Opinion

Opinion | Mike Feuer

Trump can’t tie federal grants to immigration enforcement

U.S. Immigration and Customs Enforcement officers arrest a man in Riverside, Calif., June 22, 2017. The Trump administration is working with like-minded sheriffs from around the country on a legal maneuver to gain access to undocumented immigrants in local jails, a practice now limited by the courts. (Melissa Lyttle/The New York Times)
Melissa Lyttle/New York Times
US Immigration and Customs Enforcement officers arrest a man in Riverside, Calif., June 22.

The Trump administration’s famously hard-edged rhetoric on immigration has deeply divided America and sparked fear in neighborhoods from coast to coast — with last week’s ICE raids in so-called sanctuary cities (sweeping up criminals and noncriminals alike) underscoring the point. And the administration has followed up on the president’s threat to use federal funds as a “weapon” against these same cities, imposing civil immigration terms on the formula-based Edward Byrne Justice Assistance Grant created by Congress to fight crime, and the Community Oriented Policing Services Grant, established to promote community-based policing.

The Trump administration’s message to local law enforcement is clear: If you want to continue receiving federal funds for crime-fighting, you will become instruments of the president’s immigration policy — reversing local decisions designed to promote public safety.

We in Los Angeles, and jurisdictions throughout the nation, have sued to stop this executive branch overreach. Crime-fighting grants are not weapons. And our communities’ safety is a disgraceful target.

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Cities from Boston to Los Angeles have implemented policies to engender trust between immigrant communities and police. While these approaches are tailored to local circumstances, they typically serve to limit local law enforcement’s role in enforcing immigration laws. In Los Angeles, for instance, police officers can’t initiate an encounter to discover a person’s immigration status, and don’t enforce civil immigration statutes.

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Los Angeles’s current policies — a reversal of LAPD rules that had required officers to determine immigration status and report to federal officials if an arrested person was undocumented — date to 1979 and law-and-order former police chief Darryl Gates. Police leaders dramatically changed course because they realized all communities are safer when victims and witnesses of crime, irrespective of immigration status, cooperate with law enforcement.

Enter the Trump administration. Its efforts to tie civil immigration enforcement terms to the Byrne and COPS grants are ironic, and wrongheaded. The Byrne Grant was named for an NYPD officer murdered while protecting an immigrant who’d reported crime in his neighborhood. A report from the Department of Justice’s COPS office found anxiety over local law enforcement’s role in immigration actions makes many immigrants reluctant to contact police at all.

Nothing suggests, let alone proves, that collaboration on civil immigration matters between local police and federal authorities reduces crime. More important, it’s unconstitutional for the Trump administration to wield authority this way.

The administration’s action collides with the doctrine of separation of powers. Congress, not the executive branch, has the power to attach terms to the receipt of federal funds. The legislative branch can delegate that power, within limits, but must do so clearly and unambiguously. It hasn’t done that here, not by a long shot.

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To the contrary, the administration’s new terms are profoundly at odds with the laws Congress enacted to establish these grants. Byrne grants, for example, are awarded using a detailed formula based on population and crime statistics, and only for eight specified criminal justice programs — not civil immigration enforcement. As for COPS grants, Congress set forth 22 purposes and three “preferential considerations” for an award, none of which pertains to civil immigration enforcement.

It’s impossible to square this congressionally mandated approach with the administration’s attempt to grant awards based on a jurisdiction’s willingness to succumb to the federal government’s civil immigration directives. The administration itself tacitly concedes it lacks this power: In its COPS appropriations request, the Department of Justice has asked Congress for authority to condition “certain grants . . . on requirements that recipients agree to cooperate with specific Federal immigration enforcement activities and requests.” Moreover, the administration’s action is fundamentally incompatible with Congress’s express direction that these programs not empower federal authorities to exercise any control over a local police force.

Confronted with litigation, the administration has begun to back off. It recently conceded the new Byrne grant conditions wouldn’t require local police to keep individuals in custody beyond the time they otherwise would be released, for the sole purpose of allowing federal officials to investigate the person’s immigration status. This matters a lot. Courts have held that detaining an inmate beyond their release time violates the Constitution.

Soon thereafter, a federal court in Chicago blocked the administration from enforcing its new terms with respect to the Byrne grant at all. The administration is appealing that order, while pressing forward to apply nearly identical terms to the COPS grant.

Cases like ours, opposing these terms, come in a context. Like challenges to the administration’s Muslim travel ban, they push back on an administration seemingly bent on shoving its way past the Constitution. And they underscore just how much, at times like these, we count on our justice system to protect our most basic values.

Mike Feuer is the Los Angeles City Attorney.