{ "id": "R44795", "type": "CRS Report", "typeId": "REPORTS", "number": "R44795", "active": true, "source": "EveryCRSReport.com", "versions": [ { "source": "EveryCRSReport.com", "id": 597849, "date": "2019-05-03", "retrieved": "2019-05-06T22:12:07.098054", "title": "\u201cSanctuary\u201d Jurisdictions: Federal, State, and Local Policies and Related Litigation", "summary": "There is no official or agreed-upon definition of what constitutes a \u201csanctuary\u201d jurisdiction, and there has been debate as to whether the term applies to particular states and localities. Moreover, state and local jurisdictions have varied reasons for opting not to cooperate with federal immigration enforcement efforts, including reasons not necessarily motivated by disagreement with federal policies, such as concern about potential civil liability or the costs associated with assisting federal efforts. But traditional sanctuary policies are often described as falling under one of three categories. First, so-called \u201cdon\u2019t enforce\u201d policies generally bar state or local police from assisting federal immigration authorities. Second, \u201cdon\u2019t ask\u201d policies generally bar certain state or local officials from inquiring into a person\u2019s immigration status. Third, \u201cdon\u2019t tell\u201d policies typically restrict information sharing between state or local law enforcement and federal immigration authorities. \nOne legal question relevant to sanctuary policies is the extent to which states, as sovereign entities, may decline to assist in federal immigration enforcement, and the degree to which the federal government can stop state measures that undermine federal objectives. The Tenth Amendment preserves the states\u2019 broad police powers, and states have frequently enacted measures that, directly or indirectly, address aliens residing in their communities. Under the doctrine of preemption\u2014derived from the Supremacy Clause\u2014Congress may displace many state or local laws pertaining to immigration. But not every state or local law touching on immigration matters is necessarily preempted; the measure must interfere with, or be contrary to, federal law to be rendered unenforceable. Further, the anti-commandeering doctrine, rooted in the Constitution's allocation of powers between the federal government and the states, prohibits Congress from forcing state entities to perform regulatory functions on the federal government's behalf, including in the context of immigration. A series of Supreme Court cases inform the boundaries of preemption and the anti-commandeering doctrine, with the Court most recently opining on the issue in Murphy v. NCAA.\nThese dueling federal and state interests are front and center in numerous lawsuits challenging actions taken by the Trump Administration to curb states and localities from implementing sanctuary-type policies. Notably, Section 9(a) of Executive Order 13768, \u201cEnhancing Public Safety in the Interior of the United States,\u201d directs the Secretary of Homeland Security and the Attorney General to withhold federal grants from jurisdictions that willfully refuse to comply with 8 U.S.C. \u00a7 1373\u2014a statute that bars states and localities from prohibiting their employees from sharing with federal immigration authorities certain immigration-related information. The executive order further directs the Attorney General to take \u201cappropriate enforcement action\u201d against jurisdictions that violate Section 1373 or have policies that \u201cprevent or hinder the enforcement of federal law.\u201d To implement the executive order, the Department of Justice added new eligibility conditions to the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program and grants administered by the Justice Department\u2019s Office of Community Oriented Policing Services (COPS). These conditions tied eligibility to compliance with Section 1373 and other federal immigration priorities, like granting federal authorities access to state and local detention facilities housing aliens and giving immigration authorities notice before releasing from custody an alien wanted for removal.\nSeveral lawsuits were filed challenging the constitutionality of the executive order and new grant conditions. So far the courts that have reviewed these challenges\u2014principally contending that the executive order and grant conditions violate the separation of powers and anti-commandeering principles\u2014generally agree that the Trump Administration acted unconstitutionally. For instance, the Ninth Circuit Court of Appeals upheld a permanent injunction blocking enforcement of Section 9(a) against California. Additionally, two separate district courts permanently enjoined the Byrne JAG conditions as applied to Chicago and Philadelphia. In doing so, these courts concluded that the Supreme Court\u2019s most recent formulation of the anti-commandeering doctrine in Murphy requires holding Section 1373 unconstitutional. These lawsuits notwithstanding, the courts still recognize the federal government\u2019s pervasive, nearly exclusive role in immigration enforcement. This can be seen in the federal government\u2019s lawsuit challenging three California measures governing the state\u2019s regulation of private and public actors\u2019 involvement in immigration enforcement within its border. Although a district court opined that several measures likely were lawful exercises of the state\u2019s police powers, it also concluded that two provisions regulating private employers are likely unlawful under the Supremacy Clause. This ruling was mostly upheld on appeal, in which the Ninth Circuit additionally opined that a provision requiring the California attorney general to review the circumstances surrounding detained aliens\u2019 apprehension and transfer to detention facilities within the state also violates the Supremacy Clause.