Capitol Alert

Trump is threatening California with subpoenas. Should the state care?

The Trump administration Wednesday took another shot at immigration policies in California and other so-called “sanctuaries” around the country, threatening subpoenas and grant cuts if the jurisdictions can’t prove they are complying with federal immigration rules.

The U.S. Department of Justice announced that 23 jurisdictions – including the county of Sacramento, eight other California municipalities and the state agency overseeing public safety and local correction facilities – were told they had failed to adequately respond to previous requests for documentation that they are not breaking federal immigration law referred to as Section 1373. It says state or local government cannot prevent their employees from communicating with Immigration and Naturalization Service officials regarding the citizenship or immigration status of any individual.

That documentation is required to receive money from a popular federal criminal justice grant program. The Justice Department said it could ask for the return of 2016 funding if jurisdictions failed to give the requested information or if they were found to be violating the federal law.

Kevin Johnson, dean of the UC Davis School of Law and an expert in immigration issues, said the letters “aren’t that earth shattering,” but are representative of the ongoing fight between California and Trump that he doesn’t expect to end anytime soon.

“I tend to see this as part of a larger PR campaign against sanctuary jurisdictions that are disliked by President Trump and the attorney general,” said Johnson. “It’s part and parcel of the administration’s effort to challenge sanctuary jurisdictions and to try to get them to abandon their policies voluntarily.”

The Department of Justice specifically questioned whether California’s so-called “sanctuary state” law, Senate Bill 54, created a “potential violation” of the federal law, according to a November letter from the California Board of State and Community Corrections to the U.S. Department of Justice.

The law, which went into effect Jan. 1, limits how local law enforcement can interact with federal immigration authorities and what information can be shared about local inmates.

The federal government tried to tie future criminal justice grant money to greater cooperation from local jurisdictions in July, but was sued over the proposed policies and lost. A Chicago federal court judge issued a nationwide injunction last fall stopping the implementation of those rules. The case is currently on appeal.

Wednesday’s action tries to enforce some of the government’s position on last year’s grant money. For the state of California, the grant funding being questioned is about $18.2 million awarded to the Board of State and Community Corrections in 2016. The Sacramento County grant in question was for $241,650, given to the probation department to fund two additional deputies.

“I continue to urge all jurisdictions under review to reconsider policies that place the safety of their communities and their residents at risk,” said Attorney General Jeff Sessions in a statement Wednesday. “Protecting criminal aliens from federal immigration authorities defies common sense and undermines the rule of law. We have seen too many examples of the threat to public safety represented by jurisdictions that actively thwart the federal government’s immigration enforcement – enough is enough.”

Speaking at a press conference Wednesday, California Attorney General Xavier Becerra said that the state would comply with the federal request, but that California wasn’t breaking any federal rules.

“I will certainly tell you that the state of California complies with federal law,” said Becerra. “Everyone has to obey the law and in California we make it clear that you have to obey the law, so the state of California will.”

Becerra also said the state would guard against “overreach” of the application of federal laws.

Both the Corrections Board and the county of Sacramento responded to the earlier DOJ request with assurances that they were complying with federal law, but that neither entity believed SB 54 created a conflict.

“It is our view that your identification of (SB 54) as the basis for finding the BSCC in potential violation of Section 1373 for Fiscal Year 2016 is improper,” wrote board executive director Kathleen Howard in her November response to the earlier DOJ request.

Jails, and what kind of welcome immigration agents get inside them, have been one of the key battlegrounds between sanctuary jurisdictions and the federal government. Acting ICE director Thomas Homan has previously said that jurisdictions that do not allow immigration agents to make arrests within jails put communities at risk by forcing ICE agents to detain people in public areas.

Sacramento County is not a declared sanctuary. Sacramento Sheriff Scott Jones, who runs the county jail system, opposed SB 54 and hosted Homan at a town hall last year. Jones’ office responded to an earlier DOJ letter, said Sgt. Shaun Hampton, spokesman for the department, and didn’t receive the follow-up request.

Sacramento Mayor Darrell Steinberg, however, has been a vocal critic of Trump’s immigration policies.

Steinberg confirmed that the city had received one of the grants in question but didn’t know if it had received a DOJ letter. He remained adamant about resisting federal pressure to back away from sanctuary policies.

“If it does affect the city, we’re not going to cower, we’re not going to change,” said Steinberg from Washington, D.C., where he was attending the U.S. Conference of Mayors. “We are going to stand up for the people we represent. That is my duty. ... It’s not the attempted intimidation of the government, the city government or county government that troubles me. We’re fine. It’s the intimidation of the people we represent, of the families, the Dreamers, the law abiding people who are just trying to make their way.”

Sheriff’s spokesman Hampton said the department had changed its operating orders on Jan. 1 to comply with SB 54 and other state restrictions. It now only allows federal agents to make arrests inside its facilities under narrow circumstances, despite Jones’ vocal opposition.

“We don’t have a choice but to comply,” said Hampton. “You know the sheriff’s stance on immigration.”

So-called sanctuary cities frequently argue that Section 1373 is narrow, not mandating compliance with Immigration and Customs Enforcement (ICE) agents, merely requiring that the the government not restrict officers from doing so.

Local laws on the issue typically tiptoe around language in Section 1373. SB 54 has a provision stating: “A law enforcement official shall have discretion to cooperate with immigration authorities only if doing so would not violate any federal, state, or local law, or local policy, and where permitted by (SB 54).”

The Department of Justice action seems to be looking for places where sanctuary jurisdictions may be going too far with implementation.

The letter sent to the jurisdictions requests “all documents reflecting any orders, directives, instructions, or guidance to your law enforcement employees (including, but not limited to, police officers, correctional officers, and contract employees), whether formal or informal, that were distributed, produced, and/or in effect during the relevant timeframe.”

“For example, if there’s a city council request to a police chief or sheriff to issue a directive to officers not to cooperate with ICE agents,” then that would fall under DOJ’s demands, a department senior official said.

When asked how jurisdictions could provide documents that prove they are not doing something, the senior DOJ official said he understands it’s a “complex issue.”

Anita Chabria: 916-321-1049, @chabriaa

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