NEW YORK ― If the Trump administration follows through on a promise to strip federal funding from so-called sanctuary cities, New York City will take the fight to court, City Council Speaker Melissa Mark-Viverito (D) said Monday.
Mark-Viverito and officials from more than 30 cities began a two-day summit on immigration policy as Attorney General Jeff Sessions told reporters in Washington his department would soon follow through on a promise to attack funding for cities that don’t fully cooperate with deportation efforts.
Mark-Viverito said it was “really sad” and “extremely irresponsible” for President Donald Trump to endanger security for a campaign promise ― although not entirely surprising. She pledged that New York wouldn’t be coerced by the threats.
“Our laws are legal,” Mark-Viverito told reporters after speaking at the Seeking Sanctuary summit, hosted by her office, the municipal policy network Local Progress and the progressive organization Center for Popular Democracy. “We have the right as a municipality to enact them. And we will defend them, even if that means a lawsuit.”
Trump ― fresh off a string of political setbacks on Obamacare and his travel ban ― dispatched Sessions to reiterate a promise he made in January to punish localities that don’t comply with federal efforts on immigration. The policy wasn’t new, but the threat was more specific. And it set up what will likely be a defining legal battle over whether the federal government can use funds to coerce local governments.
Sessions said the Justice Department will require all jurisdictions seeking federal grants to certify that they are complying with federal law that they must not keep information from federal immigration enforcement agencies. He said the department will also “ take all lawful steps to claw back” funds from jurisdictions that willfully violate the law. Sessions attached the threat to more than $4.1 billion in Justice Department grants this fiscal year.
“I urge our nation’s states and cities to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws, and to re-think these policies,” Sessions said. “Such policies make their cities and states less safe, and put them at risk of losing valuable federal dollars.”
State governments ― often Republican-led ― have attempted to crack down on “sanctuary” policies as well. On Monday, Mississippi Gov. Phil Bryant (R) signed a law banning local policies that limit cooperation with Immigrations and Customs Enforcement. Texas state lawmakers aim to do the same.
But some municipalities have pledged to fight, saying the law grants them the right to make their own decisions about the intricacies of their cooperation with deportation efforts.
Legal experts, immigration advocates and local governments supportive of sanctuary-city policies charge that the president and attorney general can’t twist the arm of non-cooperating jurisdictions without violating the Constitution ― although it might not stop them from trying. Longstanding Supreme Court precedent has made clear that only Congress can condition federal funding to states and localities, and it must do so very clearly. Anything less risks violating the 10th Amendment.
It should be the mantra: What we’re doing is legal, what they’re doing is not. Lourdes Rosado, Civil Rights Bureau at Office of the Attorney General of New York State
It’s possible to simultaneously follow the law to provide information to ICE and maintain sanctuary policies, Lourdes Rosado, who leads the Civil Rights Bureau at the New York state attorney general’s office, said at the summit. In January, the attorney general’s office released guidance for local officials on how to enact policies that are within the bounds of the law.
Experts said most sanctuary policies are within the bounds of the law. Law enforcement agencies routinely provide ICE with secondhand information, because they send fingerprints to the FBI, which shares the information with immigration agents. Local law enforcement agencies also routinely allow ICE to pick people up from jails.
However, under most sanctuary policies, local law enforcement declines ICE requests to hold certain individuals for extra time if they would otherwise release them. Supporters of those policies say they help maintain trust between police and immigrant communities, save taxpayer money and prevent costly lawsuits over unconstitutionally detaining people without a warrant.
Rosado said the federal government “can’t make us spend money to do their dirty work.” Efforts to force jurisdictions to change their policies, whether from the federal government or disapproving state governments, should not cause local officials to lose confidence in what they’re doing, she said.
“It should be the mantra: What we’re doing is legal, what they’re doing is not,” Rosado said.
But that doesn’t mean local officials will hold firm if they fear losing funding or angering constituents. The day after Trump signed his executive order on sanctuary cities, Miami-Dade Mayor Carlos Giménez (R) instructed jails to hold individuals on ICE request, even if they would otherwise release them.
Giménez’s order reversed a policy adopted in 2013 that county officials said saved hundreds of thousands of dollars. A federal judge rebuked the county for that policy change this month, saying Trump’s executive order effectively coerced the county into doing his bidding.
There’s also a risk that the federal government could retaliate in other ways, Michael Wishnie, director of the Jerome N. Frank Legal Services Organization at Yale Law School, said at the summit. He has been involved in other litigation against the federal government over immigration, including a 2009 lawsuit over ICE raids in New Haven, Connecticut, after the city approved municipal identification cards that would be available to undocumented immigrants. The plaintiffs alleged those arrests were made in retaliation. Ultimately, the government agreed to a $350,000 settlement that halted deportation for some of those arrested.
Wishnie told the local officials and advocates that they would prevail if they stuck to their lawful policies and banded together.
“There’s no guarantee they won’t try, but they know that when they retaliate, they pay,” Wishnie said. “And they can try to punish individual members of the community for the collective decision of the elected officials and try to take it out on a handful of people, but when the community surrounds those people and defends those who bear the burden of that retaliation, they can’t touch us.”
Cristian Farias contributed reporting.