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "https://www.crs.gov/Reports/R44795", "sha1": "a21910c8b8ce525373396a1c002343f5e36d996a", "filename": "files/20190503_R44795_a21910c8b8ce525373396a1c002343f5e36d996a.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "https://www.crs.gov/Reports/pdf/R44795", "sha1": "dc2a173dfd9940fa2b301abe9a8b11dd1c53bff9", "filename": "files/20190503_R44795_dc2a173dfd9940fa2b301abe9a8b11dd1c53bff9.pdf", "images": {} } ], "topics": [ { "source": "IBCList", "id": 4886, "name": "Unauthorized Migrants & Immigration Enforcement & Removal" } ] }, { "source": "EveryCRSReport.com", "id": 596498, "date": "2019-04-16", "retrieved": "2019-04-18T13:06:31.171069", "title": "\u201cSanctuary\u201d Jurisdictions: Federal, State, and Local Policies and Related Litigation", "summary": "There is no official or agreed-upon definition of what constitutes a \u201csanctuary\u201d jurisdiction, and there has been debate as to whether the term applies to particular states and localities. Moreover, state and local jurisdictions have varied reasons for opting not to cooperate with federal immigration enforcement efforts, including reasons not necessarily motivated by disagreement with federal policies, such as concern about potential civil liability or the costs associated with assisting federal efforts. But traditional sanctuary policies are often described as falling under one of three categories. First, so-called \u201cdon\u2019t enforce\u201d policies generally bar state or local police from assisting federal immigration authorities. Second, \u201cdon\u2019t ask\u201d policies generally bar certain state or local officials from inquiring into a person\u2019s immigration status. Third, \u201cdon\u2019t tell\u201d policies typically restrict information sharing between state or local law enforcement and federal immigration authorities. \nOne legal question relevant to sanctuary policies is the extent to which states, as sovereign entities, may decline to assist in federal immigration enforcement, and the degree to which the federal government can stop state measures that undermine federal objectives. The Tenth Amendment preserves the states\u2019 broad police powers, and states have frequently enacted measures that, directly or indirectly, address aliens residing in their communities. Under the doctrine of preemption\u2014derived from the Supremacy Clause\u2014Congress may displace many state or local laws pertaining to immigration. But not every state or local law touching on immigration matters is necessarily preempted; the measure must interfere with, or be contrary to, federal law to be rendered unenforceable. Further, the anti-commandeering doctrine, rooted in the Constitution's allocation of powers between the federal government and the states, prohibits Congress from forcing state entities to perform regulatory functions on the federal government's behalf, including in the context of immigration. A series of Supreme Court cases inform the boundaries of preemption and the anti-commandeering doctrine, with the Court most recently opining on the issue in Murphy v. NCAA.\nThese dueling federal and state interests are front and center in numerous lawsuits challenging actions taken by the Trump Administration to curb states and localities from implementing sanctuary-type policies. Notably, Section 9(a) of Executive Order 13768, \u201cEnhancing Public Safety in the Interior of the United States,\u201d directs the Secretary of Homeland Security and the Attorney General to withhold federal grants from jurisdictions that willfully refuse to comply with 8 U.S.C. \u00a7 1373\u2014a statute that bars states and localities from prohibiting their employees from sharing with federal immigration authorities certain immigration-related information. The executive order further directs the Attorney General to take \u201cappropriate enforcement action\u201d against jurisdictions that violate Section 1373 or have policies that \u201cprevent or hinder the enforcement of federal law.\u201d To implement the executive order, the Department of Justice added new eligibility conditions to the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program and grants administered by the Justice Department\u2019s Office of Community Oriented Policing Services (COPS). These conditions tied eligibility to compliance with Section 1373 and other federal immigration priorities, like granting federal authorities access to state and local detention facilities housing aliens and giving immigration authorities notice before releasing from custody an alien wanted for removal.