Why Sanctuary Cities Are Illegal

sanctuary-city-signOP-ED By Steve Levy, Former Suffolk County Executive

A federal judge in the left leaning ninth circuit just put Trump Administration withholding of funds to sanctuary cities on hold. It was a brutally poor decision, both from a legal and public safety perspective.
Without question, sanctuary cities are illegal. Here’s why.
The US Constitution specifically provides that promulgating laws and rules regarding immigration is exclusively under the domain of the federal government. The judge said the administration could not withhold funds “merely because a jurisdiction chooses an immigration enforcement policy of which the administration disapproves.”
But a local government cannot choose an immigration policy different from the superseding Federal policy any more than it could enact a policy on segregation different from that of the Feds. This concept is clearly enumerated in the Supremacy clause of the Constitution and via the concept of federal preemption.
But the federal preemption in this field is not limited to the Constitution; it was fortified by specific laws enacted by congress to combat the explosion of illegal immigration after the 1986 Amnesty Act.
In 1996, congress passed the Illegal Immigration Reform Act (Title 8 of the US Code) which implemented three pertinent provisions.
Section 1324 made it illegal for anyone who “harbors” or “shields” an illegal alien from being apprehended by federal authorities.
Section 1373 made it illegal for any public official to order other public employees to refuse to provide information about illegal aliens when requested by federal authorities.
Section 287 (d) states that when the Feds request that locals hold an illegal alien in custody, the locals SHALL detain that individual for up to 48 hours so the Feds can apprehend them.
Over the past few years, far left civil libertarians, aided by a few political interventionist judges, have sought to make the case that local authorities have the ability to defy the Feds by claiming any such cooperation is merely voluntary.
Before responding to this, we must consider that there are two ways locals are establishing sanctuary.
The first is where locals refuse to honor the Feds’ demand that the criminal alien be held for 48 hours until the Feds can take custody of the arrested individual. The other is where locals refuse to even provide information about whether the arrested criminal is here illegally.
The former is more complicated, in large part because President Obama muddied the waters in his second term. In 2008, President Bush issued the Secure Communities Act, which called for locals to submit the names of all arrestees to be vetted through a federal database to determine if the person is here illegally. The Feds would thereafter have the discretion to determine whether the person should be apprehended for possible deportation.
This was working well until Obama, stung by the criticism for not enacting comprehensive immigration reform, pandered to the left by making confusing statements, suggesting that locals could now consider their participation voluntary because the Feds were simply making a “request” for that information.
This is nonsense.
The administration had no ability through a simple declaration to overturn laws passed by congress, as in section 287, which says any such request, SHALL be abided by.
Emboldened by this ridiculous and unauthorized reinterpretation of the law, sanctuary city mayors used it as a hook to say they could “voluntarily” decide to ignore federal requests to hold the suspect for the Feds. In other words, they were free to send these suspected violent illegals back onto our street.
They also latched onto two decisions in different federal circuits that addressed holding the suspects for 48 hours. Neither was directly on point, since one dealt with a person who was a legal citizen and the other was where the suspect was held past the 48 hour threshold. Nevertheless, civil libertarians claimed these cases were proof the 48 hour holding violated the suspect’s due process rights.
Really? If that were the case, locals would never be able to detain violators of state parole, yet this happens every day. Someone picked up by local police for allegedly violating state parole is usually held at the request of state police in county jail so that the state can prosecute. If that’s not a violation, how can holding an illegal alien a mere 48 hours be so.
Moreover, some claim they can’t be held without a warrant or probable cause. But how can they ignore that the mere fact that an arrestee flagged by the database as being here illegally, is, in and of itself, probable cause?
Butt even if we conceded that the civil libertarians were correct, the locals should be doing all they can to cooperate with the Feds, and should accept an administrative warrant citing probable cause, as opposed to a lengthy judicial warrant
Refusing to detain criminal illegal aliens is bad enough, but far worse are the actions of the biggest sanctuary offenders, such as the mayors of Chicago, New York and San Francisco, who have illegally instructed their employees to not share information with the Feds. Such an order is a clear violation of Section 1324, since it is in effect shielding an illegal alien from prosecution, and of Section 1373, which is even more specific in forbidding mayors from issuing such non-cooperation orders.
The leftist talking points that sanctuaries cities make us safer is absurd. It’s analogous to the old military adage that we had to burn the village down to save it. Do they actually believe we are stupid enough to accept that we are safer by having violent criminals placed back on our streets?
They cite selective statistics of some sanctuary cities such New York, where crime has dropped, but ignore Chicago and LA where it has spiked. But, even if New York’s murders did decrease from say, 400 to 350, that number would have been merely 300 if fifty would-be murders never occurred because the illegal alien perpetrators had been deported.
Once again, a liberal interventionist judge from the ninth circuit area has thwarted common sense. Let’s hope our newly constituted Supreme Court brings logic and the law back into the equation. As Elizabeth Alvarado, the mother of a teen slain by an illegal alien MS-13 member in Brentwood, Long Island said, “We need to change the laws on how we handle criminal immigrants.” If only this judge had heard her plea.

Steve Levy is President of Common Sense Strategies, a political consulting firm. He served as Suffolk County Executive, as a NYS Assemblyman, and host of “The Steve Levy Radio Show.”

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