Nikolas Bowie // 4/27/17 //
Ask any member of the Trump administration what’s so bad about sanctuary cities, and he’ll likely respond with the same answer: They’re violating a federal law, 8 U.S.C. § 1373(a), which requires cities to jail people suspected of entering the country illegally. For example, right before Sean Spicer recently said that San Francisco and cities like it “have the blood of dead Americans on their hands,” he cited § 1373(a) by name and implied that sanctuary cities violate that statute when they “block their jails from turning over criminal aliens to Federal authorities for deportation.”
Spicer isn’t alone. Attorney General Jeff Sessions has repeatedly done the same thing, accusing cities that refuse to obey federal requests to jail immigrants “dangerous,” in violation of “Section 1373,” and complicit in murder.
But § 1373(a) doesn’t say what Spicer or Sessions thinks it says. In fact, it says nothing about the administration’s chief complaint with sanctuary cities.
As far as federal statutes go, § 1373(a) is breezy, clocking in at a mere 56 words. Titled “communication between government agencies and the Immigration and Naturalization Service,” it says in full:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
To describe § 1373(a) in even fewer words, it prohibits cities from restricting their officials from communicating with federal agents about residents’ immigration status.
When you actually read it, § 1373(a) is more notable for what it doesn’t do than what it does. Nothing about § 1373(a) requires cities to collect information about the immigration status of their residents. Nothing requires them to arrest anyone, detain anyone, or otherwise enforce federal immigration law. All it says is that when a city official has information about the citizenship of a resident, the city can’t stop that official from communicating with federal agents. Even this modest requirement may not be constitutional—but that’s all the statute says it does.
So it’s a little baffling when members of the Trump administration accuse cities of violating this provision when they “block their jails from turning over criminal aliens to Federal authorities for deportation.” If you think “communicate” means “imprison and extradite,” please never talk to me.
The thing the Trump administration really wants sanctuary cities to do is comply with so-called detainers, which are “requests” for local law enforcement to hold arrested people in custody while immigration agents figure out whether to deport them.
Many cities voluntarily comply with these requests. Sanctuary cities, by definition, don’t—perhaps because it’s expensive to keep someone in jail, but probably because it’s also unconstitutional to do so absent probable cause the person actually committed a crime.
Indeed, the highest court in Massachusetts is currently deciding whether it's even legal for a state to comply with detainers absent a warrant. If it answers "no," the entire commonwealth would become a sanctuary state.
In any event, as Judge William Orrick wrote in Tuesday’s decision blocking the president’s attempt to withhold federal funds from sanctuary cities, detainer requests aren’t mandatory—both because they’re literally called “requests” and “because any other interpretation would render them unconstitutional under the Tenth Amendment.”
And if detainers have anything to do with § 1373(a), the connection isn’t obvious.
Yet the Trump administration continues to accuse sanctuary cities of violating § 1373(a) (not to mention being accessories to murder) when they ignore potentially illegal requests to hold people in jail. One of the reasons Judge Orrick gave for striking the president’s executive order was its creative attempt to link § 1373(a) with detainers and unrelated conditions on existing federal grants.
So it’s irresponsible for the Trump administration to equate releasing people who are free to go with violating a federal law about communication (and, again, with murder). At the very least, the administration should be consistent in the future. The next time the press secretary refuses to respond to a question, he shouldn’t take it personally if an ICE agent tackles him for being uncommunicative.