Before Donald Trump issued Wednesday’s executive order on interior security, the order that includes a crackdown on so-called sanctuary cities, this is what would happen in Denver if police arrested and took to jail an undocumented immigrant on an unrelated charge – say, reckless driving:
The city would release that immigrant when he or she bailed out or served their sentence, not holding them for immigration agents unless those agents produced a warrant signed by a judge.
Now that Trump has issued his crackdown on sanctuary cities, here is what will happen: The city will release that immigrant when he or she bails out or serves their sentence, not holding them for immigration agents unless those agents produce a warrant signed by a judge.
In other words, no change.
Which is why Wednesday’s executive order was met, by and large, with a combination of defiance, consternation and a collective shrug.
“Under this executive order, we do not expect to see any changes in Denver,” Amber Miller, spokeswoman for Mayor Michael Hancock told The Colorado Independent Wednesday. “…. What we want to be clear on with our people is we do comply with federal immigration laws, but we will not violate people’s rights. We never have. We never will.”
The sentiment was echoed in Boulder, the state’s only self-identified sanctuary city. “We are not going to violate the constitutional rights of immigrants in our community just because our new president wants us to,” said Mayor Suzanne Jones.
Federal courts have ruled holding undocumented immigrants for immigration agents who don’t have a warrant is unconstitutional. County sheriffs in all of Colorado’s 64 counties have refused to detain people at the request of Immigration and Customs Enforcement since a 2014 ACLU lawsuit led to the ruling that such detention was a violation of the Fourth Amendment.
The County Sheriffs’ Association issued a statement Wednesday saying that it has informed ICE that it must get a warrant or a “judicially-approved” hold before sheriffs will hold an undocumented immigrant. To say that the requirement could be considered as providing sanctuary, the statement read, is “absolutely unsubstantiated and ridiculous.”
Immigration law falls under the authority of the federal government, which means state and local governments are not required to assist with enforcement. But when local law enforcement does communicate with the federal Immigration and Customs Enforcement (ICE), it is county sheriffs, not municipal police forces, who do so.
Immigration attorney James Lamb, who works for the Denver-based Chan Law Firm, summarized the order this way: “It’s a little bit of smoke and mirrors here,” he said. “It’s provocative, without necessarily having much substance.”
The president issued two executive orders on immigration Wednesday, which together demanded greater immigration enforcement, the planning and construction of a wall along the southern border and the sanctuary city crackdown.
The teeth of the crackdown come in the form of a passage within the order that says sanctuary jurisdictions “are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”
At his Wednesday press briefing, White House Press Officer Sean Spicer said, “we’re going to strip federal grant money from the sanctuary states and cities that harbor illegal immigrants.”
Boulder is projected to receive nearly $9 million in federal funding in 2017. Denver and Aurora, cities that do not embrace the term “sanctuary city” but are nonetheless often called so, respectively received $175 million and $11.5 million from federal sources in 2015.
The threat of losing federal funding has generated outrage from some quarters. “The ambiguous attempt to strip funding from so-called ‘sanctuary cities’ could deprive critical resources to local law enforcement throughout our state and make it harder to fight crime,” said Colorado Sen. Michael Bennet in a statement.
Others have praised the order. “It’s about time that we have some federal policies that say ‘let’s abide by the law’ when it comes to immigration issues,” Republican Sen. Kevin Lundberg of Berthoud told The Colorado Independent. “For too long, at the federal level, we’ve been dancing around the obvious point — that when people enter this country, it needs to be legally.”
But even the threat of lost funding may not be as significant as it first appears, Lamb told The Independent. Without Congressional approval, Trump can only order the withholding of money from sources controlled by the executive branch, he said. In this case, that means discretionary federal grants, which make up only a portion of federal funds.
Lamb said discretionary grants matter more to smaller municipalities. “To do any meaningful damage to a medium or large city would probably require an act of Congress,” he said. And even a Republican-controlled Congress would probably think twice about withholding funds from cities like New York: “After all, midterm elections are in two years,” he said.
Miller, Hancock’s spokeswoman, said city attorneys were still studying the potential impact of such of cuts. She pointed to an earlier legal opinion prepared for the U.S. Conference of Mayors that suggested any attempt to coerce local agencies to enforce immigration law, including through funding cuts, would face a tough court challenge.
Part of the difficulty in figuring out the impact of the order is that it has never been clear what constitutes a sanctuary city and, Miller and others said, the order does little to define one.
Aurora Mayor Steve Hogan said in a statement yesterday that Aurora does not consider itself a sanctuary city, noting that “to date there has been no precise legal definition of sanctuary city. The term was created by the far left and the far right for very different reasons. Those of us in between have struggled to understand what it really means.”
He said the city would be studying how the order “may or may not” affect Aurora.
The text of Trump’s order says that jurisdictions will be ineligible for funding if they “willfully refuse to comply with 8 U.S.C. 1373,” a section of U.S. law which prohibits local and state law enforcement from withholding immigration status information with federal authorities.
Lamb says sheriffs comply with that law — by providing lists of foreign-born arrestees in their custody to ICE — as a standard practice. By that understanding, the majority of Colorado jurisdictions, even those with reputations for being sanctuaries, are not, according to the vague language of the order.
“We do provide ICE with information about the people in our jail,” said Boulder Sheriff Joe Pelle. “It’s public record, anybody can ask for it.”
In the end, the sanctuary city part of the order “has a lot less teeth than Trump put forth in his campaign,” said Gabriela Flora, a program manager with the immigration advocacy group American Friends Service Committee.
As Flora sees it, Trump’s crackdown acts more as a scare tactic, or an attempt “to discourage communities” from taking a public stand for immigrant rights. “Most jurisdictions are currently communicating very extensively with ICE, so it actually appears that it may be more of a publicity stunt,” she said.
It may not be working, as the recent public stands by cities like L.A. and New York have shown. “As we’ve seen, some cities are coming out and saying the opposite,” she said.
During a national webinar Thursday afternoon, an attorney with the National Immigration Law Center stressed that the impacts of Trump’s sanctuary city crackdown remain unclear. She noted that the order gives the Secretary of Homeland Security discretion to designate sanctuary jurisdictions, and said that “it is not at all clear” how he would do that and what that might mean for those jurisdictions’ federal funding.
That uncertainty has immigration advocates scrambling. Jamie Torres, the director of the Denver Office of Immigrant and Refugee Affairs, said she participated in an emergency call Wednesday with her counterparts across the nation. “Everyone is still sorting out the language of the order and what it actually means.”
For now, Torres said, she feels great heartache at what she is reading. At the same time, she said, the leadership of Denver has taken a strong position in support of immigrants and refugees, and there are many working within city agencies and as advocates intent upon keep immigrant communities safe.
Said Torres, “it’s both a heartache and it’s motivating.”
Colorado Independent reporters Tina Griego and Marianne Goodland contributed to this story.
Photo credit: Kelsey Ray