Sanctuary 101, Part I: What Trump’s Executive Order Doesn’t Do, Cannot Do, and Has Little To Do With

A month after President Trump issued his January 25, 2017 executive order, “Enhancing Public Safety in the Interior of the United States,” there remains a great deal of confusion: about what qualifies as a “sanctuary jurisdiction,” about the order’s effects on those jurisdictions, and about whether Trump’s effort to pull their federal funding by unilateral executive action is constitutional.

This confusion is obviously problematic at a time when jurisdictions around the country are in the process of deciding whether to retain or adopt sanctuary policies. Though the decision is being treated far and wide as a yes or no question, it’s really a “what kind” question—depending on the kind of sanctuary policy in question, sanctuary designation need not butt up against Trump’s order at all. That simple fact could use much more attention as immigration raids and deportations surge and voters and policymakers seek to better understand their options when it comes to supporting, on a community-wide basis, the protection of undocumented individuals. In a similar vein, the constitutional question is potentially important for voters and policymakers trying to decide how worried to be about electing to remain or become the kind of sanctuary that the order targets.

But here’s something else to consider: confusion about Trump’s order on sanctuary jurisdictions may be enhancing the order’s “soft power” to the extent it prompts worried officials to react, even overreact, in accordance with the order’s spirit, however confined its letter.

This dynamic was on full display recently in Miami-Dade County, the first jurisdiction in the country to roll back its sanctuary policies in response to Trump’s order. Last month, after emotional County Hall protests and hours of testimony from residents imploring the County to stand up to the White House, Miami-Dade commissioners instead backed Mayor Carlos Gimenez’s controversial four-sentence directive ordering that undocumented individuals who come into contact with law enforcement be detained on the request of DHS’s Immigration and Customs Enforcement (ICE). This was a reversal of a policy unanimously established by the commissioners back in 2013, wherein the County declined to honor detainer requests unless the federal government agreed to reimburse costs and the subject had a previous conviction for forcible felony or a pending charge of a non-bondable offense.

The odd thing about the County’s rollback was that, as some lawyers emphasized in their testimony before the commission, by its terms, the executive order should have no effect on Miami-Dade. Trump’s order doesn’t require any jurisdiction’s compliance with “detainers” (ICE-requested immigration holds), or even restrict a jurisdiction’s ability to prohibit such compliance. Rather, the order threatens to withhold federal grants from jurisdictions that, in violation of federal statute 8 U.S.C. § 1373, bar their employees from sharing the immigration status of undocumented individuals with ICE. As noted by the Miami Herald, Miami-Dade did not restrict the sharing of such information with ICE regarding people in its custody—unlike, say, Chicago. It would seem to follow that Miami-Dade was already in compliance with the executive order and did not need to adjust its policies to avoid being negatively impacted by Trump's defunding threat.

But Mayor Gimenez ordered compliance with ICE detainers anyway. And in an interview shortly thereafter with CBS Miami, despite acknowledging he isn't sure whether the county would actually be violating the executive order by refusing to fulfill immigration detainer requests, he insisted that the "risk" of losing discretionary funds was sufficient to justify his decision.

I found all of this strange, so I contacted the County Attorney’s office, which declined to comment but provided me with a copy of its legal opinion on the order (issued the day before the Commissioners' decision). After reviewing it, I believe it helps explain why the County chose the course it did. Yes, the opinion indicates that the County was already in compliance with § 1373. But it also proposes two lingering problems, which the Commissioners presumably took to heart. First, compliance with § 1373 may not be enough to escape designation as a “sanctuary jurisdiction” under the order. Second, because of how certain discretionary federal grants are administered, Trump has the power to reduce the funds of jurisdictions whose policies displease him, in a way that is hard to challenge legally .

I think the County Attorney’s analysis is incorrect on the first point—that is, how broadly it interpreted “sanctuary” for defunding purposes. As for how much it has chosen to make of Trump’s willingness and ability to withhold or delay some funds irrespective of jurisdictions’ technical compliance with the order, the County Attorney is not wrong but is referring to a set of presidential powers whose exercise is not particular to this order.

There is a lot here, so over the course of the week I will tackle these points in a series of posts more broadly analyzing Trump’s executive order and what it means for sanctuary jurisdictions.

In Part II, with an eye toward tamping down on confusion and discouraging overreaction, I will explain what constitutes a sanctuary jurisdiction under the order. This will involve extricating what Trump’s order actually says about defunding from more general concerns about the significant discretion Trump could potentially wield over agency-administered non-defense discretionary grants irrespective of the language of the order.

In Parts III and IV, I will review the various arguments for and against the order’s constitutionality. Commentators have already addressed some of these issues at length, but in the process they have also contributed to some of the head-scratching, as I will explain. To avoid the same, I will highlight areas of misunderstanding as well as areas of unsettled law.

Miami-Dade documents

Mayor Carlos Gimenez’s Directive: Memorandum from Carlos A. Gimenez, Mayor, to Daniel Junior, Interim Director of Corrections and Rehabilitation Department re: Executive Order: Enhancing Public Safety in the Interior of the United States (January 26, 2017)

County Attorney Opinion: Memorandum from Abigail Price-Williams, County Attorney, to Honorable Daniella Levine Cava, Commissioner, District 8: Response to Request for Legal Opinion on Issues Arising from Executive Order on Sanctuary Jurisdictions (February 16, 2017)

Request for County Attorney Opinion: Memorandum from Honorable Daniella Levine Cava, Commissioner, District 8, to Abigail Price-Williams, County Attorney: Request for Legal Opinion on Issues Arising from Executive Order on Sanctuary Jurisdictions (February 1, 2017)

2013 Miami-Dade Policy: Resolution Directing the Mayor or Mayor’s Designee to Implement Policy on Responding to Detainer Requests from the United States Department of Homeland Security Immigration and Customs Enforcement, R-1008-13 (December 3, 2013).

Letter to Santa Clara: Memorandum from David Venturella, U.S. Immigration and Customs Enforcement, Ass’t Director, to Miguel Marquez, County of Santa Clara, County Counsel (undated, response to August 16, 2010 letter regarding ICE Secure Communities Initiative)