IMMIGRATION: Sanctuary Cities, Individual Freedom and Presidential Power
Jack E. Urquhart© August 12, 2018
Many current immigration issues are variations on themes debated long before the founding of the United States of America. Disputes this ancient continue because they are important and solution-resistant. Civilizations and their methods of governance are historically judged by their handling of such stubborn problems. Freezing our current moment in time, the Executive Branch is asserting control over immigration. The wisdom, or lack of it, in a President’s policy choices are important, and attention-grabbing. Less publicized, but at least as significant, are the limits on an American President’s authority to impose his or her policy preferences on the people.
Five days after taking office, the current President issued an Executive Order aimed at “sanctuary jurisdictions.” Exec. Order 13,768, 82 Fed. Reg. 8799 (January 25, 2017). The Order empowers the Attorney General and the Secretary of Homeland Security “at their discretion and consistent with law” to:
- Designate “sanctuary jurisdictions” by judging whether or not a jurisdiction is willfully refusing to comply with 8 U.S.C. § 1373, and
- Ensure sanctuary jurisdictions are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes.
Further, the Executive Order instructed the Attorney General to “take appropriate enforcement action against any entity that violates 8 U.S.C. § 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”
The cross-referenced 8 U.S.C. § 1373 is Congressional legislation prohibiting state and local governments from refusing to share “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
In sum, by its plain terms, the Executive Order directs the agencies of the Executive Branch to withhold funds appropriated by Congress in order to further the Administration’s policy objective of punishing cities and counties that adopt so-called “sanctuary” policies.
County of Santa Clara v. Trump, No. 17-17478 (9th Cir. August 1, 2018). The United States Court of Appeals for the Ninth Circuit found this “sanctuary jurisdiction” Executive Order unconstitutional. By issuing the order, the current President violated the Separation of Powers and the Spending Clause of our Constitution.
America’s commitment to individual freedom is unique. In most ways and in most times, this is a good thing. In all times, America’s commitment to individual freedom is central to its greatest successes and its worst mistakes. Daily, America and Americans struggle consciously or unconsciously to balance their very real need for individual freedom with the equally real need for limitations on that freedom. While Americans are free to speak and act in ways unthinkable in many other countries, American individual freedom works best when most Americans wisely self-impose boundaries on that freedom.
Whatever else may be said about the American Constitution and how it should be interpreted, it reflects individual and collective compromises between the need for a central government and a widely-shared distrust of such a government. Essential to the compromise that enabled our Constitution and the birth of the United States of America were the notions that the power of the central government is limited, and this limited power is not concentrated in the President.
By intention, America’s federal government sacrifices the “efficiency” of a “King,” for the “checks and balances” of three separate and independent branches of governance. This Separation of Powers is the cornerstone of America’s system of governance. The failure of any Branch of our government to carry out its assigned responsibilities imperils our Federal Government as a whole. The unlawful infringement by one Branch of our government on the responsibilities assigned other Branches is equally threatens our democracy.
Yet, keeping our Federal Government properly balanced and on task is ever-evolving and always imprecise. Conceptually, the ultimate responsibility for protecting our unique constitutional democracy is assigned to American voters.
“Immigration policy” is a timely test of how well our constitutional governance is functioning. Immigration policy encompasses a vast array questions that have no clear-cut right or wrong answers. Immigration policy is further complicated, because many, if not most, of the people directly affected by American immigration policy have no vote and few “rights.”
But all sovereign governments must have some form of immigration policy. Immigration “control” and sovereignty are practically inseparable. The current President unquestionably has opinions about immigration policy. His Executive Order on “sanctuary jurisdictions” reflects his view that some cities and counties throughout the country are too soft on immigrants, and these “sanctuary jurisdictions” should be punished. As a person, the President is entitled to his opinions and has a right to express his opinions in whatever manner wishes.
However, as President, he has no constitutional authority to embargo money duly appropriated by Congress. The President has no authority to cut funds that Congress has directed to San Francisco or any other state or local government regardless of his personal displeasure with those jurisdictions.
