Jeff Sessions' Crackdown On Sanctuary Cities Deemed Unconstitutional By Lawyers For Bay Area Cities, Counties

BAY AREA, CA – Two lawyers representing Bay Area cities and counties have said they believe U.S. Attorney General Jeff Sessions' new directive on sanctuary cities is unconstitutional.

The directive announced by Sessions on Tuesday sets conditions for local governments receiving federal funding under a program known as the Edward Byrne Memorial Justice Assistance Program in the next fiscal year, which begins on Oct. 1.

Two of the conditions are that a city or county must allow Homeland Security Department agents into jails to question potentially undocumented immigrants and must give the department 48 hours notice before releasing an immigrant sought by federal authorities. (Get Patch real-time email alerts for the latest news from your California neighborhood. And iPhone users: Check out Patch's new app. Also, be sure to follow your local Patch on Facebook!)

San Francisco City Attorney Dennis Herrera and attorney Linda Ross, who represents 15 cities and counties, said that in their view, Sessions exceeded his authority.

"Attorney General Sessions is imposing new conditions on certain federal grants, without apparent authorization from Congress and in violation of the Constitution," Herrera said on Tuesday.

San Francisco received $1.5 million in law enforcement funding from the Byrne program for the current fiscal year.

Herrera said the city's lawyers "remain confident that San Francisco's sanctuary city policies comply with federal law and that San Francisco continues to be eligible for grant funding."

Ross said on Wednesday, "The attorney general doesn't have the authority to condition grants on compliance with certain rules.

"Only Congress has the authority to set conditions of federal funding," she said.

Ross said Sessions' policy also appears to violate the 10th Amendment of the U.S. Constitution, which reserves to states any powers not explicitly granted to the federal government.

"Under the 10th Amendment, Congress can't force state and local governments to assist with the enforcement of federal laws," she said.

A third funding condition announced by Sessions requires cities and counties receiving grants to comply with a federal law that bars local governments from preventing their employees from communicating with Homeland Security Department agents.

That condition was previously put into place last year under the administration of President Barack Obama for grants made in the current fiscal year.

Sessions said on Tuesday, "So-called 'sanctuary' policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes."

He said in a statement that the conditions for the Justice Department grants are "consistent with long-established cooperative principles among law enforcement agencies."

San Francisco and Santa Clara County have filed lawsuits in federal court challenging a broader executive order issued by President Donald Trump on Jan. 25 that threatened to deny federal funding to sanctuary
cities and counties that protect immigrants.

On April 25, U.S. District Judge William Orrick of San Francisco issued a preliminary injunction blocking implementation of the executive order.

He said the order intruded on Congress's constitutional spending powers and the "plain language" of the order indicated it could be applied to withhold all federal funding to a city or county, not just Justice Department grants.

On July 20, Orrick turned down the Justice Department's request for reconsideration of his injunction ruling and ordered the government to file a response to the lawsuits within 20 days.

Santa Clara County Counsel James Williams said on Tuesday, "We will continue to fight for the rights of cities and counties to set their own policies on these matters, and stop the president from overstepping the
bounds of his authority."

Ross represents 15 cities and counties in a friend-of-the-court brief filed in the two cases. They include Alameda, Marin and Monterey counties and the cities of Berkeley, Davis, East Palo Alto, Fremont,
Monterey, Mountain View, Oakland, Richmond, Salinas, San Jose, Santa Cruz and Santa Rosa.

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By Bay City News Service

Photo: U.S. Attorney General Jeff Sessions

Photo credit Mark Wilson / Getty Images News / Getty Images