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

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

Anonymous

You assertion that enforcing law is unconstitutional is absurd. Unless sanctuary cities can contain the illegals they harbor to just their city, their lawlessness impacts the rest of the nation. And wanting all laws enforced for all people is far from racism, unconstitutional, or any other fantasy ism of hate that you can distract with.

Anonymous

The unelected government agencies are so far away from liberty, democracy, and freedom that now the CIA is the only agency that is starting to make sense on curving DHS, FBI, DEA, ATF, DOJ powers and restoring American democracy. When you have people, who live outside the country tell you that you are sleepwalking into tyranny and oppression, listen. The world is not what these people think.

Facts:
1) The people DHS does not like or want are 80% of global world population
2) The emerging world is becoming power and wealthy and rich
3) The conduct of US agencies inside the US has implications for US soft power and its abilities to make friends and partners and gain assets and alliances
4) You cannot counter Russia or China without the "brown" world
5) Countries that go the path of the US always turn full tyrannical and result in civil-war/conflict, fracture and our breakup
6) The US survived this long on its values of a free country, an inclusive and loving democracy - without these the US has nothing NICHE to offer to competitor nations
7) Everyone you mistreat, and disrespect here has families and friends in their countries - and, they will not forget how you treated these people when they were coming here as your guests begging for food or help
8) The US is a declining power, it will not be the dominant player in the future, these rule makers and these agencies will not be sustainable in the future
9) These agencies put tremendous pressure on DOD/Military to keep them operational - because these are guys that have to hold the line because these agencies conduct and stupidity both at home and abroad
10) South America is gone
11) Africa is gone
12) Middle East, and Asia is gone
13) Europe is standing alone

People need to go live in other countries to understand anything about the US and what that means. The only reasonable entities of the US government seem like are the State, DOD and the CIA. No one is going to tolerate this type of racists anti-brown, anti-Asian, anti-black nonsense in the future. Africa is rising, China is a global superpower, Russian can remove the US off the map, and invade and win, yes, win. India is rising, and the brownie world in South America is going to follow Brazil and with its 500 million population, if they want to come up they will come up and there nothing a wall can do to stop them from coming up. It is time for Americans to unite, start loving each other, close down the useless surveillance, and stop living in fear and paranoia. Whoever is here is here, work together, build freedom, let live and allow people to enjoy their lives and make better homes for themselves. This whole anti-everyone ideology is plaguing this nation into oblivion.

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