\nSeveral lawsuits were filed challenging the constitutionality of the executive order and new grant conditions. So far the courts that have reviewed these challenges\u2014principally contending that the executive order and grant conditions violate the separation of powers and anti-commandeering principles\u2014generally agree that the Trump Administration acted unconstitutionally. For instance, the Ninth Circuit Court of Appeals upheld a permanent injunction blocking enforcement of Section 9(a) against California. Additionally, two separate district courts permanently enjoined the Byrne JAG conditions as applied to Chicago and Philadelphia. In doing so, these courts concluded that the Supreme Court\u2019s most recent formulation of the anti-commandeering doctrine in Murphy requires holding Section 1373 unconstitutional. These lawsuits notwithstanding, the courts still recognize the federal government\u2019s pervasive, nearly exclusive role in immigration enforcement. This can be seen in the federal government\u2019s lawsuit challenging three California measures governing the state\u2019s regulation of private and public actors\u2019 involvement in immigration enforcement within its border. Although a district court upheld several measures as lawful exercises of the state\u2019s police powers, it also struck down some measures as preempted or unlawful under the doctrine of intergovernmental immunity.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "https://www.crs.gov/Reports/R44795", "sha1": "a5124f7fb1037cdcc4cc23dd1e05e551847ff0b8", "filename": "files/20190416_R44795_a5124f7fb1037cdcc4cc23dd1e05e551847ff0b8.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "https://www.crs.gov/Reports/pdf/R44795", "sha1": "0676c96b77aa4ef33380f9012e22eb0b2128a49e", "filename": "files/20190416_R44795_0676c96b77aa4ef33380f9012e22eb0b2128a49e.pdf", "images": {} } ], "topics": [] }, { "source": "EveryCRSReport.com", "id": 459958, "date": "2017-03-23", "retrieved": "2017-08-16T15:49:45.373708", "title": "State and Local \u201cSanctuary\u201d Policies Limiting Participation in Immigration Enforcement", "summary": "The federal government is vested with the exclusive power to create rules governing which aliens may enter the United States and which aliens may be removed. However, the impact of alien migration\u2014whether lawful or unlawful\u2014is arguably felt most directly in the communities where aliens reside. State and local responses to unlawfully present aliens within their jurisdictions have varied considerably, particularly as to the role that state and local police should play in enforcing federal immigration law. While some states and municipalities actively participate in or cooperate with federal immigration enforcement efforts, others have actively opposed federal immigration authorities\u2019 efforts to identify and remove certain unlawfully present aliens within their jurisdictions. Entities that have adopted such policies are sometimes referred to as \u201csanctuary\u201d jurisdictions. There is no official, formal, or agreed-upon definition of what constitutes a \u201csanctuary\u201d jurisdiction, and there has been debate as to whether the term applies to particular states and localities. Moreover, state and local jurisdictions might have varied reasons for opting not to cooperate with federal immigration enforcement efforts, including for reasons not necessarily motivated by disagreement with federal policies, such as concern about potential civil liability or the costs associated with assisting federal efforts.\nHaving said that, traditional sanctuary policies are often described as falling under one of three categories. First, so-called \u201cdon\u2019t enforce\u201d policies generally bar the state or local police from assisting federal immigration authorities. Second, \u201cdon\u2019t ask\u201d policies generally bar certain state or local officials from inquiring into a person\u2019s immigration status. Third, \u201cdon\u2019t tell\u201d policies typically restrict information sharing between state or local law enforcement and federal immigration authorities. This report provides examples of various state and local laws and policies that fall into one of these sanctuary categories. The report also discusses federal measures designed to counteract sanctuary policies. For instance, Section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) were enacted to curb state and local restrictions on information sharing with federal immigration authorities.\nAdditionally, the report discusses legal issues relevant to sanctuary policies. In particular, the report examines the extent to which states, as sovereign entities, may decline to assist in federal immigration enforcement and the degree to which the federal government can stop state measures that undermine federal objectives in a manner that is consistent with the Supremacy Clause and the Tenth Amendment. Indeed, the federal government\u2019s power to regulate the immigration and status of aliens within the United States is substantial and exclusive. Under the doctrine of preemption\u2014derived from the Supremacy Clause\u2014Congress may invalidate or displace state laws pertaining to immigration. This action may be done expressly or impliedly, for instance, when federal regulation occupies an entire field or when state law interferes with a federal regulatory scheme. However, not every state or local law related to immigration is preempted by federal law, especially when the local law involves the police powers to promote public health, safety, and welfare reserved to the states via the Tenth Amendment. Further, the anti-commandeering principles derived from the Tenth Amendment prohibit the federal government from directing states and localities to implement a federal regulatory program, like immigration.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R44795", "sha1": "c00ab41c396ec09f9a5f351a10693e2761aa3fc2", "filename": "files/20170323_R44795_c00ab41c396ec09f9a5f351a10693e2761aa3fc2.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R44795", "sha1": "5e2136120e0404ac5fc362a7f5887c58b4de459d", "filename": "files/20170323_R44795_5e2136120e0404ac5fc362a7f5887c58b4de459d.pdf", "images": null } ], "topics": [] } ], "topics": [ "Constitutional Questions" ] }