Blog  The Executive Order on Sanctuary Cities: A Primer

The Executive Order on Sanctuary Cities: A Primer

by Alexa Broida
Director, Mitzvah Corps

Throughout the presidential campaign, President Trump addressed concerns about border control, promising to boost national security by, among other things, restricting immigration and deporting undocumented workers. Since Inauguration Day, he’s done just that. We’ve taken a look at his executive order on immigration, and here, we’re exploring his executive order on sanctuary cities.

Some Context

An executive order is a rule handed down by the President to government agencies. While a signed executive order acts like a law, it can also be subjected to legal review, and reversed by Congress and/or the courts.

This particular executive order had to do with the way that cities cooperate with federal immigration policies. The United States Constitution gives the federal government the responsibility of creating and implementing immigration policies. In practice, the White House dictates the policies, but they often rely on cooperation with local law enforcement to enforce them.

The United States Immigration and Customs Enforcement (ICE) is the federal agency that is responsible for implementing the White House’s immigration policies by enforcing detention and deportation of people who violate United States immigration law.

However, ICE seeks the help of local law enforcement, since they are the ones who often make initial contact with undocumented immigrants. There is no law that compels them to comply with ICE, nor is there a uniform or specific process of compliance. The general idea is that if, in the course of doing their jobs (unrelated to immigration), law enforcement officers come across someone who is undocumented, they’ll notify ICE.

What ICE wants them to do varies greatly by jurisdiction; the most controversial is a detainer request, which is when ICE asks local law enforcement to keep the suspect in jail longer than they normally would so that ICE can take action.

This is where sanctuary cities become relevant. While there is no single definition of a sanctuary city, generally the title refers to a city that limits their cooperation with federal law enforcement in some way, often by refusing to grant ICE detainer requests. Currently, there are approximately 200 local, county, and state jurisdictions that consider themselves sanctuary cities.

What Happened

On January 25, 2017, President Trump issued an executive order titled Enhancing the Public Safety in the Interior of the United States, which directed all jurisdictions to cooperate fully with federal immigration law or risk losing federal funding. Among other points, the executive order included the following statements:

  • All agencies must enforce federal immigration law (meaning they must cooperate with ICE during step 3 of the process above).
  • Sanctuary jurisdictions are not eligible to receive federal grants, except when deemed necessary by the Attorney General or Secretary of Homeland Security for law enforcement purposes (the federal government provides over $600 billion each year to local and state governments to cover a wide range of services like education, healthcare, and environmental protection, and including funding for law enforcement purposes).
  • The Secretary of Homeland Security has authority and discretion to designate which jurisdictions are considered sanctuary jurisdictions (there is currently no formal, single definition).
  • The Secretary of Homeland Security will publish a weekly list of all of ICE’s detainer requests that were denied, making public a comprehensive list of criminal actions committed by undocumented immigrants (another section specifies that anybody who is not a United States citizen or lawful permanent resident will be exempt from the protections of the Privacy Act regarding personally identifiable information).

Depending on how President Trump and his administration choose to define sanctuary cities, and which types of federal grants they choose to withhold, cities that maintain their sanctuary status risk losing 1-25% of their budgets (depending on how dependent they are on federal funds), which can amount to billions of dollars.

The responses from local and state governments have been mixed. Some communities announced that they would adjust their policies to comply with the executive order, and some police unions and smaller city police chiefs have praised it. There have also been many mayors and police chiefs that have come out against it, expressing strong reservations and saying that regardless of the consequences, they’ll continue to operate as sanctuary cities.

Perhaps most notably, the City of San Francisco filed a lawsuit against President Trump over the executive order.

What supporters of the executive order saying?

President Trump, and those who are against sanctuary cities, say that the sanctuary policies risk releasing criminals onto the streets, so the cooperation is necessary for public safety. They often reference the fatal shooting of Katie Steinle, allegedly at the hands of an undocumented immigrant who had been deported five times, to underscore this argument.

Supporters of the executive order also argue that it isn’t fair that cities can ignore federal law, but still expect federal funding, so they are in favor of pulling those grants.

They support other sections of the executive order that commit to hiring additional immigration officers, and extending the power of local law enforcement to assist in immigration law enforcement.

What critics of the executive order saying?

Proponents of sanctuary generally argue that immigration enforcement should focus on undocumented immigrants who pose a threat to the community, rather than immigrants who have lived in the U.S. for many years, are integral parts of their community, and contribute to their families’ well being.

Law enforcement officials in sanctuary cities say that the protections are integral to building trust between police officers and community members. They say that they get more information about dangerous criminals when undocumented immigrants can talk to them without fear of deportation. Indeed, critics of the executive order, and supporters of sanctuary cities, point to evidence that suggests that sanctuary cities are actually safer for everybody, including undocumented immigrants, citizens, and permanent residents alike.

Critics of the executive order question whether or not it’s legal in three primary ways:

  • The order seeks to force state and local law enforcement to enforce federal law. However, the Supreme Court has ruled before that the federal government may never order non-federal official to enforce their laws, so critics of the executive order say that this is unconstitutional.
  • The order uses the threat of cutting funding to compel lawmakers to direct local law enforcement to enforce federal law. The Supreme Court has also ruled, most recently against President Obama’s Affordable Care Act, that the government may not threaten funding in order to coerce state and local officials to enforce federal law.
  • Not granting ICE detainer requests is one of the most common practices in sanctuary cities, and critics of the executive order (supporters of sanctuary cities) say that the requests themselves are unconstitutional. The 4th Amendment in the United States Constitution prohibits keeping anybody in jail without a warrant, and ICE is requesting that the suspects be jailed until a warrant is obtained, which means they’d be held illegally. While ICE detainer requests weren’t specifically mentioned in the executive order, it’s being inferred.

What does the Reform Jewish Movement say?

Currently, the Reform Jewish Movement does not have specific policies in place regarding sanctuary cities.

For congregations that are considering taking a position, and learning more about sanctuary, there are resources available through the Religious Action Center of Reform Judaism.

What can I do?

Find out what sanctuary policies, if any, your city, county, and state have in place.

If you live in a sanctuary city, find out what your elected officials are planning to do in response to President Trump’s executive order. Contact them to thank them for reflecting your personal position, or encourage them to change their minds.

Learn how to use your congregation to provide sanctuary to immigrants and refugees, if that’s something that your congregation agrees it wants to take action on.