Congress's Proposed Cure for Sanctuary Cities Must Not Be Worse Than the Disease

By Dan Cadman on July 20, 2015

The public all over the nation is expressing uniform and vociferous outrage over the needless recent murder of Kate Steinle in San Francisco due to that city-county's sanctuary policies. The backlash shows growing recognition that the problem is not limited to San Francisco, but is in fact nationwide, as revealed by my colleague Jessica Vaughan.

The most common method of obstructing immigration enforcement is by refusing to honor detainers filed against aliens arrested for criminal offenses whom federal authorities wish to take into custody for deportation when state criminal justice proceedings are over. This refusal to honor detainers, along with other sanctuary obstacles, like rules prohibiting exchanges of information, is a problem that has been festering for years and yet few executive branch officials or legislators have shown much willingness to grapple with it.

One of the few members of Congress with the moral authority to speak on the subject of alien criminals victimizing citizens and lawful residents is Rep. Lou Barletta of Pennsylvania. His knowledge of the matter comes from painful experience gained as a mayor who witnessed the devastating effects on a family in his town after a husband/father was murdered by an illegal alien. Rep. Barletta speaks with an emotional honesty few politicians can muster of his frustration in trying to get federal officials to act in that case. That was in 2005. He candidly admits he was unsuccessful as a mayor in getting effective action. (I strongly recommend watching Rep. Barletta's remarks at a recent panel discussion.)

A decade after Rep. Barletta's disheartening experience, we are still grappling with the effects of alien crime because nothing has been done to curb sanctuary jurisdictions in their determination to flout federal immigration laws. But suddenly, with the outrageous death of Ms. Steinle, the equation has changed. Needless to say, many politicians are now doing the inevitable — leading from behind — and rushing to come up with bills to combat sanctuary policies through a number of legislative proposals. It's no surprise, then, to find that, as in so many things where rush!-rush!-rush! is the watchword, a number of these proposals will likely be ineffective. Some may even compound the problem through the rule of unintended consequences. How could this happen? Here are some of the ways.

Defunding Mechanisms. Many of the proposals would specify that state or local governments that do not honor immigration detainers would be ineligible for State Criminal Alien Assistance Program (SCAAP) funds. That is a good start — and absolutely overdue — but doesn't go far enough. The proposals should also preclude eligibility for the whole host of Homeland Security and Justice grants available to state and local enforcement agencies. Such proposals would have much more punch than denying SCAAP alone. After all, if the federal government can threaten to deny tens of millions of dollars in highway funds to states that don't adjust their highway speed limits, why should legislators balk at denying law enforcement grants to state or local governments that release aliens in defiance of federal immigration laws?

Failing to Specifically Provide Immunity to State and Local Officers Who Honor Detainers. Whatever statute finds its way through Congress must provide state and local officers the same qualified immunities that federal officers enjoy when those state and local officers are acting to comply with detainers — all detainers. Many of the provisions being considered fail to do so. The authors of pending "anti-sanctuary" bills must recognize the critical importance of according immunity given the litigious nature of many open borders and alien advocacy groups. There are a number of law enforcement agencies that have been reluctant to fully honor detainers solely because they fear getting sucked into litigation that will bleed their departments dry of both funding and energy. This is an easy fix.

Micromanaging Detainers That Must Be Honored. Some of the proposals lay out the types of crimes an alien must be convicted of (usually certain kinds of felonies) to set a threshold for state or local obligation to honor the detainer filed. This kind of thinking is flawed in several ways:

  1. By distinguishing between felons and other types of aliens against whom detainers might be filed, members of Congress are implicitly suggesting that it's okay for state and local governments to ignore other types of immigration violations, even though the many laws laying out what constitutes a deportable offense are laws that Congress itself passed and saw enacted into statute by presidential signature. I can think of no more palpable way to encourage sanctuary communities, which leads to my next point:
  2. Such a bill, if enacted, would actually discourage those sheriff's offices and police departments who have, to date, been willing to comply with all detainers filed. The omission of certain categories would inevitably lead them to worry that honoring all detainers, including those filed against aliens whose offenses are not specifically enumerated, would lead to long, expensive, and tortuous litigation against them. What an incredible disservice, both to those agencies and to the notion of full and fair immigration law enforcement nationwide.
  3. By distinguishing between types of immigration violations that must (or need not) be honored if detainers are filed, Congress is tacitly adopting the president's "executive action/prosecutorial discretion" point of view, and thus furthering his aim of dismantling effective immigration law enforcement — and they are doing it at the expense of their own Article III constitutional powers. On what rational basis does any lawmaking body — at least one that is not the fawning puppet legislature of a tyrant — undermine its own unique place in the governmental balance of powers?
  4. Such bills will, in the rush toward passage, inevitably prove later to have missed some key category of detainer that must be honored, and thus be forever in need of amendment. This is no way to legislate. What might be a key omission in such bills? Well, for instance, the need to ensure that aliens who have been previously deported are covered, regardless of the crimes they have (or have not) been convicted of in the past. Or certain national security-related immigration offenses, which don't always (and shouldn't) require a conviction at all.
  5. Perhaps most important, bills that require honoring of detainers only for felons — whatever the category of felony — seem to accept as a given that misdemeanants are not threat to public safety. That defies logic. In fact, it is a sure recipe for growing a class of alien recidivists who will become increasingly violent over the course of their arrests and releases back into the community. After all, why not? The lesson they will learn from their constant releases is that American lawmakers and police are themselves picky-choosy at best, and totally indifferent at worst, toward the notion of a population that is expected to obey all the laws, all the time. What is more, many serious offenders, notably including some serial murderers, have had no significant criminal convictions until their heinous crimes caught up with them and they were unmasked. Of course, by then it is too late for their victims.

In truth, I am no great fan of legislation that only addresses this small-but-critical piece of the overall need to improve immigration law enforcement, both at the border and in the interior. I realize the imperative at work, but the better solution by far would be for both the House and Senate to take up their respective versions of the Davis-Oliver Act, which does what needs to be done to mitigate the likelihood of any more senseless murders by illegal aliens, but also does so much more. My hopes and expectations for Congress are so minimal at this point, however, that a single-focus bill may be the only thing the institution is willing or able to achieve. If so, then at least let it be an intelligent bill that advances the purpose of immigration law enforcement and public safety, and does not by inadvertence further enable sanctuaries.