Donald Trump has advocated a hardline immigration agenda during his first six months in office. But, after signing executive orders to defund sanctuary cities and to place a temporary travel ban on refugees entering the U.S., the president has quickly learned that some liberal judges on federal circuit courts are willing to blur politics and the law in order to rule against the administration and block its agenda.
Meanwhile, as federal judges continue to limit federal immigration policy, the Trump administration has come to rely on Republican state attorneys general to take a stand at the state level. Indeed, many of them are spearheading their own legal fights against lax immigration policies, particularly with sanctuary cities and the temporary travel ban.
On June 6, for example, Landry joined Texas attorney general Ken Paxton and signatories representing 14 other states in filing an amicus brief with the U.S. Supreme Court; the coalition argued in support of Trump’s temporary travel ban. Trump seeks, among other travel restrictions, to suspend admission of all refugees to the country for 120 days, cap the number of refugees in fiscal year 2017 at 50,000, and not allow anyone to enter the U.S. from the six Muslim-majority nations — Iran, Libya, Somalia, Sudan, Syria, and Yemen —deemed “countries of concern” in the fight against terrorism.
“The States have a significant interest in protecting their residents’ safety,” Paxton and his coalition wrote in the amicus brief. And since “the President’s power to limit alien admission is authorized, not only by §1182(f), but also by” the Immigration and Nationality Act’s “separate delegation to the President of power to control refugee admissions,” each state “must generally rely on the federal government to set the terms and conditions for whether aliens may enter the States.”
Trump’s travel ban isn’t the only immigration policy on which Republican attorneys general are offering their unwavering support. The fight to stop sanctuary cities — that is, those government entities that, operating within cities, refuse to enforce federal immigration laws and thereby shield illegal immigrants from deportation — is now being hashed out at the state level. Landry and Paxton are leading the way.
To cut a few federal grants would probably not discourage sanctuary policies, and for the president to cut more funding outside federal grants would be a violation of the separation of powers.
While Trump was still on the campaign trail, Landry had begun his opposition to sanctuary cities in Louisiana. He worked with state legislators to draft legislation that would put in place penalties for cities, such as New Orleans, that implement “don’t tell” sanctuary policies whereby law-enforcement officers ask someone’s legal status but don’t inform U.S. Immigration and Customs Enforcement.
To Landry’s gratification, New Orleans is no longer a don’t-tell sanctuary for illegal immigrants: It is now a “don’t ask” sanctuary, where law-enforcement officers are simply not required to ask for one’s legal status. But Landry hasn’t accepted the premise that don’t-ask sanctuary cities are permissible. They are a “constitutional crisis,” he says.
On January 25, Trump signed Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which threatened to cut federal funding from all sanctuaries across the country. The executive order, however, is either “a superfluous nullity or it is constitutional vandalism,” George Will has argued. To cut a few federal grants would probably not discourage sanctuary policies, and to cut more funding outside the realm of federal grants would be a violation of the separation of powers; Congress has the power of the purse.
How, then, can Trump’s vision of eradicating sanctuary policies in America’s cities be realized? Encourage state attorneys general to fight them at the state level.
Landry, for example, is now challenging the invocation of consent decrees, the means by which the federal government intervenes at local police departments to address complaints of civil-rights violations. He argues that the decrees are unconstitutional. The Constitution expressly grants states police power, he explains, and the federal government has not proven that the state is incapable of assisting a police department in remedying potential civil-rights violations.
Consent decrees have “driven the cost of running these police departments to astronomical levels,” Landry says, “and it opens the door for liberal policies like sanctuary cities to be put in place.” He intends to “push back and intervene in these consent decrees,” he concludes.
Like Landry, Paxton has challenged sanctuary policies in his state’s courts. Last month Texas governor Greg Abbott signed into law a bill that bans sanctuary cities across the state. If city officials continue to provide sanctuary to illegal immigrants, they could face fines up to $25,000 per day as well as jail time.
Preemptively, Paxton filed a lawsuit after the bill was signed into law: The court must now rule whether the law is constitutional. If Paxton prevails, it could cause a domino effect nationwide.
Republican attorneys general like Paxton and Landry are hashing out Trump’s immigration agenda at the state level. A few of our courts may remain dysfunctional, but it seems that state attorneys general are ready to work.
— Austin Yack is a William F. Buckley Fellow in Political Journalism at the National Review Institute.