By Jonathan Ellett
FAIR
At the beginning of May, the Department of Justice (DOJ), headed by Attorney General Pam Bondi, filed a lawsuit seeking to have a group of state and local laws in Colorado declared unlawful for impeding immigration enforcement and prohibiting cooperation between state and local law enforcement and federal immigration authorities. The lawsuit alleges that the state of Colorado and the city and county of Denver are acting unlawfully to obstruct the federal government’s ability to carry out its duties under our immigration laws as established by Congress.
The complaint first emphasizes the catastrophic effects that Colorado and Denver’s laws have had on the state and its residents. Specifically, the complaint focuses on the shocking images and videos that emerged at the end of last year depicting members of the foreign terrorist organization Tren de Aragua forcibly taking control of various apartment complexes in Aurora, Colorado. The DOJ argues that such events were a “direct byproduct of the sanctuary policies pushed by the State of Colorado, and certain of its subdivisions.” In bringing the lawsuit, the DOJ hopes “to put an end to those disastrous policies and restore the supremacy of federal immigration law.”
The DOJ then proceeded to detail the laws and ordinances in Colorado and Denver that shield illegal aliens from deportation. That list includes Colorado House Bill 19-1124, Colorado Senate Bill 21-131, Colorado House Bill 23-1100, Denver’s City Ordinance No. 940-17, and Denver Executive Order No. 142. According to the DOJ, these laws and ordinances “obstruct[s] the Federal Government’s ability to enforce laws that Congress has enacted or to take actions entrusted to it by the Constitution … [and] singl[es] out the Federal Government for adverse treatment.”
The laws and ordinances create a number of sanctuary policies, including:
- Prohibiting arrests, detentions, or prolonging detentions based on federal immigration detainers;
- Limiting the ability of federal immigration authorities to conduct interviews with inmates;
- Restricting the sharing of “personal identifying information,” including immigration status, if any, for the purpose of assisting or cooperating with federal immigration enforcement;
- Prohibiting state governments, local governments, and county sheriffs from entering or renewing “immigration detention agreements”; and
- Preventing city employees from using “any city funds or resources to assist in the enforcement of federal immigration laws.”
In seeking to have the laws and ordinances declared unlawful and struck down, the DOJ contends that they run afoul of the U.S. Constitution and multiple federal laws, including 8 U.S.C. 1373(a) and 8 U.S.C. 1644.
The DOJ argues that the Supremacy Clause of the U.S. Constitution, according to cited legal precedents, stands for the proposition that federal law overrides state law when the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” or if it “discriminate[s] against the United States or those with whom it deals.” The text of the Supremacy Clause provides that:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
8 U.S.C. 1373(a) reads:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any governmental 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.
8 U.S.C. 1644 reads:
Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.
The DOJ relied on all of these statutes to advance its argument. The DOJ quoted U.S. Supreme Court precedent in its central claim that both 8 U.S.C. 1373(a) and 1644 preempt Colorado and Denver’s sanctuary laws because they function “as an obstacle to the accomplishment and execution of the full purposes and objective[s] of Congress.” The remaining two counts put forth by the DOJ assert that the sanctuary laws “single out federal immigration officials, expressly and implicitly, for unfavorable and uncooperative treatment” and impose direct regulations onto federal government activities, both unlawful under the Supremacy Clause.
The DOJ further identified multiple other federal laws that Colorado and Denver’s sanctuary policies impede or otherwise restrict. Those laws include:
- 8 U.S.C. 1357(a)(1), which gives federal immigration authorities the power, without a warrant, “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States”;
- 8 U.S.C. 1324(a)(1)(A)(iii), which prohibits “conceal[ing], harbor[ing], or shield[ing] from detection” aliens in the country in violation of law;
- 8 U.S.C. 1226(a), which authorizes immigration officials to issue detainers without a judicial warrant; and
- The Laken Riley Act, which requires the Department of Homeland Security (DHS) to issue detainers and detain certain inadmissible aliens upon their release from state custody.
In response to the lawsuit, Colorado remained defiant, incredibly claiming that it is not a sanctuary state. A spokesperson from Governor Jared Polis’s office relayed that “[t]he State of Colorado works with local, state, and federal law enforcement regularly and we value our partnerships with local, county, and federal law enforcement agencies to make Colorado safer. If the courts say that any Colorado law is not valid then we will follow the ruling.” Similarly, the Office of Denver Mayor Mike Johnston responded tersely: “Denver will not be bullied or blackmailed, least of all by an administration that has little regard for the law and even less for the truth. Denver follows all laws local, state, and federal and stands ready to defend its values.”
Remarkably, the Colorado legislature, the week after the DOJ filed its lawsuit, sent a bill to Governor Polis that would further entrench sanctuary polices in the state.
The lawsuit filed by the Attorney General is the most recent in the DOJ’s efforts to crack down on sanctuary cities and their policies of harboring illegal aliens. Earlier this year, the DOJ filed lawsuits against New York and Illinois challenging similar policies. In addition to these lawsuits, the governors of New York, Minnesota, and Illinois will be testifying before the House Oversight Committee on June 12 regarding their cooperation with federal immigration authorities.
No decision has been issued yet by the U.S. District Court for the District of Colorado, where DOJ filed the lawsuit. Answers to the lawsuit by Colorado and Denver are still pending. FAIR will continue to monitor the case, and cases around the country, as it develops and provide updates.
