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Uncovering a City’s Rights with Sanctuary Policies

February 2, 2018  |  Rusi Patel, Senior Associate General Counsel, GMA
This article appeared in the January 2018 issue of the Georgia's Cities newspaper.
“Local control.” As city officials and employees it is the mantra that drives us to improve our local communities. Politicians running for federal and state offices also speak glowingly of local control—well, until it becomes inconvenient to their goals. But what does “local control” really mean and how does it really work in the complex world of federal and state laws?

One complex and timely subject that sheds light on local control concerns immigration laws, particularly “sanctuary cities.” Upon the founding the United States, the U.S. Constitution provided the federal government with powers relating to immigration into the United States, including Georgia. Today, the federal government utilizes federal detention facilities to hold immigrants who entered or remained in the country illegally.

Additionally, the federal government sends requests to state and local law enforcement officials asking those state and local law enforcement officials to hold such persons in state and local detention facilities beyond the time they normally would have been released. These requests, commonly known as ICE Detainer Requests, are not mandatory.

Why is the federal government not mandating state and local governments to hold such persons in state and local detention facilities? States’ rights, which is emblazoned in the 10th Amendment to the United States Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved to the states respectively, or to the people.” The federal government may have been delegated immigration control powers by the Constitution, but it was not delegated powers over state and local law enforcement or detention facilities.

City of Philadelphia v. Sessions
The federal court held that the United States Justice Department cannot even withhold grant funding from Philadelphia for not complying with ICE detainer requests. The city argued (among other arguments) that by trying to withhold grant funding from the city if it did not honor the detainer requests the federal government was attempting to commandeer local government resources. The federal court determined that the city was likely to succeed in its claims.

But even if the federal government cannot force a local government to hold such immigrants, why might a local government not voluntarily aid the federal government? The simple answer is that the federal government makes mistakes.

Take, for example, Ernesto Galarza. Galarza was born in New Jersey and is of Puerto Rican descent (which, as we all know, is a U.S. territory whose residents are also U.S. citizens). One day, Galarza was performing construction work on a house when the contractor on the site sold cocaine to an undercover officer. In response, police arrested all of the workers on the site, including Galarza, and charged them with conspiracy to deliver cocaine. The next day an ICE detainer request was issued to the local detention center to hold Galarza as a suspected alien…even though he was, in fact, a U.S. citizen. The ICE detainer request was not accompanied by a judicial warrant, but the local government chose to comply with the request and held Galarza for three extra days before they realized he was telling the truth and was a U.S. citizen.

Eventually, Galarza was cleared of the conspiracy charges and filed suit. Who paid? The local governments. Why? Remember, the ICE detainer requests are not and cannot be mandated by the federal government onto local governments. This means the local governments voluntarily chose to comply with the requests, making the local government responsible for the decision to hold someone in detention. That includes all of the costs of detention, and, as in this case, the liability.

How often does this happen?
National Public Radio obtained data from a Freedom of Information Act request last year and found that hundreds of U.S. citizens had been held in local detention facilities on the basis of ICE detainer requests over the past decade.

Application: The Georgia State Law
The Georgia legislature is not bound by the 10th Amendment to the U.S. Constitution, meaning the legislature can place mandates on a lower sovereign, such as cities. Georgia currently has a “sanctuary policy” law, which prohibits cities from enacting any regulation or policy that would prohibit local officials or employees from communicating or cooperating with federal officials with regard to reporting immigration status information. This is information relevant to the immigration status or identity of the person.

Importantly, the state law does not currently mandate local governments hold persons based solely upon an ICE detainer request. If such a state law were to exist, cities in Georgia would be placed between a rock and a hard place. Under such a law, if a city did not comply with the state mandate, the city could face the possibility of losing state funding. Likewise, under such a law, if a city did comply with the state mandate and held persons solely on the basis of ICE detainer requests the city would be responsible for all of the additional costs of housing such detainees and the additional liability costs. If any of those detainees turned out to be held under an erroneous ICE detainer request, the liability costs could become very high for the city.

If the state were to mandate local governments comply with ICE detainer requests and effectively commandeer local resources, local governments could only be protected if the state were also to indemnify the local governments for all costs associated with complying with the ICE detainer requests and provide that the Attorney General’s Office defend any and all litigation against the city in relation to such compliance with a state mandate.

Remember, local control is protection of local resources and the local community. There are costs to taking away local control, whether done by the federal government or state government.
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