The City Attorney of San Francisco announced Tuesday that the city will sue the Trump administration over an executive order that directs the federal government to cut off over $1 billion worth of federal funds if the city does not cooperate with immigration officials to detain undocumented immigrants.
“We must be the ‘guardians of our democracy’ that President Obama urged us all to be in his farewell address,” City Attorney Dennis Herrera wrote when announcing the action. He calls Trump’s executive order of last week “unconstitutional and un-American.”
Herrera cites the Tenth Amendment as grounds for the suit. San Francisco, the city insists, is following all relevant federal laws already. Both Herrera and Mayor Ed Lee contend that the White House can’t compel obedience beyond that.
The Trump administration falsely believes that sanctuary cities harbor criminals and make communities unsafe. To the contrary, any persons who is booked in San Francisco has their fingerprints sent to the federal government. If the federal government has a criminal warrant for that person, San Francisco complies with that.
Rather than warrants, federal immigration agencies rely on detainers asking city law enforcement to “maintain custody of an alien for a period not to exceed 48 hours” so that feds have an extra two days to decide whether to arrest them on immigration charges.
Detainers aren’t legally binding the way warrants are, however. The paperwork even specifies that it’s a “request.” In 2014, then-Director of Homeland Security Jeh Johnson noted in a department memo:
Governors , mayors, and state and local law enforcement officials around the country have increasingly refused to cooperate with the program, and many have issued orders or signed laws prohibiting such cooperation.
A number of federal courts have rejected the authority of state and local law enforcement agencies to detain immigrants pursuant to federal detainers.
Johnson observed that local police officers usually prioritize making sure immigrant communities aren’t too intimidated to cooperate with investigations, which is why cities like San Francisco typically ignore detainers.
President Trump’s January 25 executive order on immigration, titled “Enhancing Public Safety in the Interior of the United States” reads in part: “The purpose of this order is to direct executive departments and agencies to employ all lawful means to enforce the immigration laws of the United States.”
On its own, the order only tells the executive branch to begin working on plans. Execution and enforcement of a plan may require congressional approval later.