Administrative Action – Maurice Belanger Consulting

“Sanctuary Cities” and Community Policing

A version of the following was written as a backgrounder on the issue of “sanctuary cities,” prepared for a teach-in on the City of Takoma Park’s “sanctuary” ordinance on February 4, 2017. The event attracted more than 350 people. You can download a version of this issue brief as a PDF from this link.

Executive Order on Interior Enforcement

On January 25, 2017, President Trump signed an executive order that would, in part, punish any local jurisdiction that has adopted certain community policing tactics designed to establish trust between local law enforcement and communities where there is a significant immigrant population.

The executive order included a section tilted “Sanctuary Jurisdictions.” The order stated in part: “It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with [federal law having to do with prohibiting jurisdictions from banning communication between local officers and federal immigration officers].” The order directs the Attorney General (AG) to “take appropriate enforcement action against any entity … which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law” and it directs the AG and Secretary of Homeland Security to ensure that jurisdictions that do not comply are not eligible for federal grants.

Community Policing and Undocumented Immigrants

The term “sanctuary jurisdiction” has no legal or common definition, but states and localities that have some formal or informal policy limiting cooperation between their local law enforcement agencies and federal immigration authorities are often called “sanctuary” jurisdictions.

Many communities with significant immigrant populations have community policing policies to keep local law enforcement agencies out of the business of federal immigration enforcement. In doing so, they seek to build trust between local police and the community—including the immigrant community—so that community members feel they can safely approach police to report a crime or volunteer information about a crime. Public safety of the entire community is placed in jeopardy if immigrants fear the local police because they believe they will be deported.

A 2006 position paper by the Major Cities Chiefs states the problem for police:

Major urban areas throughout the nation are comprised of significant immigrant communities. … Local agencies are charged with protecting these diverse populations…. The reality is that undocumented immigrants are a significant part of the local populations major police agencies must protect, serve and police. Local agencies have worked very hard to build trust and a spirit of cooperation…. If the undocumented immigrant’s primary concern is that they will be deported …, then they will not come forward and provide needed assistance and cooperation.

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A Pyrrhic Victory

On June 23, the Supreme Court deadlocked 4-4 in a case brought by the state of Texas and 25 other states against President Obama’s executive action that would have temporarily protected from deportation the undocumented parents of U.S. citizen children. At issue as well was an expansion of the Deferred Action for Childhood Arrivals program (DACA). (The original DACA program, which has successfully protected hundreds of thousands of young people, was not the subject of this litigation.) As a result of the deadlock, a lower court’s temporary injunction against the executive actions remains in place.

The decision was an extreme disappointment for advocates for immigrants and for about five million undocumented immigrants who have lived here for many years, working and raising their families in a legal limbo.

The Supreme Court’s decision was a victory for the Republican governors and attorneys general who brought the lawsuit, and it demonstrated that shopping for the right judge can bring the desired decision. (That, and having a Senate that has stopped doing its job, refusing to consider the President’s nominee for the Supreme Court, making a 4-4 deadlock possible.)

But it is a pyrrhic victory. It preserves the status quo, for now. It’s worth repeating something I wrote a year and a half ago when the injunction was first issued.

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Congress Has Abandoned Policy-Making Responsibility for Immigration. So Who’s Making Policy?

Updated April 8.

With Congress abandoning its policy-making responsibility for immigration, policy-making initiative now rests with the executive, the states, localities, and the courts.

While Washington has been preoccupied with a fight over the president’s Executive Actions on Immigration, there is more activity on the immigration front than the president’s decrees. That activity is happening in 50 states, and in many more communities.

On March 29, Julia Preston of The New York Times wrote a nice summary of how immigration policy in this country diverges greatly among the states. She contrasts the lives of two undocumented women—one in Washington, which has enacted policies that are welcoming to immigrants, including one allowing undocumented immigrants to obtain drivers licenses, and one in Texas, which has brought a lawsuit against the president to stop his immigration executive actions.

In general, states are divided by where immigrants live. States with significant immigrant populations, including significant populations of undocumented immigrants, tend to be more welcoming. The integration of undocumented immigrants is important to them. It is good for their economies. States with smaller immigrant populations tend to be less welcoming, and it is these states that have joined the Texas lawsuit against the president’s welcoming policies.

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After Shutdown Drama, Congress Extends DHS Funding

On March 4, President Obama signed legislation to fund the Department of Homeland Security for the remainder of the fiscal year ending September 30. The legislation had previously passed the Senate (on February 27) and the House followed on March 3rd—but only, after weeks of chaotic brinksmanship during which the most conservative members of the Republican caucus demanded that DHS not be funded until President Obama’s executive action on immigration was overturned.

Technically, the House voted to “recede” to the Senate’s position on not going to a House/Senate conference committee and to “concur” with the Senate bill.

House bill fails in Senate

The scene was set on January 14, when the House passed, along party lines, a DHS funding bill that contained provisions to roll back the president’s executive actions on immigration. The bill then went over to the Senate, where it is much more difficult to pass bills that are strictly partisan. Indeed, Senate Majority Leader Mitch McConnell attempted four times to bring the House bill to the floor of the Senate, but lost a procedural vote each time. On February 27, the day DHS funding was due to expire, the Senate considered a funding bill stripped of the controversial House provisions, and it passed in a bipartisan 68 – 31 vote.

