Brief Filed Supporting Challenge to President Trump’s “Sanctuary Jurisdictions” Executive Order
(Press Release) –Attorney General Xavier Becerra today filed a friend-of-the-court brief in the case County of Santa Clara v. Trump, et al., supporting the County of Santa Clara in its challenge to President Donald J. Trump’s executive order targeting “sanctuary jurisdictions.”
President Trump’s executive order threatens to withdraw federal funds from states and local jurisdictions that the Administration deems to be “sanctuary jurisdictions.” Attorney General Becerra’s brief highlights California’s interest in protecting state laws and policies that ensure public safety and protect the constitutional rights of residents.
“Any attempt by Donald Trump to hijack state and local resources to do the Trump Administration’s bidding raises serious constitutional questions and threatens the safety of our communities,” said Attorney General Becerra. “California has a sovereign right and responsibility to protect the safety and the constitutional rights of its residents, and that is what we will continue to do.”
The actions of the Trump Administration raise the same serious concerns about public safety and constitutional violations that originally prompted the enactment of the TRUST Act. In California, the TRUST Act prescribes the ways in which local law enforcement agencies interact with federal law enforcement authorities in the execution of immigration law.
Last week, Attorney General Becerra worked to protect the rights of Californians by joining as a plaintiff in one of the suits challenging President Trump’s revised Muslim travel ban. Attorney General Becerra also joined an amicus brief along with several states in the State of Hawaiʿi’s challenge to the revised version of the Muslim travel ban. In that case, a federal District Court halted the implementation of the travel ban before it could go into effect.
The brief calls Executive Order 13768, “an aggressive attempt by President Trump to coerce state and local jurisdictions into participating in immigration enforcement, even in situations where that participation would undermine public safety and go against the best judgment of the law enforcement officials who are most familiar with local communities.”
Among other things, “the Executive Order: reinstates the federal “Secure Communities” program, which enlists local authorities in detaining persons the federal government believes to be removable.”
It “directs that eligibility for federal funds will depend on whether a jurisdiction willfully refuses to comply with 8 U.S.C. 1373, a federal statute regarding the sharing of “information regarding the citizenship or immigration status” of individuals with the federal government.”
It “gives the Secretary of Homeland Security discretion to designate local jurisdictions as “sanctuary jurisdictions”; orders the Secretary to publish a weekly report of jurisdictions that decline detainer requests; and orders the United States Attorney General to take enforcement action against entities that violate Section 1373 or have statutes, policies, or practices that prevent or hinder the enforcement of Federal law.”
The brief argues that California has the largest immigrant population in the nation, and relies on $90 billion in federal funding annually. “California’s interests would be directly affected by any decision construing this Executive Order,” the AG writes in the brief. “Although no California law conflicts with Section 1373, the Executive Order has created concern and confusion for residents and local jurisdictions within this State.”
The Secure Communities program “caused direct harm within the State of California. Residents who had been held pursuant to ICE detainer requests sued to vindicate their constitutional rights. Several of our local governments paid settlements to such plaintiffs out of state and local tax revenues.”
These concerns led the legislature to adopt the TRUST Act, “which aimed to retain an appropriate amount of state and local discretion in determining whether considerations of public safety weigh in favor of cooperating with federal immigration enforcement.”
In 2014, DHS announced that the Secure Communities program would be discontinued, acknowledging an “increasing number of federal court decisions that hold that detainer-based detention by state and local law enforcement agencies violates the Fourth Amendment.”
ICE created a new program entitled “Priority Enforcement Program” to replace Secure Communities.
While the new program still relied on fingerprint-based biometric data submitted by state and local law enforcement to the FBI, the government replaced the original detainer requests with “requests for notification,” “requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state or local authority.”
The AG writes, “Requests for detention were only to be used in special circumstances where consistent with the requirements of the Fourth Amendment.”
Executive Order 13768 rstores the Secure Communities Program “without addressing any of the concerns that DHS had previously raised about Secure Communities.”
The AG office, noted that while ICE released its first weekly list of jurisdictions that declined detainer requests but noted, that ICE admitted that “it does not document, in a systematically reportable manner, the immigration status of an alien at the time of detainer issuance.”
The AG argues, “If ICE cannot provide documentation to local law enforcement of an individual’s immigration status when it issues a detainer, it is unclear how it can provide the independent probable cause necessary under the Fourth Amendment for state and local law enforcement agencies to constitutionally detain individuals based only on that detainer.”