In 2015, 32-year old Kate Steinle was shot in San Francisco by an Illegal Immigrant. The immigrant was previously deported five times and had seven prior felony convictions. This incident, along with additional stories of criminal behavior by illegal aliens, drew national attention to the issue of sanctuary cities.The Center for Immigration Studies defines sanctuary cities as localities which, by statute or action, seek to shield information regarding illegal aliens from Immigration and Customs Enforcement (ICE). Sanctuary counties, however, vastly outnumber sanctuary cities, and seven states have adopted statewide sanctuary policies. As of 2017, undocumented immigrants were estimated to number about 12.5 million, with the largest populations of such immigrants in California, Florida, New York, and Texas. Of the illegal immigrants arrested by ICE in 2017, 74% had criminal histories and 16% faced criminal charges. In light of the data, concerns arise that sanctuary cities, by withholding information from ICE, protect illegal aliens who are also dangerous criminals from deportation and thereby pose national security risks.
Furthermore, 8 U.S.C. § 1373 prohibits state and local governments or officials from inhibiting the flow of information regarding immigrants to ICE. Seeking to enforce §1373, President Trump in 2017 issued an executive order conditioning federal grants to states and municipalities upon cooperation with Immigration and Customs Enforcement (ICE). Subsequent legal challenges brought by cities such as Chicago and Philadelphia have successfully blocked the order’s enforcement, citing the Constitution’s requirement that Congress must approve any new conditions on federal funding. State and local governments, however, have also launched their own anti-sanctuary initiatives. Tennessee, for instance, banned sanctuary cities in May of this year, following Texas, whose law mandating full local cooperation with federal immigration enforcement was upheld by the Fifth Circuit, and numerous municipalities in California have declared opposition to their state’s sanctuary policies. California’s sanctuary laws have also been challenged in a lawsuit brought by the United States, which claims that these laws violate the Supremacy Clause of the U.S. Constitution.
William A. Stock, Partner, Klasko Immigration Law Partners, LLP
Christopher Hajek, Director of Litigation, Immigration Reform Law Institute
Moderator: Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Monday, July 30, 2018 during a live teleforum conference call held exclusively for Federalist Society members.
Micah Wallen: Welcome to The Federalist Society's teleforum conference call. This afternoon our topic is titled Sanctuary Cities and is hosted by our Criminal Law & Procedure Practice Group. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call.
Today we are fortunate to have with us Brian Fish, who is a member of the Executive Committee for the Criminal Law & Procedure Practice Group at The Federalist Society. After our speakers give their remarks, we will then go to audience Q&A. Thank you for speaking with us. Brian, the floor is yours.
Brian Fish: Thank you, Micah. Again, my name is Brian Fish, and I'm on the Executive Committee of the Criminal Law Practice Group. I'm also calling you from Baltimore where I am the Chapter President of the Lawyers Society here. And, yes, there is a chapter in Baltimore.
For the next hour or so, we're going to be discussing sanctuary cities, and maybe they should be more broadly called "sanctuary jurisdictions." So what are they? Are they legal? Are they constitutional? The website and the email that you all got says -- it starts off with the Kate Steinle tragedy. But we should probably go back two weeks earlier from that event.
On June 16, 2015, Donald Trump rode down a Manhattan escalator and announced that he was running for president. Among Mr. Trump's ideas was a notion that our country should be enforcing its immigration laws, and he even wanted to build a wall on the Mexican border. And, as he said it, with a "great big beautiful door" in the middle of it.
Two weeks later, however, on July 1, 2015, Kate Steinle, who was walking down a San Francisco pier with her father, was shot and killed. The man who killed her was an illegal alien, was deported five times previously, and he had seven felony convictions on his record. When he was asked by local TV why he was in San Francisco, he replied that he knew that San Francisco was a sanctuary city where he would not be pursued by immigration officials. The idea of sanctuary cities is not new, but as we all know, the Steinle killing fueled the sanctuary city discussion for the rest of the 2015/2016 campaign.
So what does it mean to be a sanctuary city? Simply put, they are places that seek to shield information about illegal aliens from ICE, the Immigration and Customs Enforcement part of the Department of Homeland Security. Currently, there are about 300 such places going from the smallest town all the way up through the entire State of California. This topic brings up many ideas that are near and dear to the hearts of many in this society: separation of powers, states' rights, federal overreach, and the rule of law.
Now, before some of the audience today succumb to maybe a kneejerk reaction of saying, "Well, of course the locals should help ICE. What's the problem? What are even talking about?" Before you have that reaction, I would like to ask what has been a common refrain for many members of this society: WWSD, What Would Scalia Do?
Perhaps, the late Justice's 1997 majority opinion in the Printz case lends a hand. In that opinion, the Justice wrote that the Tenth Amendment prohibited the Federal Government from commandeering the cooperation of state government in enforcing federal law. Would perhaps the late Justice Scalia have been in favor of allowing cities or counties or states to be sanctuary jurisdictions? Are these even constitutional? That's the underlying question.
