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Imagine, for a moment, that you or someone you know has become a crime victim. The perpetrator, you learn, had been incarcerated before this offense, and federal immigration officials, discovering that he was in the country illegally, wanted to pick him up for deportation. The jail, however, sits in a “sanctuary city,” so it refused to hold the suspect for immigration officials or even notify them before releasing him back into the community — thus allowing him to harm you or your loved one.
This scenario, which has played out numerous times, illustrates why many Americas are angry about sanctuary cities.
Donald Trump, of course, promised to end them. Beginning in 2017, however, his administration lost a series of legal battles with sanctuary cities. In each case, courts prevented the administration from using its grant-making authority to disincentivize sanctuary policies.
Sanctuary cities were having their cake and eating it too — thumbing their noses at the federal government’s request for basic law enforcement cooperation yet taking in federal law enforcement grant funds.
So last July’s ruling in City of Los Angeles v. Barr must have felt like a gut punch. Reversing a lower-court judgment for Los Angeles, a three-judge panel of the famously liberal Ninth Circuit Court of Appeals upheld scoring factors used by the administration in awarding Community Oriented Policing Services (COPS) grants — scoring factors that handicapped sanctuary cities.
Perhaps owing to the Ninth Circuit’s reputation, Los Angeles, along with other sanctuary jurisdictions appearing as amici curiae, petitioned the court to rehear the case before a larger number of judges, a situation known as rehearing en banc. Petitioners, it seemed, were also buoyed by the split panel. Judge Kim McLane Wardlaw, a Clinton appointee, had dissented — a fact the petitions repeatedly mentioned.
But this isn’t your father’s Ninth Circuit. Alongside tax and regulatory reform, President Trump’s biggest domestic accomplishment has been stocking the federal courts with constitutionalists who believe in applying the law as written instead of legislating from the bench. Nine of the Court’s 29 active judges are Trump appointees. That’s more appointees than any other president.
Thanks to them, on December 17, the rehearing petitions were denied, freeing the administration to run COPS in the manner deemed objectionable by plaintiffs.
Let’s look more closely at the case. Los Angeles and its legal pals were upset that the COPS office, which is housed in the Department of Justice, included illegal immigration as one of eight focus areas an applicant could choose when applying for COPS grants.
Worse yet (from their perspective) was COPS’ decision to award bonus points to applicants who certify that federal immigration officials can access local jails to interview non-citizens and that notice will be provided before releasing such individuals. Sanctuary cities broadly restrict such access and notice.
Their main argument was that Congress didn’t empower the Department of Justice to take such actions. But as Judge Sandra S. Ikuta and Judge Jay S. Bybee explain in their majority opinion, Congress, in fact, authorized DOJ to “promulgate regulations and guidelines to carry out” the COPS program — distinguishing it from the Edward Byrne Justice Assistance Grant (JAG) program at issue in previous sanctuary city cases. (JAG grants, unlike COPS grants, are doled out according to a formula set by Congress).
Moreover, as the majority opinion notes, Congress didn’t define “community-oriented policing” in the enabling statute. They left it to the executive branch to “fill in the gaps.”
This gets us to the nub of the issue: Sanctuary cities insist that even the most basic cooperation between federal and local authorities relative to immigration enforcement is, to quote from amici’s petition for en banc review, “anathema” to community-oriented policing — or, as Judge Wardlaw wrote, “antithetical” to it.
In her hyperbolic dissent, Wardlaw called the administration’s view that COPS can encompass federal and local partnerships on immigration enforcement “Orwellian.”
If anything is “Orwellian,” it’s the claim, made constantly by sanctuary cities and their defenders, that sanctuary policies enhance public safety by building trust. They argue that otherwise law-abiding illegal immigrants know they can report crime or act as a witness without fear of deportation.
It’s the big sanctuary city lie. A jurisdiction need not be a “sanctuary city” to refrain from asking crime victims and witnesses about immigration status. Indeed, even before liberals began their sanctuary city crusade during the Obama years, the default rule in most places was to not ask victims and witnesses about their status.
For the record, none of the challenged COPS rules suggest, much less require, that local authorities ask crime victims or witnesses whether they are here legally.
Sanctuary policies don’t instill trust. They make it difficult, and in some cases impossible, for immigration officials to put deportable aliens who are in local jails for criminal acts into deportation proceedings before being released back into the community.
It’s beyond debate that many individuals shielded by sanctuary policies have committed new crimes — in some cases, heinous ones.
Such policies, while politically correct, have damaged communities, harmed innocents, and contributed to the country’s growing political divide.
In 2020, the administration, thanks to the Ninth Circuit’s refusal to reconsider its decision in City of Los Angeles v. Barr, will be free to encourage cities, counties, and towns not to adopt them.
Ken Sondik is an attorney in Zionsville, Indiana, who writes about sanctuary cities nationally.