Robert Barnes: Can Trump Legally Stop Sanctuary Cities? Yes. Remember Brown v. Board of Education
Over 100 jurisdictions, fromManhattan to Malibu, refuse to assist federal law enforcement in their immigration law enforcement duties, especially as to criminal aliens arrested for crimes here in the United States but released before federal law enforcement can detain and deport.
These governments labeled themselves “sanctuary” cities, but a better label would be secessionist cities.
Two means of redress and remedy exist: first, the current path, of defunding sanctuary cities, a path much more legally perilous, but well-founded in the same doctrine that integrated American society; and second, an alternative, complimentary path of funding law-abiding cities with aid to enforce immigration law, an indubitably and indisputably legal remedy.
The legal argument the “sanctuary” cities rely upon bears merit, but they misuse and abuse the doctrine behind it. The “anti-commandeering” doctrine found one of its most articulate voices in Justice Scalia. The doctrine best distilled is this: “even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” The feds cannot shift enforcement to local government. That same doctrine makes the current path of defunding sanctuary cities a legally rocky road, especially in the current judiciary environment.
The Supreme Court made clear in two prior precedents the federal government cannot coerce states into acting as conscripted agents of federal law enforcement. When properly used, this anti-conscription doctrine is mostly a good thing, foreclosing the federalization of local life and municipal governments. When abused, it invites secessionist thinking. That is where a seminal precedent from the Second Circuit gives direction to support Sessions and Trump against the secessionist cities.
The seminal case supporting Sessions and Trump arises from the Second Circuit in enforcing comparable provisions of federal law passed by Clinton and Gingrich. Federal law then prohibited state and local governmental entities or officials from directly restricting the voluntary exchange of immigration information between local and federal officials. The statute Sessions cited and Trump relied upon for his executive order confers the same power: it only prohibits state and local governments from precluding voluntary participation in immigration enforcement, an area uniquely vested in the federal branches of power. As the statute 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.”
Where did the Second Circuit look for precluding lawless, secessionist minded municipal government going rogue against appropriate federal law and respect of federal elections? Brown v. Board of Education, the most famous and celebrated case in Supreme Court history.
As the Second Circuit properly summarized: the sanctuary city argument “asks us to turn the Tenth Amendment’s shield against the federal government’s using state and local government to enact and administer federal programs into a sword allowing states and localities to engage in passive resistance that frustrate federal programs,” including those programs of unique federal provenance and priority, such as immigration. Such actions could cause federal programs to “fail or fall short of their goals,” force the federal government to “restore to legal processes in every routine or trivial matter,” and invite “a refusal by local government to cooperate until a court order to do so.”
As the Second Circuit further noted: “A system of dual sovereignties cannot work without informed, extensive and cooperative interaction of a voluntary nature between sovereign systems for the mutual benefit of each system. The operation of dual sovereigns thus involves mutual dependencies” that can hardly survive as separate, antagonistic sovereigns. “Without the Constitution, each sovereign could, to a free, hold the other hostage by selectively withholding voluntary cooperations as to a particular program.” That is why the Supremacy Clause “bars states from taking actions that frustrate federal laws” in those areas of law the Constitution empowers the federal branches of government, like immigration. As the Second Circuit concluded almost two decades ago in undisturbed law: “states do not retain under the Tenth Amendment an untrammeled right to forbid all voluntary cooperation by state or local officials with particular federal programs.”
This opens the door to a complimentary, alternative option: formally funding cities, counties, and states that assist with enforcement of immigration laws against criminal and potentially dangerous aliens, a power all courts recognize Congress and the President enjoy. This parallel strategy employs the carrot rather than the stick, but avoids the traps of the deep state allies and their secessionist city friends in the federal courts, much as federal funding of integrated schools acted as a deterrent to less-funded segregated classrooms.
Let liberty ring. Let the laws be enforced to safeguard those whose liberty the law protects in the first place: the citizens of the United States.
