California is poised to sue the Trump administration over the president’s latest attempt to punish jurisdictions tagged by the Justice Department as “sanctuary cities” that harbor undocumented immigrants, according to two sources close to the case.
California Attorney General Xavier Becerra — in conjunction with other California city and county attorneys — is considering charging the Justice Department with violating the Constitution by threatening to take crime-fighting funds away from cities and states that do not fully cooperate with federal immigration agents, according to those sources.
“The cities and states affected by these provisions have strong arguments to make in court that these conditions are illegal,” said a former Justice Department official familiar with California officials’ thinking. “If Congress wanted these requirements to be part of the grant funding decision, they would have written it into the law.”
California’s concern stems from an announcement last month by U.S. Attorney General Jeff Sessions, who warned that jurisdictions that do not assist federal immigration agents seeking to deport undocumented immigrants would no longer get funding from the Edward Byrne Memorial Justice Assistance Grant.
The cities and states affected by these provisions have strong arguments to make in court that these conditions are illegal.
Former Department of Justice official
California was allocated nearly $18 million under that program in Fiscal 2017. To get future grants, municipalities will have to allow federal immigration agents access to detention facilities, and provide 48-hours notice before they release inmates who are wanted by federal authorities on suspicion of being in the country illegally.
Those familiar with Becerra’s thinking say he’d argue that Congress, not the executive branch, has power to set conditions on the grant money.
Becerra, a Democrat, could still change his mind, one source cautioned.
Becerra has not been at the forefront of the fight with Washington over sanctuary cities. While California leads the nation in the number of undocumented immigrants, and its Democratic-dominated state legislature is moving to pass a so-called “sanctuary state” bill, the attorney general has left leadership on the issue to smaller states, including Washington State and Hawaii, which won high-profile suits against the Trump administration’s travel ban against six Muslim-majority countries.
Gil Duran, a Democratic strategist in California, said now is the time for officials to demonstrate “bold leadership and stand up for their highest values.”
“As a Californian, as a Latino and as the attorney general of the most populous state in the country, it is well within his scope of duty to do this,” said Duran, who has worked for some of the state's top politicians, including Gov. Jerry Brown and U.S. Sens. Dianne Feinstein and Kamala Harris of California.
“Becerra is a guy who spent years in Washington and knows the law and he would be a very formidable opponent to Donald Trump and Jeff Sessions,” Duran said.
As a Californian, as a Latino and as the attorney general of the most populace state in the country, it is well within his scope of duty to do this.
Gil Duran, Democratic strategist
In April, the courts blocked Trump from implementing a broad executive order stripping a wide swath of federal funding from cities and states that don’t cooperate with federal immigration agents. U.S. District Judge William H. Orrick III, an appointee of former President Barack Obama, said Trump's Jan. 25 executive order was unconstitutional.
In this latest attempt, the administration took a much more narrow approach, specifically targeting the justice assistance grants. This is the issue Becerra is considering.
Bill Lockyer, a former attorney general in California, told McClatchy in an interview Friday that Becerra’s office generally takes a "very deep dive into the legal issues.”
“There are some instances where a connection between federal money and local policy has allowed the federal government to win those disputes,” he said. “And there are other examples where the federal government overreached and ultimately was prevented from that compulsion.”
If Becerra takes action, Lockyer said likeminded states could come together and discuss who has the resources and who has the greater exposure to the impact of the federal policy.
“For California, because we have the largest legal office in the country, that often causes other states to rely on us to provide leadership because we can actually finance the fight,” he said.
Cadelago reported from California.
Email: fordonez@mcclatchydc.com; Twitter: @francoordonez.