“The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, alterable when the legislature shall please to alter it. It is emphatically the province and duty of the judicial department to say what the law is. This is the very essence of judicial duty.”–John Marshall
Overlooked until recently by the recent Ninth Circuit rulings pertaining to President Trump’s “Muslim travel ban” is the City of San Francisco’s district court filing to protect its Sanctuary City status. Sacramento, Santa Clara and Richmond have recently filed similar suits seeking declaratory and injunctive relief from Executive Order 13768. Although the Constitution plainly grants individual states the power to create and enact laws, even if San Francisco et al prevail in court, the issue rudimentary to the EO—immigration control—appears to be an assault to those cities hell bent on protecting the welfare of felonious illegals regardless of the literal and figurative costs associated with doing the same. Moreover, these lawsuits are designed to injure the Executive Branch’s and federal law enforcement’s efforts to appropriately vet those seeking U.S. citizenship and protect our borders–a decision that will undoubtedly scar San Francisco’s reputation.
Not unlike the arguments posed by the State of Washington in its request for a restraining order against President Trump’s travel ban, San Francisco (SF) asserts that EO 13768 (Order) is prima facie unconstitutional. Thus, the Order violates its Tenth Amendment right to exercise autonomy and proscribes it as a locality to “devote resources to local priorities and to control the exercise of its own police powers, rather than being forced to carry out the agenda of the Federal government.” (p.3, 4-5)
Although SF argues the lack of constitutionality of Section 1373, and case law makes it tenuous at best for the Federal government to abruptly end funding to these locations without complying with certain procedures, perhaps the biggest obstacle for both sides is that sanctuary laws are not explicitly defined by law. So although SF and other cities draft their own de facto laws governing their respective responsibilities as sanctuary jurisdictions, they are largely observed in practice, and not clearly defined (de jure) by statutory or case law.
The Order defines “sanctuary jurisdictions” as those “that willfully refuse to comply with 8 U.S.C. 1373 (Section 1373)” that states the following:
“a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [federal immigration authorities] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
If the Order is enforced, the aforementioned statute would make it illegal for any state or local government to enact policy or practice that prohibits providing information pertaining to an individual’s immigration status to the Federal government. Therefore, in addition to requesting the District Court rule the Order unconstitutional, SF is additionally seeking a sort of immunity from the provisions set forth in Section 1373 based on its compliance with the applicable Sanctuary City laws set forth in San Francisco Administrative Code Chapters 12H and 12I.
Implicit in the language of SF’s Complaint is the fact that SF believes it has a legal “right” to establish Sanctuary City laws under the Tenth Amendment, even if these laws both defy the plenary power of the President and make it more difficult for Federal law enforcement agencies to do their jobs.
Essentially, SF is additionally seeking an injunction to legally quash Trump’s Order so long as the City complies with the Sanctuary City laws it itself has drafted. Moreover, SF posits that the Order is intentionally coercive by requiring Sanctuary Cities cooperate and comply with federal authorities in order to receive government funds. At current, SF is said to receive approximately 13% of its annual budget from the Federal government, albeit it does not disclose within the context of its complaint exactly what percentage of these funds are used for providing housing and services to undocumented residents, aside from asserting “[o]nly a small percentage…relate to immigration or law enforcement.” (p. 17, 1-2.)
Briefly stated, SF wants to be absolved from cooperating with the federal government to detain and deport illegals with extensive criminal histories. Ergo, the city is asking the court to declare that it complies with its self-authored Sanctuary City laws—which is like a student giving his or her self an “A” on an exam wherein they themselves picked the questions to be answered ahead of time–and issue an injunction to invalidate EO 13768. Most importantly, SF demands that the Federal government be legally obligated to continue providing funds that help to support this same subset of undocumented criminal deviants. So although the City of San Francisco wants a judge to believe it’s the victim of a shakedown, it too is attempting to do the same by using its sovereign status to force the Federal government to provide it financial aid that is then used to help a select class of individuals. How is this not discriminatory?
The adage of wanting its cake and having the ability to eat it too seems befitting of SF’s case against Trump et al.
The relevant text of San Francisco Administrative Code Chapter 12 (Code) attached as Exhibit 2 to SF’s Complaint asserts “[l]aw enforcement officials shall not arrest or detain an individual, or provide any individual’s personal information to a federal immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil immigration document based solely on alleged violations of the civil provisions of immigration law.” (Chapter 12I.)
Section 12I.3(c) of the Code further cites that SF’s “..law enforcement shall not respond to a federal immigration officer’s notification” with the exception of those individuals who meet the criteria of subsection (d) that states “[l]aw enforcement officers may respond to a federal immigration officer’s notification request if…” (emphasis added) According to 12I.3(d)(1)(A)-(B), exempt are those who’ve been convicted of 1) a violent felony within seven years immediately before the notification request; 2) a serious felony in the five years immediately before the notification request; and 3) three felonies as specified under Probate Code and Government Code, except for domestic violence, arising out of three separate incidents in the five years immediately before.
So not only is it illegal under SF’s Code to cooperate with ICE and others, but the City adds the critical caveat “may respond to” which essentially instructs law enforcement not to act, even in situations where felonious undocumented persons have been convicted of three or more separate violent crimes within a five-year period and fit the criteria of Section 12I.3.
One has to wonder how this affects SF’s law enforcement officers who’ve sworn “to serve and protect” their community but are discouraged, if not legally precluded, from assisting federal law enforcement agencies in protecting national security based on unilaterally drafted local law.