‘They’re Harboring Criminals!’: Brewer Calls Out ‘Unbelievable’ Sanctuary Policies
Mar 28, 2017
Former Arizona Gov. Jan Brewer (R) took aim at states and cities who have adopted “sanctuary” policies, applauding Attorney General Jeff Sessions for vowing to cut federal funding from communities that do not cooperate in enforcing federal immigration laws.
In a press conference yesterday, Sessions specifically urged lawmakers in Maryland not to pass a bill that would declare the state a “sanctuary” for those in the U.S. illegally.
He was responding to a question about the recent rape of a 14-year-old girl, allegedly by an undocumented student, at Rockville High School.
On “America’s Newsroom,” Brewer criticized the “political agenda” motivating local officials and state governors to adopt sanctuary policies.
“Federal law trumps state or city law and regulations,” she noted, adding that polls have shown 80 percent of Americans support President Trump on the issue.
Brewer said legal action should be taken against officials who sign off on the release of criminal aliens, rather than hold them for deportation.
“Releasing criminals, murderers, rapists, child abusers back out into our streets? They ought to be in jail really. They’re harboring and protecting criminals!” said Brewer.
Watch her full commentary.
Todd Starnes: ‘Sanctuary’ mayors have American blood on their hands
Mar 28, 2017
In 2015 Kate Steinle was gunned down by an illegal alien in San Francisco – a sanctuary city. The man charged with her murder was a seven-time felon who had been deported five times.
There was an immigration hold on the suspect, meaning the federal Immigration and Customs Enforcement wanted to come get him and ship him out of the country. But San Francisco authorities set the man free. Just a few months later, Steinle was dead.
Steinle’s blood is not only on the hands of her killer, it’s also on the hands of San Francisco Mayor Ed Lee.
It’s beyond belief that liberal mayors are allowing illegal aliens to run wild in the streets of American cities, terrorizing law-abiding citizens.
So Attorney General Jeff Sessions’ vow to punish sanctuary cities is welcome news. On Monday he announced plans to withhold from any city that harbors illegals billions in federal funding.
“Not only do these policies endanger lives of every American, just last May, the Department of Justice inspector general found that these policies also violate federal law,” Sessions said. “The president has rightly said disregard for law must end.”
I believe the Trump Administration should go a step further. If an illegal commits a felony crime in a sanctuary city – the mayor of that city should also face criminal charges – from harboring fugitives to aiding and abetting.
San Francisco’s Lee defiantly declared Monday on Twitter that “#SanctuaryCities are safer, more productive, healthier places to live.”
Tell that to Kate Steinle’s family.
The attorney general rightly said that failing to report illegal immigrants who are “convicted of criminal offenses put whole communities at risk, especially immigrant communities in the very sanctuary jurisdictions that seek to protect the perpetrators.”
Countless Americans would be alive today if sanctuary cities were shut down. Kate Steinle would be alive today.
Todd Starnes is host of Fox News & Commentary, heard on hundreds of radio stations. His latest book is “The Deplorables’ Guide to Making America Great Again.” Follow Todd on Twitter @ToddStarnes and find him on Facebook.
Exclusive: As Democratic attorneys general target Trump, Republican AGs target them
Mar 28, 2017 by Dan Levine
For years the national political organizations of both Democratic and Republican state attorneys general observed an agreement not to target the other party’s incumbent office-holders in elections.
That hands-off stance ended this month when Republican AGs voted to abandon the agreement and spend money to help unseat Democrats in other states, according to the Republican Attorneys General Association. The decision has not been previously reported.
The move comes as Democratic attorneys general in states across the country have assumed lead roles in opposing some of Republican President Donald Trump’s policies. State AGs in Washington and Hawaii successfully sued to block Trump’s executive orders restricting travel from some Muslim-majority countries, and California’s attorney general has pledged to defend the state’s environmental standards.
Republican attorneys general who supported the change reasoned that AGs should join other national political campaigns which target incumbents, two sources familiar with the closed door process said. Additionally, a desire by some to roll back same-sex marriage and the potential for increased corporate contributions played a role in the decision, said the sources, who requested anonymity to discuss the deliberations.
The so-called ‘incumbency rule’ observed by the state attorneys’ party fundraising arms reflected a rare bit of bipartisanship in the polarized environment of U.S. politics, aimed at promoting cooperation across state lines on issues of common interest, such as consumer protection.