Today we have two excellent speakers to discuss these issues. First of all, William Stock. Bill is a Partner in the Klasko Immigration Law Firm in Philadelphia. He is the past president of the American Immigration Lawyers Association, which is, correct me if I'm wrong, Bill, about 16,000 attorneys practicing immigration law in all facets before not only immigration courts but through USCIS, in front of ICE, in front of the BIA and the other immigration boards, and that sort of thing.
William A. Stock: Yep, absolutely, and in the federal courts as well. Yep.
Brian Fish: Yes. And Bill received his undergraduate degree from Minnesota's University of St. Thomas, and he stayed in the Gopher State to attend the University of Minnesota's Law School. After we hear from Bill, we'll then hear from Chris Hajek. Chris is the Director of Litigation at the Immigration Reform Law Institute. Chris is a former Navy JAG, and he went to undergrad at the University of Michigan. Then he went to law school at the University of Pennsylvania, and he received a Ph.D. from the University of Miami. And as you see, I am from La Salle so a proud Explorer in my undergraduate days. So the three of us will probably not be talking about college basketball until we get outside.
So with that, Bill, why should we allow sanctuary cities to exist? Tell us, lead us off in this discussion.
William A. Stock: Sure, sure. I think I want to first unpack a little bit about what we mean by sanctuary cities because, of course, the first place we'd go is where is that term defined? If we looking the code of federal regulations in the U.S. Code, we're not going to find it because right now this idea of a sanctuary city is it's not a legal term yet. And I think we have to unpack that there's a few different elements. So in our recent City of Philadelphia case, we saw that there were, sort of, three related issues that were being mixed together in terms of sanctuary policies. And some jurisdictions have one of these policies, some have all three, some have only two of them.
So the first question is what you alluded to earlier which is the degree to which the jurisdiction shares information with ICE either proactively or in response to ICE's requests for information about individuals who have contact with their criminal justice system. The second question is the degree to which the jurisdiction provides access to ICE to its jails and to either pre-trial detainees or to post-conviction. And the third is the extent to which the jurisdiction honors detainer requests, which are civil requests by ICE to hold in custody a person whom ICE assets is subject to their jurisdiction and subject to removal. So those three elements make up the, sort of, what are usually talked about as sanctuary policy, and I think each of them has slightly different issues that go around it.
But before we get to unpacking each of those, I think the first thing we have to ask with regard to the recent developments and what you alluded to in terms of what happened as soon as the President was inaugurated, one of his first acts was Executive Order 13768. The Executive Order instructed the Attorney General to withhold grants from cities who were not in compliance with what's referred to as Section 1373. And as we'll talk about in a minute, 1373 of the Immigration and Nationality Act says that no state can have a policy prohibiting the communication of information between its officers and the immigration authorities.
So the first question that came up was, "Well, wait a second. What about all grants? We're going to cut off Medicaid funding to the City of San Francisco?" So they sued and they got the federal court to say that no, the broad possible interpretation of that 13768 Executive Order language could not apply to things that are completely unrelated to immigration and criminal justice. So then we get into the more narrow question, which is as the Attorney General has actually taken action to require cities to certify that they're in compliance with 1373, as they have challenged city's self-assertion of their compliance with 1373, there've been these other lawsuits in Chicago, in Philadelphia that have challenged the imposition of a condition on specifically the Byrne criminal justice grants. So these are a grant that's made by the Justice Department to cities to support various law enforcement purposes. And right now, that is the grant program, which is the only grant program that has been subject to this condition at this point.
So the first problem that comes up, and both of the judges who have heard these cases in Philadelphia and Chicago, interestingly, George Bush appointees, have struck down the placing of conditions on an authorized grant by the Justice Department because Congress did not place those conditions on the grant. So the first issue that we really have with regard to the immediate way in which sanctuary city policies are being combated by this administration is this separation of powers idea. That right now Congress has not made the Byrne Grant conditional on 1373 compliance, and both of the judges who've heard this so far and made decisions have said that the broad delegation of authority to place special conditions on grants under this program did not authorize the conditions that were placed on this particular grant with regard to sanctuary cities. So then that raises the interesting theoretical question: what if Congress did place this condition onto the grant?
So the first problem would be a spending clause problem, which is to say Congress is generally allowed to place conditions on money that it offers to the states, and it's sort of a contractual thing. If you want the money, you agree to certain kinds of conditions. The Supreme Court has said that there has to be a connection, a relatedness connection, between the funding -- the purpose of the grant and the policy that they're trying to get the states to implement. And, of course, we have the Supreme Court case in the South Dakota case, South Dakota v. United States back when the 21-year-old drinking age was imposed. That was about five percent of the State's highway funding would've been withheld. The Supreme Court upheld that condition. But that really sets kind of the framework for analysis here.
So at this point, no court's ever found that a grant condition wasn't related enough, but I think the Court certainly threw down a marker in the NFIB v. Sebelius case that was decided a couple of years ago, and that was about Obamacare where states would've lost all their Medicare funding if they didn't agree to new conditions, and the Supreme Court said, "No, no, no, you can't do that. You can't coerce states by basically taking away an existing funding stream." And I think, Brian, you mentioned the Tenth Amendment concern. So even if they were, do we have an issue of unlawfully commandeering state resources if we are having states that are compelled to go in with this federal program?
