Legal experts have extensive questions about the enforceability of two executive orders on immigration and sanctuary cities issued by President Donald Trump today. While White House officials are publicly threatening to revoke federal grants from cities like Chicago that fail to assist with strict enforcement of federal immigration law, the actual effect of the executive orders may be considerably different than advertised.
In a press conference Wednesday afternoon, Mayor Rahm Emanuel refused to comment on what he believes to be the impact of President Trump’s executive orders, though he restated his pledge to maintain Chicago’s status as a “sanctuary city”. Meanwhile, spokespeople for the Chicago Police Department and Law Department refused to comment Wednesday beyond the statements made by the mayor.
There are actually two orders. One deals with security along the Mexico border, a second with the “Interior of the United States”. The second is the one that most addresses Chicago and its self-proclaimed “sanctuary city” status, which we deal with here. To better understand the impact of that executive order, The Daily Line spoke with a series of legal and city budget experts. Here is a rundown of what we learned.
- Much of the executive order requires an act of Congress. Legal experts we spoke to said the parts of the order directing federal agencies to take action are within the purview of an executive order, but sections ordering states and municipalities to take action would require an act of Congress.
- Some legal experts believe only federal grants related to the issue at hand can be revoked. This Yale Law & Policy Review argues that only federal spending germane programs, in this case, immigration enforcement, can be threatened. In other words, if Chicago and Cook County didn’t follow immigration laws, only public safety grants estimated by the Center for Tax and Budget at $78 million, could be threatened. Other programs, such as aid for homeless services and community block grants, which are part of the city’s overall share of federal aid, would not be affected. Those total $1.3 billion, per CTBA calculations.
- Even if a law were passed, a 2012 Supreme Court case related to Obamacare might limit enforcement. In NFIB v. Sebelius, the Affordable Care Act originally contained an expansion of Medicaid, which states had to accept in order to receive any federal funds for Medicaid. The Supreme Court found that threat was a “gun to the head” and overly-coercive, ruling that the federal government could not make such a threat for the sake of enforcing a policy.
- The order is about sharing information about immigrants, not forcing local police to seek and detain immigrants. “Sanctuary cities” is not an established legal term, but loosely refers to many aspects of immigration law. The executive order relates to 8 U.S.C. 1373, a law ordering “state and local jurisdictions to share information about individuals’ immigration status with federal authorities,” says Rebecca Glenberg from the American Civil Liberties Union of Illinois. “This doesn’t say anything about state and local governments complying with ICE detainer requests, which is a large part of what is often meant by sanctuary.” The information the federal government would be allowed to access through the executive order is significant, such as a gang database the Chicago Police Department keeps, says Glenberg. U.S. Immigration and Customs Enforcement (ICE) could use that list to identify lawbreakers they want to detain and deport.
- The order makes big changes in law enforcement priorities for immigration, eliminating “humanitarian factors”. Again, these do not pertain to Illinois, Cook County or Chicago law enforcement agencies, but the new priorities mean big changes for federal law enforcement agencies. “Now it says anyone who is deportable is a priority. It’s taking away some of the discretional ability law enforcement previously had, how they devote resources,” says Mony Ruiz-Velasco, an immigration attorney and activist with Paso Action. Those changes, Ruiz-Velasco says, will have a sweeping impact, since some immigrants don’t know they have a deportation order against them, and could have had one for years. In addition, existing federal law says any immigrant charged with a crime of any kind–even a misdemeanor–should be deported immediately. In the past, federal law enforcement agencies had the ability to pick and choose which ones they’d deport. For instance, Obama-era rules told ICE agents to ignore deportation orders before 2014, says Ruiz-Velasco, because many orders were poorly recorded and immigrants often didn’t get notification. Now federal agents can and must deport immigrants under much broader circumstances.
- Chicago and Cook County lack enforcement agreements with the feds on immigration. A significant portion of the order directs state and local law enforcement agencies to assist with enforcing immigration laws, especially organizations with so-called 287(g) agreements “to provide federal law enforcement to train local law enforcement, and to increase collaboration on immigration enforcement,” according to Ruiz-Velasco. But many of the agreements, along with another program called “Secure Communities” were created during the early Obama Administration and were allowed to lapse because it caused, “a huge increase of racial profiling, people arrested for pretextual stuff, [who were] then turned over to immigration [authorities]. People were unconstitutionally detained, which local law enforcement remained liable for,” says Ruiz-Velasco. Neither Chicago nor Cook County have 287(g) agreements, says Ruiz-Velasco, so this component of the order will not have a local impact.
Every expert we spoke to said they still need time to “digest” the executive orders, and we may receive additional guidance later or a different understanding, but for today, it seems that the order is not nearly as impactful as the hype.