The United States Constitution exclusively grants the power of the purse to Congress, not the President. U.S. Const. art. I, § 9, cl. 7 (Appropriations Clause); U.S. Const. art. I, § 8. cl. 1 (Spending Clause). As Alexander Hamilton succinctly put it, Congress “commands the purse.” THE FEDERALIST, No. 78. James Madison underscored the significance of that exclusive congressional power, stating, “[t]the power over the purse may [be] the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” THE FEDERALIST, NO. 58,
Simply put, “the President does not have unilateral authority to refuse to spend funds. In re Aiken County, 725 F.3d 255, 261 n.1 (D.C. Cir. 2013). And, “the President many not decline to follow a statutory mandate or prohibition simply because of policy objectives.”
At best, the ice upon which the current President skated when signing an Order to punish perceived “sanctuary jurisdictions” by withholding congressionally legislated funding grants was thin. When the Order was challenged in Federal Court as an abuse of the President’s constitutional power, his Administration made no effort “to show that Congress authorized [the Administration] to withdraw federal grant moneys from jurisdictions that do not agree with the current Administration’s immigration strategies.”
Not only has the Administration claimed for itself Congress’s exclusive spending power, it has also attempted to coopt Congress’s power to legislate.
The President’s lawyers defended the Executive Order in the lawsuit largely by portraying it as a “toothless threat” that would not be enforced. The President’s lawyers argued that since the Executive Order had not been enforced, the City and County of San Francisco had not yet suffered injury. The Court disagreed, and, as has been the case with other legal spats in which the current Administration is enmeshed, the Court reported numerous instances in which the President and members of his Administration publicly contradicted the positions taken by their lawyers in Court. Specifically, the President and members of his Administration were quoted as using defunding as a “weapon” to punish jurisdictions that did not share the Administration views on how their law enforcement resources should be allocated. The Administration has been particularly vocal on its insistence that jurisdictions comply with all Federal “detainer requests.” These are demands from ICE to local law enforcement authorities that they continue to detain individuals after their scheduled release. The “purpose” of the continued detention is to give ICE an opportunity to explore potential immigration issues. This detention would be at the cost of the local authorities, and implicate both federalism and Fourth Amendment concerns.
While the Administration’s statements cannot alter the plain meaning of the Executive Order, Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 329-301 (1994), here the statements confirm what we have learned from the text of the Executive Order—that the Administration intends to cripple jurisdictions that do not assist in enforcing federal immigration policy.
The dissenting judge in this matter interpreted the Executive Order as urged by the President’s lawyers. He read the order as simply providing that local officials “shall assure that a law of the United States shall ‘be faithfully executed.’” The dissent concluded that the case was not “ripe” for decision as the Executive Order has not been enforced, and, if enforced, there is no basis for believing it will be enforced unlawfully.
Moreover, the dissent charges the Court’s majority opinion with failing to give the Executive Order “a fair enough reading.” The dissent urges that the majority’s interpretation of the order actually rewrote the order so that it could be enjoined. As for the comments from the President and other administration officials about their actual intent, the dissent found them irrelevant, relying on Trump v. Hawaii, 138 S.Ct. 2392, 2416-23 (2018)(The case involving the Travel Ban Executive Order—revised version 3). The dissent concluded:
In fine, while the Counties may be convinced that the Executive Order loosed a fearsome chimera upon them, that does not mean that the courts should take up arms to vanquish the imagined beast by slaying the Executive Order itself.
So ends this particular chapter in the “sanctuary jurisdiction” saga. The Executive Order, for now, is unconstitutional and remanded to the trial court for further development of appropriate injunctive relief. And on it will go.
Over-arching concerns merit consideration. First, a strong argument can be made that Congress, which unquestionably has the authority and responsibility over immigration policy, should earnestly begin the hard and deliberative work necessary to reboot our outdated and confusing immigration systems. This, needless to say, would require cooperation and compromise.
Second, Presidents of whatever political stripe should reconsider using Executive Orders they do not intend to enforce.
Third, the independence of our Judicial Branch is essential. Disagreement among our judges is expected. Yet, the expression of these disagreements should transcend the rough and tumble of partisan interests. Our judiciary must be widely respected for its reasoned independence. This respect is the foundation of the Rule of Law. Our Judiciary has authorities and responsibilities entirely different from the two political branches of our government. When this distinction is not clear or clearly believable to most Americans, regardless of the reasons, our unique system of governance is imperiled.