Following AG Sessions' Threat, NYC No Longer A Sanctuary City

Tyler Durden's picture

Authored by John Banzhaf via,

In the wake of an announcement by U.S. Attorney General Jeff Sessions that he would cut off funding if so-called sanctuary cities did not begin cooperating with the federal government regarding illegal aliens, it has been reported that the New York City Police Department [NYPD] alerts Immigration and Customs Enforcement [ICE] agents if immigrants facing deportation are due to appear in Criminal Court, thereby making it easier for them to be detained by the federal government.

Although many cities loudly proclaimed that they would not yield to these threats and yield even one inch on their sanctuary status, some observers, including public interest law professor John Banzhaf, predicted that Sessions’ threat, even if arguably unconstitutional, would successfully pressure at least some jurisdictions.

He noted that Florida’s largest county, Miami-Dade, long known for welcoming immigrants, has already ordered jails there to “fully cooperate” with Trump’s order regarding sanctuary cities, and others appear to be considering it.

Other states are also moving to pressure localities to begin cooperating with federal immigration enforcement.  These include, Iowa, Kansas, Kentucky, North Carolina, Pennsylvania, Texas, Virginia, and Wisconsin.

Banzhaf has publicly suggested that Trump’s order may unconstitutionally violate both states’ rights and Congress’ rights, and the sanctuary behavior about which he complained may not even violate the statute he cited.

Nevertheless, in part because cities may have difficulty obtaining a prompt judicial ruling on the constitutionality of the threat or even of a proposed cutoff, and because of the huge risks and legal costs of challenging governmental action, many more – despite their defiant claims – are likely to cave in.

Indeed, if New York City begins cooperating even in a small way with ICE, this might help persuade many other jurisdictions – which lack NYC’s resources to fight the federal government in court – to likewise bend, suggests Banzhaf.

The entire program, beginning with President Trump’s executive order stating that funds should be cut off to so-called sanctuary cities – if it is interpreted as many suggest, and if a court is ever able to rule on the issue – may be an unconstitutional violation of both states’ rights and Congress’ rights.

If, as some fear, the order would threaten funding for cities which claim sanctuary status because they tell police not to question people about their immigration status, and don’t honor detainer requests to hold people in jail for immigration purposes, it may be unconstitutional on several grounds.

First, it arguably violates the long-standing principle that the federal government cannot, consistent with the Tenth Amendment, “commandeer” local officials to enforce federal law. This principle dates back at least to a 1842 Supreme Court decision striking down a requirement that states assist federal officials to capture runaway slaves.

It was also reinvigorated in a 2012 ruling that states could not be required to expand Medicaid programs under threat of a loss of federal funds – the same coercive method threatened by Sessions – except there the threat was one mandated by Congress and signed into law, not a mere presidential order.


Second, the Court has said that conditions may not be imposed on federal grants unless they are “unambiguously” stated in the statute’s text “so that the States can knowingly decide whether or not to accept those funds.”  Few if any existing grants have explicit conditions related to providing sanctuary.

Moreover, the conditions, if any, seemingly have to be passed by Congress.

Allowing a president to cut off funds based solely upon his own whim, without any congressional approval, could create a very dangerous precedent undercutting Congress’ authority (under separation of powers) as well as federalism (upholding state’s rights).

For example, it could permit a Democratic president to force states to do what a Republican dominated House and Senate might oppose.

Moreover, since the order provides for funds to be cut off only to “jurisdictions that willfully refuse to comply with 8 U.S.C. 1373,” it’s not clear if it would even apply to most “sanctuary cities.”

That statute says simply that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from the Immigration and Naturalization Service, information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

But since sanctuary cities usually simply have police not question people about their status, officials would have no citizenship and/or immigrant status information available to share which would be restricted.  Even more clearly, 1373 has nothing to do with refusing to honor detainers.

Many experts commenting on the possible unconstitutionality or uncertainty about the applicability of the order fail to also note that it may be difficult if not impossible for sanctuary cities to get a court to rule on these issues, especially in a timely manner, for a number of reasons.

The first is the administrative law principle known as ripeness, which says that courts should not address legal issues until they are ripe – sufficiently developed, with the facts clear enough, for a court to rule knowledgeably and authoritatively.  This applies most strictly when constitutional issues are raised.

Here, since the very meaning of the order, its applicability to different so-called sanctuary activities, and how federal officials will interpret and seek to enforce it are all unclear, courts may well decide that the issues – especially those related to constitutionality – are just not yet ripe enough for adjudication.

A second administrative law doctrine, exhaustion of administrative remedies, provides that courts should not decide legal issues if plaintiffs have failed to exhaust whatever administrative remedies they may have before and within the agency itself.

For example, if the agency provides for hearings, these hearing should occur, and the agency at the highest level should then render a final decision, before a court decides important legal issues.

Here, each threatened city almost certainly will be entitled to a hearing before funds are finally terminated, so cities may have to participate in such a hearing before they can get relief from a court.

