//  1/24/18  //  Commentary

It’s not Groundhog’s Day yet, but it sure feels like it.  Once again, the Trump Administration is baselessly threatening its political opponents with criminal charges.  And, once again, those threats are chipping away at democratic norms and good governance. 

The most recent threats came last week, during Homeland Security Secretary Kirstjen Nielsen’s testimony before Congress.  Nielson  testified that she’d asked the Department of Justice to look into filing criminal charges against local policymakers in “sanctuary cities”–i.e., officials that decline to help federal immigration officials carry out their duties.  But as both DOJ and Nielson should know, there is no legal basis to bring charges against such officials.  Indeed, local officials have a constitutional right not to be conscripted into federal service.  And though Nielsen’s threats are groundless, they’re not harmless.  To the contrary, the threats themselves continue to fray the fabric of our democracy.

Let’s start with the law.  The term “sanctuary city” is amorphous and imprecise.  There are, by some counts, hundreds of “sanctuary” jurisdictions across the United States, with hundreds of unique laws and ordinances.  But though the term “sanctuary city” lacks straightforward definition, it typically refers to a city that has opted not to use its resources to help federal agents identify, and deport, undocumented immigrants.  San Francisco’s relatively robust ordinance, for example, generally prohibits use of city resources to assist federal officers with an immigration-related “investigation, detention, or arrest.”  It prohibits city officials from gathering immigration-related data when they interact with residents.  And (with some exceptions) it prohibits city officials from detaining undocumented persons, at the behest of the federal government, for civil immigration offenses. 

Though “sanctuary” cities are portrayed in some corners of the media as scofflaw jurisdictions, that’s far from accurate.  “Sanctuary” cities are not cities in which federal immigration law does not apply: municipalities have no authority to stop federal immigration officials from acting inside their borders.  Instead, a “sanctuary” city is one which has determined, as a matter of policy, that its own scarce resources should not be used to enforce federal immigration laws.  There are many reasons a city might make that call.   One reason is that municipalities need to maintain the trust of their residents.  If residents fear that interactions with city personnel might lead to deportation proceedings against themselves, their friends, or their families, they will be less likely to cooperate with city officials. Witnesses will be less likely to report crimes.  People will be less likely to report dangerous building conditions, go to the hospital when they’re sick, or call ambulances during emergencies.   A city may thus opt to adopt “sanctuary” policies because, in its judgment, such policies will make all residents safer and healthier.

Nevertheless, “sanctuary” laws frustrate the (current) federal government.  That’s because the (current) federal government wishes to deport as many undocumented immigrants as possible—but lacks the resources to do it.  Accordingly, the federal government would prefer if cities and states assisted in the identification and deportation of undocumented persons. It would prefer if local law enforcement shared residents’ immigration status with the federal government.  And it would prefer if local law enforcement held undocumented persons in jail until federal immigration officials take custody of them.

But those federal preferences are just that: preferences. That’s because immigration laws are the exclusive domain of the federal government.  And, as the United States Supreme Court has made clear, local officials cannot be forced to help carry out federal laws.  In Printz v. United States, the Supreme Court struck down a law which required local officials to conduct background checks on prospective purchasers of handguns. The Court emphasized that the American constitutional structure is one of “dual sovereignty” between the federal government and the states—such that state and local officials cannot be forced to help implement federal prerogatives.  “The federal government,” the Court held, “may not compel the States to implement, by legislation or executive action, federal regulatory programs.”

That holding makes abundantly clear that local officials may not be required to enforce federal immigration law.  The American immigration regime—like the background-check requirement at issue in Printz—is a “federal program.” And just as local officials could not be required to help implement the federal gun-control program in Printz, they cannot be required to help implement federal immigration law now.

So, what gives?  Under what theory could the Trump Administration possibly think that local officials might be criminally charged for exercising their constitutional prerogatives?  According to Immigration and Customs Enforcement Director Thomas Homan, the theory is that officials in “sanctuary cities” can be charged under 8 U.S.C. § 1324.  That law, in the main, is an anti-human-trafficking law, which criminalizes smuggling undocumented persons into the country.  One provision, however, imposes criminal penalties on any person who “conceals, harbors, or shields from detection” an undocumented immigrant “in any place, including any building.” That “anti-harboring” provision has caught the attention of those who would like to prosecute city officials.  The idea, apparently, is that when local officials fail to assist federal immigration officials, they are “harboring” undocumented persons—and can thus can be charged with a crime.

