At a House appropriations hearing yesterday, Attorney General Loretta Lynch announced that her department has agreed to begin enforcing federal law against sanctuary policies that obstruct communication and cooperation with federal immigration authorities. Lynch's announcement is the result of pressure applied by Rep. John Culberson (R-Texas), who chairs the subcommittee that controls the budget for the Department of Justice. Under his plan, state and local jurisdictions maintaining sanctuary policies that violate federal law now risk losing federal funds — unless they stop protecting criminal aliens.
Sanctuary policies are a significant public safety problem and also make it more difficult for ICE to deport aliens who get arrested for state and local crimes. Since January 2014, more than 15,000 criminal aliens that ICE was seeking to deport have been released back to the streets instead due to sanctuary policies. According to information I obtained through a FOIA request, most of these offenders had prior arrests, and one-fourth were already felons. After being freed, nearly one-fourth were again arrested for new crimes within a short period of time. The disclosure of this information last July, together with several widely publicized reports of Americans killed by illegal aliens who had been released by sanctuary jurisdictions, prompted Culberson to take action.
Following passage of the 2016 omnibus spending bill, which enabled him to use his authority, Culberson put Lynch on notice. On February 1, he sent her a letter outlining four steps he expected her to take to ensure that state and local agencies that apply for federal funding are fully compliant with federal law, specifically 8 USC 1373. He further declared that if she did not do so, then it would be very hard for him to look favorably on certain future DOJ budget requests she might make, and that he would take action using his authority as committee chairman.
The pressure worked. Until now, the Obama administration had refused to take action against the sanctuaries, preferring instead to facilitate these policies by declaring that it would be optional for local jurisdictions to cooperate with ICE and by scaling back criminal deportations. Clearly, the surgical and strategic application use of the power of the purse can be effective.
Congress used a similar tactic a few months ago to force DHS to produce a long-mandated report on visa overstays.
Now, all state and local law enforcement agencies will have to certify that they are in compliance with federal law before they can get funds from three programs: Byrne/Justice Assistance Grants, Community Oriented Policing (COPS) grants, and reimbursement under the State Criminal Alien Assistance Program (SCAAP). Together, these programs distribute more than $1 billion. Lynch has agreed that the Justice Department will investigate any "credible allegation" of section 1373 violations, which will include many of the jurisdictions on a list I compiled, such as San Francisco (where a local cop is being investigating for turning over an illegal alien with a DUI record), Cook County, Ill., New York City, and Montgomery County, Md.
In addition, the Justice Department has agreed that it will explore bringing civil or criminal charges against sanctuary jurisdictions. It is important to remember that DOJ has had this authority all along, but would not even be talking about taking action without the threat to disrupt the agency's funding.
Lynch also announced that Justice has implemented a new policy on its own initiative that it says will help solve the problem. Under the new policy, when a deportable inmate is released from federal prison, ICE will get first crack at taking custody of the alien, before any state or local warrants are honored. Thus ICE will have the opportunity to negotiate with the local jurisdiction, and demand the return of the alien to ICE custody after local charges are disposed of. Reportedly, this policy is already being used in California, where before handing over aliens ICE has brought local jurisdictions into court to affirm that they will return aliens to ICE instead of releasing them. This unwieldy policy may work as a temporary tool for ICE, but avoids the central issue of the fundamental illegality and irresponsibility of the sanctuary policies. Besides, most of the criminal aliens who are getting released around the country are not coming out of federal prison, but are in local custody. This policy also could result in criminal aliens getting deported before they are prosecuted for local crimes, which is not ideal either.
Stay tuned to see how this plays out.