Saturday, May 27, 2017

Pending Council bill would make Nashville a Sanctuary City.

There is a proposal before the Council that would make Nashville a sanctuary city.  I know this will come as a surprise to those who think we are already a sanctuary city but we are not. There is a difference between mouthing sanctimonious platitudes about being an opening and welcoming city and actually doing the the things that make a city a sanctuary city. Even refusing to enforce federal law does not make a city a "sanctuary city."  The police are under no obligation to enforce federal law.  When the police stop a driver for a traffic violation and the discover the driver looks Hispanic, is driving without a license, and does not speak English, the police are under no obligation to ask the driver  his immigration status.  Failing to do so does not make the city a sanctuary city.

There is a difference between the city of Nashville officials not inquiring about the legal status of people who have encounters with the police or other public servants and refusing to cooperate with Immigration and Customs Enforcement (ICE) Agency.  While Nashville does not enforce immigration law we do not refuse cooperation with ICE.

In 1996 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). This act requires local governments to cooperate with Department of Homeland Security's Immigration and Customs Enforcement (ICE) Agency.  Cities that refuse are called "sanctuary cities."  President Obama did not enforce IIRIRA and allowed sanctuary cities to defy the law with impunity. President Trump has vowed to enforce IIRIRA and withhold money from Sanctuary cities. In January Trump signed an Executive Order to that effect.

Trumps effort to pull funding from Sanctuary cities has been blocked on grounds that he cannot withhold money already appropriated.  The ruling blocking Trumps Executive Order on sanctuary cities said, “The Constitution vests the spending powers in Congress, not the President, so the Order cannot constitutionally place new conditions on federal funds.” The ruling also said the Executive Order may violate both the Fifth Amendment and the Tenth Amendment.  

I think the Court may have ruled correctly.  While, I like the intent of the order, the principle is more important than the specific facts of the case.  I do not want the president, this president or a future president, to have the discretion to arbitrarily withhold federal funds. The condition to receive federal funds should clearly be stated upfront. If stated upfront in the legislation appropriating the funds, cities could be denied those funds. Federal funds often come with strings attached.

So what specifically makes a city a Sanctuary city?  Cities that refuse to hold jailed illegal immigrants so they can be picked up by federal immigration officials are sanctuary cities.  Sanctuary cites only hold them if there is warrant signed by a judge. 

The Metro Council Agenda for June is not yet available so I have not read the bill, but according to The Tennessean, the bill would do the following, unless specifically required by federal or state law or a court order:

  • Metro Nashville would not be able to use local money, resources or facilities to assist in enforcing federal immigration laws, or to share information about a person's custody status or court dates. 
  • Metro employees, including police, would be prohibited from requesting information about a person's immigration or citizenship status.
  • The Davidson County Sheriff's Office would no longer be able to honor an immigration-related detention request unless it is accompanied by a warrant issued under the Federal Rules of Criminal Procedure.
The above would make Nashville a sanctuary city, if it is actually carried out. The Sheriff is not subject to policies dictated by the Metro Council or the Mayor. The sheriff  is a county Constitutional Officer elected by the people. The State constitution says every county will have a sheriff.  The Sheriff does not serve at the pleasure of the mayor. The Sheriff Department's budget is approved by Metro but the Sheriff's Department is not a "department" of Metro government the same way as is  the Police Department.  Even if the Council passes this bill which would attempt to make Nashville a sanctuary city, we will not be a sanctuary city if the Sheriff ignores the Council bill which I suspect he very well may do. The Davidson County Sheriff's Office has historically honored voluntary "detainer" requests issued by ICE.

The bill is sponsored by Councilmen Bob Mendes and Colby Sledge and The Tennessean says there will be about ten co-sponsors.  Back in January, Vice Mayor David Briley posted statements on Facebook that indicated he wanted Nashville to become a sanctuary city (link). The bill was drafted by the Tennessee Immigrant and Refugee Rights Coalition and has the support of various pro-illegal immigrant groups.  Mayor Barry has mouthed platitudes about being a welcoming city, etc, but has not made any move toward becoming a sanctuary city or advocated violating federal law.  While I don't doubt Megan Barry's liberal credentials she seems fairly rational and pragmatic. This bill may not pass or may be further watered down to be meaningless, the mayor may even veto it, and if passed the Sheriff may not honor it. Also, there is the question of State law which prohibits local governments from making policies that stop local governments from complying with federal immigration law and an even stronger version of such a prohibitions pending for consideration in 2018. Nashville is not a sanctuary city now, and I doubt it will become one. 

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