WASHINGTON ― The Trump administration is considering prosecuting state and local officials for not fully cooperating with Immigration and Customs Enforcement, the agency’s acting director said Tuesday in an escalation of his threats against so-called “sanctuary cities” and the undocumented immigrants who live in them.
The Justice Department did not rule out acting on Thomas Homan’s suggestion. An official told HuffPost on Wednesday that the department is working with ICE “to explore any and all potential options” for reining in jurisdictions that limit their assistance with federal deportation efforts.
But Homan’s plan is likely unconstitutional, legal experts say. And the acting director’s argument that sanctuary cities are protecting hordes of dangerous criminals isn’t backed up by his agency’s own data. Recent reports from the Department of Homeland Security, which includes ICE, show the Trump administration itself is increasingly cracking down on petty offenders, not violent felons.
Homan, who is also President Donald Trump’s nominee to permanently lead ICE, laid out his threats during a Fox News interview on Tuesday. He said that ICE would dramatically increase its own enforcement efforts in California in response to the state’s new law limiting police cooperation with immigration officers and that the federal government should consider lawsuits and funding cutbacks against jurisdictions that pursue sanctuary policies. Public officials should be held “personally accountable” and criminally prosecuted under a law against harboring unauthorized immigrants, he said.
ICE did not respond to a request for more information on who Homan thinks should be prosecuted.
“We’ve got to take these sanctuary cities on, we’ve got to take them to court and we’ve got to start charging some of these politicians with crimes,” Homan told Fox News.
“California better hold on tight,” he said in the same interview, vowing to send more ICE officers to the state.
The big problem with Homan’s lawsuit plan is that there are no grounds for criminal prosecution of public officials in these situations, according to several legal experts. Laws merely limiting cooperation with ICE don’t amount to illegal harboring of undocumented immigrants, said Thomas Saenz, president and general counsel of MALDEF, a Latino civil rights organization that fought anti-sanctuary city legislation in Texas. Besides, criminal prosecution requires personal involvement in wrongdoing, he added.
The way to hold public officials personally accountable in a democracy is by regularly scheduled elections or recall votes, both of which are options in California, Saenz argued.
Criminal prosecution of local officials who don’t, say, hold undocumented immigrants until federal authorities arrive would also run right into the 10th Amendment, which prevents the federal government from forcing state and local authorities to use their resources to enforce federal law ― something that has been used to block past Trump efforts against sanctuary policies.
″No matter how much the federal government may not like that, unless they’re to seek a repeal of the 10th Amendment, Homan should shut up and get out of town because he has no legitimacy in the position he currently occupies, having engaged in threats that are more akin to a totalitarian thug than to our government,” Saenz said.
Using the threat of prosecution or an actual prosecution to retaliate against officials who have spoken out against the Trump administration would also be a “very serious infringement” of those officials’ First Amendment rights, said Cecillia Wang, deputy legal director of the American Civil Liberties Union.
Wang called Homan’s comments an “extension of the tactics of the Trump administration … who have tried to smear immigrants as criminals.”
“State and local officials who have for various policy reasons decided not to participate in the Trump administration’s deportation tactics are also now being smeared by the Trump administration as criminals,” she said. “It’s really a gross abuse of the federal government’s power.”