Out of the nation’s 400 or so immigrant-friendly jurisdictions known as sanctuary cities, Washington D.C. is uniquely vulnerable to President Donald Trump’s threat to strip away federal funding. While decades of legal precedent could protect sanctuary cities in the 50 states, the budget director of the D.C. Council confirmed this week that the city is at risk of losing up to a billion dollars in federal grants, including funding for homeless services, Medicaid, HIV/AIDS prevention, museums, programs for senior citizens, and public schools.
The District receives over $1b per year in federal grants. Everything from senior nutrition to refugee resettlement to arts grants.
— JenBudoff (@JenBudoff) January 25, 2017
While there is no firm legal definition of a sanctuary city, Washington, D.C. has for more than two decades banned police and city officials from asking people for their immigration status. The city does, however, notify immigration officials if an undocumented person is arrested for a criminal offense.
An estimated 25,000 undocumented immigrants live in the city today, and D.C. Mayor Muriel Bowser re-affirmed last week that the city will not change its policy in the face of Trump’s threat to slash federal grants.
“I will not let the residents of D.C. live in fear,” she said. “The District is and will continue to be a sanctuary city.”
That same week, the D.C. City Council unanimously passed a resolution vowing to maintain sanctuary city status. Independent council member David Grosso, who drafted the resolution, told ThinkProgress that the city should be prepared to tap into the hundreds of millions of dollars now in its surplus fund in order to “hold strong” against Trump’s defunding threat.
“This goes to the core of who we are as a city,” he said. “It’s important to protect all human beings’ rights. If we were to give up on that principled stance simply because we have Trump in office, we sell ourselves short and we make it harder to recover in the future.”
Federal dollars vs. federal law
Trump’s vaguely-worded executive order has put a cloud of uncertainty over the District of Columbia. Depending on how the order is interpreted or carried out, the city could lose up to a full quarter of its budget — a higher percentage than Chicago, San Francisco, Los Angeles, or other major sanctuary cities stand to lose.
Yet some legal experts say this may never come to pass because Trump’s executive order is not constitutional.
“The Department of Justice has already weighed in on this and said that sanctuary policies are lawful,” said Monica Hopkins-Maxwell, the executive director of the D.C. chapter of the American Civil Liberties Union. “We’re not sure there’s anything stopping D.C. from spending its own money to ensure that we remain a sanctuary city.”
Hopkins-Maxwell points specifically to the fact that Trump’s executive order targets cities that violate a specific law — 8 USC § 1373 — that bans local and state law enforcement agencies from restricting the sharing of immigration status information with federal authorities. She says D.C. and other sanctuary cities might not actually be in violation of this law, and even if they are, federal code does not allow for retaliatory funding cuts.
Several Supreme Court cases also limit the federal government’s ability to use the threat of funding cuts to force states and cities to change their local laws.
In the 1987 decision South Dakota v. Dole — which concerned a government attempt to cut highway funding to states that tried to lower the federal drinking age — the Court ruled that the federal government could only cut grants related to the policy they were trying to enforce.
“So maybe Trump can’t cut health services when he’s trying to do a criminal justice thing,” explained Grosso.
Most recently, in 2012, the Court said President Obama’s threat to withhold some federal funding from states that refused to expand Medicaid was coercive and unconstitutional — making the Medicaid expansion optional.
These legal precedents could protect D.C. and other cities when Trump’s executive order is challenged in court, but the District will be far less safe if Trump’s allies in Congress join him in this fight.
Threats from the Hill
Because D.C. is not a state, and has no vote in Congress, lawmakers representing other states have for decades passed bills to fund or defund local programs against the will of the city’s residents.
For nearly a decade, Congress banned D.C. from spending its own tax dollars on a needle-exchange program. Lawmakers have also repeatedly attempted to block D.C. from subsidizing abortions for low-income women, and force the city to spend public school funds on private school vouchers. Now, the ACLU and other groups fear that the sanctuary city policy will be the next target.
“There is a deep, deep concern that congressmen, like they have done in the past, will try to make an example of D.C.,” said Hopkins-Maxwell. “We are, essentially, one of the last colonies of the United States. So we would need to rely on members of Congress to stand up against this.”
Efforts on Capitol Hill to force a D.C. policy change have already begun. Rep. Louie Gohmert (R-TX) introduced a bill in 2015 to force D.C. to abandon its sanctuary city policy and fully share information with federal immigration agents. The District’s police criticized the bill, which never made it out of committee, saying it would “only serve to drive a wedge of fear and distrust between police officers and the community they serve.”
With a new president who supports their efforts, lawmakers opposed to sanctuary cities are preparing another legislative assault. Rep. Lou Barletta (R-PA) introduced a bill in early January that would “stop all federal funds from flowing to states or localities which resist or ban enforcement of federal immigration laws, or flatly refuse to cooperate with immigration officials.”
With Republicans controlling both chambers of Congress and the White House, Bartletta sees a much greater chance of implementation than in years past.
“Twice before I have introduced this bill, and twice before there was not the political will to pass it,” he said in early January. “With the Trump Administration taking office later this month, and with enforcing immigration law becoming a priority, I am hopeful we will meet with success this time around.”
Should this come to pass, D.C. will be directly in Congress’ crosshairs, though local officials and civil rights lawyers are vowing to fight back.
“It does not make sense to strip that much funding away from a city that is larger [in population] than a couple of states,” said Hopkins-Maxwell. “Stripping away that funding could have long-term consequences way beyond D.C. for public health, the environment, roadways.”