However, despite their claims now to the contrary, many cities might be unwilling to have this Sword of Damocles hanging over their heads while they go though a lengthy expensive hearing process, often with their very survival hanging in the balance, simply to protect people illegally in the country.

That means, suggests Banzhaf, that Sessions’ threat is likely to be effective even if it is unconstitutional.   Entities faced with possible financial devastation from funds being cut off are rarely willing to take a risk, and often find that it is much easier to simply comply than to take a chance and fight.

Indeed, this effect is so well known that it goes by the name “regulation by raised eyebrow” – i.e., an agency need do nothing more than suggest possible adverse consequences, and those subject to a possible sanction all too often comply immediately.

Certainly this has proven to be true with regard to colleges which have spent hundreds of millions of dollars to set up programs to deal with rape, based solely upon mere suggestions by the Department of Education [DOE], with no more than an implied threat to their funding.

This DOE threat falls far short of the explicit threat of loss of funding coming directly from the president in the sanctuary cities executive order.  In short, even if the executive order is in fact unconstitutional, no court may ever be able to make that ruling, and many if not most cities may well comply anyhow.

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Stackers's picture

Wait, so this artcl was authored by the same person it sites as it's main "source" for the opposing view on Trump's order ?

color me confused.

Never One Roach's picture

Why is everyone so worked up about open borders and illegals?


Suspect in Russian metro blast linked to radical Islamists

TwelveOhOne's picture

Biggest down, many dominoes to follow...

Manthong's picture


“other jurisdictions which lack NYC’s resources to fight the federal government in court” 


At least Tiny Dancer Rahm’s Chicago is overflowing with cash to support his defiance.

He can just take the money to support illegal aliens out of the underfunded PD, FD, and school pension funds.


wee-weed up's picture

So, DeBlabbio is knuckling under to Trump.

Stuck on Zero's picture

If the Federal government wants cooperation from cities and states in the effort to deport illegal aliens then it should offer a bounty.

junction's picture

The NYPD of Kalief Browder fame, a police organization run by liars, thugs and protectors of dope dealers.  Not a word from Mayor DeBlasio, whose political friends made $70 million off the Rivington Street nursing home scam.  

ChemtrailPilot's picture

Note the constant bullshit language: "may be unconstitutional", "some have said it seems unconstitutional", etc. In other words, it makes shitlibs have bad feelz and suddenly they're very concerned about the rule of law and states' rights (unlike when the judiciary is stepping in to blatantly overthrow Congressional and presidential power to restrict immigration).

Fuck them. Trump won and he's in charge. If city mayors want to die on the hill of protecting illegal alien criminals in their cities and watch their actual law-abiding citizens suffer for, then that's on them. We're playing to win now, and MUH CONSTITUTION cucks can weep into their beer about it.

nuubee's picture

One day at a time.

NugginFuts's picture

But who will pay all the high rents for overextended condos and boutique shopping locations? 

Smedley's picture

You mean they're going to follow THE LAW????

How bizarre!!



1.21 jigawatts's picture

That's our Constitution.  Border jumpers get no rights. 

Winston Churchill's picture

Money and sex make the world go around.

No money ,no sex.


Jakeee's picture

Go Trump. Kick ass and take names.

While you're at it please lock up cankles and begin court proceedings to execute the boy king.

They should not be allowed to get away with everything they've done.

Sudden Debt's picture

I don't think that those people should be jailed...


aren't there any saltmines in America?


Almost Solvent's picture

Deepest salt mine in North America is here in the Finger Lakes region.


Twee Surgeon's picture

It is certainly deeper than the 1,100ft deep Salt Mine under Detroit, but not as convenient a place for a sinkhole to open and suck in a million Clinton voters, may they all fall down the main shaft.

Catahoula's picture

CNN reports Carlos Slim has passed from a massive coronary

junction's picture

Couldn't happen to a nicer guy. Adios, muchacho!

ironmace's picture

I don't see it. Were you kidding?

SimmerDown's picture

This article has the most rediculous reasoning I have ever seen. Before Trump it was the law, albeit unenforced, and now it is an unconstitutional violation of States Rights?




HRH Feant's picture
HRH Feant (not verified) Apr 3, 2017 5:14 PM

Good! What took so fucking long? Glad to hear President Trump restored the rule of law to NYC.

sheikurbootie's picture

Where are the motherfuckers here that said it would never happen? 

Stupid fucking liberals!



I'm not tired of winning yet! 

IntTheLight's picture

Miami has been overrun with Haitians that Obama granted status too. Now there are shootouts on ocean drive. I'm thinking the Hispanic cops welcome any excuse to rid themselves of Haitians.

Non-Corporate Entity's picture

It's refreshing to see adults running the corporation again. All play and no work creates a banana republic.

iamerican4's picture

We are under attack by the Anti-Christ's pedophile homosexual Fifth Column Beast of (((Gog))) and Babylon.

