Feds Should Use "Blackie's Warrants" to Challenge Sanctuary Cities

By Dan Cadman on January 18, 2016

The Center last week published a blog post of mine on enforcing immigration laws in the face of civil disobedience. In it, I argued for reinstituting the use of "Blackie's warrants" as one method of taking into custody aliens who refuse to cooperate with their deportation when they are under final orders of removal. I described in some detail exactly what a Blackie's warrant is: a judicially issued civil search warrant used as authority to detect and take custody of aliens illegally in the United States. But could they have potential for counteracting "sanctuary" rules that impede federal authorities from taking into custody aliens arrested by police for criminal offenses, when they are also deportable — either for those crimes or for other offenses, including especially reentry into the United States after having been previously removed?

I continue to maintain that such sanctuary laws and policies violate the supremacy clause of the Constitution because it assigns to Congress the sole authority to establish uniform rules of naturalization, which has been more broadly interpreted by the Supreme Court to mean "immigration". In fact, I believe that governments that take such actions have crossed the line into a federal felony offense in that they are actively "shield[ing] and harbor[ing]" illegal aliens from detection. But it seems that the Obama administration, which claims to prioritize immigration enforcement against "felons not families", doesn't put its money where its mouth is, because in no jurisdiction have they mounted either a criminal or civil challenge against sanctuary jurisdictions, even in the face of outrageous consequences such as the murder of Kate Steinle by an illegal alien released to the streets in flagrant disregard of detainers filed by immigration agents.

When ICE agents know that filing a detainer against an incarcerated felon is wasted time and effort — especially in notorious sanctuary jurisdictions like San Francisco and Cook County, Ill. — would they not be better served by seeking a Blackie's warrant authorizing and directing them to seize the alien from the sanctuary authorities? It seems to me pretty straightforward: They have affirmatively identified the alien thanks to biometric matching of fingerprints; they can prove he is deportable based on already-collected documents and file materials; and they have no doubt about where he is located.

Finally, the justification to seek the civil search/seizure warrant is embedded in the county's own sanctuary policies — they are proof positive than any step by the agents to enforce the immigration laws short of the Blackie's warrant is doomed to failure.

My sense of the great potential of Blackie's warrants in sanctuary jurisdictions was heightened after seeing an article from the Texas Tribune, "Jails Refused to Hold Thousands of Immigrants for Feds". According to the article, state and local enforcement agencies have refused to hand over criminal aliens to ICE more than 18,000 times in the past two years, despite having immigration detainers filed against them.

Serving Blackie's warrants enough times at county jails to seize custody of alien criminals might persuade at least some of these jurisdictions that their efforts to defeat federal law are doomed to be unsuccessful and lead to repeal of sanctuary rules. In other instances, an irate federal judiciary fed up with having to review and approve such applications on a routine basis simply to rein in out-of-control state or local governments can leverage corrective action against them far more readily than immigration agents ever could short of prosecution for harboring and shielding. Even failing those two ameliorating possibilities, using Blackie's warrants would at least ensure taking custody of the alien felons the president has assured us are such a high priority to his administration.

Until Congress shows itself to be responsible enough to enact amending legislation, the agencies involved (primarily Immigration and Customs Enforcement, and sometimes the Border Patrol) should steal a play from that used by open borders advocates when deciding to file lawsuits: Carefully cherry pick your first jurisdictions in which to seek Blackie's warrants, so as to build up a record of success.