On June 29, the House passed two amendments to the Immigration and Nationality Act: Kate’s Law and the No Sanctuary for Criminals Act. The Senate, which is expected to take up this legislation soon, should approve it.
Kate’s Law is named after Kathryn Steinle, a 32-year-old American citizen who allegedly was fatally shot in 2015 in San Francisco by an illegal immigrant, Juan Francisco Lopez-Sanchez. Lopez-Sanchez had been deported from the U.S. five times and reentered illegally. At the time of Kate’s death, he was on probation in Texas after being convicted of seven felonies, including heroin possession, narcotic manufacturing, and unauthorized reentry.
Steinle’s murder sparked conversation about the need for stricter border control. Kate’s Law provides for prison sentences of up to two years for “any [non-criminal] alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States.” And it establishes longer prison terms for criminal aliens who enter illegally. (For example, if a convicted felon who served more than 30 months returns to the U.S. illegally, he will be subject to imprisonment for a maximum of 15 years; if he served more than 60 months, he will be subject to a term of up to 20 years).
Criticisms of earlier versions of the bill focused on its inclusion of mandatory minimum sentences. But the current version responds to this criticism by declining to mandate prison time — rather, it states that illegal reentry will be punished with a monetary fine, a prison term, or both.
Opponents of the bill emphasize that there is no evidence clearly establishing that illegal immigrants commit crimes at higher rates than U.S. citizens. This is a false comparison. American citizens will be in the United States regardless, but we can choose to deter and prevent illegal immigration and whatever crime might come with it. Recidivism is of particular concern among previously convicted aliens. According to an analysis by the Boston Globe, of “323 criminal [aliens] released in New England from 2008 to 2012, . . . 30 percent committed new offenses, including rape, attempted murder, and child molestation—a rate that is markedly higher than Immigration and Customs Enforcement officials have suggested to Congress in the past.”
The second piece of legislation, the No Sanctuary for Criminals Act, targets so-called sanctuary jurisdictions, which attempt to legally bar their officials from complying with federal immigration enforcement. Mark Krikorian, executive director of the Center for Immigration Studies and frequent writer at NRO, tells me that “there is a practical threat and then a constitutional or governance threat” from sanctuary cities. The former is that “they will protect criminal aliens that will then go on to kill Americans.” The “threat to governance is that these jurisdictions are taking immigration law into their own hands — they’re deciding which illegal immigrants are subject to deportation and which aren’t.” According to the Center for Immigration Studies, current sanctuary cities include Los Angeles, San Francisco, Denver, Washington, D.C., Chicago, New Orleans, Boston, Newark, New York City, Philadelphia, and Dallas.
The act establishes that “no Federal, State, or local government entity, and no individual, may prohibit or in any way restrict, a Federal, State, or local government entity, official, or other personnel from complying with the immigration laws . . . or from assisting or cooperating with Federal law enforcement entities, officials, or other personnel regarding the enforcement of these laws.” Jurisdictions that fail to comply with this requirement would become ineligible for certain forms of funding and grants from the Department of Justice and the Department of Homeland Security.
Some critics of the No Sanctuary for Criminals Act allege that its provision withholding federal funds is unconstitutional. Two hundred ninety-two law professors and legal scholars wrote in a letter to President Trump that “terminating federal funding from these jurisdictions in order to coerce them to rescind their ‘sanctuary’ policies violates the Tenth Amendment [and] exceeds the federal government’s powers under the Spending Clause.”
As to the Tenth Amendment, in Arizona v. United States (2012), the Supreme Court held that “the removal process is entrusted to the discretion of the Federal Government” and it is a violation for “state officers to decide whether an alien should be detained for being removable,” which is precisely what occurs in sanctuary cities. The states have “powers not delegated to the United States by the Constitution,” but the Supreme Court has long held that jurisdiction over immigration law and enforcement belongs to the federal government and the states should not interfere in it. Huyen Pham, a law professor at Texas A&M, published an article in the University of Cincinnati Law Review that supports the position that immigration enforcement is a federal power. Regardless of “Tenth Amendment constraints,” she writes, “the Supremacy Clause states that federal law is the law of the land, preempting any conflicting state or local law.”
As to the Spending Clause, the Supreme Court held in NFIB v. Sebelius (2012) that the federal government had violated the constitutional principle of anti-coercion when it tried to withhold 100 percent of states’ Medicaid funding if they did not participate in Medicaid expansion. But this does not mean that the federal government may not ever withhold funding. In 1987, the Supreme Court found in South Dakota v. Dole that Congress could do so insofar as the withholding was “relevant to the federal interest in the projects and the overall objectives thereof.” The case concerned the federal government’s withholding of 5 percent of states’ highway funds if they did not raise the drinking age to 21. This was deemed constitutional because highway funds are meant to ensure safer travel (which was the federal project or objective), and so was raising the drinking age.
I’d argue that Dole’s precedent, rather that NFIB’s, is applicable to the No Sanctuary for Criminals Act because, as Krikorian tells me, “the programs for which money would be withheld are specifically related to law enforcement.” Any funds that are to be withheld come from immigration-, crime-, national-security-, or justice-related funding sources. Withholding funds from states that do not comply with federal immigration law is “relevant to the federal interest” and “objectives” of the programs for which the funds are intended. In other words, if the federal government makes it an interest to enforce immigration law and funding states would facilitate that, then it is fair to allow the government to withhold those funds if the states fail to comply with the enforcement of these laws. Pham makes a similar argument when she states that, according to section 434 of the Welfare Reform Act and section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act, which prohibit government entities from restricting the authority of employees to send immigration information to the federal government, “Congress has authority to regulate immigration matters” and use its “Spending Clause power to entice that joint enforcement” of immigration laws between the state and federal governments.
The need for laws such as these two pieces of legislation is clear. Many lives have been taken at the hands of aliens who had no right to be in this country: During the Obama administration, 121 deportable aliens were detained, released, and subsequently convicted of hundreds of murders that could have been avoided. In a letter written to the assistant secretary of U.S. Immigration and Customs Enforcement, three senators (including Jeff Sessions, now the attorney general) wrote that “of the 36,007 criminals [ICE] released from custody in FY 2013, 1,000 have been re-convicted of additional crimes in the short time since their release, including felonies and gang-related offenses.” By permitting sanctuary cities to harbor criminals and not punishing those who illegally reenter the U.S., we are subjecting our citizens to unnecessary threats. The Senate should pass Kate’s Law and the No Sanctuary for Criminals Act as soon as possible, so that they can be signed into law.