DHS' Threat to Prosecute Officials of Sanctuary Cities Is Unconstitutional

In testimony before Congress yesterday, Secretary of Homeland Security Kirstjen Nielsen confirmed that her agency is seeking the prosecution of state and local officials in jurisdictions that limit their entanglement with federal immigration enforcement.

Even in the context of the Trump administration’s frequent disregard for the Constitution, Nielsen’s threat to prosecute mayors, legislators, and police chiefs over policy disagreements is shocking. There is no basis in federal law to prosecute government officials who decide, with and on behalf of their constituents, that their communities are better served by opting out of participation in the federal deportation system. And that kind of prosecution would be an assault on the principles at the core of our constitutional system.

Nielsen’s threat may or may not be empty. Either way, it is unacceptable.

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We are now nearly one year into the Trump administration’s seemingly endless attempts to threaten, cajole, and coerce local governments into abandoning what is commonly referred to as “sanctuary” policies. There are hundreds of such jurisdictions that, in a variety of ways, have decided not to entangle themselves in the federal government’s deportation program. Those communities have decided it’s not worth the financial burden or legal risk or harm to public safety and community trust — or all of the above.

Unhappy with those decisions, the administration has tried a laundry list of tactics over the last year to intimidate localities into giving up. Its attempts to take away federal funding, for example, have been met with defeat after defeat after defeat in the courts. And its attempt to publicly embarrass localities into changing their policies with a weekly report had to be suspended when Immigration and Customs Enforcement’s rampant errors came to light and law enforcement rightly balked at this form of bullying.

The most recent broadside in this campaign is the administration’s decision to float the possibility of criminal prosecutions. In an interview earlier this month, Acting ICE Director Thomas Homan said he had asked the Justice Department to look into charging local officials with violating a federal statute for “harboring” noncitizens. Yesterday, Secretary Nielsen doubled down, confirming that her agency had sought such prosecutions. And, like Homan, she made clear that the threat of prosecution was being used as a political cudgel.

These threats are lawless and baseless. Local officials commit no crime when they and their communities decide not to participate in deportations. They do not, as Homan wrongly claimed, harbor anyone from deportation by simply opting out. ICE can arrest people on its own — and in fact Congress gives the agency billions of taxpayer dollars each year to do just that.

But local police are under no obligation to use their time and resources to help with arrest, detention, and deportation. Local jails need not allow ICE agents to roam their facilities, conduct interrogations, and make arrests without a judicial warrant. And government officials need not share home addresses of local residents to make it easier for ICE to carry out its mass deportation campaign. The point of sanctuary policies is non-participation, meaning that if ICE wants to arrest and deport people it must do the work itself. There is nothing at all criminal about that, and it is irresponsible to suggest otherwise.

In fact, state and local governments’ ability to opt out of the federal deportation system is constitutionally guaranteed. The framers of the Constitution recognized that distributing authority — including between the federal government and the states — protects against the accumulation and abuse of power by a tyrant or group of tyrants. As the Supreme Court has explained, this principle prevents the federal government from requiring state and local officers to become de facto federal agents. Therefore, even if the administration’s imaginary crime of declining to help ICE deport people actually existed, it would be struck down as unconstitutional.

Of course, these threats may be empty, like the now-disavowed threats to strip “sanctuary” cities of all their federal funding. But, regardless, the idea of these prosecutions is insidious. At bottom, the administration’s complaint is that localities are adopting policies with which it disagrees. This idea of locking up elected officials for their political speech, beliefs, and votes is contrary to the First Amendment and the democratic principles on which our country was founded. Even the suggestion is dangerous and reprehensible.

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Anonymous

No, we are descendants of immigrants who came before there were such things as passports, or even governments with the inclination to keep immigrants out, for the most part. And the United States isn’t a movie theatre, and you didn’t pay to get in either. You were born here, and that’s really not much of an accomplishment.

Anonymous

Oh, I doubt that Trump will do anything besides watch Fox News, stuff his face with fast food, and play golf. It's his horde of orcs who are following his orders.

Anonymous

So, you're upset that ICE needs to do its own dirty work that they are paid to do? How stupid of you.

Anonymous

LMAO if there were immigration laws back then, believe me you wouldn't be here. Trump isn't forced to go after anyone. He could easily just pull existing jail records for incarcerated, violent criminals without legal permanent residency, asylum, etc. That could work just find. Instead, he's rounding up all the brown faces he can find and allowing the racists to bellow in the wind about his "tough crack down". It's BS.

NotaWitch

Um NO. Those who are not criminals will NOT be hunted. You are using the Sesame Street liberal propaganda tactic ... repeat lies, innuendo and nonsequiturs (google it kiddos) until it APPEARS to be the truth.

Utter LACK OF RESPECT for immigrants who followed the rules, probably had to wait a long time, to do it right. How do they feel knowing these ILLEGALS just walk across the border and stay?

'nuff said.

NeverLift

This whole argument is based upon the concept of "states rights."

Shortly after we immigrated to the US (from Canada) in the 1960's, my wife and I were at a cocktail party where we met one of the senators from that state. In our conversation, we mentioned that we didn't fully understand the issue of states having rights and asked him to clarify the concept and its applicability to today's United States. He actually laughed, and suggested that the idea of individual states having rights that differ from state to state, while necessary to achieving the Union two centuries ago, was no longer appropriate, that it should have been eliminated long ago.

The issue for him was the effect proposing an amendment that would nullify one of the original amendments collectively known as the Bill of Rights would have on his continued electability. Too many of his opponents would seize on his adopting that position as indicating he no longer put the needs of his constituents first.

That was half a century ago, and still states have "rights". Except, of course, the right to secede.

Anonymous

CA has passed a law that makes it illegal for a business to allow the federal government to enter non-public areas of the business without a warrant. This is clearly designed to encourage illegals to stay in the state and aids in their employment in direct contradiction of Federal law. Said law also specifically includes governments as entities which may not take such action. It's not unconstitutional to arrest government officials who break Federal law, especially when the one of the stated objectives of the law is to make it easier for those here illegally to stay.

Anonymous

I agree. My parents where immigrants who followed the formal process to this country. Enough is enough. I'm sick of it. Finally a president who wants respect back for the Country and its laws. Arrest these anti-american. What is so hard to understand "illegal". Lock em up and start deportat ions. I think the aclu is funded by Mexican mafia drug money and all the open border goons. Open borders don't work. It's not a free for all. Their needs to be order. Respect your president. No Daca no dreamers no amnesty. Get in line.

Peaceblvr

Correction: CA has adopted these laws to support what our country fought valiantly against in WWII. You may think we should have a Gestapo barging in at will, demanding to see everyone's "papers" but Americans do not. It is to protect Americans from unlawful detention and unconstutional demands by Tyrannical government. I'm sad that you do not understand what being a Free Democratic Republic Nation means. Perhaps you would be better suited to live where the governments are empowered to treat you the way you believe you should be treated, where they can stop you for no reason, detain you at any given moment and question you for doing nothing wrong, daily. The spin doctors work very hard to make facism sound reasonable, but it only sounds reasonable to those with no ears.

Anonymous

U people make me sick if Obama was doing it u people would say nothing I hope he get rid of all of them they broke the law so shut up cry babies

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