Executive Order Raises Questions about Sanctuary Cities


By Jennifer Schulz

In August 2016, President Trump outlined his ten-point immigration plan. “Sanctuary cities” were among his targets, following incidents involving undocumented immigrants, such as the death of Katherine Steinle in San Francisco in July 2015. In the first week of the new administration, Trump signed many controversial executive orders; “Enhancing Public Safety in the Interior of the United States” lays out the administration’s plan to address sanctuary cities, following through on previous campaign promises to address immigration enforcement and border security.

What exactly is a sanctuary city?

Sanctuary cities have their roots in the sanctuary movement of the 1980’s, which grew from the refugee crisis of the time. In 1980, President Carter signed the Refugee Act, calling for effective resettlement of refugees. Soon after, civil war, repression, and economic devastation in Central America drove many refugees to the United States seeking asylum, but the new Reagan administration did not recognize these refugees as deserving of asylum. In response, a number of religious organizations took a stand to protect those fleeing from the violence in their home countries.  Over time, the movement grew to include refugees from other regions and the movement expanded beyond the religious community. Cities also began making statements of sanctuary, leading to the creation of the idea of sanctuary cities.

A Congressional Research Service report explains that the term sanctuary city is often used to refer to jurisdictions that have resolutions, executive orders, local ordinances, or departmental policies that limit the role of local law enforcement agencies in some way regarding the enforcement of immigration laws. Some of these jurisdictions have formal policies, while others operate on an implied agreement. However, these policies do allow for local law enforcement to cooperate with federal immigration authorities, particularly when the individual has committed certain serious crimes or when a court finds probable cause. The spectrum of responses, limitations, and cooperation make it difficult to easily categorize sanctuary cities.

There is no singular definition of a sanctuary city, and as such there is no consistent count of the number of jurisdictions that are sanctuary cities or counties. A 2006 Congressional Research Service report listed 32 counties and cities, while POLITICO identified 47 sanctuary cities. On the other end of the spectrum, the Immigrant Legal Resource Center categorized 364 counties and 39 cities as sanctuary jurisdictions. The Center for Immigration Studies (CIS), a “low-immigration, pro-immigrant” organization that supports tighter immigration policies, created a list of 300 jurisdictions as sanctuary cities, counties, or states. Trump has cited CIS in explaining the extent of the “problem.”

Opponents to sanctuary cities claim that these policies encourage additional undocumented immigration and undermine federal enforcement efforts. Additionally, undocumented immigrants are often (mistakenly) associated with higher crime simply because the act of immigrating was unauthorized.  On the other hand, the American Immigration Council explains that immigrants are less likely to commit serious crimes. Further, sanctuary cities may actually be safer. In cities without sanctuary policies, increased immigration enforcement by local officials erodes public trust, making immigrants in the community less likely to report crimes or give witness statements.

The Constitution grants the federal government the exclusive authority to regulate immigration and precludes lower levels from taking action in immigration. Some argue that if immigration law is the responsibility of the federal government, state and local resources should not be used to enforce it. Already underfunded and understaffed, local law enforcement bears the costs involved. Holding immigrants for U.S. Immigration & Customs Enforcement (ICE) in California costs $65 million annually. Additional costs include the threat of lawsuit by people who might be able to claim they’re being held illegally on grounds of 4th amendment violations against unreasonable seizures.

What Does Being a Sanctuary City Look Like?

San Francisco first passed its Sanctuary City Ordinance (Ordinance 12-H) in 1989, which prohibited using city resources or funds to assist in federal immigration law enforcement, except when required by federal or state law or a warrant. The ordinance has been reaffirmed over the years and amended so that only those who have been convicted of a violent felony in the past seven years and are facing another violent felony charge can be held for deportation. Another recent revision allows the sheriff to contact ICE if a judge determines there is probable cause to hold the individual.

The City of Berkeley first declared itself a City of Refuge in 1971 and reaffirmed the status in 1986 relating to Central American refugees, in 2007 in response to ICE raids and deportations, in 2015 to welcome Syrian refugees, and most recently in November 2016. Former Mayor Tom Bates defended the policy saying, “We go to the wall to make sure that people who haven’t violated any health or safety laws … aren’t subject to being arrested or deported,” but noted that Berkeley will work with ICE if someone they arrest does pose a safety risk or if a court orders compliance.

After declaring itself a City of Refuge in 1986, Oakland has also reaffirmed its sanctuary status in 2008 in opposition to immigration raids and again in November 2016. Further, the Board of Education of the Oakland Unified School District also passed resolutions to protect its students, including those that are the undocumented and/or the children of undocumented immigrants.

What Does the President’s Executive Order Do?

Only one part of the larger executive order addresses sanctuary cities specifically. The section includes:  

  • “The Attorney General and the Secretary… shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373… are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”
  • “The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.”

What Happens Now?

It depends. There are a number of questions about what might happen next, varying on how a sanctuary city is defined, what funding would be cut, and if the funding cut is constitutional.


First, one of the key things is that the Secretary needs to designate a city/county/jurisdiction as a sanctuary city. That is, defining what “willfully refus[ing] to comply with 8 U.S.C. 1373” entails, and if it applies to each city or county’s sanctuary city policy.  

Additionally, the order also doesn’t affect all the federal funding a city or county receives –Congressional spending changes would require additional legislation. Similarly, using certain conditions to distribute grants usually can only apply when the conditions are related to the program in question. For example, law enforcement grants may have been particularly susceptible in this case because they are related to immigration enforcement, but the order explicitly excludes grants “deemed necessary for law enforcement purposes.”

Through the Supreme Court cases South Dakota v. Dole (1987) and National Federation of Independent Businesses v. Sebelius (2012), the Court has developed and used a five-part test to determine whether spending can be conditioned. To pass the test:

o   The spending has to promote the general welfare,

o   The condition must be unambiguous,

o   The conditions should be related to the federal program in question (“germaneness rule”),

o   The condition cannot be unconstitutional, and

o   The amount of funding conditioned cannot be considered coercive.

San Francisco’s budget is $9.6 billion5-10% of which is made up of federal grants — but for the reasons mentioned earlier, the specific potential changes and cuts are still unclear.

However, before any changes have been made, San Francisco has sued the federal government over the executive order. The complaint uses a Tenth Amendment argument–that the federal government is interfering in powers reserved to the states. It also states that the President “seeks to coerce local authorities.” Further, the City argues that its sanctuary ordinance does comply with the section of the immigration code cited, and therefore should not be affected by any cuts.

While the threat to sanctuary cities looms large, there are a number of factors that may affect how it actually can play out. And if San Francisco’s case proceeds, it likely will open the door for other jurisdictions to openly oppose the executive order.

Jennifer Schulz is a Master of Public Policy Candidate at the Goldman School of Public Policy.