A Practical Step toward Dismantling Unlawful Sanctuary Rules

By Dan Cadman, August 8, 2016

In a recent blog posting, my colleague Jessica Vaughan highlighted a Department of Justice Office of Inspector General (DOJ OIG) report finding that state and local governments with sanctuary rules are in violation of federal law by prohibiting employees from communicating with Immigration and Customs Enforcement (ICE) agents.

As Vaughan notes, there are over 300 such sanctuary jurisdictions; and when they are states, such as California, they have a spillover effect because of their impact on county and local government practices as well.

Although DOJ OIG only examined a sampling of 10 jurisdictions due to resource limitations, there is little doubt that the remaining governments are also in violation of the law, 8 U.S.C. Section 1373. One of the commonalities DOJ found in these sanctuary rules and ordinances is that they often engage in throwaway language to the effect that communication is prohibited "except as provided by federal law" or the like – but that the language of this "savings clause" is deliberately ineffectual because absolutely no effort is made to ensure employees know that their right to communicate with immigration agents is, in fact, protected by federal law.

Making the violation even more egregious is the fact that many, probably most, of the offending sanctuary jurisdictions receive federal law enforcement funding – including, incredibly, under a program that disburses monies for "cooperating" with the federal government in identifying alien criminals under the State Criminal Alien Assistance Program (SCAAP).

The belated zeal on the part of the Obama Justice Department in ferreting out these hypocrites who take federal funds in one hand while holding up the other in a "no go" signal to the immigration authorities is thanks primarily to the efforts of a single legislator, Rep. John Culberson , chairman of the subcommittee that oversees the Justice Department's funding.

Now that it has been established that these jurisdictions are in violation of federal law, I'm hoping that Rep. Culberson will push DOJ to force these scofflaws to take remedial action. One form of such remedial action would to requiring them to post notices in relevant areas of the workplace making known the existence of the federal law. Something like this might be appropriate:

NOTICE

Federal law forbids the State / the County / the City or this Department from impeding any employee in initiating communication with, or responding to communication from, immigration authorities about an individual's alien status.

Any attempt to discourage, punish, or retaliate against an employee engaging in such communication will be treated as a Prohibited Personnel Practice.

Such attempts may also result in the withholding or required reimbursement of federal funds provided to the State / County / City / Department, or other adverse actions.

If the offending jurisdiction is a local law enforcement or correctional agency, the postings should be required to be placed in all booking areas, jail intake and outprocessing centers, as well as employee recreation or break rooms.

If the offending jurisdiction is a state or county where the "spillover effect" of the sanctuary rule is in play with multiple agencies, then in addition to requiring the postings in law enforcement and correctional organizations as suggested above, DOJ should also require posting of the notice at probation and parole departments, motor vehicle offices, and other relevant venues.

Once something like this is done, perhaps we will see these jurisdictions cease their exercise in hypocrisy, lest they put themselves at risk not only of losing their federal grant and matching funds, but also of facing lawsuits from irate unions and aggrieved employees who choose to exchange information with federal immigration authorities as is both their right and responsibility, whether it pleases their political bosses or not.