On January 26, the day after President Donald Trump issued an executive order that would prevent so-called “sanctuary cities”—jurisdictions that choose not to enlist local law enforcement officials to aid federal agents in deporting undocumented immigrants—from receiving federal funding, experts still reeling from that news gathered at NYU’s School of Law to make sense of what the order could mean for cities like New York. “There still are a lot of unknowns,” said New York City Council speaker Melissa Mark-Viverito.
Co-hosted by NYU’s Marron Institute of Urban Management, the discussion highlighted the tug-of-war experienced by local governments looking to comply with federal requests while also protecting the constitutional rights of their residents.
By way of introduction, Marron Institute Director Clayton Gillette reflected: “We may be reminded of Tocqueville's observation that one unique feature of American democracy was that its decentralized administrative structure tempered what Tocqueville referred to as the potential tyranny of centralized rule.”
Alina Das, associate professor of clinical law and co-director of NYU’s Immigrant Rights Clinic, and Vox.com journalist Dara Lind emphasized that there’s no clear policy definition for the term “sanctuary city,” and that no local government can actually prevent people from getting deported—short of, say, attempting to physically block the door to city hall. Rather, jurisdictions that self-identify as sanctuaries are usually ones that have adopted a policy of not requiring residents to disclose their immigration status in order to apply for city services, or that don’t hold people in jails at the request of Immigration and Customs Enforcement—which they are under no legal obligation to do. In fact, because such requests don’t come with judicial warrants, Das explained, honoring them often means violating residents’ 4th and 5th Amendment rights.
Plenty of people living in sanctuary cities have been and will continue to be deported, Lind said, in part because of a program called Secure Communities—ended in 2014 but reinstated in Trump’s executive order—that allows all fingerprints and other data collected by local law enforcement officials to be automatically shared with the Department of Homeland Security.
“Basically everyone who gets checked into a jail and is an immigrant ICE finds out about,” Lind said. “And anyone ICE finds out about they can pressure local governments to hold, without regard for whether they were being charged with murder or booked for driving without a license.” Those with prior criminal charges, no matter how long ago or how minor, are also vulnerable. Das cited the case of a client—the mother of four children under 14—who’d been picked up by ICE while dropping off her son at school. The conviction in question was for having stolen money—long since repaid—from an employer when she was facing eviction. “The federal government, when it wants to enforce immigration laws, goes after with a draconian amount of force that would surprise many who haven't been in the immigration system,” Das said.
Speaker Mark-Viverito, who described the new administration’s immigration agenda as “misguided and capricious,” echoed the view that “President Trump’s proposals are driven by the false narrative that immigrants are criminals. What Trump seems to forget is that America is a nation of immigrants. New Yorkers know that immigrants contribute to our economy, our culture, and our community.”
Kate Brick, director of state and local initiatives for the Partnership for a New American Economy, cited studies on immigration as an economic boon to cities, noting that immigrants are dramatically overrepresented among small business owners and entrepreneurs. For that reason, many cities facing population decline and a dwindling tax base—including Dayton, Ohio, in the Rust Belt—have established special initiatives (such as immigrants advocates offices, legal defense funds, language access plans, and identification programs like the IDNYC) to actively recruit and welcome immigrants.
None of that violates federal law.
“It's simply not the case that cities today are, as Trump suggests, flagrantly preventing the federal government from doing its job,” Das said. The law in question states that “a local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Sanctuary cities don’t do that—they just avoid collecting data about residents’ citizenship in the first place.
Moreover, she added, the idea that the government could withhold federal funding from what the Attorney General and Secretary of Homeland Security will have discretion to label “sanctuary jurisdictions” was confusing, given that it would seem to be unconstitutional under the 10th Amendment and the Spending Clause. Citing a 2012 Supreme Court case dealing with the administration of the Affordable Care Act, she noted the court’s decision that “federal governments cannot commandeer local resources to basically carry out their own regulatory schemes. Nor can they ‘put a gun to the head’ of the locality—this is the language that the chief justice uses in the opinion—to force people to do it by withholding funds.”
On that note, Mark-Vivereto projected resolve. “Our city has always adopted policies that promote inclusion by reducing the barriers to accessing city services,” she said. “One way that we do this in New York city is by ensuring that our city agencies do not require a status unless necessary to assess eligibility for public benefits or services. We're confident that all of our laws and policies fall squarely within the law and within our city's authority, and we're deeply committed to defending them. We will uphold the rule of law, but we will defy any attack by the president to force us to violate the constitutional rights of our residents.”
She added: “We live in dangerous times, and we can't be silent.”