local law enforcement is letting go because they are not citizens. But these are people who authorities have deemed not to be dangerous, or not to have committed the crime ― remember, we are not talking about convicted criminals in these cases. 

WHYY: In the bill that U.S. Sen. Pat Toomey reintroduced in Congress, the Stop Dangerous Sanctuary Cities Act, a portion deals with the question of who should be held legally responsible if someone is held for immigration authorities and that person turns out to be a legal citizen. Under Toomey’s proposed legislation, the federal government — not the local police agency — would be held liable in the event of an error by the Department of Homeland Security. Should this be a real concern?

Spiro: If a city were to honor one of these detainer requests and it turned out that the individual was not present in the United States in violation of federal immigration law, then the city is exposing itself to money damages and the so-called Bivens action. There have been several of these lawsuits filed in which U.S. citizens were held on the basis of so-called ICE detainers and have been successfully sued on this basis.

WHYY: To Toomey and others who support penalizing sanctuary cities, it is a matter of security. He argues that complying with ICE holds keeps Pennsylvania communities safer, and he often cites a number of instances in which unauthorized immigrants committed crimes after being released from local custody. What do you make of this?

Spiro: It is the demonization of immigrants as a group. It’s a Willie Horton-type tactic — the famous advertisement that George H.W. Bush used against Michael Dukakis in his 1988 presidential bid — highlighting a person who was released on probation then engaged in criminal activity. It’s basically a “bad apple” kind of approach to immigrants. We’re talking about a population of over 10 million individuals who are here out of status with the immigration laws. Obviously, in a 10-million person population, however defined, there are going to be some people who are not great people. If you look at veterans, for instance, there are some veterans who can commit awful crimes, but that doesn’t mean we should demonize veterans as a group. And so, it’s unfortunate that, as a psychological matter, it plays so well politically to highlight the pretty isolated cases in which ICE releases have resulted in violent crime. In fact, it’s been shown statistically that immigrants engage in crime at a lower level than the rest of the population.

WHYY: About 13 percent of Philadelphia’s population is foreign-born, a number expected to rise in the coming decades. Do you foresee any population ripple effects by the Trump administration’s crackdown on unauthorized residents?

Spiro: It’s quite clear that immigrants are engines of economic growth. And if we want Philadelphia to maintain economic vibrancy — and to grow — immigrants are clearly going to be an important part of that story. Immigrants have a choice as to where to live in the United States, whether they are documented or not. And they are more likely to live in places where they feel welcome.

WHYY: City Council President Darrell Clarke has started to back away from the mayor’s position that Philadelphia should not change its sanctuary city status, saying losing millions in federal funding could have a meaningful impact of the city’s residents. Do we know yet how far the Trump administration can go in really withholding federal grant funding to cities like Philly?

Spiro: The extent to which the Trump administration can carry through on those threats is actually not clear. The Trump administration would have to establish some connection between the grants they are trying to withhold and the refusal on the part of the local jurisdiction to cooperate with federal immigration enforcement activity, so it would not be all federal grants. And this actually comes out of U.S. Supreme Court decision, relating to the constitutional challenge to Obamacare, in which the court said the federal government can’t hold a gun to state and local government with respect to federal grant funding to force a particular decision on the part of the state or local jurisdiction. It’s clearly something less than all federal funding, but it could still be a non-trivial amount of funding that could be put on the block here. Although, I think that’s a hit worth taking. Any steps away from maintaining the sanctuary city position would be a mistake to the extent that it scares away these highly productive members of our community.

WHYY: If this debate does move to the courtroom, how do you suspect proponents of the sanctuary city position may argue, and how might a court rule?

Spiro: It’s a combination of Fourth Amendment grounds and federalism grounds. There’s something called the Anti-Commandeering Principle, which actually was most notably articulated by former Justice Scalia on the Supreme Court, which says the federal government can’t enlist local jurisdictions in the enforcement of federal law against their will. In the end, I think the courts are likely to affirm the constitutional authority of cities like Philadelphia to resist this kind of forced cooperation with immigration enforcement.