If President Donald Trump and Congress decide to withhold federal funds from states that don’t help feds enforce immigration law, it’s likely the DOJ and federal courts will have to decide what to do about Vermont.
The state Senate on Thursday passed a bill
aimed at withholding local residents’ personally identifiable information from the federal government if the data is for use in a national database or registry.
While his administration has distanced itself from that notion, he continues to ramp up his fight against illegal immigration, calling on states to partner in the effort. Vermont’s Republican Gov. Phil Scott said he is concerned about federal overreach and helped spearhead the effort on S.79
The bill would prevent state officials from helping federal authorities enforce U.S. immigration law by shielding residents’ "personally identifying information," including their immigration status, national origin, religion, race and color, among other things.
Trump has threatened to cut funding from sanctuary jurisdictions, a designation the Scott administration is working hard to avoid.
"There is no definitive definition of a ‘sanctuary city,’ per se. However, the U.S. Department of Justice operationally enforces a legal definition," said Adam Andrzejewski, CEO of OpenTheBooks.com, an organization that tracks federal spending.
"Under Federal Law 8 U.S.C. Section 1373, the DOJ defines sanctuary cities as a local government entity not reporting to federal authorities [information regarding] aliens in custody."
But legalese is only part of the story.
Ira Mehlman, media director of the Federation for American Immigration Reform, a group that supports reducing legal immigration, said there are two sides to defining sanctuary policies. One part is the legal definition, under Section 1373, and the other is longstanding traditions of cooperation.
"Nothing says states have to actively go seek out illegal immigration, but the law says they can’t impede. So ideally, they would have the same level of cooperation with federal immigration officers as with other law enforcement officials," Mehlman said.
On the legal side, the Vermont legislation "clearly state(s) that it is in full compliance with federal law … and does not limit law enforcement from carrying out their responsibilities," Rebecca Kelley, Scott’s communication’s director, told Watchdog in an email.
"Therefore by the federal government’s own definition, [Vermont] is not creating a sanctuary jurisdiction," she added.
S.79 explicitly says it is not intended to conflict with 8 U.S.C Section 1373
, a federal law that reads:
A Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
If local policies are found in violation, they are to be stopped, S.79 says.
‘A precarious position’
The million-dollar question is, what constitutes restriction?
While the wording of the Vermont legislation avoids restricting law enforcement, the state is sending mixed messages.
Earlier this month, Rutland County Sheriff Stephen Benard told Watchdog, "We’re in a precarious position. I just got an email from the [Vermont] attorney general telling me to stay out of administrative warrants, but I have another email from the federal government ordering me to be involved."
"Local law enforcement is expected to cooperate (with federal immigration officers) to the same level as any other law enforcement," Mehlman said. "If in the course of pulling someone over for speeding, and the person has no identification, that is reasonable ground to question residency status."
If the person was found to be illegally in the country, local police would then be expected to notify federal immigration agents while holding the individual. This level of cooperation is common across law enforcement agencies, and failure to act on reasonable grounds could, Mehlman says, fall under the DOJ’s definition of "restriction" of federal ability.
Mehlman points out that local officials carry out federal enforcement duties all the time.
"Bank robbery is a federal offense. Often in a rural area the sheriff is going to be the one who shows up," he said. "Would it make sense for him to say, ‘Sorry, I’m not arresting these guys because that’s federal territory’?"