President's Executive Order on Sanctuary Jurisdictions

TO:                  Mayor John Stromberg
FROM:            David H. Lohman, City Attorney
CC:                 City Council
DATE:             February 1, 2017
RE:                 President’s Executive Order on Sanctuary Jurisdictions
You have asked for legal interpretation of a January 25 Presidential Executive Order regarding “sanctuary jurisdictions” and analysis of its potential financial impact on the City of Ashland.  The 11 points below respond to your request, although subsequent clarifications and modifications from Administration officials and federal judges may warrant revision of some of the points.  Bottom line:  The Executive Order’s impact on the City should be minimal in the long run, but litigation (presumably by cities with more resources and more at stake) may be necessary to ensure that outcome.
  1. In 2003, Ashland City Council approved a resolution on protecting civil liberties and on municipal participation in federal immigration law enforcement.  As a result, the City of Ashland has been considered by many to be a “sanctuary jurisdiction” -- a term for which there is no set definition and which has been applied to jurisdictions whose policies vary considerably.
  2. One provision of the Presidential Executive Order of January 25, 2017 declares sanctuary jurisdictions – which it defines as those willfully refusing to comply with federal statute 8 U.S.C. 1373 on communications between government agencies and the Immigration and Naturalization Service – to be ineligible to receive federal grants.
  3. In the fiscal year ending June 30, 2016, the City of Ashland received approximately $530,000 in direct or pass-through federal grants and approximately $577,000 in loans of funds ultimately from federal sources. Whether the Executive Order is intended to apply to grants already awarded but not yet fully funded; to loan funds ultimately from federal sources; to pass-through grants; or to funding for projects by other entities which also provide some benefit to Ashland (such as Forest Service funding for the Ashland Forest Resiliency Stewardship Project on the Ashland watershed portion of the Rogue River-Siskiyou National Forest) is still unknown.
  4. The essence of the federal statute referenced in the Executive Order, 8 U.S.C. 1373, is a section that requires jurisdictions to refrain from prohibiting their employees to maintain or share with other governments available information regarding individuals’ immigration status.  The statute does not require jurisdictions to collect such information.
  5. The City of Ashland is not out of compliance with the above section of 8 U.S.C. 1373.  The City does not ordinarily have or collect such information.  When, however, a court issues a warrant for the arrest of any individual for any reason, any information the City has about that individual is shared with all appropriate federal, state, and local law enforcement officials upon request, including immigration officials.
  6. Another provision of the Executive Order requires the Secretary of Homeland Security to publish a weekly report on jurisdictions which decline to honor requests from federal immigration officials to keep persons convicted of crimes in detention after their scheduled release date.
  7. The City of Ashland is not out of compliance with the compulsion implied in this Executive Order provision concerning requested detentions.  The City does not receive such requests because it does not operate a jail and consequently has no ability to incarcerate persons convicted of crimes or to detain them beyond their scheduled release dates. 
  8. The federal government does not have authority under the U.S. Constitution or federal statutes to require cities to administer or enforce federal immigration laws (or, for example, federal tax laws, social security laws or military laws) or to withhold all federal funds for failing to do so.  Printz v. United States, 521 US 898 (1987); National Federation of Independent Businesses, et al v. Sebelius 567 US __ (2012), 132 S.Ct. 2566. The Prinz and NFIB cases mean the Executive Order can only affect eligibility to receive federal grants related to enforcement of federal immigration laws.
  9. The January 25 Executive Order itself establishes an exemption for federal grants deemed necessary for law enforcement purposes.  The only federal grants the City of Ashland receives for law enforcement are ones that are essential for effective law enforcement purposes.  In light of this exemption and Supreme Court case law, a plausible legal interpretation of the impact of the Executive Order on Ashland is that the City may be ineligible for a potential class of federal grants it typically does not receive.
  10. The U.S. Constitution precludes federal immigration officials from requesting a city to detain a person beyond the person’s adjudicated date for release from custody solely on suspicion of violation of U.S. immigration law or solely at the request of federal immigration officials, without probable cause.  Miranda-Olivares vClackamas Cnty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at 9-11 (D. Or. Apr. 11, 2014) (finding separate seizure and Fourth Amendment violation where detainee was eligible for bail but not released due to an ICE detainer).
  11. Oregon Revised Statute 181A.820 prohibits the use of state or local funds for detecting or apprehending persons whose only outstanding alleged offense is violation of federal immigration laws, except in the case of persons who are charged with criminal violation of federal immigration laws and are the subject of a court-ordered arrest. (An administrative order  or request from Immigration and Customs Enforcement is not a court order.)
Summary:  The City of Ashland’s approach to immigration enforcement complies with the U.S. Constitution, 8 U.S.C 1373, and ORS 181A.820. At least from a strict legal perspective, the January 25 Executive Order should have no impact on that approach.  The City Council need not modify Resolution No. 2003-05 in order to remain in compliance with federal law. 

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