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The Press Gets Trump's Sanctuary Cities Order Wrong Again (and Again)

Jane Chong
Thursday, April 27, 2017, 9:00 AM

The press has gotten increasingly deliberate about calling out the Trump administration’s falsehoods, deploying “muscular” headlines ("Meeting With Top Lawmakers, Trump Repeats an Election Lie") and pithy chyrons (“Hitler Gassed Millions”) to dispel public confusio

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The press has gotten increasingly deliberate about calling out the Trump administration’s falsehoods, deploying “muscular” headlines ("Meeting With Top Lawmakers, Trump Repeats an Election Lie") and pithy chyrons (“Hitler Gassed Millions”) to dispel public confusion. But on some subjects the press is a persistent part of the misinformation problem, not the solution. Coverage of President Trump's January 25 executive order on sanctuary cities is a prime example.

Now that Judge Orrick of the Northern District of California has reinvigorated interest in Executive Order 13768 with a nationwide preliminary injunction enjoining its enforcement—based on a broad interpretation of the order at odds with its plain language and the minimalist reading urged by the Justice Department, but in line with the administration’s undisciplined public rhetoric—it seems like a good time to urge the press to be more careful about sorting fact from fiction.

In a series of posts last month, I explained that the defunding provision of the order, Section 9(a), is on its face relatively modest and that to exaggerate or over-complicate what it does only serves to artificially enhance its power and encourage overreaction (see Parts I, II, III and IV). Notwithstanding hand-wringing in the press about the undefinability of the “sanctuary” moniker, and the administration’s colloquial use of the term to malign all jurisdictions unwilling to jail people on ICE’s behalf, the executive order actually defines the term quite simply: it’s a city, county or state that, in violation of 8 U.S.C. § 1373, restricts government personnel from sharing information about an individual’s citizenship or immigration status with ICE. Few jurisdictions have laws or regulations on the books that actually violate this provision, though there is argument about whether jurisdictions that foster a culture of non-communication with ICE violate the provision in practice.

Trump’s order does not attempt to condition federal funds on something more drastic, like mandatory compliance with warrantless ICE detainer requests, for the same reason no statute does: such a requirement would likely get struck down as an unconstitutional federal attempt to commandeer state and local governments. Nonetheless, apparently in response to the Trump administration’s sweeping anti-sanctuary rhetoric, some jurisdictions like Miami-Dade County have declared a categorical rule of cooperation with ICE to avoid any possible loss of funding, even going so far as to foot the accompanying bill with local funds.

The administration’s public statements over the last few months have done little to clarify what the executive order does and does not do—though in a special meeting with mayors on Tuesday, Sessions suddenly emphasized the narrow, § 1373-based interpretation the DOJ has carefully articulated in court and which I argued for here. And unfortunately, the press has seized on the administration’s rhetorical flourishes to perpetuate misconceptions about not only what the order does but also what it means for jurisdictions to maintain immigrant-protective policies in the face of the order. The most common misconception is that jurisdictions with policies unfriendly to ICE (or simply unwilling to use local funds to cooperate with ICE) are defying the executive order and federal law. In reality, however, many of those policies are consistent with both, in addition to being empirically sound from a public safety standpoint.

Take the DOJ’s announcement last week that it sent letters to nine jurisdictions requesting proof that they are in compliance with § 1373. The administration’s press release is startling only in that it insinuates that the recipient jurisdictions are soft on illegal immigration and therefore soft on gang murders. The release and the letters themselves are otherwise unremarkable. They restate an Obama-era FY 2016 certification condition already attached to DOJ law enforcement funds awarded through the Edward Byrne Memorial Justice Assistance Grant (JAG) Program, adding only a June 2017 deadline.

But here’s the New York Times’ background on the letters:

The Justice Department sent letters to officials in New York City, Philadelphia, California and other places singled out last year by the agency’s inspector general for regulations that interfere with the ability of police or sheriffs to communicate with federal immigration authorities about the status of prisoners in their custody.

This description repeats the Justice Department’s stated justification for targeting these particular jurisdictions. But it is factually incorrect. The Office of the Inspector General (OIG) issued the cited 2016 report in response to Congressman John Culberson (R-Tex.)’s demand for an inquiry into whether jurisdictions receiving Byrne grants were complying with federal law, particularly § 1373, as required by the grant’s terms. But contrary to the Times’ reporting, OIG did not “single[] out” problem jurisdictions. Rather, OIG pulled a sample of ten jurisdictions based on some loose criteria that was not § 1373-specific—like the large size of the grants awarded to these jurisdictions, as well as whether they appear both on a list of 300 sanctuary jurisdictions compiled by the somewhat controversial Center for Immigration Studies and a list of 155 jurisdictions loosely identified by ICE as having "policies that limit or restrict cooperation with ICE and, as of Q3 FY 2015, have declined detainers."

Unsurprisingly given these capacious parameters, a number of the ten total jurisdictions selected for the OIG study quite obviously do not violate § 1373. For example, according to the OIG report, Milwaukee County limits the honoring of immigration detainer requests to five very broad circumstances—not just where ICE produces a judicial warrant, but also where the subject of the request is, say, “a possible match on the US terrorist watch list.” The OIG report does not suggest Milwaukee County restricts information-sharing with ICE, nor does it extend its dubious “spirit of the law” arguments (which I have criticized elsewhere) to call it out as a jurisdiction that indirectly undermines § 1373.

Why does it matter that the DOJ inaccurately suggested that OIG flagged jurisdictions like Milwaukee County for restricting communication with ICE, and that the Times is repeating that claim? Because this confuses § 1373 information-sharing restrictions (rare and endangers funding) with ICE detainer noncompliance (common and should not endanger funding). That conflation—which the White House made again yesterday in its press release—is the most confusing error the press can make when reporting on Trump’s executive order. In addition, repeating the administration’s justification creates the impression that the Trump administration’s choice of jurisdictions had solid legal basis, when the inclusion of a jurisdiction like Milwaukee County in the pool undercuts any such basis.

