January 25, 2017; Politico

Across the nation yesterday, mayors of so-called “sanctuary cities” spoke out in defiance of another executive order by President Trump, this one threatening to cut federal funding to sanctuary jurisdictions. Trump also authorized the hiring of 10,000 new immigration officers as an indicator of increased enforcement activity.

All this action portends an impending collision between sanctuary cities and the new administration that promises to encompass issues of immigration and constitutional concerns around local vs. federal control. It comes accompanied by rhetoric about a broad-brush federal defunding that, if enacted, would affect many types of community services and supports. What is actually likely to happen from here?

While there is no single definition of a sanctuary city, it generally means that the entity does not allow their police departments to collaborate with U.S. Immigration and Customs Enforcement, or ICE, to detain and deport immigrants. Because of differences in definitional boundaries, there’s no single list of sanctuary cities. Some cities have been sanctuaries since the 1980s, and on top of that, a variety of counties, states, and even university campuses have declared themselves as sanctuaries.

The order itself is worth looking over in full, but the parts relevant to this article read:

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.

(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.

Still, as alarming as this might sound to communities and nonprofits that benefit from federal safety net and program funding, as with a number of Trump’s other declarations, there would be barriers to carrying out the defunding referred to in this order. “All federal grant money” would presumably include Medicaid money and monies allocated for various social programs, but CNN reports that not only are many federal disbursements under congressional rather than presidential control, but “the courts have held in the past that the federal government can only strip funding that is related to the policy involved—so it’s unlikely to hold up if the administration tried to take away highway funds, for example, according to experts.” Even so, for New York City to lose federal aid to local law enforcement, including $185 million in homeland security grants, would be significant.

Additionally, the courts have ruled, in alignment with the Constitution’s “anti-commandeering doctrine,” that funding decisions may not be used to coerce states into actions. It was the application of this principle by the U.S. Supreme Court that invalidated the federal government’s attempt to mandate Medicaid expansion by threatening to withhold all Medicaid funding from states that refused Medicaid expansion. This means that these declarations are likely headed straight to the courts, where they are likely to linger, much as Obama’s immigration orders did.

Officials in the cities and states involved also have something to say about the aggressive and threatening stance of the new administration. In Chicago, Rahm Emanuel declared at a press conference, “We’re gonna stay a sanctuary city. There is no stranger among us. We welcome people, whether you’re from Poland or Pakistan, whether you’re from Ireland or India or Israel and whether you’re from Mexico or Moldova, where my grandfather came from, you are welcome in Chicago as you pursue the American Dream.”

Chicago, of course, has been trash-talked by Trump fairly consistently over the last year. Maybe they are sick of being dismissed. “You mess with one in Chicago, you mess with all of us,” said Northwest Side Alderman John Arena. “We are a sanctuary city. We’ll stand by that. We will stand by every single citizen, every single resident of this city, regardless of your status. This is your home. That is our declaration.” Alderman Joe Moore said Chicago “should not give in to threats…even if it means that our federal funding is threatened, now is the time to stand up for what is right, now is the time to stand up for our values, now is the time to stand up for those who cannot stand up for themselves. We should not give into any demagogue who happens to somehow accidentally find his way into the White House.”

“This is a federalism issue,” said Jorge Elorza, the mayor of Providence, Rhode Island who is promising “massive and aggressive lawsuits.”

The idea of local control is deeply embedded in American history, and what we have now is a very aggressive attempt by the federal government to commandeer our local police departments to become immigration agents.

In Massachusetts, where a number of cities and towns have declared themselves as sanctuaries, a furious Mayor Marty Walsh of Boston declared, “The latest executive orders and statements by the president about immigrants are a direct attack on Boston’s people, Boston’s strength and Boston’s values.”

He added that he would use all of his power, within legal means, to protect all Boston residents—even if that means using City Hall. “If people want to live here, they’ll live here,” he said. “They can use my office. They can use any office in this building.”

The Republican governor of Massachusetts, Charlie Baker, who has signaled that he opposes federal efforts to defund sanctuaries, backs Walsh up: “I said all along that I think decisions about how communities want to manage their public safety issues and their community issues belong to them, and they should make whatever decisions are in the best interests of their communities.”

Massachusetts Attorney General Maura Healey has indicated that her office is ready to challenge any attempts at defunding in court. “The President’s executive order is an irresponsible attempt to coerce our communities into conducting his mass deportations, and would impact all residents by stripping federal funding for roads, schools, police, health care, the elderly, and assistance for those in need,” Healey said. “My office will be watching closely and I will be ready to stand with our cities and towns in the coming days.”

Joe Curtatone, the mayor of Somerville, Massachusetts, tweeted his thanks to the people of that city for “standing firm.” In another missive, he added “Just so people know. What Trump did today is just theater. Hasn’t actually cut anything b/c we have laws and he’s not a king.”

New York State Attorney General Eric Schneiderman concurs that Trump lacks authority under the constitution to cut off federal funding to New York City, issuing a press release that says in part, “Any attempt to bully local governments into abandoning policies that have proven to keep our cities safe is not only unconstitutional, but threatens the safety of our citizens.” Moreover, yesterday, Schneiderman went a step further and offered a tool for other cities to use to protect their sanctuary status:

Anticipating potential changes in federal immigration enforcement practices and priorities, Attorney General Eric T. Schneiderman today provided local governments and law enforcement agencies with a legal roadmap for improving public safety by protecting vulnerable immigrant communities. As part of that roadmap, A.G. Schneiderman also provided local governments with model laws and policies that, if voluntarily enacted by a local government, would codify “sanctuary” policies into local law. In recent years, several cities across New York State, including Syracuse and New York City, have successfully adopted such policies.

In the end, after we digest the threats involved in Trump’s Really Big Show, much of what Trump promises or threatens could indeed end up as political theater—a restatement of his campaign vows without much strategy attached. We can only hope that this is so—but in the meantime, of course, it’s best to cover every base, and that means communicating to elected officials that we appreciate their firm stands on this issue.—Ruth McCambridge