The order’s second problem is that, though 1373 is the only statute it mentions, it seeks to punish conduct not covered by the statute. There’s no standard set of “sanctuary” policies, but over the years ICE has objected to a number of provisions adopted by cities and counties. In some, local law enforcement officers are forbidden to ask those they interview—suspects, victims, or witnesses—about their immigration status. (That is not, by the way, purely to cock a snook at ICE; many police chiefs believe that witnesses and victims will stop reporting crimes if they fear being turned over to ICE.) Thus, there would be no immigration information to transmit. 1373 doesn’t order—and couldn’t order––local police to ask immigration questions. But the order vaguely threatens those who don’t.
In other jurisdictions, local jails refuse to comply with “ICE detainers.” Given the new plans to detain many more undocumented people, the “detainer” issue is a crucial one. When an alien is arrested by local police, the feds want the police to notify ICE, so it can check the alien’s immigration status. If the alien seems like a person ICE even might want to deport, it can issue a “detainer” to the local jail. Under the “detainer,” the jail is supposed to hold the alien (at state expense) for 48 hours. Even if the charges for which the alien has been arrested are dropped, ICE asks the locals to keep the alien under lock and key until they can come get him or her.
And that’s a problem: under the U.S. Constitution, police are not allowed to keep people in jail unless there is a warrant from a court, or probable cause to believe they have committed a crime. An administrative order (“we kinda think we might have a reason to talk to this person”) isn’t probable cause, and ICE isn’t a court.
Four federal courts—in Pennsylvania, Rhode Island, Oregon. and Illinois—have held that holding prisoners on ICE detainers violates the Fourth Amendment. (In two of those cases, by the way, the “suspect” aliens turned out to be U.S. citizens.) The court in Illinois also held that ICE doesn’t even have the authority under its own statute to issue the detainers.
Two of these courts also held that counties who illegally hold aliens cannot use the federal “detainer” as a defense against lawsuits. Remember, federal officials cannot issue direct orders to state officials; so, the judges reasoned, the locals were voluntarily choosing to violate the Constitution. In other words, local taxpayers not only pay the cost of jailing the suspects; they will pay the damages when those illegally detained bring a lawsuit.
The executive order actually does not order “sanctuary jurisdictions” to collect or provide information, and it does not even mention ICE detainers. Instead, it vaguely mentions 1373 and then says, in essence, “Nice local government you got here—shame if anything bad happened to it.”