So I think those are -- that's the problems I think that we're immediately facing right now. The placing of conditions that require information sharing, access to jails, et cetera. Have these challenges -- that right now Congress hasn't allowed those conditions. If they did allow those conditions, then assumably these jurisdictions would be challenging them, arguing, first, that they're not related enough, and second, that even if they are, you've got this Tenth Amendment commandeering problem. And I think, interestingly, then the whole question becomes, "Well, can we commandeer the states to engage in this civil enforcement action?" Right now, immigration is an exclusively federal jurisdiction. States are not allowed to make laws about immigration status that differ from the federal policies. States are allowed to sort of supplement the federal policy in various ways. So I think we have the question of what is the state allowed to do? They can't thwart whatever the current federal policy is, but they also don’t have to supplement it.
So, for example, the argument's often made, "Well, the Supremacy Clause would make federal law supreme over any state law." And generally speaking, immigration is a federal matter and the federal government has plenary power over it. But it's important to understand that those concerns really don’t have anything to do with the federalism issues that we've been talking about. When we talk about the Supremacy Clause, we're really talking about the regulation of private parties, and how do we prevent private parties from having two different sets of requirements that they're allowed -- that they're required to show.
So, for example, in the Arizona v. U.S. case, which was the SB 1070 where Arizona made certain kinds of activity unlawful under state law. The Supreme Court said that Arizona couldn't create a state crime of being in the United States without lawful presence because the federal immigration law sort of took over that field of regulating immigration presence in the U.S. But Arizona could require law officers to stop and detain a person who they believed had committed a crime and who they thought was in the United States illegally. So it was perfectly fine to use state resources if they chose to do so in order to supplement the efforts of federal law enforcement.
California has kind of gone the opposite way. They recently passed what they call the Immigrant Worker's Protection Act, which would've required employers to refuse consent to ICE officers coming to inspect their premises for undocumented workers. And the court just considered that said, "Well, you cannot require employers to follow state law in a way which might violate federal law." So that was overturned by the Supremacy Clause.
All of this, then, kind of relates to what I think is sort of the final big issue that has not yet been fully developed, but I think really is going to be a developing area with regard to federal immigration enforcement. And that is, what are the Fourth Amendment limits on federal immigration law enforcement, particularly in these situations where state jurisdictions are being asked to detain individuals, to hold them in detention, pursuant to requests by a federal agency to take people into custody because of a civil enforcement regime? So I'm not really troubled by the fact, and I think courts would not be troubled by the fact that immigration is civil and not criminal. We have lots of detention in the American legal system which is civil in nature. You've got civil contempt, you've got involuntary commitment, those kinds of things. So just the fact that immigration is custody pursuant to a civil offense, not pursuant to a criminal offense, that's not troubling.
What is troubling is that as currently written the immigration system has no provision for a neutral magistrate to decide whether or not someone is being taken into custody. And that is the core of the Fourth Amendment requirement, right? That there be a neutral magistrate to whom these questions of detention have to be brought relatively promptly after a person is detained. And, in fact, it is that requirement which has led to many of the policies which are characterized as sanctuary polices, particularly in some of the more remote counties around the country. In our state, it's Lackawanna County which has a very active participation with ICE and their local police. They were able to [inaudible 17.47] jurisdiction because they had actually gotten sued for having detained a U.S. citizen pursuant to an immigration detainer. So what came out of that was the immigration detainers must be considered voluntary requests for detention, and the local jurisdiction remains on the hook for any unlawful detention claim, merely because that detention is done under color of law by an ICE officer saying, "Well, I assert that I have jurisdiction over this person because I believe that they are in the country unlawfully." If you make a mistake and detain a U.S. citizen under that, there's no recourse for the state jurisdiction that does that.
So a lot of jurisdictions put that in place because of the risk of inadvertently detaining U.S. citizens. So I think that's the future-looking question is what limits are courts going to be willing to place on an immigration agency, which to my knowledge is the only law enforcement agency which will take custody of you pursuant to only the law enforcement agency's assertion of its jurisdiction over you.
So, Brian, those are my thoughts.
Brian Fish: All right, Chris, take it away. Why should the United States, whether it's federal, state, local, why should we be allowed to trample over states' and local rights?
Christopher Hajek: Well, I'm very happy to be here. I guess in talking about preemption, I'll start with something that sounds like the beginning of a night club joke. An illegal alien and a local police officer are walking down the street in California. The illegal alien is from someplace like Norway or Asia. He's also a convicted criminal whose sentence has just expired, and he's being escorted to his car. An ICE officer walks up to them and says, "I have a civil warrant for the detention of that alien who's removable from the country. Please transfer custody to me." The local police officer says, "No. I can't transfer custody. That would violate California law." Still, the ICE officer goes ahead and tries to handcuff the alien. The local police officer says, "Oh, no you don’t," and pulls his gun on him. Maybe he gets the drop on the ICE officer and arrests him for resisting an officer. Or maybe the ICE officer pulls his gun at the same time and either somebody gets shot or there's a standoff. Fun, huh?
