As the sole law firm for the federal government, the Department of Justice has had the unenviable task of defending President Donald Trump and his executive orders in court. Few of the president’s orders have been as hard to stick up for as his promise in January to withhold federal funds from so-called sanctuary jurisdictions. Predictably, the order has sparked a round of lawsuits from cities that don’t think they’re doing anything wrong but credibly fear that the president is going to take bites out of their budgets like the most beautiful piece of chocolate cake he’s ever seen. Less predictably, the Department of Justice has responded like a CNN commentator who slept through the election—asking courts not to consider the order literally, or seriously, or even really at all because its goal is so indefensible that it can’t be enforced.
The Department’s lawyers clearly see retreating as a winning strategy. Unfortunately for them, their Dear Leader is ordering them to charge. Last month, Attorney General Jeff Sessions announced that even if his lawyers don’t think the order is enforceable, he does. And on Friday, the Department issued letters to cities and counties and even the state of California to “remind” them that if they want to keep their federal funds (and their kneecaps), they’d better prove they’re not getting in the way of immigration agents who have questions about their residents’ immigration status.
On their own, the letters don’t appear to strike new ground. Back in May 2016, the Obama administration concluded that the same cities and counties were being deliberately uncooperative with immigration agents—even if they weren’t breaking any laws. Specifically, the administration determined that the localities weren’t complying with “ICE detainers,” or requests by U.S. Immigration and Customs Enforcement to hold noncitizens in jail until ICE agents can figure out whether to deport them. The federal government issues these detainers because there aren’t nearly as many ICE agents roaming around the country as there are local cops. So when ICE finds out that a jail or prison is holding someone who the federal government suspects can be deported, ICE asks the local officials to detain the person for as long as it takes for an ICE agent to interview and haul him or her off to a federal detention facility. But as the Obama administration (and several federal courts) also concluded, these detainer requests are just that—requests—and therefore no locality is required to hold someone in jail for days or weeks just because an ICE agent has a question.
Sanctuary cities like Chicago have earned their status in part by passing ordinances that prohibit police officers from complying with ICE detainers. The Obama administration regarded these ordinances as technically legal but at odds with the “intent” of federal law.
The Obama administration ended its investigation—and enforcement—there. But the Trump administration appears ready to punish Chicago and eight other sanctuary jurisdictions for refusing to comply with the detainer requests that they have every right to ignore. In his speech last month, Attorney General Sessions argued that cities’ refusal to comply with detainer requests “make our nation less safe by putting dangerous criminals back on our streets.” He added, “Such policies cannot continue.” And in its press release on Friday, the Department implied that Chicago’s sanctuary ordinances—in place in various forms since 2011—are responsible for its high murder rate in 2016.
At the very least, the Department’s letters will no doubt give local and state lawyers some homework. But their biggest victim will likely be the Department’s own legal defense of President Trump’s order. As discussed in an earlier post, the Department’s main argument has been that there is no credible threat that the Trump administration will enforce its goal of withholding federal funds from sanctuary cities. So when the Trump administration sends threatening letters to California and declares its intent to force its cities to change their legally enacted policies, it might as well wave the white flag to San Francisco, Santa Clara, and all the other places challenging the order in court.
In an eve-of-battle speech at the U.S.–Mexico border, Attorney General Sessions recently told border patrol agents that “it is here, on this sliver of land, where we first take our stand.” It was a fitting choice of words—because the general who Sessions today most resembles is Custer.