The DOJ Was Already Ignoring Trump’s Sanctuary City Executive Order

REUTERS/Mike Segar

Alex Pfeiffer White House Correspondent
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The decision by a federal judge in San Francisco Tuesday doesn’t have any practical effect on the Trump administration’s policy toward sanctuary cities.

That’s because the White House and the Department of Justice have not been on the same page about the definition of a sanctuary city and how much federal money those sanctuary cities should lose.

The executive order signed in January by President Donald Trump called for sanctuary jurisdictions to be eligible to lose all federal funding except money needed for law enforcement purposes. Attorney General Jeff Sessions, however, talked only about sanctuary jurisdictions losing grants from the DOJ’s Office of Justice Programs during a White House press briefing.

Santa Clara County, California and San Francisco had sued to block enforcement of Trump’s executive order, fearing that they would lose billions of dollars. Judge William Orrick sided Tuesday with the California jurisdictions.

Santa Clara County receives about $1.7 billion annually from the federal government, but a DOJ attorney said that the county would only be at risk of losing less than $1 million in federal grants.

The White House and Justice Department also seem to have different understandings of the definition of sanctuary jurisdictions.

The Center for Immigration Studies, which advocates for reduced immigration, defines a sanctuary jurisdiction as any city, county, or state agency that doesn’t comply with federal immigration detainers. The current page on its website about sanctuaries relies on a report from Immigration and Customs Enforcement that identified 118 jurisdictions that “do not comply with detainers on a routine basis” and “have a policy of non-cooperation.”

However, Ian Prior, a DOJ spokesman, confirmed to The Daily Caller Tuesday that non-cooperation with detainers is not the standard the department is using when it comes to stripping funding. Sessions stated at his March appearance at the White House that “the Department of Justice will require jurisdictions seeking or applying for Department grants to certify compliance with Section 1373 as a condition for receiving these awards.”

This federal statute, 8 U.S.C. 1373, prohibits jurisdictions from denying or restricting in any way the federal government’s access to an individual’s immigration status. Ignoring immigration detainers is not a violation of this law, according to attorneys from both the conservative Immigration Reform Law Institute and the liberal Immigrant Legal Resource Center.

Judge Orrick wrote in his ruling that there was confusion for localities because the order “equates jurisdictions that refuse to honor detainer requests with the term ‘sanctuary jurisdictions.'”

Public statements by Trump administration officials have made it seem that compliance with detainers was a requirement for federal funds.

Trump himself applauded Miami-Dade County, Florida after it decided to start honoring all immigration detainers. “Miami-Dade Mayor drops sanctuary policy. Right decision. Strong!” Trump tweeted.

On Tuesday, Sessions met with several mayors to clarify the stance of the DOJ. Providence, Rhode Island was listed on the DHS list of jurisdictions that don’t honor immigration detainers, but the city’s mayor, Jorge Elorza, said he was relieved after the Sessions meeting.

“If it turns out sanctuary city is defined as Section 1373 compliance, then … there is no sanctuary city debate,” Elorza said. “What’s frustrating to us is we hear very different messages from DHS, from DOJ and also from the White House. … Please amongst yourselves just have one clear policy, one clear message so we know where we stand and where we don’t stand.”

The Obama administration looked at sanctuary cities last year and found that 10 jurisdictions possibly ran afoul of 8 U.S.C. 1373 and announced in July that cities that refuse to honor this law won’t be eligible for two DOJ grants. Sessions said at that March White House appearance that his department would continue to honor this policy.

“What I’m saying today is that essentially the policies of the Obama administration that were issued last July make clear that you should not be receiving certain federal funds if you’re not in compliance with 1373,” Sessions stated.

Last Friday, he sent letters to nine of the jurisdictions identified by the Obama administration, asking them to provide documentation to prove that they comply with the law.

The DOJ has been enforcing only the Obama administration’s policy on sanctuary cities, not the one designated by President Trump. The ruling by Judge Orrick Friday upheld the department’s ability to enforce the conditions of existing grants and section 1373. That’s why DOJ spokesman Ian Prior responded to the ruling with a rather nonchalant statement.

“The Department of Justice previously stated to the Court, and reiterates now, that it will follow the law with respect to regulation of sanctuary jurisdictions. Accordingly, the Department will continue to enforce existing grant conditions and will continue to enforce 8 U.S.C. 1373,” Prior said. “Further, the order does not purport to enjoin the Department’s independent legal authority to enforce the requirements of federal law applicable to communities that violate federal immigration law or federal grant conditions.”

The White House’s statement, on the other hand, accused the judge’s ruling of being a “gift to the criminal gang and cartel element in our country.”

“This case is yet one more example of egregious overreach by a single, unelected district judge,” the statement continued on to say. “But we are confident we will ultimately prevail in the Supreme Court, just as we will prevail in our lawful efforts to impose immigration restrictions necessary to keep terrorists out of the United States.”

Sessions announced a change of tune for the DOJ Wednesday night and said that it will appeal the decision.

“This is the Trump era. Progress is being made daily, and it will continue. This will be the Administration that fully enforces our nation’s immigration laws,” the attorney general said in a statement.