SAN FRANCISCO (May 23, 2017) — City Attorney Dennis Herrera today released the following statement after learning that President Trump was covertly trying to dramatically expand federal mandates to enforce immigration law. The president is trying to do so at the same time Attorney General Jeff Sessions has issued a guidance memo on President Trump’s executive order indicating that all the order is doing is enforcing existing law in a narrow context. Herrera’s statement:
“Once again, this administration has demonstrated why they can’t be trusted. They are trying to sneak major changes in the law through the back door because they cannot get them through the front. These proposed changes would fly in the face of the Constitution.
At the same time that the attorney general is issuing a public memo saying that the president’s executive order has a ‘narrow’ definition of a sanctuary jurisdiction and does not expand existing statutory or constitutional authority, the president is trying to slip in radical expansions to the underlying law by burying them deep on page 544 of an appendix to his budget.
Again, this president is trying to bully local governments into doing the federal government’s bidding on immigration enforcement. It’s unconstitutional, and it flies in the face of the principle of dual sovereignty that our nation was founded on.
Once again, this administration is saying one thing in public and something else when they think people aren’t watching.
Saying you’re playing by the rules while you secretly try to change them is simply un-American, and it’s not going to work.”
The president has buried in his budget major proposed changes to 8 U.S.C. § 1373, the federal statute that Executive Order 13768 relies on. This comes as his attorney general is telling the court in legal filings that the constitutional problems that led a federal judge on April 25, 2017 to issue a nationwide halt to enforcement of the sanctuary cities executive order no longer exist.
Currently section 1373 provides that state and local jurisdictions may not prohibit or restrict employees from sharing information about someone’s citizenship or immigration status with federal immigration officials.
The law does not, however, require local governments to permit employees to provide any other information or to assist with federal immigration enforcement as a condition for receiving any federal grants.
The proposed changes to 8 U.S.C. § 1373 in Trump’s budget would prevent local governments from restricting their employees from sharing with federal immigration authorities information including scheduled release dates and times, home addresses, work addresses, or contact information of any individual in custody or even suspected of a violation of law. The changes would also prevent local governments from prohibiting their employees from complying with federal immigration requests to detain people up to 48 hours. The changes would also allow the Secretary of Homeland Security and the Attorney General to condition grants on a state or local government assisting with federal immigration enforcement by sharing specified information and detaining individuals at the request of the federal government.
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At the same time, Attorney General Jeff Session’s office filed papers in U.S. District Court for the Northern District of California on May 22, 2017 arguing that a memo Session’s released earlier in the day alleviated constitutional concerns about the president’s executive order threatening to strip federal funding from sanctuary jurisdictions.
In its legal filing, the Department of Justice claims that: “The AG Memorandum resolves the Court’s Tenth Amendment concerns by making clear that the grant-eligibility provision does not attempt to require retroactively that local jurisdictions comply with federal civil detainer requests.”
It also claims that: “the Executive may impose conditions only pursuant to existing statutory or constitutional authority.” But the budget shows that the president is seeking radical changes to existing statutory law.
The appendix to the president’s budget can be found here (see page 544 of the document or page 548 by the pdf numbering): https://www.govinfo.gov/content/pkg/BUDGET-2018-APP/pdf/BUDGET-2018-APP.pdf
The case is: City and County of San Francisco v. Donald J. Trump, et al., U.S. District Court for the Northern District of California Case No. 3:17-cv-00485, filed Jan. 31, 2017. Additional documentation from the case is available on the City Attorney’s website at: https://www.sfcityattorney.org