Illegal immigration by Hispanic Roman Catholics is a politically and logistically supported organized army of pawns for invasion and conquest of God's prophesied New Israel: America.

Any pretend American furthering this satanic stratagem, Jesuitical, Talmudic, or pseudo-legal, is an "enemy, domestic."

May God bless President Trump, his family and administration, and the sovereign American People.

ironmace's picture

I was thinking the Anti-Christ may not be just one person.

iamerican4's picture

Prophet of God and Founder of Zion Th. Jefferson shares your perspective.

To Samuel Kercheval

Monticello, January 19, 1810


-- Yours of the 7th instant has been duly received, with the pamphlet inclosed, for which I return you my thanks. Nothing can be more exactly and seriously true than what is there stated; that but a short time elapsed after the death of the great reformer of the Jewish religion, before his principles were departed from by those who professed to be his special servants, and perverted into an engine for enslaving mankind, and aggrandising their oppressors in Church and State; that the purest system of morals ever before preached to man, has been adulterated and sophisticated by artificial constructions, into a mere contrivance to filch wealth and power to themselves; that rational men not being able to swallow their impious heresies, in order to force them down their throats, they raise the hue and cry of infidelity, while themselves are the greatest obstacles to the advancement of the real doctrines of Jesus, and do in fact constitute the real Anti-Christ.

Snípéir_Ag_Obair's picture

I love the Tenth Amendment.

But its funny how it doesnt allow states to legalize weed without fed intervention based on the Commerce Clause because the SC said 100 years ago that 'regulate interstate commerce' means the ability to make rules about any activity that, taken as a whole.... 'could' affect intersrate commerce.

Article seems reasonable that Orange Jesus has exceeded his authority... that would be true even if its to do something, as policy, we agree with.

So lets not be like liberal hypocrites now summoning states rights for the first time, and who will drop all pretense of it when next a Dem shitlord gets in.

IndyPat's picture

The executive gets its power to enforce and regulate immigration from congress.

Your beef is with the judicial.

Miss Expectations's picture

Actually, the Sword of Damocles is owned by some unknown illegal alien currently residing in some sanctuary city.  If they are aided in evading ICE and this illegal alien rapes a child, kills a pregnant woman, has a head-on collision while drunk, kills a High School football hero, maims a PTA mom, shoots a convenience store clerk then the Sword has found its mark and it's curtains for the local officials.  Curtains.

IndyPat's picture

Mayor of Gary Indiana got up early to tell fox and friends viewers that those scenarios you mentioned above are all a 'one off' kinda thing.
Legal Americans can do that kinda thing, she says...

Mayor was aBig Ol' Sheboon, too...
They haven't got the message that they aren't the preferred niggers anymore. Outsourced. Ole!

Boxed Merlot's picture

...colleges which have spent hundreds of millions of dollars to set up programs to deal with rape...

Hundreds of millions? Good grief! Well, I suppose when this investment in infrastructure begins to crumble, we'll be able to find a few more able bodied lawyers to re-inforce this much needed component for our existence as a species.

Heaven forbid we institute a policy promoting the virtues of voluntary adherence to a legitimate rule of law predicated on the sanctity of the individual and personal property rights including in it the right to be secure in our persons and immediate and final punishment to anyone found guilty of violating same in such a violent and evil fashion.

Insanity begins at the top.


artichoke's picture

I was hoping DeVos would cancel those "Dear Colleague" letters in the first week on the job.  They're clearly abusive, even Bernie Sanders campaigned against them.

Well, Betsy?

Pollygotacracker's picture

Money talks and bullshit walks. You go Trump!

idontcare's picture

The one thing Charlie Sheen will surely be remembered for is the one word phrase: "WINNING!"  This term pretty much defines a Trump presidency.

Hurricane Baby's picture

Let me see if I got this straight.

While Obama was in office, unilateral state efforts to reign in illegal aliens and their enablers, in the absence of Federal enforcement of its own laws, was a matter of Federal prerogative, not states' rights, and therefore prohibited.

Now that Trump is in office, Federal efforts to actually enforce immigration law, including allocation of Federal funds, are a violation of states' rights, and not a matter of Federal prerogative.

The common denominator here seems to be that illegal aliens and their enablers can not only do whatever the fuck they want but the rest of us are obliged to fund them.

When the day comes there ain't gonna be enough rope.

Scuba Steve's picture

Fuck the Rope, there is plenty of lead ...

If that day comes there will be plenty of tools to get the job done, I think we both agree on that.

YHWH is greater's picture

Well, that escalated rather quickly.

idontcare's picture

I love how the article says "Miami Dade known for welcoming immigrants" as if ILLEGAL immigration is the same as LEGAL immigration.   Deport every one who is not in our country legally and ban them from ever being allowed to legally come here.  Do the same for their kids.  The US has plenty of legal citizens who are homeless, disabled, elderly, etc., who are entitled to the tax dollars used up by these 'undocumented' people.