Jeff Sessions is wrong on immigration law, and he knows it
Last week’s health care debacle was another stunning embarrassment for President Trump, who has little to show for his first 100 days in office other than bluster, bravado, and failure.
So it was no surprise Monday afternoon when Attorney General Jeff Sessions, in an obvious effort to change the subject, showed up in the White House briefing room to read a statement decrying state and local governments that, he claimed, have “adopted policies designed to frustrate the enforcement of our immigration laws,” including refusing to honor ICE “detainer requests.” The attorney general went on to brazenly threaten state and local governments with the withholding and clawback of $4 billion in critical law enforcement and community-safety funding unless they goose-step behind the Trump administration as it implements the mass deportation plan.
Attacking immigrants is a role Sessions has prepped for his whole career.
He cited a legally flawed 2016 memorandum from the Department of Justice’s Office of the Inspector General that speculated that several cities and counties across the United States may be in violation of a Section 1373 — a very narrow provision of the immigration law that prohibits state and local governments from limiting communication with ICE about “the immigration or citizenship status” of individuals. Sessions conveniently failed to mention that the sketchy memo did not find any state or local jurisdiction had actually violated the law. Nor did it recommend that public safety funds be withheld. In fact, there is nothing in the federal immigration law that requires state and local law enforcement to collaborate with immigration agents in rounding up noncitizens for deportation. To the contrary, the 10th Amendment of the Constitution prohibits the federal government from coercing states into becoming immigration enforcement agents.
Sessions seized the moment to continue the Trump administration’s campaign of fear and misinformation about immigrants, pointing his finger at state and local authorities that refuse to honor ICE “detainer requests” — requests that ask local law enforcement to continue to hold a person after they’re supposed to be released from jail so that ICE can come and pick them up. But ICE detainers raise very serious constitutional concerns for local jurisdictions. The federal courts have ruled that the Fourth Amendment forbids the government from locking someone up without a warrant signed by a judge or probable cause.
As the nation’s top law enforcement officer, Sessions undoubtedly knows this. It should be needless to say that threatening to withhold public safety funding in an effort to force local jurisdictions to ignore the Constitution — as Sessions did on Monday — is unconscionable and must not be tolerated.
The truth is that local jurisdictions that refrain from federal immigration enforcement are doing exactly what their citizens elected them to do — enforce state and local law with the goal of keeping communities safe. Police officers called to a home on a domestic dispute protect the victim; they do not ask about the person’s immigration status or demand to see papers as part of their investigation. The policy allows the abused to call the police without fear of being deported. At the same time, it allows local police to focus on community safety, not the complicated world of immigration enforcement.
Since he announced his candidacy in 2015, Trump and surrogates like Sessions have railed against states and cities that refuse to collaborate with ICE, falsely depicting them as nefarious zones of lawlessness where noncitizen criminals run rampant. In doing so, they portray immigrants as criminals, which is not only false, but also creates a dangerous climate.
A city or county’s decision not to spend tax dollars on immigration enforcement in no way prevents ICE from doing its job. Undocumented immigrants are not protected from deportation by virtue of a state, county, or city law or ordinance. As long as federal agents follow the law, they are free to conduct immigration operations within the city, regardless of whether it considers itself an immigrant welcoming zone.
Trump and Sessions know that too. But this isn’t about policy. It’s about the Trump administration’s anti-immigrant politics.
And that’s not only craven, it’s also treacherous.
David Leopold is an immigration attorney and former president of the American Immigration Lawyers Association.