Sessions Narrowly Defines ‘Sanctuary Cities’ That Would Lose Funds

US Attorney General Jeff Sessions speaks during the Daily Briefing at the White House in Washington, DC, March 27, 2017.Photo by Olivier Douliery/ Abaca(Sipa via AP Images)
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Attorney General Jeff Sessions specified Monday that President Donald Trump’s executive order threatening so-called “sanctuary cities” with the loss of federal funds would apply to a narrowly defined group of localities that violate existing federal law.

In late April, a California judge issued a preliminary injunction against enforcement of part of the executive order, citing its ill-defined scope and applicability.

“The Order’s uncertainty interferes with the Counties’ ability to budget, plan for the future, and properly serve their residents,” Judge William Orrick III wrote on April 25. “Without clarification regarding the Order’s scope or legality, the Counties will be obligated to take steps to mitigate the risk of losing millions of dollars in federal funding, which will include placing funds in reserve and making cuts to services.”

Orrick noted that the the federal government had argued that the order was “merely an exercise of the President’s ‘bully pulpit’ to highlight a changed approach to immigration enforcement.”

In his memo to Justice Department employees Monday, Sessions specified, “I have determined that, for purposes of enforcing the Executive Order, the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.’”

That law does not state that localities must proactively comply with federal agents’ requests to detain arrestees past when they would have otherwise been released.

Instead, it states that government officials “may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

Sessions also said the order would only affect “federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding,” and specifically to any existing grant “that expressly contains this certification condition” to comply with 8 U.S.C. 1373, and “to future grants for which the Department is statutorily authorized to impose such a condition.”

Sessions’ specifications limit the potential scope of the executive order.

In his April preliminary injunction, Orrick noted that only three DOJ or DHS grants were eligible to be withheld from localities under the government’s argued definition of the order.

“This interpretation renders the Order toothless;” he wrote, referring to a situation in which affected grants and sanctuary cities were defined by existing law. “[T]he Government can already enforce these three grants by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the terms of existing law.”

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