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Judge Rules Against Executive Action, Preserving the Status Quo

On February 16, U.S. District Court Judge Andrew Hanen issued a temporary injunction against two of President Obama’s executive actions on immigration: the expansion of Deferred Action for Childhood Arrivals (DACA) and new Deferred Action for Parents of Americans (DAPA).

The case was brought by the Attorney General of Texas, joined by 25 other Republican-led states. The ruling was not unexpected; the plaintiffs were able to shop around for a judge that would likely rule in their favor, and Judge Hanen’s negative views towards the administration’s immigration policies are well known.

The administration will likely appeal, and the plaintiffs will not be able to shop for a judge at the appellate level.

In the meantime, those two programs are on hold. The administration was going to begin taking requests in the expanded DACA program on February 18. It will have to hold off.

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Action/Reaction: Public Support, Republican Opposition to Executive Action

The least productive Congress in modern history will leave Washington this week for the holidays. After running the clock out on this Congress without action on immigration reform, Republicans have been predictably furious at President Obama for taking action to mitigate the hardships caused by their lack of action.

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President Announces Deportation Relief for Millions

On November 20, President Obama made a long-awaited announcement detailing what steps his administration will take to provide relief from deportation for Americans without papers. The announcement included other steps the administration is taking within its legal authority to mitigate problems with the immigration system that so far Congress has been unwilling to tackle. Here are five major elements of the plan.

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Washington Kicks the Can Down the Road; States Take the Lead

President’s Decision to Delay Executive Action Creates Electoral Challenges

In early September, the President announced he would delay any executive action that would mitigate the failure of Congress to enact immigration reform, providing relief for families being split apart by deportation. The rationale given by the President was that the Central American child refugee crisis has affected the timeline for an announcement on executive action. Mr. Obama told NBC on September 6,

“I want to spend some time, even as we’re getting all our ducks in a row for the executive action… (and) make sure that the public understands why we’re doing this, why it’s the right thing for the American people, why it’s the right thing for the American economy,” Mr. Obama said.

Democratic Senators Urge Obama to Hold Off

Leading up to the decision to spend more time making sure the American people understand why executive action is needed, several Democratic incumbent senators and senatorial candidates in Republican-leaning states—among them Kay Hagan of North Carolina, Mark Pryor of Arkansas, Mark Begich of Alaska, Michelle Nunn of Georgia and Alison Lundergan Grimes of Kentucky—had been urging the president to hold off on taking action. They feared such a move would harm their electoral chances. In those states, the Latino electorate is small. The only state where there is a competitive Senate race this year and a significant pool of Latino voters is Colorado. Democratic senators Bill Nelson of Florida, Al Franken of Minnesota, and Independent Angus King of Maine (who caucuses with Democrats) also expressed concerns.

Complicating matters is a turn in public opinion on immigration since the Central American refugee crisis began, with an uptick in the percentage of Americans favoring a focus on border security.

So, regardless of the American people’s understanding of the need for executive action, the political calculation weighed against action prior to the election.

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As Hope for Reform Fades, Administrative Action Becomes More Likely

On June 30, President Obama made remarks in which he criticized the failure of House Republicans to “stand up to the Tea Party in order to do what’s best for the country” and pass an immigration reform bill. He said that he would begin a new effort “to fix as much of the immigration system as I can on my own, without Congress.” He directed DHS Secretary Jeh Johnson and Attorney General Eric Holder to move resources to the border, and to make additional recommendations by the end of the summer, after which he will adopt those recommendations “without further delay.”

The president made this announcement after he was informed that Republicans would block a vote on an immigration bill at least for the remainder of the year.

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Despite Cantor Loss, Reform Still Alive in Congress

It has been nearly a year since the Senate passed a sweeping immigration overhaul on June 27. The House has yet to act. The cause of the delay continues to be the internal divisions within the Republican Conference, with a sizable numbers of the conference opposed to reform. Many members of Congress are now waiting to see how the primary season will turn out. Will members who have voiced support for immigration reform retain their positions?

Republican primary elections have yet to offer clarity on support for reform

On June 10, the small-tent faction of the Republican party, or the “tea party,” celebrated victory in Virginia’s 7th Congressional district, where a poorly-funded tea party challenger beat the Republican Party’s second-highest-ranking member in the House, Eric Cantor. Cantor was seen as a supporter of reform, although he played both sides of the issue during his campaign. Still, his opponent attacked Cantor’s support for “amnesty,” and Cantor’s loss has given the press more reason to declare immigration reform officially dead.

On the other hand, other primaries have yielded the opposite results for candidates who have been supporters of reform. On the same day that Cantor lost, one of the leaders in pushing reform legislation through the Senate, Lindsey Graham, very comfortably won his primary in South Carolina. Graham received 57 percent of the vote, far ahead of the 15 percent received by the second-place finisher in a field of six challengers.

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