Attorneys general are the top public lawyer in each state, charged with defending state agencies from lawsuits as well as initiating litigation on their own. AGs took tobacco companies to court in the 1990s, and pursued mortgage lenders in the wake of the 2008 financial crisis. In larger states, an attorney general commands hundreds of lawyers and other resources.
Twelve Republican state AGs on Monday filed a federal appeals court brief supporting Trump’s revised travel restrictions.
Scott Will, executive director of the Republican Attorneys General Association, confirmed the decision to abolish the incumbency rule, but declined to discuss specifics of the vote.
“The stakes are too high for us to leave winnable races on the table,” Will said in a statement to Reuters.
The vote was taken over the phone with a tally of 15-8, the two sources said. Not every Republican AG participated.
Some of those who supported the change argued that every other national campaign committee targets incumbents, so AGs shouldn’t be any different, the sources said.
Those opposed expressed fears about threats to bipartisanship, and noted that Republican AGs had grown their ranks under the current system, showing there was no need to change the rules now, the sources said.
In 2000, Republicans held 12 of the 51 state AG positions, including the District of Columbia, but that number is about to hit 29, if a nomination made by New Hampshire’s Republican governor this month is confirmed.
One of the first fights after the rule change will likely come in Virginia, where Attorney General Mark Herring, a Democrat, is seeking reelection this November. In all, 31 AG elections are scheduled for 2018. Republicans currently hold 18 of those seats, compared to 13 for Democrats, but some of the incumbents may not run for re-election.
Karl Racine, attorney general for the District of Columbia and current co-chair of the Democratic Attorneys General Association, said the Republican group’s decision likely means Democrats will follow suit.
“What’s good for the goose is good for the gander,” Racine said in an interview.
Colorado attorney general Cynthia Coffman, a Republican, is up for election next year in a state that has been trending Democrat. A well-funded push to unseat her, something the Democratic AG group wouldn’t have participated in under the incumbency agreement, could spell trouble.
Coffman opposed the incumbency rule change, the sources said. Her office did not respond to a request for comment.
In laying out the reasons for the rule change, Will pointed to the key role Republican AGs played in opposing some of President Barack Obama’s policies.
Rolling back same-sex marriage was another issue cited during deliberations, said the two people familiar with the discussion. More Republican state AGs could help further that effort, though the current composition of the U.S. Supreme Court would make any sweeping rollback unlikely.
Additionally, the group discussed a pledge from corporate interests to pour money into unseating Democratic AGs, the two sources said.
Participants in the vote were told that the group had received pledges totaling millions of dollars from organizations including from the company that makes the caffeinated beverage 5-Hour Energy, the sources said. The money depended on the Republican group changing its rules to target incumbent Democrats.
The company that manufactures 5-Hour Energy, Innovation Ventures, declined to comment. A spokesman for the Republican AG group declined to answer questions about the debate, including the role of 5-Hour’s pledge.
Innovation Ventures has been sued by attorneys general in at least five states for alleged deceptive advertising of its energy drink, with varied outcomes.
Last month a Washington state judge issued a judgment against the company for nearly $4.3 million in one such case, brought by Bob Ferguson, the Democratic attorney general whose lawsuit caused a judge to block Trump’s first travel restrictions. The company has said it would appeal the ruling. In at least two other cases, in Oregon and Indiana, Innovation Ventures prevailed. Oregon has appealed.
The precise dollar amount of the company’s pledge to Republican AGs could not be determined, nor is it clear if it is the only company that promised a contribution to target Democrats.
Already, the Republican Attorneys General Association has built a fundraising advantage. In 2016, it raised about $14.5 million, including donations from companies and conservative interest groups like the Judicial Crisis Network and Koch Industries, according to tax filings.
Sean Rankin, executive director of the Democratic AG group, said it raised about $5.2 million in 2016. The group’s tax filings show a mix of contributors including companies, plaintiff law firms and labor unions.
(Reporting by Dan Levine in San Francisco; Editing by Sue Horton and Paul Thomasch)