August 14, 2017

Sanctuary cities: Protecting citizens or violating the law?

Panelists at the ABA Annual Meeting in New York continued an ongoing discussion that has been a hot-button topic since President Donald Trump took office — whether sanctuary cities are protecting its citizens or interfering with the apprehension of undocumented immigrants.

Federal, state and local experts spoke on the topic at “Sanctuary Cities – The Role of State & Local Governments in Addressing Undocumented Immigrants,” sponsored by ABA Section of State and Local Government Law.

Dennis Herrara, the city attorney for San Francisco, who is fighting to halt enforcement of Trump’s executive order that would strip sanctuary cities of federal funding, and Bitta Mostofi, the assistant commissioner of the New York City Mayor’s Office of Immigrant Affairs, discussed what they are doing to protect and support undocumented immigrants in their respective cities, while Michael Hethmon, senior counsel at the Reform Law Institute, described his portion of the talk as the “pro-enforcement” side of the conversation.

Herrara and Mostofi disagreed with Hethmon that state and local governments should spend their resources helping the federal government police undocumented immigrants. Both cities have been successful in creating a non-hostile environment, where trust and bonding has taken shape in immigrant communities, to the point of where people feel comfortable in reporting crimes against immigrants, either as a victim or witness, they said.

Undocumented immigrants in those cities have contributed greatly to their local economies, contradicting how the federal government has described these immigrants as criminally driven.

Mostofi further said that despite record-high immigration over the last few years, New York has experienced record-low crime.

Mostofi added that mayors across the political spectrum, including former New York Mayor Rudy Guiliani and the current mayor, Bill De Blasio, agree that the city needs to uphold the health, well-being and safety of the city, and they understand that within the city there might be people who are undocumented.

Herrara noted that cities like his have successfully managed issues involving undocumented immigrants for a long time, ever since President Ronald Reagan promised to “stem the tide of illegal immigration,” but granted 3 million people amnesty. “The federal government has ignored it’s responsibility [over the past 30 years since Reagan’s term] and is now asking state and local governments, who for the last 30 years have tried to work with what they see on the ground by keeping communities safe, to act as their immigration agents to enforce federal law that they have ignored.”

Hethmon seemed to think that though there appear to be two sides to the complex issue of sanctuary cities, at its root, it’s the same issue.

“When you get down to diametrically opposed issues, when you get down to the constitutional issues, you’re really dealing with the same nexus,” Hethmon said.  “Though this is a national issue, the politics of it are very local.”

Hethmon stressed that the “800-pound” gorilla in the room,” is the doctrine of federal pre-emption. That’s where federal law preempts state law when the laws conflict.

He said cities and states are trying to “get around” the supremacy clause, and ultimately, the president and federal government will prevail.

On the question of whether Trump has the authority to deny federal grant funds to state and local governments that do not cooperate with immigration enforcement, Herrera said the president does not have the authority to do so, but Congress does -- if the restrictions meet certain criteria, such as being constitutional and germane. And, those restrictions cannot be applied to funds already granted.