skip to main content

Publications

United States District Court Judge Blocks Trump Administration from Withholding Federal Funds from Sanctuary Cities

April 26, 2017

On April 25, 2017, United States District Court Judge William Orrick imposed a temporary injunction on any attempts by the Trump administration to enforce portions of an executive order that called for the withholding of federal funds from sanctuary cities. 

The executive order, which President Trump signed in January, directed the Attorney General to withhold funds from any state that the Secretary of the Department of Homeland Security designated as a “sanctuary jurisdiction” and to take “appropriate enforcement action” against any jurisdiction with had “statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

The County of Santa Clara and the City and County of San Francisco sued to prevent enforcement of the order, arguing that the portion seeking to withhold federal funds was unconstitutional.  Judge Orrick’s April 25 decision temporarily bars the federal government from withholding federal funding from sanctuary cities until it determines whether that portion of the executive order does, in fact, violate the separation of powers doctrine, and the Fifth and Tenth Amendments to the United States Constitution.

What is a Sanctuary City?

It depends on whom you ask. 

The executive order President Trump signed on January 25, 2017, itself effectively contains two separate definitions.

It explicitly defined sanctuary jurisdictions as a state, or a political subdivision of a state, that willfully refused to comply with 8 U.S.C. § 1373.  However, that federal statute merely requires local law enforcement agencies to refrain from interfering with federal agents’ ability to carry out their duties with respect to immigration enforcement.

The executive order also allowed the Secretary of the Department for Homeland Security to designate “in his discretion” a jurisdiction “as a sanctuary jurisdiction.”  The order provides no criteria by which the Secretary would make such a designation.

More commonly, the term “sanctuary cities” refers to cities that have adopted a policy of not actively cooperating with Immigration and Customs Enforcement Agents.  Under Section 287(g) of the Immigration and Nationality Act of 1996, codified at 8 U.S.C. § 1357(g), the Attorney General may enter into written agreements with states or political subdivisions of states pursuant to which local law enforcement agents can perform the functions of an immigration officer. 

States and cities are under no obligation to sign such agreements.  Many states and cities have policies of not entering into such agreements with the Attorney General because they believe that if state and local police perform such functions, it would hamper their law enforcement efforts in their jurisdictions by making members of the immigrant community reluctant to contact them if they need police assistance or to come forward as witnesses in criminal investigations.

Further, other cities and counties have adopted policies of refusing to detain illegal immigrants solely for the purpose of deportation.  Generally, if local law enforcement arrests a person, and ICE determines that the person is an illegal immigrant, it will ask the local law enforcement agency to detain the person to face deportation, regardless of whether criminal proceedings against the person have been completed.  Some states and counties have adopted policies or enacted statutes that prohibit local law enforcement agencies from agreeing to such detention requests.  

© Shipman & Goodwin LLP, 2017. All Rights Reserved.