On its face, SF obfuscates (albeit legally) coordinating with ICE and related entities to deport undocumented persons for primarily financial reasons. Yet despite the reasonableness of not wanting to shift additional burden onto already overwhelmed local law enforcement agencies, SF’s fails to acknowledge that by serving as a safe harbor for illegals, particularly those who’ve been convicted of felony crimes, and refusing to cooperate with ICE by not reporting these individuals, the cost is endangering its law-abiding community.
SF argues that assisting with federal detainer requests would inevitably expose the City to potential Fourth Amendment violations. Since detainer requests are issued absent probable cause, SF contends that should an individual suffer harm would subject it to civil liability. Although many believe that illegals aren’t protected by the Constitution, case law dating back to 1886 confirms that once on U.S. soil, these individuals are subject to the same Fourteenth Amendment rights as citizens, as well as most Due Process protection with notable exceptions.
Specifically where the Due Process Clause is concerned, neither Appeals court nor the Supreme Court “has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the U.S. illegally.” (See United States v. Portillo-Munoz citing United States v. Perdugo-Urquidez.) Hence, the City Attorneys are trying to convince the District court that its Code was drafted to protect SF from being subjected to any legal action arising out of its cooperation with ICE; however, the Supreme Court explicitly denies that illegals are protected under the Fourth Amendment. Id. Therefore, SF’s argument that since detainer requests don’t require probable cause they consequently might compromise an undocumented individual’s Due Process rights and thus this person may in turn seek legal redress for any harm arising out of the same is moot.
So even if an undocumented individual is already in police custody for committing a violent crime that falls under the category of 12I.3(d)(1)(A)-(B), SF posits it shouldn’t have to dole out any additional costs associated with detaining these individuals, even if doing so helps to secure the city. SF’s justification for this rationale lies herein: “No federal funds received by San Francisco have statutory conditions specifically requiring compliance with Section 1373.” (p.17, 20-21.)
But lack of specificity notwithstanding, SF residents should be alarmed by the lengths in which the City’s government is fighting against President Trump’s actions to strengthen national security and enforce immigration management in order to serve as a safe harbor for a subpopulation of non-law abiding illegals and to protect them from deportation. Is SF ignorant of the growing financial burden associated with knowingly displacing legal residents and law-abiding illegals who are unable to afford to remain in the city, as well as placing the city’s population at-risk? The most expensive city in the world in which to reside is compromising the welfare of the law abiding—including tax payers and property and business owners who provide SF with much needed revenue—for criminal illegals.
Hence, San Francisco wants to avoid having to spend federal funds to help deport those illegals with criminal convictions and consequently make the city safer, and alternatively use these monies to fund the defense of these individuals’ Due Process rights in instances where a crime is committed.
Interestingly, SF’s complaint seeks jurisdiction notwithstanding a lack of aggrieved parties, similar to the number of lawsuits seeking relief from President Trump’s travel ban Order. Simply put, the current action wasn’t filed on behalf of those who’ve actually suffered injury, but rather is predicated on predicting injury will occur if the Order is enforced. Moreover, SF’s “evidence” in support of its request for relief is predominately statements made to the media by then-candidate Trump regarding his intent to end sanctuary jurisdiction funding should he be elected. Therefore, SF’s lawsuit is premised on anticipating injury that might happen if the Order is enforced as opposed to the Order being the proximate cause of harm that has already occurred.*
So why is SF fighting so hard to protect its Sanctuary City status? What benefit does the City gain by apportioning scarce financial resources to those who avoid the legal process of immigration? SF insists that “…Sanctuary City laws arise from [its] commitment and responsibility to ensure public safety and welfare.” This statement is based on a single study conducted by the University of Illinois that postulates “that at least 40% of Latinos surveyed were less likely to provide information to the police because they feared exposing themselves, family or friends to a risk of deportation…” [Of note: Incidentally, SF neither attaches this relevant “research” as an exhibit nor provides a footnote citation, which is unusual for legal practice wherein any form of substantive “evidence” in support of party’s argument is provided for both the court’s and opposing counsel’s reference.] This same study further contends “civil immigration detainers…regarding release undermine community trust of law enforcement by instilling fear in immigrant communities of coming forward to report crimes…” Therefore, based on the “findings” of one study, SF falsely concludes that deportation retainers will in turn dissuade presumably law-abiding illegals from reporting crime. But this assumes that illegals residing in SF have knowledge of the protection offered under its Sanctuary City laws and/or are willing to report a crime to law enforcement. Moreover, SF erroneously rejects the antithetic alternative that undocumented individuals are perpetrators of violent crimes and have a criminal history–which is likely why they evaded the immigration vetting process–such in the case of Kate Steinle’s murder. I’d conclude that SF paradoxically believes public safety is better achieved by placing all residents at-risk based on a hope that illegals will make a positive contribution to the City’s welfare.
Considering the foregoing, an important question is how is it ethical for the City to knowingly risk the welfare of the entire community by not wanting to eliminate criminal illegals? This dismissive, even laissez faire attitude poses dangerous consequences in that it invites violent certain immigrants to seek refuge by advertising not only a willingness to provide them with financial and related assistance, but by extending an invitation welcoming them, regardless of whether they have a criminal background whether or nefarious intentions upon arrival.
SF contends “[t]he Executive Order fosters an atmosphere of fear and distrust between undocumented immigrants and local government officials in San Francisco.” Sadly, SF (and other Sanctuary Cities) is willing to jeopardize its relationships with both the Executive Branch and federal law enforcement organizations by adamantly refusing to assist in those efforts designed to help protect the U.S. from those foreigners whose mission is to bring harm. SF should regard those who refuse to comply with immigration vetting procedures as an imminent threat, both financially and physically; not an Order that seeks to enhance our national security.
*(The matter of City and County of San Francisco v Donald J. Trump et al. was filed on January 31, 2017.)