Federal courts continue to frustrate the Trump administration’s efforts to punish cities and states that oppose its hard-line immigration policies.
Earlier this month Sacramento-based U.S. District Judge John A. Mendez rejected most of the administration’s demands to overturn three California laws that seek to counter its immigration policies. But he blocked a portion of one law that would have fined private employers for voluntarily cooperating with immigration authorities or for re-verifying the legal work status of employees.
Employers have a right to cooperate, Mendez ruled, while saying that California had broad authority to limit use of its resources for immigration enforcement.
“Refusing to help is not the same as impeding,” Mendez wrote. “Federal objectives will always be furthered if states offer to assist federal efforts. A state’s decision not to assist in those activities will always make the federal objective more difficult to attain than it would be otherwise. Standing aside does not equate to standing in the way.”
“Sanctuary” is a political term, not a legal one. It refers to jurisdictions that try to shelter unauthorized immigrants, most often by limiting the assistance local police provide to federal immigration agents.
This does not prevent the U.S. Immigration and Customs Enforcement (ICE) from arresting unauthorized immigrants within these states and cities. Hundreds of cities and counties and five states — California Connecticut, Oregon, Rhode Island and Vermont — have designated themselves as sanctuaries.
Federal judges in Chicago and Philadelphia earlier reached similar conclusions to Mendez, rejecting administration efforts to penalize these cities financially for refusing to cooperate with ICE.
It’s always comforting when judges follow the law and ignore partisanship, so it’s worth noting that these rulings were made by judges appointed by four Republican presidents. Mendez and U.S. District Judge Michael Baylson in Philadelphia were appointed by President George W. Bush. The Chicago ruling was upheld by a three-member panel that included judges named by Presidents Gerald Ford, Ronald Reagan and George H.W. Bush.
Less comforting is the inflated response of the Trump administration to jurists who rule against them.
For instance, Justice Department spokesman Devin O’Malley called Baylson’s ruling “a victory for criminal aliens in Philadelphia, who can continue to commit crimes in the city knowing that its leadership will protect them from federal immigration officers whose job it is to hold them accountable and remove them from the country.”
On the other side of the debate, sanctuary activists have been slow to recognize that the policies they advocate can backfire. Lacking cooperation from local law enforcement agencies, ICE has this summer made random sweeps in Southern California, Cleveland, Miami, the New York area and other places.
“To the extent jurisdictions do not cooperate,” ICE officers told the nonpartisan Migration Policy Institute, “their agency has little choice but to carry out enforcement activities in neighborhoods and other community locations, even though it is not as efficient a use of time or resources, nor does such enforcement yield the numbers that can be identified by screening cases in local jails.”
These neighborhood sweeps scoop up fewer criminals and greater numbers of law-abiding immigrants who have lived peacefully in the United States for many years.
Frustration with the sweeps prompted Sen. Kirsten Gillibrand, D-N.Y., to urge that ICE be abolished. Calling the agency a “deportation force,” Gillibrand said we “should get rid of it, start over, reimagine it and build something that actually works.”
Her call has been taken up by several other Democrats but rebuffed by the Trump administration. Speaking at ICE headquarters on July 6, Vice President Mike Pence called the critics “irresponsible” and promised the administration would never abandon ICE.
The issue of sanctuary cities has been eclipsed in recent weeks by the controversy on the U.S.-Mexican border in which thousands of Central American children were separated from their parents as soon as they set foot within the United States.
The ensuing uproar caused a rare retreat by the administration. It now says these families, mostly from Central America, will be kept intact and released, pending a hearing, with parents wearing ankle bracelets.
This is the policy that President Donald Trump and Attorney General Jeff Sessions denigrated as “catch and release” when it was used by President Barack Obama’s administration.
“As presidents, Barack Obama and Donald Trump don’t have much in common, but they both failed to manage the migration out of the Northern Triangle of Central America — Guatemala, Honduras and El Salvador,” wrote Robert Suro, a journalist and professor of public policy at USC, in The New York Times.