You can run similar scenarios for ICE officers trying to get into local jails in sanctuary cities. And what these scenarios signal is a major problem with sanctuary laws and policies. They violate the Supremacy Clause in a very direct way. In fact, state criminal process may not be used against the federal officer in the course of pursuing his federal duty. That was settled in the Supreme Court case in 1890.
In that case, a federal marshal shot and killed a man in California while defending a U.S. Supreme Court justice riding circuit in that state. California convicted the federal marshal of murder, and the Supreme Court threw the conviction out. The Court talked about states interfering with federal operations and said, "We do not think such an element of weakness is to be found in the Constitution. The United States is a government with authority extending over the whole territory of the Union, acting upon the states and upon the people [in] the states. While it is limited in the number of its powers, so far as its sovereignty extends, it is supreme. No state government can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it for a moment the cognizance of any subject which that instrument has committed to it." That's from In re Neagle, an 1890 case.
What this means, in my view, is that state and local laws and officials can't interfere with federal law enforcement. When an ICE officer comes knocking on a jailhouse door seeking a removable alien therein, the jail has to let him in. They can't arrest the ICE officer, and if they can't use legal process against him, it seems to me they can't use force or locked doors either. Anything less and we don't have a federalist system with federal supremacy. We have anarchy. But that's just what sanctuary policies do. They tell local jails they can't let the ICE officers in. They tell local law enforcement they can't transfer custody to ICE. When it comes to a conflict point, these laws can't be enforced without violating the Supremacy Clause. That means they already do violate the Supremacy Clause. They also violate the Supremacy Clause through obstacle preemption. That's where state law stands as an obstacle to the full realization of the purposes of Congress in passing federal law.
Federal immigration law has two big purposes: one, to remove aliens unlawfully in the country or who've committed crimes, and two, to foster voluntary cooperation by local law enforcement and removing them. The latter purpose is behind, for example, the federal law authorizing local law enforcement to detain aliens that ICE requests, even without a written agreement and specialized training.
Well, then, what are sanctuary laws or policies? They are commands to local law enforcement officers that they should not cooperate. On their face, they stand as obstacles to the full execution of a congressional objective: cooperation. They are also an obstacle to the objective of detaining and removing removable aliens. In the recent district court ruling on the suit of United States v. California Sanctuary Law, the judge in denying part of the motion to preliminarily enjoin the law said something he obvious thought telling. He said, "refusing to help is not . . . impeding. . . . Standing aside does not equate to standing in the way." All California was doing was standing aside, you see, refusing to cooperate. It wasn't interfering, it wasn't raising an obstacle. I actually don’t think that's right. A lot of law enforcement officers in California want to cooperate and have been cooperating. California's told them they can't cooperate.
It's as if someone were trying to load heavy objects onto a truck while a crowd looked on. Many in the crowd wanted to help. But it turns out, they all work for the same person who told them, "If you help, you're fired." Is that person raising an obstacle for the objects being loaded onto the truck? I think you could say he is according to the ordinary meaning of words. He especially is if the object can't be lifted by one person or not easily, and the person loading them needs help.
In fact, that's the situation we're in now. The federal government has a heavy load. There're about 12 million illegal aliens in the country and very many, I don't know the exact figure, but maybe millions of criminal aliens. ICE can't make a dent in that without the voluntary cooperation it has been getting as a matter of course from local officers. When states and cities shut that cooperation off, when they command local officers not to cooperate, they interfere with ICE's ability to do its job. It makes it especially hard for ICE to remove criminal aliens, which has been a priority. That's obstacle preemption. It's unconstitutional.
The situation is similar with the validity of detainers under the Fourth Amendment. Immigration enforcement would grind to a halt if ICE had to obtain a criminal warrant from a judge to detain an illegal alien. Indeed, many of them haven't even committed a crime; they're just in the country unlawfully. And getting civil warrants from a judge every time they wanted to detain an illegal alien would hopelessly clog up any effort to exercise the nation's sovereign power to expel aliens when there are that many of them.
The touchstone of the Fourth Amendment is reasonable, then, and given the enormity of the task, it is reasonable that ICE do what it does: detain aliens on probable cause of removability. And it is also reasonable for local officials to cooperate with and assist ICE in that endeavor by detaining aliens until ICE can pick them up. They do the same for the federal government in other areas of federal law enforcement, and they do the same for fugitives from other states. The probable cause of the ICE officer is imputed through the local officer under the well-established collective knowledge doctrine. And it seems to me to make no difference that the law calling for detention is civil rather than criminal, but validly calls for detention. And if the probable cause is validly imputed under the collective knowledge doctrine, then the local officials may detain the alien to assist ICE as long as they don’t have independent information that dissipates probable cause.
This is what was held, in essence, by the Fifth Circuit recently in Texas v. El Cenizo when plaintiffs claimed that complying with detainer requests violated the Fourth Amendment. And those plaintiffs have not sought Supreme Court review of that decision.
