September 17 - Data Security
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In the immediate aftermath of blusterous reality TV star Donald Trump’s upset victory in the presidential race, pundits were quick to say his opponents always took his seemingly over-the-top campaign pitches too literally while not taking the whole of his candidacy seriously enough. For his supporters, meanwhile, it was just the opposite. But after the flurry of executive orders Trump issued in his first few days in office, the new president made clear all of his words should be taken literally at all times.
In a span of just a few days at the end of January Trump issued 18 executive orders and presidential memoranda, including three that would collectively block Syrian refugees and immigrants from six other predominantly Muslim countries from entering the U.S., begin construction of a border wall between the U.S. and Mexico and strip federal funds from so-called “sanctuary cities,” those which limit cooperation with federal immigration authorities. Trump vowed during his campaign that Mexico would pay the estimated $15 billion cost of building the wall, but has since spoken of spending U.S. taxpayer money instead. He has also floated the idea that the U.S. would reclaim some of that money by imposing a 20 percent tariff on goods coming into the country from Mexico.
The orders drew a predictable response from lawmakers in Washington D.C. and statehouses nationwide: angry opposition from Democrats; varying degrees of praise – or at least little or no opposition – from most Republicans. The public also weighed in, as word of the refugee ban sparked large, boisterous opposition demonstrations at airports and other public venues in major cities around the country. Reaction from around the world also veered heavily to the negative.
Attorneys general from 15 states and D.C. – all Democrats, though the office of Hawaii AG Doug Chin is officially nonpartisan - quickly pledged to resist the immigration restrictions. In a joint statement the AGs said they would “work together to ensure the federal government obeys the Constitution, respects our history as a nation of immigrants, and does not unlawfully target anyone because of their national origin or faith.”
The group also expressed confidence the order would “ultimately be struck down by the courts” and said that “in the meantime, we are committed to working to ensure that as few people as possible suffer from the chaotic situation that it has created.”
Washington quickly became the first state to file suit seeking to overturn the order. Within days attorneys general in New York, Massachusetts and Virginia announced they were joining similar suits already filed by advocacy groups in their states. In a statement, Washington AG Bob Ferguson implied other states could soon join his suit, which he said was broader in scope than some others and could potentially have greater national impact. He also castigated Trump, saying “No one is above the law — not even the President.”
The refugee ban struck a particular nerve in California, where Democrats in both chambers had in previous weeks already introduced a suite of bills aimed at blunting Trump’s anticipated immigration actions. Last week, Senate President pro Tem Kevin de León (D) introduced a new resolution condemning the executive orders. It passed (as did a similar resolution last Thursday in Massachusetts), but not without vigorous opposition from Republicans like Sen. Jim Nielsen (R), who said the resolution’s supporters were “in a spirit of denial” about the threat of terrorists entering the country under the cover of refugee status. Nielsen argued that the president’s ban was not about religious or ethnic bias – as many opponents have claimed – but an honest reaction to a legitimate national security issue. He said if his Democratic colleagues don’t support the president’s actions they then owe their constituents “a solution” to terrorism.
Meanwhile, in his State of the State address on Tuesday, Texas Gov. Greg Abbott (R) declared his intention to ban sanctuary cities. He also vowed to cut state funding under his control from going to such Lone Star State communities. He made good on that promise on Wednesday, cutting off $1.5 million in state crime prevention grants to the office of Travis County Sheriff Sally Hernandez, who has said her department will no longer honor warrantless detainment requests from U.S. Immigration and Customs Enforcement officials. Abbott also indicated he would try to force Hernandez from office if she doesn’t relent. (Note: For more on this issue see TX Gov. Blocks Funding to ‘Sanctuary City’ in this issue)
The threat of a similar withholding from the federal government sparked San Francisco – which could lose as much as $1.2 billion in federal funding - to become the first city to file suit seeking to block the president’s sanctuary city defunding order. City Attorney Dennis Herrera called the president’s order “unconstitutional” and “un-American,” saying it would discourage immigrants from cooperating with police out of fear of deportation. Other big city mayors, including New York City Mayor Bill de Blasio and Chicago Mayor Rahm Emmanuel, have also vowed to defend their immigrant populations, though as of press time neither city had filed legal action.
There are thought to be between 300 and 400 municipalities that fall under the generally accepted definition of a sanctuary city or community. But as University of California Davis Law School Dean Kevin Johnson points out, the president’s order offers no definition at all and doesn’t specify what funds states or cities risk losing.
“It’s all very fast and loose,” he says. “Is it all federal funds? All highway funds? It’s all very vague and ambiguous.”
Critics further contend the president’s order violates both the U.S. Constitution’s 10th Amendment – which bars the federal government from compelling state and local officials to enforce federal laws – and longstanding Supreme Court precedent that says the federal government can’t make federal funding to states and local governments provisional unless the conditions they lay out are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.”
Those issues and many more related to Trump’s directives are now left to be unwound by the courts. Additional litigation is also undoubtedly on the way, as Trump vowed last Thursday to overturn the Johnson Amendment, an IRS rule barring pastors from endorsing candidates from the pulpit. More legislation is also sure to come, and likely in more states than just deep blue California. One prominent Californian, former Assembly Speaker Willie Brown, suggested that the Golden State could respond to any cut in federal monies by cutting off its supply of tax dollars that flow to the federal government. Brown told San Francisco TV station KPIX the state could become “an organized non-payer” of tax dollars, citing California’s status as a donor state, or one that pays more in federal tax dollars than it receives back in federal services and dollars. Brown did not elaborate on how such a plan could be put into action.
But another well respected California institution, Los Angeles Times columnist George Skelton, warned on Thursday that Democratic lawmakers run the risk of pushing their anti-Trump agenda too far. Skelton noted the tremendous negative backlash that engulfed former Massachusetts governor Michael Dukakis during the 1988 presidential campaign. Republican candidate George H.W. Bush constantly reminded voters of an African-American man named Willie Horton who raped and tortured a white woman while out on furlough from serving a life sentence for murder. Bush’s efforts stoked a wealth of racial animus that lasted throughout the campaign, and Dukakis, the Democratic nominee, could never shake the image of being soft on crime. Skelton argues that a similar incident involving an unauthorized immigrant could provide the state’s floundering, marginalized GOP its own Willie Horton moment.
That possibility has clearly not deterred de León or any other California Democrats. Last week, the Senate Committee on Public Safety endorsed SB 54, a de León bill that would essentially make California a sanctuary state. The bill is now with the Committee on Appropriations.
For more on this critical topic, check out our 2017 Immigration Reform Legislative Trends posting on LexTalk