“Both tried to achieve deterrence through enforcement. Both faced political blowback. Both made awkward course corrections.”
Some 50,000 unaccompanied children from Central America and 40,000 parents with children were apprehended at the border during a 2014 surge that bewildered the Obama administration. There have been smaller surges since, and they are likely to continue because these countries are among the most violent in the world.
As White House chief of staff John Kelly put it, the mass migration of children from Central America to the U.S.-Mexico border primarily consists of “(parents that) are trying to save their children.”
Away from the border, Trump’s policy of “zero tolerance” for illegal immigrants has increased fears of deportation among the estimated 11 million unauthorized immigrants living in the United States. This has prompted a growing number of American children to drop out of Medicaid and other government programs because their parents are not citizens, according to Kaiser Health News.
Nonetheless, Trump is on track to deport fewer unauthorized immigrants than his predecessor. Obama deported 2.5 million immigrants, most of them Latinos and many for relatively minor offenses, prompting The Economist to call him “deporter in chief.” ICE made more than twice as many arrests (297,898) in Obama’s first year in office as in Trump’s (143,470).
These family-splitting deportations caused anguish in Latino communities, but little outcry outside of them, in part because Obama did not engage in the anti-immigrant rhetoric in which Trump delights.
In an April roundtable discussion of California’s sanctuary laws, Trump said: “We have people coming into the country, or trying to come in — and we’re stopping a lot of them … You wouldn’t believe how bad these people are. These aren’t people. These are animals.”
Such slurs have galvanized opposition to Trump and polarized the immigration debate along partisan lines. A recent NPR/Ipsos poll found that many of Trump’s immigration policies are unpopular but also showed, said Chris Jackson, vice president of public affairs at Ipsos, that Trump’s base remains “very much behind him.”
Immigration reform is one of the great unresolved issues of American politics and is likely to remain so unless and until Congress passes comprehensive legislation. Congress last acted in 1986, when Reagan signed a sweeping bipartisan measure that provided a path to citizenship for unauthorized immigrants and tighter border controls.
In the near term, immigration will be an issue in the midterm elections, according to various polls. Afterward, no matter who wins, three issues will probably force Congress to confront the issue yet again.
The first issue is the plight of 690,000 young immigrants brought to the United States as children who had signed up for Deferred Action for Childhood Arrivals (DACA), created by an Obama executive order in 2012. DACA recipients were eligible for work permits and protected from deportation.
Trump rescinded the executive order, and two legislative attempts to protect DACA recipients and similar immigrants failed in Congress. DACA supporters — Republicans as well as Democrats — have promised to try again in 2019.
The second issue is an enormous and growing backlog of immigration cases, now more than 700,000. Democrats and even Sessions say more judges are needed. Trump has called this idea “crazy,” but the backlog will create pressure for congressional action.
A third issue, says Ann Morse, director of the Immigration Policy Project for the National Conference of State Legislatures, is a growing shortage of workers, especially in the health care, agricultural and tourism industries.
“They used to say immigrants were taking jobs from Americans,” Morse said. “Now in the employee-short industries they’re asking, ‘Where are the immigrants’?”
Courts will also continue to be engaged with immigration. The administration says it will appeal its unsuccessful attempts to punish sanctuary cities to the U.S. Supreme Court. Senators may raise this issue in the confirmation hearings of U.S. District Judge Brett Kavanaugh, nominated by Trump to replace Justice Anthony Kennedy, who is retiring.
With or without Kavanaugh, the Supreme Court’s eventual decision is no slam dunk for Trump. As lower courts have demonstrated in protecting sanctuary cities, rulings on immigration don’t necessarily follow party lines.
— Lou Cannon, a Summerland resident, is a longtime national political writer and acclaimed presidential biographer. His most recent book — co-authored with his son, Carl — is Reagan’s Disciple: George W. Bush’s Troubled Quest for a Presidential Legacy. Cannon also is an editorial adviser to State Net Capitol Journal, which published this column originally. Click here to read previous columns. The opinions expressed are his own.
