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Can Donald Trump Legally Transport Migrants to Sanctuary Cities?

Donald Trump speaking at the 2013 Conservative Political Action Conference (CPAC) in National Harbor, Maryland.
Trump saids he wants to send asylum-seekers to "sanctuary cities." Can he? (Gage Skidmore via Flickr)
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Written by Stephen Lemons

When President Donald Trump tweets, the world shudders, and rightfully so. Whether it’s his Muslim ban, his declaration of a “national emergency” to divert federal funds for the building of a border wall, his attempts to revive the cruel policy of family separation, or his threats of late to close the border, he seems committed to stretching the bounds of decorum and democracy to the delight of his base and to the detriment of everyone else, particularly anyone who is not white.

Like a Roman emperor of old throwing coins to the crowd, he tosses out anti-immigrant declarations to the hateful masses who worship him. His latest plan involves sending asylum-seekers taken into custody at the border to so-called “sanctuary cities,” which tend to be Democratic strongholds.

Generally speaking, sanctuary cities tend to be those who chose not to cooperate with U.S. Immigration and Customs Enforcement in one way or another. And the proposal smacks of pure political payback for those areas of the country that disagree with the crude Republican Emperor. Democrats have denounced the plan, but can our portly Orange Caligula simply order that it be done?

Well, not legally, according to several sources, including ICE’s own attorneys.

This, from the Washington Post:

White House officials first broached the plan in a Nov. 16 email, asking officials at several agencies whether members of the caravan could be arrested at the border and then bused “to small- and mid-sized sanctuary cities,” places where local authorities have refused to hand over illegal immigrants for deportation.

The White House told U.S. Immigration and Customs Enforcement that the plan was intended to alleviate a shortage of detention space but also served to send a message to Democrats. The attempt at political retribution raised alarm within ICE, with a top official responding that it was rife with budgetary and liability concerns, and noting that “there are PR risks as well.”

After the White House pressed again in February, ICE’s legal department rejected the idea as inappropriate and rebuffed the administration.

Furthermore, USA Today reports that the proposal faces a “myriad of logistical and legal obstacles,” in an article that quotes Kerri Talbot, an attorney with the pro-immigrant group Immigration Hub as stating that the move could be a violation of the Hatch Act, a federal law that forbids government employees from engaging in partisan activity while on the clock.

From the USA Today piece:

Trump’s Twitter posts and his comments leave little doubt that the rationale behind the proposal is political, Talbot said.

But, “he can’t use federal funds to create a program the purpose of which is political, just to embarrass other federal officials,” she said.

While presidents are generally exempt from the Hatch Act’s provisions, White House officials or employees in the Department of Homeland Security tasked with carrying out such a proposal could potentially be charged with violating the law, Talbot said.

There may be a constitutional prohibition as well, according to Vikram Amar, dean of the University of Illinois College of Law. In an op-ed for the Los Angeles Times, Amar argues that the normally conservative concept of “states’ rights” would halt Trump’s sanctuary city scheme, which, if implemented, would no doubt be challenged in court.

Amar specifically cites the 10th Amendment to the U.S. Constitution, which states that any power not delegated to the federal government by the U.S. Constitution, are reserved by the states or the people.

From Amar’s Los Angeles Times commentary:

The 10th Amendment provides a more germane legal argument. The Supreme Court has three times held that the federal government cannot coerce states and cities into assisting the federal government in the adoption or implementation of federal policies.

This so-called anti-commandeering doctrine was first recognized by the Supreme Court in 1995 in New York vs. United States. In that case, the federal government wanted each state to regulate nuclear waste according to federal guidelines. Under the federal statute, if a state did not adopt the policies the federal government favored, that state was required to “take title” to all the waste generated by utility companies and other producers within in its boundaries — and thus assume liability for any harm the waste caused.

To some, the rule was poetic justice: If a state was unwilling to deal with a problem in the way the federal government had deemed best, then it should have to own any harms thereby caused. But the court held that the federal government cannot simply require states to implement federal policies, and it cannot punish states for failing to cooperate.

But while such legal impediments might give pause to any other POTUS, Trump has shown himself more than willing to break the law and deal with the fallout later. In fact, that’s been the bankruptcy king’s modus operandi from day one in the family real estate business to his current perch on Washington, DC’s catbird seat.

And, to be honest, it’s worked to his favor. Which is why Trump will continue to implement his noxious and draconian immigration policies, even if they abrogate tradition, morality and the law.