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Among the several executive orders issued by the Trump Administration in its first few weeks was an order to withhold federal funds from “sanctuary cities” that do not cooperate with federal immigration enforcement. Local leaders from a number of California cities have been vocal in declaring their commitment to upholding sanctuary policies. So what could this executive order mean in terms of federal funds withheld from California?

First, it is important to note that there is no legal definition of a “sanctuary city” in the executive order or in existing law. The executive order does reference two ways in which local governments are required or requested to cooperate with federal immigration authorities: sharing information with federal authorities about the immigration status of individuals detained by local law enforcement; and holding detained individuals in jails beyond their regular release date, at the request of federal authorities who wish to prosecute an individual for potential immigration violations and are waiting to obtain a warrant. Sharing of information is currently required by law, while complying with “detainer requests” is legally voluntary.

In California, jails are operated by counties not cities, so “sanctuary counties” is generally the more relevant term. Recently introduced federal legislation proposes a definition of “sanctuary jurisdictions” as states or local jurisdictions that have statutes, policies, or practices that limit or prohibit information sharing or cooperation with detainer requests. Under this definition, all California counties, as well as the state as a whole, could potentially qualify as “sanctuary jurisdictions,” because existing state law limits the extent to which local law enforcement agencies may cooperate with detainer requests in practice. The California Trust Act (Assembly Bill 4 of 2013) prohibits local law enforcement from complying with immigration authority requests to extend the detention of jailed individuals unless the individuals have committed specific serious crimes. Under the Trust Act, local jurisdictions are also allowed to implement their own more restrictive limits on cooperating with detainer requests, including refusing any cooperation. Recently introduced legislation, the California Values Act (Senate Bill 54, De León), would further restrict cooperation with immigrant detention requests, by prohibiting local law enforcement from using any agency or department resources to “investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes,” while also prohibiting the detention or transfer of individuals in response to detainer requests when federal immigration authorities do not have a warrant.

While the definition of a sanctuary jurisdiction has yet to be legally set, a separate question raised by the Trump Administration’s executive order is which federal funds sanctuary jurisdictions could potentially lose. The order is somewhat unclear about which funds are targeted to be withheld from sanctuary jurisdictions but could be interpreted to mean any type of federal funding. The implications of withholding all federal funds from California would be huge, as federal funds make up more than one-third of the state budget.

However, legal precedent strongly suggests that the funds the federal government might actually be able to withhold are much more limited. In prior cases, courts have held that the federal government may not withhold funding that is unrelated to the federal interest at hand. This means that federal funds related to immigration enforcement might be able to be withheld from jurisdictions that do not cooperate with immigration authorities, but withholding federal funds for community development, health, education, transportation, or other unrelated purposes on the basis of a jurisdiction’s sanctuary policies would likely be found unconstitutional.

In fact, very little federal funding related to immigration enforcement currently flows to California’s state and local governments. The courts would likely have to determine exactly which federal funds could be considered related to this federal interest, but even the total of all federal funding related to the broad category of criminal justice represents just a small share of state and local government revenues in California.  At the state level, federal funding for all corrections and judicial is less than a quarter of a percent of all federal funds for the state government, less than a tenth of a percent of the total state budget, and less than 1 percent of the state budgets for corrections and judicial proposed for fiscal year (FY) 2017-18, according to California Budget & Policy Center analyses. Of these funds, those specifically for immigration detention total only $50.6 million, or one-five-thousandth of the overall state budget and less than a third of a percent of the state corrections and judicial budgets. Similarly, looking at San Francisco and Los Angeles counties, as two counties with relatively large populations of undocumented immigrants, the total of all federal funds related to any aspect of criminal justice represents a very small share of county budgets. In Los Angeles, federal funds related to corrections or judicial represent less than 3 percent of all federal funds received by the county and less than half a percent of the total county budget for FY 2016-17, while in San Francisco these funds represent less than 1 percent of all federal funds received by the county and less than one-twentieth of a percent of the total county budget.

The question of how much funding could be withheld might be a moot point, moreover. Legal precedent suggests that the executive order might not be enforceable at all, as it could be interpreted as a mandate that state and local governments enforce federal law. The US Supreme Court has repeatedly held that the federal government cannot force states or local governments to enforce federal laws, most recently in the ruling that states could not be forced to participate in the expansion of Medicaid through the Affordable Care Act.

Multiple lawsuits have already been filed by local governments challenging the sanctuary cities executive order on these and other legal bases, including suits filed by San Francisco City and County and Santa Clara County. The courts have not yet responded to these challenges, but local jurisdictions appear to have a strong case. While the final word will have to come from the courts, the available evidence suggests that California is unlikely to face major financial repercussions from this executive order if it upholds or even expands state and local sanctuary policies.

— Sara Kimberlin

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