Replace SCAAP with Funds Tied to Enforcement Cooperation

By Dan Cadman, March 20, 2017

USA Today ran a story on March 16: "Trump budget cuts immigration aid and local police are stunned":

President Trump proposed a massive $4.8 billion increase in spending Thursday to combat illegal immigration, but his plan also includes a cut that stuns local law enforcement officials: a Department of Justice grant that helps pay the cost of jailing undocumented immigrants.

Throughout his campaign, Trump said he would help local communities enforce immigration laws and vowed to punish those that didn't — generally referred to as "sanctuary cities" — by withholding federal funds. Yet his budget would eliminate the State Criminal Alien Assistance Program [SCAAP], which would deny aid to localities that help enforce his ramped-up deportation program. The move would save the federal government $210 million this year.

That proposal came as a shock to officials in Miami-Dade County, which became the first jurisdiction in the country to shed its "sanctuary city" status by fully complying with Trump's immigration authorities.

"We are concerned," Michael Hernandez, a spokesman for the mayor, said Thursday. "We've been a good partner with federal immigration authorities. We expect them to be good partners with us."

This is the kind of fake dewy-eyed wonder from the media that I hate. "Stunned?"

Gosh! The federal government is thinking about zeroing out the budget for the program, and Miami-Dade officials just can't believe it because they've recently abandoned their sanctuary status! (The reversal happened exactly one day after President Trump issued his executive order directing the federal government to start withholding funds and grants from noncompliant state or local governments, as clear a presentation of cause-and-effect as one will ever find.)

What this so obviously means is that all those other years, Miami-Dade was taking money for criminal aliens incarcerated by them on state or local charges, even as they thumbed their noses at federal authorities' efforts to actually get their hands on those criminal aliens once their sentences were complete so that they could be removed. Yet USA Today doesn't come out and talk directly about all those years of taking Uncle Sam for a financial ride because it would disturb the sotto voce storyline that those crazy Trumpists are out of control and leaving communities in the lurch.

So much for the quoted hokum about "We've been a good partner with federal immigration authorities." In what universe?

USA Today also didn't mention, though it was well known, that just as quickly as Miami-Dade law enforcement organizations shed their sanctuary policies, the city-county council then put into play a motion to force the policy back into effect — one that was "sidestepped" for the moment by a compromise between Democratic council members and the Republican mayor, based on promises that the police director would provide a "report detail[ing] enough protections against Miami-Dade helping enforce federal immigration laws." What exactly does that mean? A policy of placating the council with what is in fact a sanctuary policy in everything but name? Clearly this is all about the money.

One would think that if sanctuary states or localities opted to take a sanctuary position from some highfalutin moral position, however misguided, they would be proud not to taint themselves with soiled federal bucks. But that's never been the case with SCAAP (or, frankly, with any other available federal money as far as I can see). Some jurisdictions have even decided to sue the federal government so that they can have their cake and eat it too, arguing that depriving them of the money in response to their sanctuary policies is unfairly coercive. Coercive it may be, but unfair? Please.

Coercion is a fact of life in civil society, and even though the courts have indeed found in some cases that withholding funds can be unfairly coercive: 1) I doubt that is the case here; and 2) that the courts disparagingly talk about "coercion" in any matter at all is an absolute hoot!

Consider that latter point: A judge can have you locked up for "contempt of court" solely on his say-so; he decides what the term means (talk about unconstitutionally vague phrases); he becomes prosecutor, judge, and jury in deciding if it has occurred; and then he decides what the penalty should be. Sometimes "offenders" are held indefinitely in an attempt to force them into a course of action, such as providing information or testimony. This sounds like a textbook case of coercion to me, but then judges tend to judge themselves and their actions in a different light than the rest of us mere mortals, don't they? God forbid that the dignity of the "court" (meaning, well, the judge) should be wrinkled.

But back to SCAAP. There is some irony in the Trump administration's moves toward zeroing out the SCAAP budget; the Obama administration attempted to do the same thing (unsuccessfully), although the motives were quite different. There's every reason to think the Obama White House did it to push even more police departments toward refusing to cooperate with federal immigration officials out of disillusionment. Trump's advisors are apparently aware that the whole program has taken on the look and feel of your typical government entitlement program — starting to run off the rails, ballooning rapidly, and accepting of results entirely at odds with the goals that led to the program in the first place — and see value in halting the runaway locomotive in its tracks.

I used to be an ardent advocate of SCAAP, wanting only that state and local jurisdictions abide by their part of the bargain: We give you money to help identify alien criminal offenders; you help us to get rid of them through custody and deportation. Several months ago I turned the corner on that after engaging in a dialogue with someone who ardently believes that the federal government should be picking up all costs where alien criminals are concerned, including the entire period of their incarceration in state penitentiaries. The argument here is that they are only present because the federal government has failed to keep them out.

Let's put aside, for the moment, the fact that picking up the cost of incarcerating alien criminals in all state, territorial, and local correctional facilities would be ruinous to federal taxpayers. Let's also acknowledge that there has been catastrophic failure to enforce the immigration laws at the border or in the interior during the Obama years. In my view, the argument for absorbing all costs still fails, on several counts. Even assuming that the federal government changes its ways and begins doing an excellent job of enforcement in the next few years, there will always be some who get through. Is it not, then, a shared responsibility of state and local governments to help the federal government deal effectively with those who do, instead of dusting off their hands and saying "not my job" or, worse, actively impeding those efforts through sanctuary policies?

If you accept this argument about federal responsibility, then as a logical extension, should we not also be saying the same thing about drug offenders? While it is true that certain drugs (meth and marijuana, for instance) are made or grown in the United States, the overwhelming types and amounts are not; they are grown, manufactured, and illegally smuggled across our borders. These days, forensic analysis has reached a stage that it is usually possible to determine the region of production. Using the same theory of accountability, the federal government would be on the hook for arrest, prosecution, and incarceration of all criminals (alien or citizen) who engage in the business of transporting or selling drugs that originated abroad.

I can think of several other crimes, and even civic/social phenomenon to which the argument might also apply. But if one accepts the argument that these things fall on every level on the shoulders of the federal government, and only the federal government, then the notion of federalism, which is and must be a two-way street, is truly dead, and our republic is fractured beyond repair. Under this scenario, states doom themselves to ever greater dependency on Washington, which grows ever stronger and potentially more heavy-handed in the process. I for one cannot in good conscience accept either the argument or the logical consequences.

So back to SCAAP one more time. What to do?

  • First, Congress should acquiesce and zero out the SCAAP budget.

  • Second, SCAAP should be legislatively killed; as structured, it does more harm than good and in our litigious day and age, invites abusive lawfare by sanctuary jurisdictions that want money but no share of responsibilities for keeping their communities safe from the predation of alien criminals.

  • Third, replace it with a program that directly ties funding to cooperation with federal immigration authorities in plain language, including uninhibited provision of information and honoring of detainers: "Cooperate in specific new programs, or in the newly-revitalized 287(g) program, and you will get funded. Don't and you won't."

The new statute should also very specifically provide that in any instance in which a state or local enforcement agency holds an alien criminal for (no longer than) 48 hours past his release date, if needed for federal agents to be able to get to the facility to pick him up, it shall be held harmless from civil suit and shall be fully reimbursed for those costs.

This latter is particularly important to overcome the whiny Tenth Amendment arguments from sanctuary jurisdictions about "unlawful commandeering" of state and local resources (used as a justification to keep obstructing federal efforts), as if the hundreds of millions of dollars already poured down the SCAAP and other Justice and Homeland Security Department grant rat-holes in the past several years counted for nothing.