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Is the Federal Anti-Sanctuary City Law Constitutional? ([link removed])
Legal Battle Looms Over Sanctuary Jurisdictions and
Federal Immigration Law
Washington, D.C. (February 26, 2025) – A new Center for Immigration Studies report finds that a constitutional battle is imminent as the federal government challenges sanctuary jurisdictions over their non-compliance with Sections 1373 and 1644 of Title 8 of the U.S. Code. Congress passed and President Bill Clinton signed these provisions into law in 1996. They were designed in part to prevent States and localities from prohibiting or restricting communication between their law enforcement officers and federal immigration officers. They are crucial for enforcing immigration laws by ensuring that local law enforcement can voluntarily communicate with U.S. Immigration and Customs Enforcement (ICE) about the release date of detained aliens whom ICE wants to place in removal proceedings.

George Fishman, the Center’s legal fellow and author of the report, said, “Sanctuary cities endanger lives and make ICE’s job of enforcing our nation’s immigration laws so much more difficult. In order for sections 1373 and 1644 to be potent weapons against sanctuaries for illegal and criminal aliens, the Supreme Court is going to have to rule them constitutional.”

Key Points:
* Sections 1373 and 1644 prohibit local and state laws or policies that prevent law enforcement from voluntarily sharing immigration status information with ICE.
* Sanctuary jurisdictions have enacted laws that directly conflict with these federal statutes, creating enforcement challenges and public safety risks.
* Attorney General Bondi has directed the Department of Justice (DOJ) to take legal action against non-compliant jurisdictions, and the U.S. has already sued Illinois and its governor and the City of Chicago and its mayor.
* The Supreme Court’s stance on “commandeering” under the Tenth Amendment is central to this dispute. The Court has ruled that the Tenth Amendment prevents the federal government from “commandeering” State and local governments by requiring them to enact or administer federal regulatory programs. But the Trump administration can make an excellent case that sections 1373 and 1644 do not constitute commandeering.

Public Safety Concerns: The Trump administration explains that sanctuary policies force ICE to conduct dangerous re-arrests of criminal aliens in the community, rather than being able to pick them up when they are released from State or local detention, making ICE’s job in seeking their removal exponentially more difficult and increasing risks for ICE officers and local communities.

Legal Precedents: While the 2nd Circuit Court of Appeals in New York has upheld the constitutionality of these provisions (in the context of DOJ requiring that localities comply in order to remain eligible for federal law enforcement grants), some other federal courts of appeal have questioned their constitutionality in non-binding dicta. Importantly, the Supreme Court has yet to rule on whether mere information-sharing requirements – such as sections 1373 and 1644 and requirements that local law enforcement report cases of missing children to DOJ – should be considered “commandeering”.

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