Publisher's Perspective: Executive Order on Immigration Places Counties in Lose-Lose Situation

NACo analyzes January executive order on immigration 

On Jan. 25, President Donald Trump signed an Executive Order titled “Enhancing Public Safety in the Interior of the United States.” The order aims to “ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed.”

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To read NACo’s comprehensive analysis, click here 

While this and other executive orders signed by President Trump have been the subject of much national attention and political debate, county leaders are faced with practical implications that the executive order could have on local governments and their law enforcement agencies. Counties across the country are assessing the order and how its provisions align with existing federal statutes and court precedents. In doing so, counties are aiming to avoid a potentially difficult situation in which they are forced to choose between two deeply undesirable outcomes: running afoul of recent federal court rulings in a manner that invites litigation and legal liability, or losing access to significant federal funds needed to serve local communities.

As we work to assess serious constitutional, legal and practical concerns with this order from a county operations perspective, we stand ready to partner with administration officials, including leaders at the U.S. Department of Justice and U.S. Department of Homeland Security, to pursue our shared priority of ensuring the safety of local communities across the nation. In-depth dialogues between federal and local officials can help to highlight workable solutions that serve this shared responsibility without placing local governments in a lose-lose situation.  

In assessing this executive order, NACo is focused on constitutional principles that have been affirmed by federal courts — outlined below — rather than underlying questions of federal or local immigration policy. 

• The federal government cannot compel states or their political subdivisions, such as counties, to enforce federal laws, according to U.S. Supreme Court rulings on the 10th Amendment and its division of powers between the federal government and states.
• Federal withholding of funds from otherwise eligible state and local entities could also violate the 10th Amendment if such withholding effectively coerces adoption of federal policies by those entities, or if withheld funds are unrelated to the federal policies in question.
• Counties have no legal obligation to honor immigration detainers, and when they choose to honor these requests, they risk violating the Fourth Amendment’s protections against “unreasonable searches and seizures,” which apply to foreign nationals in the United States.

With these constitutional principles in mind, NACo has analyzed the “Executive Order on Enhancing Public Safety in the Interior of the United States,” and looks forward to dialogues between federal and local officials that can help to facilitate effective and practical implementation of the administration’s executive order in a manner that serves our shared responsibility of keeping America safe.