California Advances Bills to Become Sanctuary State
One of Donald Trump’s first actions as president was to issue an executive order that targets sanctuary cities by directing local and state agencies to enforce existing immigration laws or face losing federal funds. In response, San Francisco is suing the Trump administration, claiming that the orders violate states’ rights provisions. And in flagrant disregard of Trump’s order, California is attempting to become the first-ever sanctuary state. Mercury News reports that Democrats in San Francisco are forging ahead with a legislative package aimed at expanding sanctuary status throughout the state of California in response to Trump’s order.
At the expense of California taxpayers, Democrats in the state Senate advanced bills to create statewide sanctuary for illegal immigrants, provide money to pay for immigration lawyers on behalf of immigrants facing deportation, and stop efforts to create a Muslim registry that senators believe will be on President Trump’s itinerary.
“We in California have a responsibility to say no and to be a counter balance of the nightmare coming out of Washington,” San Francisco Democrat Scott Wiener insisted.
One of the bills in the package, SB 54, also known as the California Values Act, would prohibit state and local agencies from enforcing immigration laws or from working with immigration enforcement agencies. The legislation reads:
In no event shall state or local law enforcement agencies or school police or security departments transfer an individual to federal immigration authorities for purposes of immigration enforcement or detain an individual at the request of federal immigration authorities for purposes of immigration enforcement absent a judicial warrant….
The attorney general … shall publish model policies limiting immigration enforcement to the fullest extent possible consistent with federal and state law at public schools, health facilities operated by the state or a political subdivision of the state, courthouses, and shelters, to ensure that they remain safe and accessible to all California residents, regardless of immigration status.
The bill directs the same entities not to use money or equipment to “interrogate, detain, detect, or arrest persons for immigration enforcement purposes.”
According to Mercury News, the 2013 California Trust Act already restricts law enforcement’s abilities to detain someone for immigration authorities; however, the new measures take it a step further, preventing agencies from collecting information on legal statuses or cooperating with requests from federal agents.
Fox News adds, “Many of California’s largest cities, Los Angeles, San Francisco and Sacramento, already have sanctuary policies that prohibit police from cooperating with immigration officials. The state is already home to an estimated 2.3 million illegal immigrants. SB54 would extend those policies statewide, prohibiting police officers and jailers from arresting or detaining people solely for immigration violations unless a judge issues a warrant.”
Democrats on the state Senate Public Safety Committee claim that SB 54 will ensure that police officers are not distracted from doing their jobs.
“We want to make sure that police officers don’t abandon their beat and go enforce immigration laws,” stated Senate President Pro Tem Kevin de Leon of Los Angeles, who authored the sanctuary measure.
But Republicans argue that the measure will make it harder for law-enforcement groups to do their job of fighting crime effectively.
State Senator Jeff Stone declared, “I think this bill is making it that much more difficult for the federal authorities to get the most dangerous criminals that we want to deport to keep our communities safe.”
The sanctuary legislation now moves to the Senate Appropriations Committee for consideration.
Additionally, Assembly Bill 3, introduced by Assembly member Democrat Rob Bonta, would create state-funded centers to train defense attorneys on immigration law, while SB 6, introduced by Democratic Senator Ben Hueso, would create a state program to assist those who face deportation.
The Senate Public Safety Committee also passed a bill that prohibits state and local officials from participating in the creation of a possible Muslim registry. The bill’s author, Senator Ricardo Lara (D-Bell Gardens), said he was compelled to write the bill in response to statements made by Trump during his presidential campaign.
“In our country’s darkest moments, we have discriminated against whole groups of people,” Lara stated.
Though California’s Democratic Governor Jerry Brown has not commented on the bills, he has indicated that his administration’s interest is to protect and support immigrants.
“Let me be clear,” he said. “We will defend everybody — every man, woman and child — who has come here for a better life and has contributed to the well-being of our state.”
While the state of California certainly has the right to nullify federal laws that it feels are unconstitutional by simply not enforcing them, the catch, of course, is that it risks losing federal funds. As the saying goes, he who pays the piper calls the tune. If Californians do not want to adhere to federal laws, they have the option to forego federal dollars. The problem is that California Democrats feel that American taxpayers should continue to fund their illegal actions, and therein lies the problem. Likewise, those who are protecting illegal immigrants are doing a disservice to California residents who don’t wish to provide sanctuary to violators of the law, but face the repercussions of the actions of the Senate Democrats.
Republican Senator Joel Anderson of San Diego said that the Senate Democrats are merely “step[ping] on cities that don’t want to be sanctuary cities.”
And Senator John Moorlach, a Republican representing Orange County, pointed out, “If we’re getting $100 billion in federal funding, $85 billion of which goes to local communities, who is Sacramento to jeopardize that funding for our local communities? That’s playing chicken with somebody else’s money.”
ABC 10 local news notes that all bills will face more hearings, but supporters are hoping to enact SB 54 and SB 6 as urgency measures, which require two-thirds votes in both the Senate and Assembly before being signed into law.
However, critics are hoping to mount enough opposition against the two measures to stop them in their tracks. We the People Rising, an advocacy group that supports strict immigration enforcement, announced that it will be actively oppose the bills. The group’s Executive Director Robin Hvidston notes, “It actually puts the nation at risk when our state is crafting bills that do not uphold or respect the federal law.”
San Francisco Sues Trump to Stop Executive Order About Sanctuary Cities
Feb 1, 2017 by Warren Mass
A group of attorneys led by San Francisco City Attorney Dennis Herrera filed a lawsuit on January 31 in the U.S. District Court for the Northern District of California against President Trump, Secretary of Homeland Security John Kelly, and Acting Attorney General Dana Boente, claiming that the “President of the United States seeks to coerce local authorities into abandoning what are known as ‘Sanctuary City’ laws and policies.”
