Yesterday, Attorney General Jeff Sessions issued his official interpretation of the executive order President Trump issued in January regarding sanctuary cities. The interpretation is notable for its narrowness. HuffPost summarizes it with the headline: “DOJ Admits It Can’t Actually Take Away Federal Grants From Most ‘Sanctuary’ Cities.”
But “Most” is the key word in that headline. The memorandum is more of a retreat than a surrender.
I’ve already written a few times about the president and attorney general’s main complaint with sanctuary cities: When federal immigration agents issue so-called detainers that ask cities to hold certain immigrants in jail, sanctuary cities refuse. In earlier speeches, the attorney general suggested that these refusals violate a federal statute, 8 U.S.C. § 1373(a).
But that statute has nothing to do with detainers; it just says that cities can’t stop their law enforcement officers from communicating with federal agents about a person’s immigration status. In addition, as a federal court ruled in April, it would be unconstitutional for the administration to withhold federal grants from cities that fail to comply with detainers, which are voluntary. The court therefore enjoined the president from enforcing his executive order to achieve the administration’s stated goal of withholding federal funds from cities that fail to comply with detainers.
The attorney general’s memorandum yesterday largely tracks the legal requirements the federal court imposed on the executive order. The attorney general interprets the key section of the executive order, Section 9(a), to do nothing more than allow him and the secretary of homeland security “to exercise, as appropriate, their lawful discretion to ensure that jurisdictions that willfully refuse to comply with section 1373 are not eligible to receive Department of Justice or Department of Homeland Security grants.”
The memorandum also marks the outer limits of the administration’s “lawful discretion.” Only if a statute authorizes the Department of Justice or Department of Homeland Security to condition certain grants on a city’s compliance with section 1373 can the departments require grant applicants “to certify their compliance with federal law, including 8 U.S.C. § 1373.”
The memorandum concludes by stating that the executive order’s definition of sanctuary jurisdiction “is narrow” and applies only to jurisdictions that willfully refuse to comply with section 1373.
In sum, the memorandum is certainly a personal retreat for Attorney General Sessions. Only two months ago he accused sanctuary jurisdictions of being complicit in murder for failing to comply with detainers.
But the memorandum leaves three larger questions open. First of all, it remains unclear what it means, exactly, for a city willfully to refuse to comply with section 1373. A 2016 memorandum from the inspector general in President Obama’s Department of Justice suggested that many cities, from Chicago to New Orleans, have sanctuary ordinances that might interfere with local law enforcement’s ability to communicate with federal immigration officials. For example, Cook County, Illinois, has an ordinance stating that “County personnel shall not expend their time responding to ICE inquiries or communicating with ICE regarding individuals’ incarceration status or release dates while on duty.” The inspector general wrote that such an ordinance “could easily be read by Cook County officials and officers as more broadly prohibiting them from expending time responding to ICE requests relating to immigration status.” If so, that would likely violate section 1373.
Second, it is unclear that section 1373 is constitutional. San Francisco’s lawsuit against the January executive order includes a claim against section 1373, and the district court has not yet ruled on that question. As many legal scholars have written on this site and elsewhere, section 1373 could unconstitutionally “commandeer” local officials, as in 1997’s Printz v. United States.
Third, the memorandum could have the effect of rendering the rest of San Francisco’s lawsuit moot. To date, the administration’s better-than-it-sounds legal defense of President Trump’s executive order is that the order doesn’t do anything. That’s hard to believe when the president and attorney general are making speeches threatening to take all federal funds away from every city they don’t like. But this memorandum makes that threat considerably less “credible,” which is the relevant legal standard for determining whether a court should continue to intervene. By rendering the executive order relatively “toothless”—in the words of the district court in April—the memorandum could end most of the litigation against it.
So I would think of the memorandum more like a feint than a surrender. The memorandum dramatically lowers the stakes of the president’s executive order, both in terms of who it affects and what it does. But self-declared sanctuary cities shouldn’t consider themselves out of the attorney general’s crosshairs just yet.