immigration

Following up on the President’s executive order 13768, “Enhancing Public Safety in the Interior of the United States,” the Trump Administration is targeting jurisdictions which as a policy do not honor ICE detainers. ICE was publishing a weekly list of cities refusing to abide by the ICE detainer request to pressure these jurisdictions into detaining persons at the request of ICE. Recently, ICE suspended this practice after two such reports were issued, reportedly due to “errors” in the reports. The ICE detainers give rise to constitutional concerns.

He signed the Executive Order (EO) entitled “Border Security and Immigration Enforcement Improvements.” The EO declares that it is the policy of the executive branch for a wall along the southern border with Mexico to be built. The EO orders the Secretary of Homeland Security to design and construct the wall, to allocate funding to the wall, and to prepare a Congressional budget request. The Secure Fence Act of 2006 (“SFA”) is one of the statutes this EO relies on. The SFA authorizes the government to act as “necessary and appropriate.” The U.S. Supreme Court has held that under such a statute, “no regulation is ‘appropriate’ if it does significantly more harm than good.”

He signed the Executive Order entitled “Enhancing Public Safety in the Interior of the United States.” The EO targets “sanctuary” jurisdictions, stating that it is the policy of the executive branch to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal Funds, except as mandated by law” and “as deemed necessary for law enforcement purposes[.]” Funding conditions not germane to the purpose of the funds raise a serious Tenth Amendment constitutional question.