Now, it seems to me that a counter-argument can be made to some of what I've said so far and I'll anticipate it. It can be said that it's Congress' fault, ultimately, that there are 12 million illegal aliens in the country. They underfund enforcement; they haven't built a wall; they have allowed the numbers to pile up to their present levels over many decades. Now they want to solve the problem by drafting the state, by commandeering them you might say.
9I guess my answer to that is that while I am sympathetic to the premise, Congress' failures here have been extravagant, technically by counting on and trying to foster voluntary cooperation and assistance by local law enforcement officers it is not commandeering anyone. No one has to do anything. The cooperation Congress counts on and seeks is voluntary. When a state shuts that down, when it prevents that cooperation, which would otherwise occur, it is stepping in front of the congressional purpose, whatever the state's rationale might be. It is interposing its own agenda in the path of Congress', and that violates the Supremacy Clause under Supreme Court precedence.
Brian Fish: All right. Let's end round one. Bill, do you have any reply to Chris, especially in the topic that he broached at the end there with the detainers, and the idea that detainers are simply voluntary, and that the state, if you will, if we're going to use California as an example, outlying all cooperation, voluntary or involuntary, with ICE as somehow impeded the federal government's purpose and the Supremacy Clause that immigration falls in under. Would this ignoring detainers, isn't that an illegal act?
William A. Stock: Well, I think it's an illegal act if the detainer is considered a lawful source of authority. A court in Illinois, I think, had a pretty good analysis of what a detainer is. They said, "Look, under the Constitution a detainer is a warrantless arrest, and we have standards for when police officers are allowed to make warrantless arrests when there's probable cause to believe a crime has been committed and there is a reasonable likelihood that the person's going to get away before you can go and get a warrant."
My question back always when this specter of, "Oh, my gosh, there are millions of people in the U.S. and what if we had to go to a judge every time we wanted to arrest one of them?" Well, yeah. My question is why is the Immigration and Customs Enforcement Agency the only federal law enforcement agency, state law enforcement agency, or local law enforcement agency that can't figure out how to go to a neutral magistrate and get a detention warrant for somebody who'd they'd like to take in detention? When the City of Philadelphia is holding somebody that my native Montgomery County wants to take custody of, they have no problem at all in getting a warrant from the court, "Have him, please, in Montgomery County," that allows them to take custody of that.
So I think that when you remember that more than 80 percent of the individuals encountered by the Philadelphia police, according to the record in the recent Philadelphia decision, more than 80 percent of the people encountered are in pre-trial mode. In other words, they are not criminal aliens; they are presumed innocent aliens. And those individuals may or may not be priorities for removal. They may or may not have sympathetic situations.
So the City of Philadelphia has just said, "Look, we're not going to put people in front of the immigration officers just because they happen to have had an interaction with the criminal justice system. Because what happened with the Secure Communities program was first rolled out was they noticed a drop-off in the willingness of people in the City of Philadelphia, including U.S. citizens, to report crime, to cooperate with the police, and to come forward as witnesses. So they made that decision.
So I think that's the really interesting question that we're all going to have to face when it comes to these civil immigration detainers is how are we going to know, in this world where everything seems to be done on databases, that an individual is, in fact, without lawful presence in the United States. Or that a person who wasn't born in the United States, right—so country of birth is often communicated to the Immigration Customs Enforcement when a person's fingerprints are run by any local police jurisdiction. So the country of birth is there. But you know what? There are 22 million American citizens who were born in another country who live in the United States right now. Are all 22 million of those people subject to ICE detainers because they can find out from the fingerprints that they're not born in the United States? I think we have to think carefully about that.
The other thing I guess I would respond with regard to the example of the jail has to let the officer in. That is exactly the problem that we're talking about here. Commandeering the time of the jail staff to hold someone in custody, to escort an ICE officer through the premises et cetera. And let's remember that in the Printz case what Justice Scalia was concerned about was the five minutes that it took a clerk in a sheriff's office to check the criminal record databases of a gun purchaser. And the Justice said, "If you start accumulating that, it becomes significant periods of time." So if five minutes to check a database is an unlawful imposition on a state's time, then how is the 20 to 40 minutes, at least, of having to escort ICE officers through a jail, extra detention of days, hours, while ICE officers are coming to pick people up, how is that expense not an unlawful requisition of the state's time if the state has decided it prefers not to provide that active assistance to the ICE officers?
Brian Fish: Chris, in your reply, maybe you could touch upon the idea that should we even be using the criminal terminology in civil immigration enforcement. We've been talking about such criminal terms as 'probable cause', 'guilt', 'innocence.' Does any of that really even apply? Because as we've all acknowledged, most of immigration enforcement is civil in nature. Does any of that really apply and should we be using those terms when we're talking about immigration enforcement?
Christopher Hajek: Well, I think, probable cause is a decently applicable term in the civil context. We know what it means: probable cause to believe that the alien is in the country unlawfully and is removable. It has the same meaning as it does in criminal law. It's just that there's something different, that there is probable cause to believe. It's not that a crime has been committed, it's that civil law has been violated. So that's all right. But no. It's not a criminal matter at all and the unusual Fourth Amendment protections that have been developed by the court in the criminal area are not applicable.
