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Two days before issuing his original, now-rescinded travel ban in January, President Donald Trump unveiled a less-noticed executive order on immigration, vowing to starve “sanctuary jurisdictions” of federal funds for causing “immeasurable harm to the American people and to the very fabric of our republic.”
The Jan. 25 order was the first salvo in Trump’s high-stakes battle against local communities that he says harbor criminal immigrants — one of the centerpiece promises of his run for the White House.
But hundreds of sanctuary jurisdictions across the country are standing up in defiance — and Hawaii lawmakers are debating whether the state should join their ranks.
In this year’s legislative session, lawmakers have introduced at least eight resolutions calling on Hawaii to affirm its commitment to diversity by limiting the state’s cooperation with the federal crackdown on immigration.
So far, House lawmakers have adopted House Resolution 76, declaring Hawaii as “a hookipa (welcoming) state.”
Two other measures are also still in the works: House Concurrent Resolution 125 — virtually a carbon copy of HR 76 — will be heard by the Senate judiciary committee Tuesday, and Senate Concurrent Resolution 131 is waiting for a hearing in two House committees.
All three measures urge state and county officials to move away from embracing Trump’s harsh rhetoric against immigrants, arguing that Hawaii’s aloha spirit should reflect how immigrants are treated in the islands.
But the measures stop short of explicitly declaring Hawaii or any of its counties a “sanctuary.”
State Rep. Joy San Buenaventura, who introduced HR 76 and HCR 125, says her resolutions are more about being “anti-commandeering” — to insist that local communities can’t be coerced into performing federal functions under a Tenth Amendment principle.
“It’s different from asking the counties to become sanctuary counties,” San Buenaventura said. “If you look at the resolution, it basically says that we’re urging the counties to not allow county resources to be commandeered for federal deportation programs.”
It’s up to the counties, San Buenaventura says, to decide whether to “go further than that.”
California, for instance, is considering taking such a step. Earlier this week, its Senate approved a bill that prohibits the state’s law enforcement agencies from being involved in any immigration enforcement action.
Sen. Karl Rhoads, who introduced SCR 131, says he has no qualms about declaring Hawaii as a sanctuary state. Still, his resolution leaves out any reference to the designation.
Rhoads says the move is largely strategic: “It’s usually only useful to introduce things that will actually pass, so I didn’t want to make it too in-your-face,” he said. “If I can get the substance of it, even if it doesn’t have the word ‘sanctuary state’ in it, I’m fine with that.”
But both Rhoads and San Buenaventura agree on a key point: that local law enforcement resources shouldn’t be directed to enforcing federal immigration laws, especially to honor “detainers” — requests to hold immigrants in custody for up to 48 hours beyond the release date — unless they’re accompanied by a court-issued warrant.
San Buenaventura’s resolutions urge the state’s law enforcement agencies to “decline to work with federal immigration agencies” — unless it involves undocumented immigrants who have been “convicted of committing a violent crime.”
Rhoads’ resolution urges the state to “not participate in unconstitutional federal conduct that leads to the illegal or unlawful detainment of immigrants.”
But state Rep. Andria Tupola, a Republican who leads the House minority caucus, opposes the resolutions on the grounds that they wade dangerously into public safety decisions that should be left up to the discretion of law enforcement officials.
“It is our job as legislators to create law; it is the job of law enforcement to enforce law,” said Tupola, who has voted against both HR 76 and HCR 125. “So I feel like we’re overstepping our bounds by telling law enforcement what they should or shouldn’t do.”
The debate over Hawaii’s stance on immigration enforcement comes as the issue of defunding sanctuary jurisdictions is playing out in a federal court in San Francisco.
On Friday, U.S. District Court Judge William Orrick heard arguments from two California counties — San Francisco and Santa Clara — and the Trump administration on whether the Jan. 25 order should be temporarily blocked.
The counties filed their lawsuits shortly after Trump’s order was unveiled, arguing that the “presidential fiat” could have “catastrophic” consequences — potentially resulting in the loss of as much as $2 billion in federal funds for San Francisco and $1.7 billion for Santa Clara.
At its core, the lawsuits revolve around a simple question: How much cooperation must there be between U.S. Immigration and Customs Enforcement and law enforcement agencies across the country?
The counties have argued that, under the Tenth Amendment, the Trump administration can’t take federal funds and use them as “a gun to the head” to “commandeer” local communities into enforcing federal immigration laws.
The counties have also argued that a broad-based defunding of sanctuary jurisdictions runs afoul of a long line of U.S. Supreme Court precedents on Congress’ spending powers.
Justice Department lawyers haven’t disputed the merits of the counties’ arguments — at least not at this stage in the lawsuit.
Instead, the lawyers have argued that the lawsuit is “not ripe,” given that the secretary of Homeland Security has yet to designate any jurisdiction as a sanctuary — as mandated under Trump’s order — and, as such, the counties can’t show that they’re at risk of “irreparable harm” to establish the legal standing to sue.
The lawyers have also pointed out that what’s at stake is far less than the amount the counties allege, as Trump’s order applies only to grants from the Homeland Security and Justice departments.
But the counties have argued that Trump’s order is already crippling their budget process by forcing their officials to plan without knowing whether federal funds will be forthcoming or, if appropriated, will later be “clawed back.”
According to media reports, Orrick appeared skeptical of the Trump administration’s arguments during the hour-long hearing on Friday. But he didn’t rule from the bench, saying only that he’ll issue a written ruling “as soon as I can.”
Orrick’s ruling will likely offer a roadmap for Hawaii lawmakers, who will be studying it to assess the financial implications of adopting sanctuary policies.
But Rhoads says that, even if Orrick rules in favor of the Trump administration, Hawaii shouldn’t back down. The way he sees it, the state has goaded Trump enough already that becoming a sanctuary state wouldn’t make much difference in its chance of incurring Trump’s wrath.
“There’s plenty of reasons for him to be mad at Hawaii,” Rhoads said. “If he wants to be mad at us and be vindictive, we were the state to give him the lowest percentage of votes. He can also be mad that our attorney general has sued him twice already and won — so far.
“So I don’t see (being a sanctuary) as raising the risk of being retaliated against.”
Watch: Attorney General Jeff Sessions said Saturday that sanctuary cities will not receive Justice Department grants:
— CBS Evening News (@CBSEveningNews) March 27, 2017