Executive Order: Enhancing Public Safety in the Interior of the United States - Analysis and District Court Motions
Photo Credit: The New York Times
633 counties in the United States are are currently considered sanctuary counties, as noted in green
On January 25, 2017, the Trump administration, along with the Justice Department under the direction of the Attorney General Jeff Sessions, designed the authorized the executive order titled “Enhancing Public Safety in the Interior of the United States.” Under this executive order, the executive branch looks to ensure the “public safety” of the citizens of the United States and that the laws of the Immigration and Nationality Act are enforced. The overall purpose of the executive order is to maintain “national security and public safety,” since those who “overstay and […] violate the terms of their visas present a significant threat to national security and public safety.”
The sanctuary movement, which started in the 1970s due to the large influx of Central Americans fleeing violence, has grown to a national level. Sanctuary cities, counties, or even states, are seen as places of safe haven for illegal immigrants. According to most city and state ordinances, for example in Boston, MA, the government is unable to detain anyone based on their immigration status unless they have a criminal warrant. Trump and the current Justice Department, however, outline in the executive order that simply living here illegally is a crime, and thus, a warrant for one’s arrest is assumed. For this reason, Section 9(a) of the executive order addresses the legality of sanctuary cities, and through “the authority invested in [President Trump] by the Constitution and the laws of the United States of America,” Trump and others look to reduce federal funding for those cities, counties, and states, that distinguish themselves as sanctuary places.
The basis for their argument is the United States Code, Title 8, Section 1373, which is titled, “Communication between Government Agencies and the Immigration and Naturalization Service” (Noted 8 U.S.C. 1373). This code states that any federal, state, or local official or office cannot restrict any government entity or official from receiving the citizenship or immigration status, lawful or unlawful, of any individual. Trump and others wrote that those who don’t comply will NOT be eligible to receive Federal grant money. Section 9(a) of the order offers full authority to the attorney general, in this case Jeff Sessions, to determine what city, county, or state is in violation of this code and the necessary measures to reduce the Federal funding for these places. This action is so sanctuary places, such as San Francisco, are forced to give the names and the people they believe are illegal immigrants so as to receive federal funding, since many wholly depend on funding for their necessary resources.
Although this can be interpreted as political blackmail, the county of Santa Clara and and the city of San Francisco, CA filed a motion against section 9(a) of the executive order, saying that the order went beyond the language in 8 U.S.C. 1373. On April 24, 2017, Federal Judge William Orrick of the Ninth Circuit Court argued that the Departments of Justice and Homeland Security already have conditions that require compliance with the United States Code, Title 8, Section 1373; therefore, under the law currently, these sanctuary areas are receiving federal grant money even as sanctuary places. Also, federal spending power, along with all immigration authority, rests in Congress, not in the executive branch. Presidential power does not extend beyond refugee policy. Therefore, the executive order cannot constitutionally place conditions on federal funds. In conjunction, the tenth amendment requires that the language surrounding federal funds is unambiguous, and that the financial incentive is NOT forced, as it is in this context. In much of Judge Orrick’s analysis, federal funding and immigration policy, according to 8 U.S.C. 1373, bears NO relationship. For this reason, section 9(a) of President Trump’s executive order is considered unconstitutional.
OUR VERDICT: At the moment, this particular section of the executive order cannot be enforced. However, financial and immigration policy authority lies in Congress. Republicans, which control both the House of Representatives and the Senate, are searching for a means of coming together and being the party of leadership. Immigration and sanctuary places are a top priority for today’s Republican Congress. Therefore, if further work is done in Congress on the legality of sanctuary cities, along with a better analysis of U.S. immigration code, Republicans could find a way to possibly remove federal funding from sanctuary cities. However, this past ruling could act as legal precedent for removing of any such law. Also, since the Republicans are struggling to come together as a party, any ruling doesn’t seem to be occurring soon.