What is applicable is the Fourth Amendment's requirement of reasonableness. It seems that it is reasonable for the federal government to do what has always done and detain aliens in the country unlawfully when they have probable cause. And it would be impractical to go to a judge every time, especially because of the very large number.
And as far as detainers go, I want to reply to something. It's not that -- the argument that it takes some time for the officer to let -- for a local jail to let an ICE officer in and escort him and so forth may have some merit against my first argument. And, of course, I'm not arguing that when a local jail or a local officer refuses to honor a detainer that that is preempted. I think the key here is who are the actors that we're talking about? The federal government is relying on cooperation and assistance from state and local law enforcement officers. And it routinely gets that cooperation. And when the state comes in and tells them they can't cooperate, that is an obstacle to the federal government's program.
So I think the issue here is, and I don’t think it's a clear and easy issue, is what is the level of agency here? Is it the state? Is Congress just relying on the cooperation of the state? The state can deny its cooperation. Or is Congress relying on the cooperation of local officers, individual officers or maybe individual institutions such as a jail, and the state is blocking that by saying, "You can't cooperate."
William A. Stock: Brian, if I might just quickly jump in.
Brian Fish: Yeah, please.
William A. Stock: I think I'm a little nervous about the legal principle that is being articulated here. That because -- I mean, let's just flip it on its head for a second. If the EPA says, "Well, we have great cooperation with the City of Tulsa, Oklahoma in regulating fracking wells that we think are dumping ground water in," and the state now wants to come in and say, "Well, you know, we think the City of Tulsa shouldn't be the one making that decision. The EPA has to interact with our Oklahoma state-level environmental enforcement agency," are we now arguing that well, no, that's a federal purpose, and so the state can't regulate the ability of local officials to talk to the federal government? I'm troubled by this idea that because it's immigration, we can put restrictions on the ability of states to control the instruments of political authority in their jurisdictions.
Micah Wallen: We already have several questions lined up so, Brian, would you like to go to the first one?
Brian Fish: Sure. Fire away.
Micah Wallen: All right. Here we go. Caller, you may ask your question.
John Gormally: Good afternoon, everyone. My name John Gormally. I'm a lawyer in New Jersey. And getting back to the theme that we just discussed in terms of state versus local control, I was wondering if someone might be able to provide me with some guidance on this. Let's just say that you have a local municipality within a state that is a sanctuary state, and for whatever reason, the local municipality decides that immigration enforcement becomes a priority. What right does the state have to really restrict a municipality's ability to cooperate with federal agents in a situation such as that?
William A. Stock: I'd be happy to take that quickly, Brian.
Brian Fish: Yeah, please.
William A. Stock: The situation you're describing Texas just enacted SB 4, a state bill, which makes it precisely that a claim -- there were some cities who then claimed a problem. I think absent a state constitutional inability of the state to regulate the municipalities, which are its instruments, I think the state gets to get that call, gets to make that call in our federal system.
Christopher Hajek: Yes, I would just add that, yes, the municipalities are creatures of the state and normally the state could tell it not to cooperate, unless the state exercises its right in such a way that it interposes an obstacle to the achievement of congressional purposes, here being cooperation and immigration enforcement.
Brian Fish: Well, guys, if, as we've discussed, the federal system has exclusive rights to legislate an immigration law, why can't they simply, as they've done, legislate that "Thou shalt cooperate," with immigration enforcement? And why isn't that the end of this discussion?
Christopher Hajek: That would be commandeering if they just told local law enforcement officials they had to cooperate.
Brian Fish: Exactly. But they have done that, at least in some context. Is that correct?
Christopher Hajek: No. Well, in 1373, for example, they forbid states and, I guess localities, from prohibiting their local officials, the individual officers, from sharing information.
William A. Stock: Right. Which then raises the interesting question about 1373, which is whether it's constitutional after Murphy v. NCAA. Because Murphy v. NCAA tried to draw this distinction to say the federal government telling a state, "It's not that you have to regulate in certain ways, but you just can't regulate -- you can't forbid gambling." And the Supreme Court says, "No, no. It doesn't work like that. Either way, the federal government is imposing its policy choice on a state has a Tenth Amendment implication. So I think it will be interesting to see as these cases make their way forward the effect that the Murphy decision does have on this larger question of how far is too far and what policies are allowed? I think 1373 is really vulnerable to a challenge under the Murphy doctrine.
Christopher Hajek: I would just briefly say that, in my view, 1373 is a law in aid of Congress' -- you know, an aid of the Supremacy Clause because it's preemptive for a state or local government to tell individual officers that they can't cooperate when they otherwise would. Murphy simply says that Congress can't tell states that in the future, they can't have laws against gambling. I mean, sorry, that in the future they can't fail to forbid gambling. And that's telling a state what laws it can have. 1373 doesn't exactly do that, but it is a very interesting question.