The lawsuit objects to an executive order signed by Trump on January 25 (“Enhancing Public Safety in the Interior of the United States”) proclaiming that “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.”
The order continues by stating: “It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.”
Title 8, Section 1373 of the U.S. Code pertains to “Communication between government agencies and the Immigration and Naturalization Service.” It states:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
The Trump executive order goes on to put some teeth into its enforcement by stating:
In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
Herrera and his co-plaintiffs in the lawsuit (including Chief Assistant City Attorney Jesse Smith, and Chief Deputy City Attorney Ronald Flynn) take issue with the Trump administration order, however. In a statement quoted by the San Francisco Chronicle, Herrera questioned the constitutionality of the executive order. “Not only is it unconstitutional, it’s un-American,” Herrera said at a January 31 City Hall news conference. “It is necessary to defend the people of this city, this state and this country from the wild overreach of a president whose words and actions have thus far shown little respect for our Constitution or the rule of law.”
“The fabric of our communities and billions of dollars are at stake,” said Herrera, who the Chronicle reported was joined by Mayor Ed Lee, San Francisco Supervisor Hillary Ronen, and several deputy city attorneys at the conference. “President Trump does not appear to understand the Constitution and the limits it imposes on executive power.”
The Chronicle noted that San Francisco receives approximately $1 billion annually from the federal government, which accounts for a little more than 10 percent of the city’s budget and that federal aid is in jeopardy if the Trump administration enforces the order.
The report quoted Bill Ong Hing, a professor of immigration law at the University of San Francisco as saying, “I think there is a clear violation of the 10th Amendment here. The federal government cannot commandeer nonfederal officials to do its work.”
The language of the lawsuit also argued along those lines, stating: “The City and County of San Francisco (“San Francisco”) seeks declaratory and injunctive relief against the United States of America and the above-named federal officials for violating the Tenth Amendment, U.S. Const. amend. X.”
Interestingly, one portion of the suit employs language commonly used by strict constitutionalists:
The Constitution establishes a balance of power between the state and Federal governments, as well as among the coordinate branches of Federal government, to prevent the excessive accumulation of power in any single entity and reduce the risk of tyranny and abuse from any government office. In so doing, the Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States
That argument made in the above statement is unimpeachable, but does it apply to the case of “sanctuary cities” — or to the Trump executive order, “Enhancing Public Safety in the Interior of the United States”? If the San Francisco attorneys want to challenge the executive order on constitutional grounds, shouldn’t they first challenge the federal law (8 U.S.C. 1373) it attempts to enforce? If 8 U.S.C. 1373 is constitutional, then the executive order demanding its enforcement should also be constitutional. If the San Francisco attorneys think 8 U.S.C. 1373 is unconstitutional, then their fight should be with those who passed that section of the U.S. code, which was part of Public Law 104-208 (H.R. 3610 and S. 1894), passed by the 104th Congress and signed by President Bill Clinton on September 30, 1996.
The lawsuit complains: “The Executive Branch may not commandeer state and local officials to enforce federal law”; however, the Trump executive order attempts to do no such thing. It does not propose to “commandeer” local officials, but merely have them comply with 8 U.S.C. 1373 (which, as noted, was signed into law by President Clinton) which specifies that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
Expecting a local government official to send information to (or receive information from) the INS about the lawful or unlawful immigration status of an individual hardly constitutes “commandeering” that official — it merely expects him or her to perform as a good citizen.
As we noted in a recent article about an illegal alien from El Salvador who filed a lawsuit on January 17 against the city and county of San Francisco for violating San Francisco’s sanctuary city law by arresting and detaining him, sharing information with federal immigration authorities is not the same as taking personal responsibility for enforcing federal immigration statutes.
In that article, we stated that a law passed by San Francisco in 1989, and signed by then-mayor Art Agnos, the City of Refuge Ordinance, also known as the “Sanctuary Ordinance,” included a prohibition on San Francisco employees assisting or cooperating with any investigation, detention, or arrest conducted by the federal agency charged with enforcement of federal immigration law. However, we wrote:
Therein lies the crux of the matter. In most circumstances, even an ordinary citizen, not to mention a city official, can be charged under federal law with “misprision of felony” for failing to inform authorities about the commission of a crime. Therefore, so-called sanctuary city laws create a dilemma for city officials, who must decide which of two conflicting laws they will obey. However, this point has not, to our knowledge, been addressed by any court, probably because “misprision of felony” charges are difficult to prove and are rarely brought.
The Trump executive order does not go so far as to attempt to bring “misprision of felony” charges against local officials who fail to comply with 8 U.S.C. 1373, probably because that would be a difficult legal case to make. Instead, it relies on a tool that is based on more solid constitutional grounds — the “carrot and stick” approach. A municipality that insists on being a “sanctuary city” and refuses to cooperate with federal immigration authorities is not eligible to receive federal grants.
This also raises an interesting constitutional point. The strict constitutionalist would say that most federal grants are not constitutional anyway, because according to the 10th Amendment that the city attorneys for San Francisco so nicely quoted for us, they provide funding for areas not delegated to the United States (federal government) by the Constitution.
However, the San Francisco city attorneys cannot have it both ways. They cannot logically cite the 10th Amendment to stop the federal government from withholding billions for dollars from the city on the grounds that the Trump administration is intruding into areas not authorized by the Constitution when the funds they so jealously covet are going to pay for programs not authorized by the Constitution, either.
And as we noted, if the San Francisco city officials have a problem with the constitutionality of Trump’s executive order, which merely serves to enforce existing law, then they should ask their representatives in Congress to introduce legislation to change that law, which was passed by the 104th Congress and signed into law by President Bill Clinton. In the 20 years since that law was passed, no federal court has ruled that it is unconstitutional.