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Will: Sanctuary city order lacks real consequences

The Columbian
Published: May 14, 2017, 6:01am

“But what good came of it at last?”

Quoth little Peterkin.

“Why that I cannot tell,” said he,

“But ’twas a famous victory.”

— Robert Southey

“The Battle of Blenheim” (1798)

Southey, a pacifist, wrote his anti-war poem long after the 1704 battle for which the Duke of Marlborough was awarded Blenheim Palace, where his great-great-great-great-great-great grandson Winston Churchill would be born. We, however, do not need to wait 94 years to doubt whether the Trump administration’s action against “sanctuary cities” is much ado about not much. Four months have sufficed to reveal it ’twas a constitutionally dubious gesture.

The executive order was perpetrated in a helter-skelter, harum-scarum, slapdash manner five days after the inauguration, before the administration was humming like a well-tuned Lamborghini. The order says that sanctuary cities have caused “immeasurable harm” to “the very fabric of our republic,” a thunderous judgment offered without evidence of the shredded fabric or even a definition of “sanctuary city.”

They are cities that limit the cooperation of local law enforcement personnel with federal immigration enforcement efforts. There are defensible reasons for some non-cooperation: e.g., preserving cooperative relations between local police and immigrant communities, which facilitates crime-fighting. But many such cities anoint themselves sanctuaries as an act of self-congratulatory virtue-signaling and to pander to immigrant communities.

The executive order is either a superfluous nullity or it is constitutional vandalism. It says cities “that fail to comply with applicable federal law” shall “not receive federal funds, except as mandated by law.”

A U.S. district judge in Northern California has held that the executive order is “toothless” if it pertains to merely a few federal grants, and even they do not unambiguously state in their texts that funding is conditional on active cooperation with federal immigration enforcement. If, however, the order extends to other federal grants, it violates the separation of powers: The spending power is vested in Congress, so presidents cannot unilaterally insert new conditions on funding.

Decent into theatricality

Several senior White House officials, operating in pre-Lamborghini mode, denounced this judge’s decision as another excess by the much-reversed 9th U.S. Circuit Court of Appeals. Actually, although this court might hear an appeal of the judge’s decision, it had nothing to do with the decision.

It is federal law that a state “may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” This does not, however, prevent any government entity from voluntarily withholding information.

Neither the Trump administration’s semi-demi-ukase against sanctuary cities, nor the judge’s ruling against it, has significant discernible consequences. The executive order illustrates the descent of American governance into theatricality.

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