Micah Wallen: We have another question lined up so without further ado…
Jim Haynes: Yes, this is Jim Haynes. I'm a lawyer in Maryland. And I wanted to actually state a proposition and ask our speakers if they could react to it. And, essentially, my proposition would be that the fact that we are having this discussion at all is really a sign of failure and defeat at the federal level based upon the fact that Congress has for decades simply failed to adequately oversee and adequately design and implement federal immigration laws that meet the obvious needs that our society has.
My proposition is that instead of spending a long time arguing about constitutional principles, that we should simply call upon the Senate to abolish the filibuster rule so that it can legislate as a recognizable executive body, or, excuse me, legislative body, and that Congress can then go ahead and fill in the content that really both of our panelists kind of admit is missing. If I have heard this discussion correctly, both of our panelists are kind of trying to make it up and kind of trying to find ways to fill in a gap, which has been left by the elected officials that we send to Washington in order to do their best to solve the problems of immigration allowing people to live in security, allowing our laws to be enforced, allowing crime to be controlled.
So is, in a sense, immigration no different than any other federal law? And is the problem not ultimately the problem of Congress, the problem of the Senate, the problem of its inability to legislate on anything hard? Your reactions.
Christopher Hajek: Yeah, I completely agree. I mean, that would be great. I wish the Senate would, in some cases, do away with the filibuster and also vote on issues separately, not in big omnibus bill. And we might see more progress then. Yes, Congress is trying it at the minimum to have -- it has been trying it to have immigration enforcement on the cheap and use state officers to help them. But even in the best designed system, any federal system depends on state and federal cooperation, and it's really a lynchpin of it. And I think that some degree of basic cooperation, like asking questions -- I mean, answering questions. You have an illegal alien in your jail who is serving the rest of his sentence for a crime, when is his sentence over? When is he going to be released? And they say, "We can't tell you that." That's just the kind of refusal to cooperate that you see in no other area of federal law enforcement. It's just routine to cooperate like that, and, I think, it's because the federal government is supreme, and if you push the non-cooperation too far, you can have a clash, and that clash has to be won by the federal government. So it's sort of a deferential posture8 that is very distinct from commandeering.
William A. Stock: I would just ask the caller to think about how that plays, not in the current moment, but in a future state where one can expect that politicians, perhaps, less aligned with his policy preferences have a 51-vote majority in the Senate, and he is now deprived the Senators from the minority party the ability to filibuster that legislation. I think systemic changes like that should be thought about very carefully as to what they're going to look like when the issue is on the other foot.
Jim Hanes: Well, that is, kind of, a response that everybody I think thinks about, and the question is do we believe, as Americans, that our Congress is so utterly irresponsible, that the Senate is safest for our republic if it turns itself into a quadriplegic that can't do anything. I would almost prefer to have them do things that I thought were wrong if I thought that I had a chance of correcting them, than sitting and watching administrative agencies or watching skilled attorneys kind of, as I said earlier and I mean this in a kindly way, making it up. And that was my thought about the response, "Well, what happens if you lose?"
William A. Stock: The other thing I would point out is I think the current state of immigration debate, in particular, reflects a lack of consensus on the part of the American people as a whole on the best ways to deal with this. There certainly are strong minorities in favor of stricter enforcement and in not providing pathways to legal immigration for workers for whose skills are in demand in our economy. There's a constituency which says, "Why do we have any of these rules at all? I don't fall into either of those camps. I think that a well-regulated immigration system that serves America's interest is what we're all about." But the fact is that the politicians are very able to discern the policy preferences of the8 majority of the voters in their districts, and I think they're finding it very hard to discern a mutually agreeable path forward on this and on other issues.
Micah Wallen: There's no more questions lined up at the moment --
Brian Fish: All right.
Micah Wallen: -- so I'll chime back in if we see one pop up.
Brian Fish: Great, thanks. All right. So we've touched upon a lot of these areas so far, gentlemen. So the courts --
Micah Wallen: Sorry, one just popped up if you'd --
Brian Fish: Okay. Fire away.
Steve McCloskey: Hello. My name's Steve McCloskey from North Carolina, and I -- Chris, I had sent you an email about noon. I thought that this might be a topic of the conversation so I hope I'm not going off on a tangent here. But my question really had to do with as far as sanctuary cities, why would they not be amenable to suit under 14 U.S.C. § 1983?
Christopher Hajek: I think the answer to that is that -- why it's difficult is that there're issues of probable cause. Cities don’t have a general duty to protect, believe it or not, to protect the public from crime --
Steve McCloskey: Sure. Under the public duty doctrine.
Christopher Hajek: Yeah, and you would have to find a plaintiff who had a special relationship or a special vulnerability that the city should've known about in order to have standing. --
Steve McCloskey: Well, let me read you a little quote from Leatherman v. Tarrant County. This is U.S. Supreme Court 1993. It says, " These [court] decisions make it quite clear that, unlike various government officials, municipalities do not enjoy immunity from suit—either absolute or qualified—under § 1983. In short, a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury." Now, I don't think that the sanctuary city policy of releasing criminals, in spite of a detainer, has to be the proximate cause, but it seems like it would be a proximate cause.
