“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Article VI)”
Almost every week we hear news reports about controversies, misinterpretations, and alleged violations of some part of the U.S. Constitution. The current issue is the Supremacy clause set forth above, and the context of the discussions has to do with so-called sanctuary cities.
The pre-eminent federal law in the above case is the Illegal Immigration Reform and Immigrant Responsibility Act, including section 8 U.S.C. 1373, passed by Congress in 1996. This Act provides that no state or local entity can in any way restrict its law-enforcement officials from communicating with federal immigration authorities regarding an individual’s citizenship or immigration status.
While this is not a new issue, it came to the forefront of the news cycle 18 months ago when California resident Kate Steinle was murdered in San Francisco by a criminal illegal alien who had been deported from the U.S. five times. Since then we learn of new cases almost every day where innocent people are killed by the actions of illegal immigrants.
(Because I am a “word person” allow me to digress for just a quick review of how to use the words immigrant and emigrant. An emigrant is a person who leaves his or her own country to live in another country. An immigrant is a person who once resided somewhere else and now lives in your country. For example, a Swedish woman decides to move to America. To the country of Sweden, the woman is an emigrant to America. To Americans, the woman is an immigrant from Sweden, implying she has been somewhere else, and now is here. Obviously it is only in writing that the difference is important, since the two words are pronounced in the same way. Now, doesn’t that make you feel smarter?)
Sanctuary cities were formed originally with the goal or aim to create welcoming cities that are inclusive of all residents, regardless of their immigration status, by providing safe access to municipal and police services.
In today’s news jargon, a sanctuary city is a municipality where illegal aliens, including those who are convicted criminals, are shielded from federal immigration law by the city government, and where local law enforcement is not permitted to cooperate with the federal government to identify or deport these individuals.
So the fact that federal law under the Constitution takes precedence over state or local law vs. the reality that some U.S. cities and/or other local regions have so far refused to comply with that federal law, leaves the Trump administration caught up in a quandary of perplexing legal issues.
Using the power of the purse, Congress can incentivize local jurisdictions to comply with federal immigration law.
According to Jessica Vaughan, director of policy studies at the Center for Immigration Studies, three federal grants in particular would be in question for sanctuary cities: the State Criminal Alien Assistance Program (SCAAP), which provides reimbursements for the expense of incarcerating illegal aliens; Community Oriented Policing Services (COPS), which funds community policing efforts; and Byrne-JAG grants, which fund miscellaneous spending for state and local law-enforcement agencies.
Though the federal government cannot legally compel states to comply with federal law, it is permitted to use financial rewards or incentives to encourage states to comply. This precedent was established in the 1992 Supreme Court case New York v. United States and has been upheld and strengthened since, and thus the Justice Department’s guidance in this instance clearly falls under constitutional precedent.
This is the stance that Congressman John Culberson (R-TX) has taken as chairman of the House Appropriations Subcommittee on Commerce, Justice, and Science to attempt to coerce the Department of Justice into enforcing a pre-existing federal law against harboring illegal aliens in sanctuary cities.
Culberson has identified the top-ten violators of 8 U.S.C. 1373, jurisdictions that together receive two-thirds of the law-enforcement funding disbursed by the Justice Department: the states of Connecticut and California, Miami-Dade County in Florida, Clark County in Nevada, and Cook County in Illinois, as well as the cities of Chicago, New Orleans, Philadelphia, Milwaukee, and New York City
Culberson says any jurisdictions that refuse to comply might be denied other annual federal discretionary grants if additional departments require jurisdictions to comply with all federal law in order to be eligible for funding. It is even possible that the cities in question could be required to refund the Justice Department the money that they received in past years while defying federal law. For Chicago that would mean paying the federal government at least $66 million, and for New York City over $200 million at minimum. If California persists in its sanctuary policy, it could owe the federal government over a billion dollars.
As of December 16, 2016, officials in at least 37 self-declared sanctuary cities have doubled down since Trump’s election, reaffirming their current policies or practices in public statements, despite the threat of pushback from the administration, and at least four cities have newly declared themselves sanctuary cities. Ten other cities have said they will wait to see what President Trump does but are not currently making any changes, according to local news reports and inquiries from POLITICO.
© Joan Rowden Hart
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