By Shari Randall
FAIR
In a memorandum issued last week, Acting Deputy Attorney General Emil Bove directed employees of the Department of Justice (DOJ) to investigate for potential prosecution any “misconduct” by state and local officials that impedes the federal government’s immigration enforcement efforts.
Bove wrote that the Supremacy Clause of the U.S. Constitution and other authorities require state and local officials to “comply with the Executive Branch’s immigration enforcement initiatives.” Furthermore, federal law prohibits state and local officials from “restricting, obstructing, or otherwise failing to comply with lawful immigration-related commands and requests.” If state and local officials act to obstruct or impede the immigration enforcement measures, federal prosecutors must investigate for potential criminal charges.
Importantly, Acting Deputy Attorney General Bove also directed attorneys in the Civil Law Division to work with a newly created Sanctuary Cities Enforcement Working Group to “identify state and local laws, policies, and activities” that are inconsistent with federal immigration enforcement initiatives. These laws that impede immigration enforcement, he said, threaten public safety and national security and where appropriate, DOJ attorneys should challenge such laws.
As expected, there was significant opposition to Bove’s memo. Attorney Generals from California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Mexico, Rhode Island and Vermont issued a statement against the memo saying, “the President has made troubling threats to weaponize the U.S. Department of Justice’s prosecutorial authority and resources to attack public servants acting in compliance with their state laws, interfering with their ability to build trust with the communities they serve and protect. Right now, these vague threats are just that: empty words on paper. But rest assured, our states will not hesitate to respond if these words become illegal actions.”
The ACLU, which played a significant role in thwarting President Trump’s immigration enforcement priorities during his first administration, also came out swinging against Bove’s memo. Deirdre Schifeling, Chief Political and Advocacy Officer, said, “State and local governments cannot be compelled to carry out the Trump administration’s political agenda of sowing fear and division in our communities.” Moreover, she claimed, “state and local officials cannot validly be prosecuted for devoting their resources to local needs rather than ICE’s deportation machine. ICE remains free to operate anywhere in the country; that does not change just because a State declines to lend its own resources. But ICE cannot forcibly expand its personnel by conscripting local police into its service.”
If the Trump administration pursues actions against states and localities with policies that obstruct or impede immigration enforcement, the ACLU will likely be first in line to sue. In a press release issued right after President Trump was re-elected, the ACLU touted its 434 legal actions against the first Trump administration and said it will “deploy our millions of activists and card-carrying members — alongside our 2,200 staff spanning every state, the District of Columbia and Puerto Rico — to ensure that erosions of civil rights or civil liberties will be hard-fought and hotly contested.”
During his first administration, President Trump sought to deny funds to sanctuary jurisdictions. His then-executive order said that sanctuary jurisdictions were not eligible to receive federal grants from the Department of Justice and Homeland Security, except as deemed necessary for law enforcement purposes. In 2018, the 9th Circuit Court of Appeals ruled in a 2-1 decision that the Department of Justice did not have the authority to deny the funds; rather Congress must impose such limitations.
Now, through the issuance of the Bove memo, the second Trump administration appears to be laying a careful foundation to once again challenge the actions of sanctuary cities, which intentionally impede the federal government’s immigration enforcement objectives.
