As with all immigration debates, there is a sense that partisanship dictates whether a jurisdiction will have some kind of sanctuary policy in place. But that idea is misleading—there are, in fact, many jurisdictions aligned across the political spectrum that have sanctuary policies.
Across the country, there are eleven sanctuary states; meaning, that the state governs how individual cities and counties interact with federal immigration authorities. Of those states, all are typically considered Democratic, which makes for an easy–but incomplete–picture of the partisan divide among sanctuary jurisdictions.
Most sanctuary policies are decided on a local level, and usually depend on the resources available to local law enforcement. A helpful example is Pennsylvania. In 2016, then-candidate Donald Trump won 48.2 percent of the popular vote, and all 20 of the electoral votes. Of the 67 counties in Pennsylvania, nearly a quarter—15 counties and Philadelphia—have some kind of sanctuary policy.
In western Pennsylvania, Clarion country voted overwhelmingly for President Trump in 2016—71 percent to Hilary Clinton’s 24 percent. And yet, for 23 years, Clarion County has had a sanctuary policy that prohibits local law enforcement from holding individuals solely based on an ICE detainer. Similarly, Westmoreland County—which also voted overwhelmingly Republican—decided in 2014 that the county will not honor an ICE detainer without an accompanying judicial warrant or court order.
In recent weeks, Attorney General Barr has brought a number of lawsuits against sanctuary jurisdictions, claiming that a county in Washington state and New Jersey are flouting federal immigration law. Yet it’s critical to note that local law enforcement is not required by law to help federal immigration authorities to do their jobs. Doing so is often not a high priority for jurisdictions that are already strapped for resources—both funding for personnel and operations.
These are not the first lawsuits brought by the Trump administration. Following tandem executive orders on immigration and enforcement issued by President Trump in January 2017, then-Attorney General Jeff Sessions’ brought a lawsuit against California, alleging that the state cannot enforce laws that contradict federal immigration laws. In the face of countersuits and a refusal by a judge to issue an injunction against California, the suits lost steam.
But the threat of the “crackdown” and the potential for reduced federal funding worried many local leaders. Mayors and police chiefs from across the country expressed their desire to continue to cooperate with federal authorities in “a variety of ways.”
The Fraternal Order of the Police—a group of 330,000 members of law enforcement—signed a letter addressed to Republican Speaker Paul Ryan and House leadership. They indicated that they would oppose any legislation that penalizes local law enforcement agencies by withholding federal funding or resources meant to coerce complete cooperation with immigration authorities.
There is no distinction between jurisdictions that limit cooperation with federal immigration enforcement personnel and those that refuse to cooperate (all are sanctuary jurisdictions). But there are several reasons that so many jurisdictions choose to limit their degree of cooperation with immigration authorities that have nothing to do with politics.
Local law enforcement officials have overwhelmingly expressed their concerns over both the policy of holding individuals in accordance with ICE detainers without additional legal authority, and the cost of doing so. Even absent the threat of losing future funding, leaders from these jurisdictions conveyed concerns over the cost—settlements, personnel, training, etc.—of compliance and the loss of resources that would otherwise be dedicated to reducing crime in their communities.
Often, when local law enforcement tries to blur the lines between detainers and warrants, they pay for it. In recent years, a slew of cases before circuit courts in the U.S. have found that plaintiffs—both U.S. citizens and undocumented individuals—stated valid Fourth Amendment claim against ICE and local law enforcement officials held based on an ICE detainer beyond the 48 hours authorized by a warrant, or after posting bail. Lehigh County, PA, settled for $95,000 in damages and attorney’s fees and agreed to adopt a policy of no longer honoring ICE detainers without a court order. One year later, the Fifth Circuit held it was clear that ICE detainers must comply with Fourth Amendment seizure requirements.
Outside the legal context, detainers require significant resource investment by local law enforcement. Taxpayers in Los Angeles County paid over $26 million in 2012 to hold individuals at the request of ICE officials. In part, those costs result from federal authorities failing to follow up on 62 percent of the detainers issued to local law enforcement.
Partisanship may rule the day when we discuss many issues–immigration in particular. But as our communities and coffers are stressed in unprecedented ways during the COVID-19 crisis, we must recognize the rationale behind allowing jurisdictions to implement policies that are best for their communities, not their politics.