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File Number: 17-045 <br />received by any sanctuary jurisdiction.” <br />Based on Section 9, the executive order defines a sanctuary city as “jurisdictions that willfully <br />refuse to comply with statute 1373” and the Secretary of Homeland Security has the <br />independent discretion to designate any such jurisdictions. 8 U.S.C. section 1373 provides <br />that: <br />Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or <br />local government entity or official may not prohibit, or in any way restrict, any <br />government entity or official from sending to, or receiving from, the Immigration and <br />Naturalization Service information regarding the citizenship or immigration status, lawful <br />or unlawful, of any individual. <br />According to the order, a city is also subject to enforcement actions at the discretion of the <br />Attorney General if (1) they violate Section 1373, or (2) they have policies or practices that <br />prevent or hinder the enforcement of the federal law. In addition, the order directs the <br />Secretary of Homeland Security to develop a weekly list of jurisdictions that have failed to <br />honor detainers and all resulting criminal acts. Finally, the OMB Director is directed to provide <br />information on all federal grant money that is currently received by a sanctuary city. <br />Potential 10th Amendment and Other Legal Challenges <br />Legally, the National Immigration Law Center believes that current local policies in place do <br />not violate Section 1373 and that strong arguments can be made that the executive order <br />stretches the scope of the law, such that it is unconstitutional on its face, and in its effect. It is <br />the City Attorney’s opinion that such an opinion has merit. <br />Section 1373 is limited to prohibiting local and state governments from enacting laws or <br />policies that limit communication with the Department of Homeland Security (DHS) about <br />information regarding the immigration or citizenship status of individuals. It does not mandate <br />any affirmative action on the part of law enforcement. Therefore, because the City’s proposed <br />resolution does not specifically limit communicating with DHS about individuals’ citizenship or <br />immigration status, or prohibit the maintaining (but not collecting) of such information, the <br />City’s policy is in compliance with the plain terms of Section 1373. <br />While the level of discretion and ambiguity afforded the Attorney General and Secretary of <br />Homeland Security make it difficult to know exactly which practices, statutes, or policies <br />constitute violations of section 1373, the fact that the order states “all federal grant money” <br />creates a strong argument for unconstitutional coercion should cities make the legal argument <br />that the order violates the U.S. Constitution, specifically the 10th Amendment which provides <br />that powers not explicitly given to the federal government are reserved for the states, and the <br />Spending Clause. <br />For example, the Third Circuit Court of Appeals held in Galarza v. Szalczyk, 745 F.3d 634 (3d. <br />Cir. 2014), that administrative attempts to compel local compliance with immigration laws <br />would likely fail as unconstitutional under the 10th Amendment’s anti-commandeering <br />principals. Under the U.S. Constitution’s Spending Clause, the court in several cases held that <br />there are limits to the conditions that may be imposed by the Federal government on the <br />receipt of federal funds. The most significant holding was in a U.S. Supreme Court opinion <br />authored by Chief Justice John Roberts. Chief Justice Roberts wrote in a ruling for a case <br />Page 4 City of San Leandro Printed on 2/16/2017