The Times error is small in the grand scheme of things, but it is worth noting as part of a broader trend that equates unfriendliness to ICE with lawlessness, however inadvertently. It is a narrative now so powerful that the press runs with it even where the Trump administration does not.

For example, Attorney General Sessions has repeatedly tied sanctuary cities specifically and undocumented immigrants generally with crime and killings, notwithstanding contrary data—see his March 27 remarks on sanctuary jurisdictions, his April 11 speech promising the DOJ's renewed commitment to criminal immigration enforcement, and his April 18 statement at a meeting of the AG's Organized Crime Council and OCDETF Executive Committee. And he makes statements that could easily confuse a listener into thinking states and localities are obliged to jail people for ICE. But Sessions does not explicitly misstate the law. Media outlets do that for him. Take this article from The Hill, which mischaracterized Sessions’s March 27 remarks as follows:

Republican legislators are taking cues from Attorney General Jeff Sessions, who has said the Justice Department may hold back federal grant money from cities that do not comply with ICE detainer requests. President Trump signed an executive order early in his tenure that sought to force localities to comply with the federal requests. “The Department of Justice will require jurisdictions seeking or applying for Department grants to certify compliance” with the section of federal law that requires cities to cooperate, Sessions said last week. “Failure to remedy violations could result in withholding of grants, termination of grants, and disbarment or ineligibility for future grants” (emphasis added).

In fact, Sessions did not say funds would be stripped from cities that do not comply with detainer requests, nor does the cited “section of federal law”—§ 1373—require such cooperation. Session stated that the DOJ would “claw back” federal grant money from jurisdictions that “willfully violate[] § 1373,” which, again, is merely a prohibition on information restriction.

The same day, the Daily Beast misreported the state of play on warrantless ICE detainer requests:

Experts disagree about whether or not jurisdictions break federal law when they ignore ICE’s requests to hold undocumented immigrants in jail so the agency can pick them up and deport them.

That's not true. No credible experts claim that federal law requires jurisdictions to hold alleged undocumented immigrants without warrants in jail cells until ICE can take custody. The Department of Homeland Security itself has made clear that there is no such legal requirement; compliance with detainer requests is voluntary. The First and Third Circuits and the Northern District of Illinois (which has jurisdiction over Chicago) have actually deemed it unconstitutional to jail individuals without probable cause and on nothing more than an ICE detainer request.

So how can the press improve its sanctuary cities reporting? Here are the key myths to avoid perpetuating, directly or indirectly:

  1. Myth: Federal law, and/or Trump’s executive order, requires jurisdictions to comply with warrantless ICE immigration detainer requests.

Reality: Only one definition of “sanctuary” is relevant to the executive order’s defunding provision—”sanctuary” as a moniker for jurisdictions that restrict public employees’ ability to communicate with ICE about the citizenship or immigration status of undocumented individuals.

  1. Myth: A jurisdiction’s failure to detain individuals based on nothing but an ICE detainer request amounts to giving undocumented immigrants special protections and results in the harboring of dangerous criminals.

Reality: This is not special treatment. An ICE detainer request is not a judicial warrant, and the non-rigorous procedures by which ICE issues these requests actually ensnare hundreds of U.S. citizens a year, in addition to undocumented immigrants: between 2007 and 2015, 693 U.S. citizens were illegally held in jails on federal detainers and 818 in immigration detention centers. As for the boilerplate language about probable cause that ICE added to its detainer forms in 2015, ICE has not actually changed the procedures by which it issues detainers and magistrates remain uninvolved, so the change is legally meaningless.

  1. Myth: Jurisdictions are required to provide ICE information about individuals’ immigration status or impending release from local custody.

Reality: The wording of § 1373 matters: jurisdictions are not permitted to hinder government employees in providing ICE information about individuals’ immigration status, but that does not mean they must affirmatively facilitate information-sharing with ICE. As ICE itself concedes, "[a]ssisting ICE in acquiring detainee information is not a legal requirement." In addition, nothing in § 1373 prohibits jurisdictions from restricting police officers and other personnel from sharing other kinds of information with ICE, like when an individual is scheduled for release.

  1. Myth: Jurisdictions not willing to entertain warrantless ICE detainer requests are “defying” or “not cooperating with” the federal government.

Reality: This line is not exactly untrue but is often presented in a way that suggests that states and localities are resisting federal law rather than acting within their rights to resist federal policy. The LA Times created just this misimpression last week in a story on the DOJ letters, where it vaguely conflated § 1373 with detainer compliance and then emphasized that “California officials reacted with defiance” to the DOJ letter, “promising to double efforts to guard the state’s policies in the face of the implied threat to cut the funds.” The fact that California considers itself to be in compliance with § 1373 should have been the lede; instead it was tacked to the end of the story as an afterthought of unclear significance.

Sanctuary policy is a politically charged and complicated arena, touching on federalism, states’ rights, and immigration and Fourth Amendment law. Some of the issues are admittedly unsettled, and a certain amount of confusion is to be expected. But the Trump administration has been using a very specific set of tools to forward its anti-sanctuary campaign, and getting those right isn’t rocket science. Getting them wrong, on the other hand, does an anxious public a lot more harm than good and breathes eternal life into legal misconceptions that don't deserve air time.

Jane Chong is former deputy managing editor of Lawfare. She served as a law clerk on the U.S. Court of Appeals for the Third Circuit and is a graduate of Yale Law School and Duke University.

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