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The U.S. attorney general followed through on a threat he made in May, showing he’s willing to withhold millions of dollars meant for criminal justice initiatives if it means getting states and localities to enforce federal immigration law.
When U.S. Attorney General Jeff Sessions gave “sanctuary jurisdictions” a narrow legal definition back in May, he did so with the warning that the Department of Justice could “seek to tailor grants to promote a lawful system of immigration.”
Tuesday evening, the attorney general announced he was doing just that with the addition of immigration compliance requirements to fiscal year 2017 Edward Byrne Memorial Justice Assistance Grant conditions.
The primary source of federal criminal justice funding to state and local governments, Byrne JAG will award $383.5 million this year for police, court, crime prevention, corrections, drug treatment, technology, and victim services initiatives—a $7.5 million increase over FY 2016.
"So-called 'sanctuary' policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes,” Sessions said in the announcement. “These policies also encourage illegal immigration and even human trafficking by perpetuating the lie that in certain cities, illegal aliens can live outside the law. This can have tragic consequences, like the 10 deaths we saw in San Antonio this weekend.”
Grant recipients will be asked to prove they allow Immigration and Customs Enforcement access to their detention facilities and provide 48 hours’ notice prior to releasing undocumented immigrants wanted by federal authorities. The latter condition was part of language the Trump administration previously attempted to bury in the 1,284-page appendix of the president’s budget proposal.
States and localities will additionally be required to certify compliance with 8 U.S.C. 1373, barring jurisdictions from restricting their employees from informing federal agents of a person’s immigration status. Most local officials argue their jurisdictions are already compliant, though they may have laws on the books prohibiting law enforcement from inquiring about immigration status in the first place. DOJ is reviewing such claims in the case of 10 jurisdictions the agency previously singled out.
The agency asserted its right to claw back any funds it awards should a jurisdiction fall out of line, and the situation for sanctuary jurisdictions could become even more dire should Community Oriented Policing Services hiring grants be folded into the Byrne JAG program—as proposed in a House bill making its rounds.
New Orleans Mayor Mitch Landrieu, U.S. Conference of Mayors president, previously warned that withholding DOJ or Department of Homeland Security grants—the only agencies to threaten such action—could be construed as a violation of the 10th Amendment separation of powers. The majority of mayors hold local police aren’t legally obligated to enforce federal immigration law, nor can they be compelled to.
Another legal challenge to Sessions’ latest move was posited by State and Local Legal Center Executive Director Lisa Soronen back in March: Any federal grants the Trump administration wants to deny sanctuary jurisdictions must be connected to immigration and explicitly state in their language they can be withheld. Sessions’ modification of existing criminal justice grant language may not hold up if challenged in court.
Dave Nyczepir is a News Editor at Government Executive’s Route Fifty and is based in Washington, D.C.