[Note: I’ve changed the title of this post on January 29, 2017. The original title was “Mr. Trump’s memos, #1: deportation priorities and sanctuary jurisdictions”]

On January 23, 2017, Mr. Trump issued an executive order, “Enhancing Public Safety in the Interior of the United States.”

Summary

The executive order does many things, and I will focus only on two of them. First, it declares that his administration will seek

Ensure that jurisdictions that fail to comply with applicable Federal law [concerning immigration–GC] do not receive Federal funds, except as mandated by law

Second, the EO also sets guidelines for deportation priorities. The department of Homeland Security and the Justice Department are to prioritize for deportation those immigrants who

(a)  Have been convicted of any criminal offense;

(b)  Have been charged with any criminal offense, where such charge has not been resolved;

(c)  Have committed acts that constitute a chargeable criminal offense;

(d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e)  Have abused any program related to receipt of public benefits;

(f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

My thoughts

It is unclear to me what federal funds can actually be denied. What I would need to know is how federal funds are currently granted to local jurisdictions and under what conditions. I suspect Congress allocates such funds either by directly dispensing it, by creating agencies that dispense the funds through prescribed rules, or by granting the executive branch the discretion in certain cases to allocate funds to local jurisdictions. Funds dispensed the first two ways, I presume, are “mandated by law” while those dispensed the second way would fall under Mr. Trump’s discretion.

I would also need to know whether a local jurisdiction would be able to sue in court if funds typically allocated for reasons unrelated to immigration enforcement are denied because that local jurisdiction refuses to comply with that enforcement. There may be a 10th amendment issue at stake. My non-lawyerly reading of NFIB v. Sibelius  and of how the SCOTUS arrived at its decision in South Dakota v. Dole suggests the feds can go only so far in conditioning a local jurisdiction’s receipt of funds upon that jurisdiction performing certain actions.

I suppose if certain funds are allocated to enhance a jurisdiction’s enforcement of federal law, and especially federal immigration law, then it will be relatively easy to withhold funds. But the further the funds’ purpose strays from immigration enforcement, the harder it will be for the administration to deny the funds. In short, I think Mr. Trump probably has an uphill battle if he wants to deny even discretionary federal funding to “sanctuary jurisdictions.”

For deportation priorities, one thing I don’t know is how much the priorities are mandated by law and how much truly reside in the executive’s discretion. It seems to me that absent some legislative directive that the executive “shall” deport someone, the president has the discretion to decide against whom he wishes to act. If someone is in the US illegally, that fact in itself makes him or her a candidate for deportation.

I suspect–or hope–that deportation involves at least some due process. At the very least, the government should, in my opinion, have to prove that the person to be deported is in the US illegally. I’d also hope that the government must dot its i’s and make sure the paperwork is filled out correctly and that failure to do so would at least frustrate the government’s claim.

When it comes to the actual priorities stated in Mr. Trump’s EO, they can be construed to subject anyone to deportation who is already eligible. Therefore, that portion of the EO seems less like “priorities” and more like a statement that the executive will deport whomever it chooses, especially the statement singling out people who “[i]n the judgment of an immigration officer, otherwise pose a risk to public safety or national security.” The provision that someone who has “been charged with any criminal offense, where such charge has not been resolved” suggests to me that all any officer will have to do will be to accuse someone of a crime then that person will become a “priority.” Do “willful misrepresentation in connection with any official matter or application before a governmental agency” and abusing “any program related to receipt of public benefits” apply to registering one’s children for school or for such things like getting a fishing license?

Here’s what I don’t know. Perhaps the terms stated in the list of priorities have well-established meanings of which I’m ignorant. Perhaps what seems like the widest statement of discretion–the risk to public safety or national security–requires the immigration officer to jump through certain hoops or tests before he or she can invoke it. And perhaps even Mr. Obama had reserved that type of discretion for the immigration officer.

What I’d like to see

I don’t have strong convictions on immigration. I’m not bothered by having to press “1” for English or about people speaking languages around me which I can’t understand. (When I was much younger I had such problems, but I don’t anymore.)

I don’t hold much of a personal grudge against people who are in the US illegally. I get a little testy at the many discussions of “the dreamers” that ignore completely the role their parents played in putting them in their situation. But that testiness doesn’t affect my belief that the humane and necessary thing to do is to accommodate them and regularize their status. I would leave DACA in place, as Mr. Trump, I understand, has decided to do for the time being. I believe that certain people are in the short term facing labor market competition with immigrants and that their suffering ought to be acknowledged. But I believe that in the long term and in the aggregate, immigrants contribute more than they take.

I do have a philosophical view that having borders implies restricting access somehow. I believe that there are more and less humane ways to do it and that we ought to opt for the more humane. But I also believe that any form of restriction, no matter how fair or how humane, is going to catch some good, decent people in a bind they don’t personally deserve.

When it comes to denying funds to “sanctuary jurisdictions,” I don’t have a problem with, say, denying immigration enforcement funds to local jurisdictions that refuse to comply with immigration laws. I’d have a much greater problem the further one goes from “immigration enforcement” to funds for other purposes. Even if I’m right that the president will face an uphill battle in an attempt to deny such funds, it’s likely that there will be a battle and a number of years of uncertainty. And while I suspect my prognosis is probably right, I’m not certain. And even if I am mostly right, perhaps the battle will move the needle. Trump might not be able to deny a whole loaf to sanctuary jurisdictions, but he might be able to deny a much bigger portion than I’ll have anticipated.

When it comes to the priorities, I’d set them differently. My highest priority would be, in descending order of priority, the following:

• Those convicted of, or who confess to, violent felonies
• Those convicted of, or who confess to, violent misdemeanors
• Those convicted of, or who confess to, felonies
• Those convicted of a conspiracy to commit a violent crime

I would also want to reaffirm certain due process guarantees that I believe people in the US illegally should already have, as I noted above. I would also expand asylum options and admit more Syrian refugees.