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Fact check: Would Michigan sanctuary city legislation mean more duties for local governments?

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July 24, 2017
By Amée LaTour

Legislation to bar local governments from adopting sanctuary city laws that prohibit reporting an individual’s immigration status to federal authorities is pending in the Michigan Legislature. According to Rep. Terry Sabo (D-Muskegon), “What these bills [call for is] for local government to take on even more duties [than] what they already have and our police agencies are already strapped with our cuts in revenue sharing, they’ve been underfunded.”[1]

Is Sabo correct that the legislation calls for local government to take on more duties?

Whether reporting on immigration status would constitute more duties would depend on the current reporting policies of Michigan’s counties, cities, villages, and townships.

HB 4105, titled the Sanctuary Policy Prohibition Act, would require a peace officer who has probable cause to believe that an individual under arrest is not legally present in the United States to report that individual to the U.S. Immigration and Customs Enforcement Office.[2][3]

HB 4334, the County Sanctuary Policy Prohibition Act, would not prescribe reporting requirements, but would instead prohibit local officials from enacting or enforcing any law, ordinance, policy, or rule that restricts communication or cooperation with federal officials on the immigration status of an individual in the state.[4]

In voting to send the legislation to the full House on June 7, the Committee on Local Government also recommended that lawmakers adopt substitutes (revised versions) for each bill. The substitute for 4105 would not require information sharing with federal authorities, as the original bill would do. It would bar cities, villages, and towns from restricting information sharing.[5] The substitute for HB 4334 would bar counties from restricting information sharing.[6]

Background

The Michigan legislation reflects a debate about sanctuary cities that is occurring in various cities and states, as well as in Congress. There is no official definition of the term sanctuary city or sanctuary jurisdiction. The Congressional Research Service, which provides policy and legal analysis to the House and Senate, has noted that the term often refers to localities "that have actively opposed federal immigration authorities’ efforts to identify and remove certain unlawfully present aliens within their jurisdictions."[7]

With limited exceptions, state and local law enforcement agencies cannot be required to enforce federal immigration laws under the anti-commandeering principles derived from the U.S. Constitution (the Tenth Amendment and the Appointments Clause of Article II).[8] There are no federal laws that require state and local officials to report an individual’s immigration status to federal authorities.[8][9]

Federal law prohibits local and state governments from enacting restrictions on information sharing with federal authorities about immigration matters.[10] According to the Michigan House Fiscal Agency, in its analysis of the proposed bills, an estimated 200 cities in the U.S. identify as sanctuary cities. Some have adopted laws or policies that restrict information sharing in some circumstances.[11][7][12][13]

The Michigan Municipal League has identified three Michigan cities that limit the conditions under which officers and public servants are allowed to solicit information on individuals' immigration status: Detroit, Hamtramck, and Ypsilanti. Those ordinances permit, but do not require, such inquiry when an individual is under arrest, among other conditions.[14] In addition, Ann Arbor passed an ordinance prohibiting public servants from soliciting information about immigration status unless doing so is necessary to establish the identity or flight risk of a person who has committed a crime punishable by at least 93 days in jail or when immigration status is relevant to investigating or prosecuting a crime.[15] An April executive order from the mayor of Lansing, the state's capital, prohibits police officers from asking about any person's immigration status "except as required by federal or state statute or court decision."[16]

The bills

HB 4105 and HB 4334 were introduced in the Michigan House on January 26 and March 8, respectively, and referred to the Committee on Local Government.

HB 4105 proposes that police officers who suspect that an individual under arrest is in the country illegally must report the individual to the U.S. Immigration and Customs Enforcement Office. If enacted, it would also bar local units of government from enacting or enforcing laws or policies that prohibit information sharing with federal authorities about an individual’s immigration status. In the event that a jurisdiction were to violate the statute, the state treasurer would be authorized to withhold revenue sharing from that jurisdiction.[3]

HB 4334 would bar local units of government from prohibiting officers or officials from communicating with federal authorities about individuals' immigration status. Doing so would also result in the loss of state revenue sharing funds.[4]

The House Committee on Local Government voted to send both bills to the full House for a second reading along with recommendations to adopt two substitute bills. [17][18][19]

The substitute for 4105 would not require information sharing with federal authorities, as the original bill would do. It would bar cities, villages, and towns from restricting information sharing. The substitute for HB 4334 would bar counties from restricting information sharing.

