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

The real issue is a "regressive" tax rate and using more U.S. Foreign Aid dollars improving the economies of Third-World wage nations that are our closest neighbors. Immigrants are NOT the problem.

Warren Buffet famously pointed that his secretary paid a higher tax rate than he did. Working class and poor people spend any extra money on products and services which boosts the economy and creates American jobs. (Documentary: "Inequality for All").

The reason Canadians aren't jumping the U.S. border is because the wages are similar to American workers. As long as we have Third-World wages in Mexico and Central America, it's virtually impossible to keep undocumented immigrants out.

All American families were immigrants at some point. Immigrants have been scapegoats since pre-Biblical times. The problem is not immigrants.

Dr. Timothy Leary

I have been to Houston, Texas. I would not call it a sanctuary.

San Diego Patriot

Go, President Trump, Go!

Only thing illegal is Jerry Brown and his goofy minions letting these aliens invade and “transform” our state into a sheethole.

Shootout in the ok Corral.. bring it, you limp-wicked libs!

Anonymous

Being a cheap bully does not a man make.

Anonymous

Lucky you, you will be a part of the New California.
I can only dream for a New California.

Anonymous

We are all immigrants but we are not all ILLEGAL. We all see movies, but some pay and some cheat their way into the theater which costs everyone.

The fact that cities are sanctuary means Trump will be forced to go after illegals in their work place even if they don't have a criminal record.

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.

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.

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