Tuesday, March 28, 2017

When A Stopped Clock Is Right

As a former head of the Club for Growth, Pennsylvania Senator Pat Toomey has precious few good ideas. But if a stopped clock can be right twice a day, Senator Toomey can be right once in his career, and he is. And if I recognize Toomey's good idea, I can quote from the conservative Weekly Standard, which writes

On Monday, Attorney General Jeff Sessions warned states and localities that claim to be sanctuary cities and refuse to comply with federal immigration laws that they risk being deemed ineligible to receive money from the central government.

“Today, I’m urging states and local jurisdictions to comply with these federal laws, including 8 U.S.C. Section 1373. Moreover, the Department of Justice will require that jurisdictions seeking or applying for Department of Justice grants to certify compliance with 1373 as a condition of receiving those awards,” Sessions said.

He then pointed out that according to a report released by Homeland Security, in just one week, “there were more than 200 instances of jurisdictions refusing to honor ICE detainer requests with respect to individuals charged or convicted of a serious crime.”

“The charges and convictions against these aliens included drug-trafficking, hit-and-run, rape, sex offenses against a child, and even murder. Such policies cannot continue. They make our nation less safe by putting dangerous criminals back on the streets,” Sessions said.

The Attorney General's policy less extreme than that of the President, who has ordered withheld any federal grants from a jurisdiction considered by the Department of Homeland Security to be a "sanctuary city" (whatever that might be).  Still, the reaction was heated. Los Angeles Mayor Eric Garcetti proclaimed "L.A.'s values are not for sale" while the state's Senate leader called it "race-based scapegoating."  Seattle's mayor termed the Administration's policy "bigotry" and Chicago mayor Rahm Emanuel labeled it "unconstitutional."

The perspective of these critics and of the Administration is overly simplistic (although, given there is no legal definition of "sanctuary city," it may be unconstitutional).  The Morning Call in Lehigh County, Pennsylvania reminds us

In 2014 the county declared it would no longer hold inmates past their county release dates even if asked to do so by ICE. It enacted the policy as part of a $95,000 settlement of a federal lawsuit filed by Ernesto Gallarza, a man the county kept in prison over a weekend at the agency's request, only to learn later that ICE had the wrong guy.

Gallarza's case was bolstered by a 2014 federal court decision. The court determined that immigration detainers like the one issued by ICE after Gallarza was arrested in a 2008 drug raid are the only requests local jurisdictions like Lehigh County can be held liable for honoring.

The three-judge panel held that federal code establishes an immigration detainer as a "request" rather than a requirement, a (barely) plausible, yet disturbing, interpretation which discourages law enforcement agencies from cooperation (9/11, anybody?).  Therefore

U.S. Sen. Pat Toomey, R-Pa., who said he supports Trump's executive order as a good first step, said Wednesday in a statement that local officials need to be protected from being sued simply for cooperating with federal immigration authorities. He has introduced legislation that would put the federal government, not local officials, on the hook for errors in the issuance of detainers.

"We need legislation to ensure local police are not subject to lawsuits for good-faith efforts to cooperate with federal law enforcement to remove dangerous criminals and terrorists from our streets," Toomey said.

In the same statement, he said only Congress has the authority to withhold millions of dollars in federal grants that would hold jurisdictions' feet to the fire, so there is some question about what money the Trump administration could order to be withheld.

AG Sessions referred to the horrid case of Francisco Sanchez, a convicted felon who murdered a young woman after "Customs Enforcement officers had filed a detainer requesting..." The distinction between a "request," as an immigration detainer is now oddly considered, and a legally-binding directive turns out to be critical.

Nonetheless, it is truly remarkable that if a suspect detained by a local jurisdiction in response to a request by a federal law enforcement agency is found to have been wrongly held, the municipality, county, and/or state can be held liable.    The federal government issued the "request" (!) pursuant to federal policy, made the mistake, and should alone be held responsible.

If you're a Pennsylvania resident, there are plenty of reasons to vote against Patrick Toomey, who is not up for re-election until 2022. However, this obvious notion of holding the government of the United States of America accountable is assuredly not one of them.

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