Christopher Hajek: Well, it would be a but-for cause, I believe that the standard there is that it should also be a proximate cause. It has to be foreseeable --
Steve McCloskey: Well, that's what I'm saying. I think it's patently foreseeable that if you don’t train your officers, for example, in how to use a TASER and one of the officers goes out an illegally tases somebody, you don’t have to identify the victim of that illegal tasing in advance. The point is the policy was a -- or the lack of a policy regarding education was a cause of the damage to the person who was unlawfully tased.
Christopher Hajek: Right. I think it's a little different here. I think the courts would say that since it's a third party, the released alien, who commits the crime it falls under the doctrine that the police can't be sued by crime victims because they haven't done their job well enough. It's that I'm very sympathetic to your point of view, and it may be possible that such a -- that a 1983 suit in some circumstances could succeed. And there's certainly a lot of --
Steve McCloskey: I just think it's maybe foreseeable with a policy like that you will have -- and, in fact, at the beginning of the show, you said that the fellow who shot Kate Steinle was in San Francisco because of the sanctuary policy.
So, anyway, I'll leave it at that, except I detect that there's a number of Philadelphia folks here and I was just reading something the other day about the Palestra and the Big Five. So go --
William A. Stock: Yeah, if I could just sort of chime in for two seconds, I think the caller's comments really do bring up a question, which is what's the correlation between foreign national status and criminality, right? Are we talking about something which is closely tied or are we talking about something which is like left-handedness, right, where it doesn't -- the characteristic that someone happens to be a foreign national or happens to be without papers in the U.S., does that correlate in any way to criminality? Interestingly, Judge Baylson in the Philadelphia case asked the Justice Department to provide any kind of rational basis for this. And said, the only study that the Justice Department introduced into the record couldn’t conclude anything with regard to a link between alien status and criminality.
So I think that's a big problem for your 1983 cases. You can't make the case that the fact that a person happens to be undocumented also means that they're more likely to be a criminal.
Christopher Hajek: No, I think we're talking about somebody who already is known to be a criminal, and they served their time, and then they're released, and then they go do something the same as what they’ve done before. You're not relying on the person's foreign status.
William A. Stock: Well, but if you're relying on the fact that a person committed a crime before, then if you make an amenable to suit because they released someone who had been charged with a crime before or who had been convicted of a crime before and who happened to commit another crime, it seems to me that doctrine says, "Well, then every state and municipality is liable for recidivism," which is a pretty dangerous road it seems to me.
Christopher Hajek: Not everyone has this option of being removed from the country or being removed from the city entirely as these aliens do. They're preventing that dangerous person from being removed. I think that would be the causation. And as for illegal aliens, there's no studies that show illegal aliens commit crimes in higher rates. The data's very hard to come by on that, and that's probably why they don’t have it. There is a rational basis. Many aliens would be fugitives from justice in their own countries. That's why they would come here, to escape authorities in their home country.
William A. Stock: I’m not sure there's any data that supports that, though, either.
Christopher Hajek: Well, it's sort of common sense, I suppose. But at any rate, that's true. The data is very hard to come by, and that's why there are not any studies. But there are tremendous number of criminal aliens in our jails. That we know. And they're people who can be removed.
Brian Fish: Gentlemen, what about the practical sense of this. If local or state law enforcement agency isn't cooperating with ICE and simply releases someone who ICE had tried to put a detainer on and the detainer wasn't honored, that person goes out in the community, ICE is forced to go track them down, doesn't that A) make it more dangerous when we have more law enforcement going after that person? Doesn't make it more dangerous for the law enforcement officers and the person being tracked down? Isn’t there more chance for collateral damage, making it worse for more aliens who would be, say, in the same house when that person's there and they all get swept up? Doesn't the practical sense make it worse for the aliens and more dangerous?
William A. Stock: Yeah, I'm certainly not an expert on whether those policies have those kinds of downstream effects or not. I'm also not going to try and argue on that basis. What I'm going to try and argue is to say that if the City of Dallas wants to make one decision and the City of Philadelphia wants to make a different decision, that's kind of what the whole federal system is about. So I think those are great, natural experiments to find out as each city choses which of those it prefers to make a determination about whether it may be better for public safety, for example, to do as you suggest.
Brian Fish: Chris, I think in looking at the clock, you get the last word, my friend.
Christopher Hajek: I would just reiterate that ICE has a tremendous problem on its hands. Congress has intended for the individual local officers to help in that endeavor, and when states pass laws against such help, they are interposing an obstacle to the purposes of Congress and their laws are preempted.
Brian Fish: All right. Well, thank you very much to both of you for joining us and for all the callers, both the ones that have called in and were listening on the line. Micah, anything else?
Micah Wallen: On behalf of The Federalist Society, I want to thank all of our experts today for the benefit of their valuable time and expertise today. And thank Brian Fish for doing such a great job moderating. We welcome listener feedback by email at firstname.lastname@example.org. And thank you all for joining us. We are adjourned.
Operator: Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.