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The National Review: Can Congress Force an End to ‘Sanctuary City’ Policies?

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Washington, D.C., November 30, 2016 | comments
Using the power of the purse, Congress can incentivize local jurisdictions to comply with federal immigration law.
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By Alexandra DeSanctis

Using the power of the purse, Congress can incentivize local jurisdictions to comply with federal immigration law.

Nearly a year and a half ago, California resident Kate Steinle was murdered in San Francisco by a criminal illegal alien who had been deported from the U.S. five times. Today, San Francisco remains a so-called sanctuary city, where illegal aliens — including those who are convicted criminals — are shielded from federal immigration law by the city government, and where local law enforcement is not permitted to cooperate with the federal government to identify or deport these individuals.

Despite a number of legislative attempts by the congressional GOP to address the blatant disregard of federal law by San Francisco and numerous other sanctuary jurisdictions, no measure has yet been able to effectively curb the problem. But that is about to change. John Culberson, a Republican representative from Texas, has effectively used his post as chairman of the House Appropriations Subcommittee on Commerce, Justice, and Science to coerce the Department of Justice into enforcing a pre-existing federal law against harboring illegal aliens in sanctuary cities.

As chair of the subcommittee, Culberson serves as chief financial officer of the departments under his jurisdiction and thus has the authority to cut off parts of their funding, block certain types of spending, and put intense financial pressure on executive agencies behind the scenes. After assuming his role in January of 2015, he realized that this authority enabled him to insist that departments take certain actions or risk losing their desired funding.

Curbing the ill effects of sanctuary cities is one central area in which Culberson chose to leverage the power of the purse to get results, and he is the first appropriations subcommittee chairman to have such success with this method. Luckily for Culberson, there was already a law on the books for him to work with. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, including section 8 U.S.C. 1373, which provided that no state or local entity can in any way restrict its law-enforcement officials from communicating with federal immigration authorities regarding an individual’s citizenship or immigration status.

After Culberson met with officials within the Justice Department and made clear that their financial situation could become strained if they refused to cooperate, the department released guidance notifying all U.S. jurisdictions that they must comply with all federal law — including 8 U.S.C. 1373 — in order to receive federal grants. “I’ve effectively created an off-switch that Attorney General Sessions and President Trump can throw at noon on January 20 to cut off all federal law-enforcement grants to these cities,” Culberson tells National Review.

According to Jessica Vaughan, director of policy studies at the Center for Immigration Studies, three federal grants in particular would be in question for sanctuary cities: the State Criminal Alien Assistance Program (SCAAP), which provides reimbursements for the expense of incarcerating illegal aliens; Community Oriented Policing Services (COPS), which funds community policing efforts; and Byrne-JAG grants, which fund miscellaneous spending for state and local law-enforcement agencies.

“With one hand, these cities accept federal money for the costs of incarcerating criminal illegal aliens, for example,” Vaughan tells National Review, “but then with the other hand, they unlock the door and let those criminal aliens out of the jail cells.”

Though the federal government cannot legally compel states to comply with federal law, it is permitted to use financial rewards or incentives to encourage states to comply. This precedent was established in the 1992 Supreme Court case New York v. United States and has been upheld and strengthened since, and thus the Justice Department’s guidance in this instance clearly falls under constitutional precedent, Culberson reasoned.

As chairman, Culberson also insisted that the U.S. inspector general conduct a survey of the states and cities in question, to determine and officially certify the worst culprits with regard to sanctuary policy. The final report identified the top-ten violators of 8 U.S.C. 1373, jurisdictions that together receive two-thirds of the law-enforcement funding disbursed by the Justice Department: the states of Connecticut and California, Miami-Dade County in Florida, Clark County in Nevada, and Cook County in Illinois, as well as the cities of Chicago, New Orleans, Philadelphia, Milwaukee, and New York City.

So far, both Chicago and New York City have refused to alter their sanctuary-city policies to accord with federal law, which means they’re forced to walk away from future federal grants. In the case of Chicago, the city is declining over $2 million in grants for the upcoming fiscal year, while New York City is passing up close to $15 million. It remains unclear how the other jurisdictions will respond to the department’s guidance.

“Their days of taking federal money are over. If you want federal money, follow federal law,” Culberson says. “It’s simple. This is Mayor Rahm Emanuel’s choice. This is Bill de Blasio’s choice.”

Furthermore, Culberson says any jurisdictions that refuse to comply might be denied other annual federal discretionary grants if additional departments require jurisdictions to comply with all federal law in order to be eligible for funding. It is even possible that the cities in question could be required to refund the Justice Department the money that they received in past years while defying federal law. For Chicago that would mean paying the federal government at least $66 million, and for New York City over $200 million at minimum. If California persists in its sanctuary policy, it could owe the federal government over a billion dollars.

Culberson says that other appropriations subcommittee chairmen have been supportive of his work on this issue and are interested in encouraging federal departments under their authority to issue the same guidance to all jurisdictions. According to Vaughan, the idea behind Culberson’s work is to incentivize compliance, not threaten and punish cities and states into submission. She even suggests that most law-enforcement authorities want to comply with federal law, but are prevented from doing so by their city’s or state’s sanctuary policies.

So far, it seems John Culberson has finally found the key to eliminating the dangerous sanctuary policies that have allowed jurisdictions to harbor illegal residents, including convicted criminals; if this type of policy continues to be successful, we know who to thank.

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