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Aggressive enforcement of immigration laws has been a key theme of the Trump Administration so far. And one of President Trump’s most contentious actions on immigration has been his threat to withhold federal funding from “sanctuary cities,” as outlined in an executive order he issued in January. However, earlier this week a federal judge temporarily suspended that part of the executive order. What does this action mean for California’s sanctuary jurisdictions?

While a legal definition of sanctuary jurisdictions does not exist, a loose definition might include any local and state governments that do not fully cooperate with federal immigration authorities. As explained in our previous blog post, existing California state law (as well as a proposed new state law) limits the extent to which local law enforcement may cooperate with immigration authorities. As a result, essentially all local jurisdictions, as well as the state itself, could qualify as sanctuary jurisdictions under a broad definition, and so they might have been at risk of losing funding under the sanctuary cities executive order.

However, the temporary injunction handed down this week suspends any action to implement this particular component of the executive order until the conclusion of the court cases challenging it. The judge’s ruling indicates that broad federal action to withhold funds from sanctuary jurisdictions is likely to be found unconstitutional on a number of grounds. The ruling notes that the federal government may not withhold from sanctuary jurisdictions any funds that are unrelated to immigration enforcement — such as federal funding for health, housing, or safety net services — and may not set new requirements for grants already awarded. Moreover, the federal government cannot legally compel states, counties, or cities to enforce federal immigration laws, nor can federal authorities dictate local law enforcement priorities.

Indeed, statements by lawyers for the federal government in this and related lawsuits essentially concede that, in fact, the federal government has limited authority to withhold funding from states or local governments based on their sanctuary policies. The government’s lawyers have stated that the Trump Administration intends to interpret this aspect of the executive order very narrowly. Under this narrow interpretation, the executive order would apply only to grants from the US Department of Justice and US Department of Homeland Security, and would only consider whether jurisdictions are complying with an existing federal law (8 U.S.C. §1373) that forbids states and local governments from limiting or restricting the sharing of information with federal authorities about an individual’s immigration status. Thus, the government’s lawyers have indicated that the executive order simply states the Trump Administration’s intention to enforce the existing law that requires information sharing for federal grants only related to criminal justice.

As the judge noted in his injunction, this proposed narrow interpretation of the executive order contrasts sharply with sweeping statements by Attorney General Jeff Sessions and President Trump that describe withholding of federal funding as a “weapon” to punish sanctuary jurisdictions. While any broad action to withhold federal funding seems unlikely to stand up in court, the injunction notes that the more narrow enforcement of the existing law that governs information sharing, with respect to existing or future grants that explicitly require compliance with that law, is certainly allowed. This means that it is possible that some funding for the State of California and local jurisdictions could still be at risk based on sanctuary policies, even if the executive order is ultimately overturned — but the funds potentially affected are very limited.

Currently, only three federal criminal justice grant programs explicitly require compliance with 8 U.S.C. §1373: the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG), Community Oriented Policing Services (COPS), and the State Criminal Alien Assistance Program (SCAAP). These grants support crime prevention, community-oriented policing, detention of criminals who are also undocumented immigrants, and other law enforcement activities. For federal fiscal year 2016, the total funding from these three grant programs received by local jurisdictions in California and the state government was about $114 million, according to a California Budget & Policy Center analysis. This amount is small relative to, for example, the $284.5 billion in total state spending proposed by Governor Brown for 2017-18 (the state fiscal year that will begin on July 1). At the same time, these grants do support some important law enforcement services and staffing on a local level.

How likely is it that these grants could be withheld based on state or local sanctuary policies? On the one hand, California’s existing and proposed state sanctuary laws, and most local sanctuary policies, do not explicitly limit the sharing of immigration status, specifically, with federal immigration authorities. Rather, local and state sanctuary policies typically restrict the sharing of other kinds of information, such as release dates for incarcerated individuals who are immigrants, or they limit the circumstances under which local law enforcement may extend the detention of incarcerated individuals at the request of immigration authorities. These other kinds of restrictions are not explicitly prohibited by 8 U.S.C. §1373, so there is a legitimate legal claim that jurisdictions with these kinds of policies do not violate the existing law and should be allowed to continue to receive these grants.

On the other hand, the US Department of Justice under the Obama Administration outlined a competing legal claim that, in practice, these kinds of sanctuary policies can result in local officials believing that they cannot share any information with federal immigration authorities, and therefore these policies could be viewed as violating 8 U.S.C. §1373 under a broad interpretation of the law. If the Trump Administration decides to challenge the eligibility of sanctuary jurisdictions for the applicable federal grants on that basis, the courts will have to decide which interpretation of the law applies — a process that could easily take years.

Overall, the recent injunction against the sanctuary cities executive order confirms that California’s cities, counties, and state government are unlikely to experience major financial consequences for upholding or expanding sanctuary policies. Some limited grants made to state and local governments might still be at risk under existing federal law, but for those grants, too, state and local jurisdictions might prevail in court. On the whole, the Trump Administration’s sweeping threats to punish sanctuary jurisdictions by withholding major federal funding seem likely to turn out to be more bark than bite.

— Sara Kimberlin

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