But the anti-harboring theory doesn’t come close to holding water.  That’s true for two reasons.  First, the theory relies on an extraordinarily aggressive interpretation of the anti-harboring provision.  To be sure, courts across the country have reached varying conclusions as to what it means to “harbor” an undocumented person.  But none have suggested that merely failing to assist federal immigration officials can subject a person to criminal penalties.  Just the opposite.  The Third Circuit Court of Appeals—which maintains a relatively broad definition of the term “harboring”—has emphasized that a conviction under § 1324 must stem from an “affirmative” act geared towards evading federal authorities.  People can be convicted of “harboring” if they falsify documents, if they physically impede a federal agent, or if they transport undocumented persons across the country.   But passively declining to report undocumented persons, or declining to help federal authorities, does not qualify as “harboring.”  For that reason, the Seventh Circuit held, a woman could not be convicted of “harboring” her undocumented boyfriend, with whom she lived. 

Any definition of “harbor” that sweeps in “sanctuary” officials would thus radically alter the law.  The only thing that “sanctuary cities” are doing, after all, is declining to act.  They are declining (1) to gather information about their residents’ immigration statuses; (2) to use local resources to enforce federal immigration laws; and (3) to detain people at the behest of the federal government.  If local officials could be charged for such non-activity under the anti-harboring law, it would transform a prohibition on impeding federal immigration laws into a command to actively assistin their enforcement.[1] 

The second reason the anti-harboring theory fails is yet more fundamental.  Even if the anti-harboring provision could be re-imagined as a law which criminalizes passive inaction, it still could not be used to punish local officials who decline to help federal immigration agents.  That is because, under Printz, the Constitution prohibits any federal legislation which commandeers state and local officials into federal service.  And the Constitution trumps any interpretation of a statute.  Thus, no matter how “harboring” is interpreted as a general matter, the anti-harboring provision cannot constitutionally be applied to require state and local officials to help enforce a federal program.   

For both of these reasons, any federal charges against officials from sanctuary cities would be unviable.  Bill de Blasio can rest easy. 

But though I don’t expect to see sanctuary city officials imprisoned anytime soon, the rhetoric of criminality is dangerous.  Upon taking office, President Trump reportedly told top aides to think of each day as an episode of a television series in which Trump “vanquishes rivals.”   One year later, it’s apparent that the United States government—including its legal apparatuses—is taking that admonition to heart.  Vanquishing rivals, by whatever means necessary, seems to be an animating force behind this administration.  It explains why the government has apparently re-opened investigations into Hillary Clinton.  It explains the Department of Justice’s unprecedented Supreme Court petition in Hargan v. Garza, in which it baselessly asked for sanctions against its litigation adversaries at the ACLU.  And it explains the baseless request for criminal charges against mayors and police chiefs who dare to make a policy judgment that contradicts the President’s own.

It’s hard to keep track of the Trump Administration’s rapid-fire political attacks. Individual incidents are quickly forgotten.[2]  And therein lies a problem.  One year into the Trump Administration, the Secretary of Homeland Security can go before Congress, call for the criminal prosecution of dozens of America’s mayors and city leaders—and nobody bats an eye.  This is the new landscape of American democracy.  Criminal investigations, frivolous threats, professional ruin: they’re all now just arrows to be fired at political opponents.

As Leah Litman noted on this blog, there’s no easy answer for any of this.  But the Trump Administration’s threats against local officials—officials who made a policy choice that is protected by the Constitution—should remind us how much work we’ll have to do to piece democratic norms back together when this Administration leaves office.



[1] Such a re-imagining of the anti-harboring provision would lead to some truly Kafka-esque results.  Note that the anti-harboring provision prohibits “harboring” undocumented persons “in any place, including any building.”  But if local officials were charged for refusing to detain undocumented persons, they would be charged because they failed to keep undocumented persons confined in a particular (jail) building—the opposite of what the statute literally provides.

[2] Be honest: When was the last time you thought about that time President Trump accused President Obama of wiretapping?

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Democratic and Republican responses to the DACA decision illustrate the different focus the two parties put on the federal courts.

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Michigan Law School

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On this week’s Versus Trump, Jason and Charlie take on two topics. First, what can the president legally do to use the military on American soil? Second, is it legal for the House of Representatives to vote by proxy, without being physically present in D.C., as alleged in a new lawsuit by House Republicans? Listen now!

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