The substitutes would give local/county governments 60 days to comply. If they do not comply, an individual in the locality may challenge the policy or law in circuit court or may file a complaint with the state's attorney general, who must then challenge the law or policy in circuit court.[5][6][20]

Conclusion

Legislation preventing local governments from adopting sanctuary city laws is pending in the Michigan House. According to Rep. Terry Sabo (D-Muskegon), the legislation would require local governments “to take on even more duties [than] what they already have.”[1]

Whether reporting on immigration status would constitute more duties would depend on the current reporting policies of Michigan’s counties, cities, villages, and townships. HB 4105, if enacted, could be an additional duty in localities that currently do not engage in information sharing with the federal government. Conversely, it would not constitute an additional duty in localities that already engage in such information sharing.[3] HB 4334, along with the recommended substitutes to both bills, would not require such reporting and thus would not constitute an additional duty.[4][5][6]

See also

Sources and Notes

  1. ↑ 1.0 1.1 WoodTV.com, "Michigan sanctuary city legislation causing confusion," June 12, 2017
  2. ↑ The term peace officer refers to a law enforcement official.
  3. ↑ 3.0 3.1 3.2 Michigan Legislature, "House Bill No. 4105," January 26, 2017
  4. ↑ 4.0 4.1 4.2 Michigan Legislature, "House Bill No. 4334," March 8, 2017
  5. ↑ 5.0 5.1 5.2 Michigan Legislature, "Substitute for House Bill No. 4105," accessed July 3, 2017
  6. ↑ 6.0 6.1 6.2 Michigan Legislature, "Substitute for House Bill No. 4334," accessed July 3, 2017
  7. ↑ 7.0 7.1 Congressional Research Service, "State and Local 'Sanctuary' Policies Limiting Participation in Immigration Enforcement," March 23, 2017
  8. ↑ 8.0 8.1 See United States Court of Appeals for the 9th Circuit, Printz v. United States, June 27, 1997 and United States Court of Appeals for the 2nd Circuit, New York v. United States, June 19, 1992
  9. ↑ Courts have not resolved whether federal law could require states and localities to report such information to federal authorities. See Congressional Research Service, "State and Local 'Sanctuary' Policies Limiting Participation in Immigration Enforcement," March 23, 2017 (Footnote 95 and "The Tenth Amendment and the Anti-Commandeering Doctrine")
  10. ↑ Government Publishing Office, "8 U.S.C. § 1373," accessed July 17, 2017
  11. ↑ Michigan Legislature, accessed July 23, 2017
  12. ↑ The Congressional Research Service report of March 23, 2017, describes three types of policies adopted by some jurisdictions to limit information sharing with federal authorities: "[S]ome jurisdictions prohibit law enforcement from notifying federal immigration authorities about the release status of incarcerated aliens, unless the alien has been convicted of certain felonies. Similarly, other jurisdictions prohibit their employees from disclosing information about an individual’s immigration status unless the alien is suspected of engaging in illegal activity that is separate from unlawful immigration status. Some jurisdictions restrict disclosing information except as required by federal law."
  13. ↑ In 2016, Michael Horowitz, the inspector general of the Department of Justice, analyzed sanctuary policies in 10 of 140 sanctuary jurisdictions identified by the Office of Justice Programs to determine if the information-sharing restrictions violated 8 U.S.C. § 1373, which prohibits the restriction of information sharing. Horowitz concluded that there was cause for concern that the local laws may be interpreted by local officials to restrict communication with federal authorities, but that the local laws in question contain ambiguous clauses excepting their provisions in certain cases (i.e., "except as otherwise provided under applicable federal law") which prevented a firm conclusion. U.S. Department of Justice, Office of the Inspector General, "Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients," May 31, 2016
  14. ↑ The Michigan Municipal League describes itself as "dedicated to making Michigan’s communities better by thoughtfully innovating programs, energetically connecting ideas and people, actively serving members with resources and services, and passionately inspiring positive change for Michigan’s greatest centers of potential: its communities." Michigan Municipal League, "Welcoming Cities: Immigration, Economic Prosperity, and Public Safety," February 2, 2017
  15. ↑ City of Ann Arbor, Michigan, "Ordinance No. Ord-17-02, Solicitation of Immigrant Status," accessed July 18, 2017
  16. ↑ Lansing, Michigan's Capital City, "Mayor Issues Executive Order Clarifying City Policy Re: Treatment of Immigrants and Refugees," April 3, 2017
  17. ↑ Michigan Legislature, "House Bill 4105 (2017)," accessed June 26, 2017
  18. ↑ Michigan Legislature, "House Bill 4334 (2017)," accessed June 26, 2017
  19. ↑ Each received Yea votes from seven Republicans on the committee and four Nay votes from committee Democrats. Michigan Legislature, "No. 54 State of Michigan Journal of the House of Representatives 99th Legislature," June 7, 2017
  20. ↑ If a law is found to violate the proposed bills, the court would issue an injunction for the unit of government to cease enforcement; order that the challenged law be amended or repealed; and prescribe a civil fine of between $2,500 and $7,500 for an elected or appointed official if such is deemed to have knowingly and willfully violated either recommended bill.
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