“I don’t think you should have sanctuary cities if they get that kind of aid. If you’re going to get aid to the cities and states for the kind of numbers you’re talking about, billions of dollars, I don’t think you should have sanctuary cities,” Trump said Wednesday, referring to jurisdictions that in some ways do not cooperate with federal immigration authorities.
When asked explicitly if he will prevent aid from going to so-called sanctuary jurisdictions, Trump said, “We shouldn’t have to pay anything anyway, because all they do is make it very hard for law enforcement.” He later added that it is a subject that will be discussed.
Wednesday’s remarks resurfaced the issue of sanctuary cities. The threat to withhold aid, while new in the context of coronavirus, has been acted upon by the Trump administration before. As was the case with those efforts in different circumstances, any renewed push to use funds as leverage is likely to be challenged in court.
Among the requirements: letting federal authorities access detainees in jails to inquire about immigration status and giving the federal government 48 hours’ notice before releasing any inmates it’s interested in.
The question at the core of the cases challenging the requirements was whether the Justice Department had the authority to condition the grants on immigration compliance.
“The main thing was that the Justice Department couldn’t add contingencies that Congress had not authorized in the statute. They were exceeding their authority and Congress didn’t authorize the condition,” explained Theresa Brown, director of immigration and cross-border policy at the Bipartisan Policy Center, noting that the other legal issue at play was whether the move was coercive.
Several lower courts blocked the move by the administration and appeals courts largely affirmed those rulings, said Spencer Amdur, an attorney with the American Civil Liberties Union’s Immigrants’ Rights Project.
On Thursday, the 7th US Circuit Court of Appeals also upheld a lower court ruling, arguing that the attorney general had exceeded his authority by adding the conditions. The opinion follows a ruling by the 2nd US Circuit Court of Appeals in February that said the attorney general is authorized to impose conditions.
Despite those legal challenges, any new attempt to block funding intended to combat coronavirus from states would be different because it likely wouldn’t derive from an existing statute but rather new relief funds passed by Congress.
“Two things would have to happen: Congress would have to authorize the contingency for whatever monies they’ll offer to state and localities; and two, the courts would have to find that condition is lawful, that it wasn’t coercive, that it wasn’t forcing states to do federal enforcement,” Brown said.
“At the moment it’s a negotiating posture, because there’s nothing there to condition because they haven’t passed relief funds,” she added.
Amdur concurred. “Courts have blocked DOJ’s defunding efforts on statutory grounds, because Congress hasn’t given DOJ that power,” he said. “Members of Congress have also made clear they’re not going to condition Covid-related funds on helping ICE, either. But if they did, the Constitution would stand in the way. The Constitution does not let Congress force states to help ICE under threat of financial ruin.”
When asked if he’s concerned about Trump’s suggestion the federal government may withhold coronavirus aid from states with sanctuary cities, Massachusetts Republican Gov. Charlie Baker said that’s not “consistent with the way the law was written.”
“I’ve spent some time looking through the legislation, and the legislation makes pretty clear that the aid that’s supposed to go to states is supposed to be driven in large part by the impact Covid-19 has had on those states,” he added. “I would hope that that kind of approach, or an approach that’s driven by the quality of the applications that are submitted by states with respect to testing and treatments, would drive the process.”