republished below in full unedited for informational, educational, and research purposes:
A group of attorneys led by San Francisco City Attorney Dennis Herrera filed a lawsuit on January 31 in the U.S. District Court for the Northern District of California against President Trump, Secretary of Homeland Security John Kelly, and Acting Attorney General Dana Boente, claiming that the “President of the United States seeks to coerce local authorities into abandoning what are known as ‘Sanctuary City’ laws and policies.”
The lawsuit objects to an executive order signed by Trump on January 25 (“Enhancing Public Safety in the Interior of the United States”) proclaiming that “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.”
The order continues by stating: “It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.”
Title 8, Section 1373 of the U.S. Code pertains to “Communication between government agencies and the Immigration and Naturalization Service.” It states:
“The fabric of our communities and billions of dollars are at stake,” said Herrera, who the Chronicle reported was joined by Mayor Ed Lee, San Francisco Supervisor Hillary Ronen, and several deputy city attorneys at the conference. “President Trump does not appear to understand the Constitution and the limits it imposes on executive power.”
The Chronicle noted that San Francisco receives approximately $1 billion annually from the federal government, which accounts for a little more than 10 percent of the city’s budget and that federal aid is in jeopardy if the Trump administration enforces the order.
The report quoted Bill Ong Hing, a professor of immigration law at the University of San Francisco as saying, “I think there is a clear violation of the 10th Amendment here. The federal government cannot commandeer nonfederal officials to do its work.”
The language of the lawsuit also argued along those lines, stating: “The City and County of San Francisco (“San Francisco”) seeks declaratory and injunctive relief against the United States of America and the above-named federal officials for violating the Tenth Amendment, U.S. Const. amend. X.”
Interestingly, one portion of the suit employs language commonly used by strict constitutionalists:
The lawsuit complains: “The Executive Branch may not commandeer state and local officials to enforce federal law"; however, the Trump executive order attempts to do no such thing. It does not propose to “commandeer” local officials, but merely have them comply with 8 U.S.C. 1373 (which, as noted, was signed into law by President Clinton) which specifies that “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, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
Expecting a local government official to send information to (or receive information from) the INS about the lawful or unlawful immigration status of an individual hardly constitutes “commandeering” that official — it merely expects him or her to perform as a good citizen.
As we noted in a recent article about an illegal alien from El Salvador who filed a lawsuit on January 17 against the city and county of San Francisco for violating San Francisco’s sanctuary city law by arresting and detaining him, sharing information with federal immigration authorities is not the same as taking personal responsibility for enforcing federal immigration statutes.
In that article, we stated that a law passed by San Francisco in 1989, and signed by then-mayor Art Agnos, the City of Refuge Ordinance, also known as the “Sanctuary Ordinance,” included a prohibition on San Francisco employees assisting or cooperating with any investigation, detention, or arrest conducted by the federal agency charged with enforcement of federal immigration law. However, we wrote:
This also raises an interesting constitutional point. The strict constitutionalist would say that most federal grants are not constitutional anyway, because according to the 10th Amendment that the city attorneys for San Francisco so nicely quoted for us, they provide funding for areas not delegated to the United States (federal government) by the Constitution.
However, the San Francisco city attorneys cannot have it both ways. They cannot logically cite the 10th Amendment to stop the federal government from withholding billions for dollars from the city on the grounds that the Trump administration is intruding into areas not authorized by the Constitution when the funds they so jealously covet are going to pay for programs not authorized by the Constitution, either.
And as we noted, if the San Francisco city officials have a problem with the constitutionality of Trump’s executive order, which merely serves to enforce existing law, then they should ask their representatives in Congress to introduce legislation to change that law, which was passed by the 104th Congress and signed into law by President Bill Clinton. In the 20 years since that law was passed, no federal court has ruled that it is unconstitutional.
California Advances Bills to Become Sanctuary State
Illegal Alien Sues San Francisco for Violating Sanctuary City Law
“Sanctuary Cities” Make a Mockery of Our Laws