(AUSTIN, Texas) — The Trump administration continued its campaign of fear mongering and misinformation today, repeating old threats to punish so-called “sanctuary cities” by withholding federal funding, actions that legal experts say are (still) likely unconstitutional.
In a public announcement obviously intended to distract from the Trump administration’s humiliating defeat on healthcare last week, Attorney General Jeff Sessions reiterated threats to defund “sanctuary cities” — all from a previous executive order.
In a letter sent to President Trump two weeks ago, nearly 300 law professors already tried to explain this to the administration. They wrote:
“Based on our legal analysis of EO 13768, 8 U.S.C. § 1373, the U.S. Constitution, and relevant Supreme Court precedent, we conclude that terminating federal funding from these jurisdictions in order to coerce them to rescind their “sanctuary” policies violates the Tenth Amendment, exceeds the federal government’s powers under the Spending Clause, and exceeds the president’s powers under Article II.”
Trump has made clear that Travis County, Texas, is in the crosshairs. In a 2014 letter to Travis County leaders, more than 100 law professors and local attorneys advised the Travis County Commissioners Court of the serious constitutional issues raised by honoring ICE detainers. In that letter, they wrote:
“Travis County’s full participation in the detainer program exposes the county to legal liability. The continued detention of an individual in the Travis County Jail based on an ICE detainer violates the Fourth Amendment prohibition against unreasonable search and seizure. A person cannot be held in custody absent probable cause that he or she has committed a crime. Even if probable cause exists, such person has a right to a prompt hearing before a neutral magistrate. Unlike a criminal warrant, an ICE detainer is not issued nor reviewed by a judge and is not based on probable cause. Likewise, an affected person may not judicially challenge the issuance of the detainer or his or her resulting detention. Therefore, holding an individual in jail at ICE’s request after legal authority for criminal custody has expired does not comport with Fourth Amendment protections.”
Two years after that letter, and responding to community demands and voters, the newly elected Travis County Sheriff chose the Constitution over ICE and restricted voluntary compliance with warrantless detainers in the county jail.
Grassroots Leadership believes that cities and counties should be doing more now than ever to cut ties with ICE. Recent developments in Austin show why. Last week, a judge in Austin said in open court that mass immigration raids in February were retaliation for Sheriff Sally Hernandez’s detainer policy. ICE had previously stated that its operations were “routine” to media and local officials.
“Now more than ever, officials at every level of government should rethink their relationship with this agency, and cut ties with an entity that used its power to terrorize our community and then lies to elected officials about the reason for its operation,” said Bob Libal, executive director of Grassroots Leadership.
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Grassroots Leadership is an Austin, Texas-based national organization that works for a more just society where prison profiteering, mass incarceration, deportation and criminalization are things of the past.