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I’m Not a Lawyer, but …

constitutionI’m not a lawyer, but I am a big fan of the Constitution of the United States. It may not be the best one in the world anymore, but for a sweeping 228-year old legislative document, it’s held up pretty well. It makes me unhappy when politicians push through legislation that ignores the law of the land, acting as though their authority gives them the right to wipe their feet on it. The current President’s EXECUTIVE ORDER ENHANCING PUBLIC SAFETY IN THE INTERIOR OF THE UNITED STATES seems to do precisely that. In my utterly not-a-lawyerly fashion, I feel the need to personally pick this apart.

This is not the order the bars certain people from entering the US. That is also worthy of (and receiving) charges of unconstitutionality, but it doesn’t impact food and agriculture nearly as much as the other so-called “safety” order signed a few days before, and currently overshadowed by, the “foreign terrorist” order.

I’ll dig into the practical impact of this Order next time (unless it gets rescinded before then), but let’s just get look at the legality of the words today. Or, rather, a couple sentences worth of words. I don’t have the patience or knowledge to parse out this whole thing. Sec.1, paragraph 2 declares:

Sanctuary jurisdictions (a.) across the United States willfully violate Federal law (b.) in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.

There are numerous alternative facts in those two loaded sentences. First, no court has decided that regions that don’t target immigrants are violating federal law. Secondly, they aren’t necessarily trying to shield them from removal, but could just be looking out for the well-being and safety of the communities they serve. Third, the only way “immeasurable harm” might be true is if by removing objective measures you include the harm caused by politicians scaring people into thinking that immigrants are hurting our society, and scaring citizens into thinking their friends, family members, and employees are going to be deported. As far as immigrants measurably harming Americans, it doesn’t measure up. All groups have their outliers, but actual measures show that they commit less crimes than native-born people while doing work that is both desperately needed and undesirable to citizens.

The 10th Amendment declares that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This Order would place federal authority above state and local sovereignty. Every Sanctuary region (city, county, or state) has different policies in its approach to immigrants, but in general these jurisdictions refuse to accommodate Federal Immigration requests that force them to violate other laws or endanger their community. They will not jail someone who has not committed a crime or hold someone past their legislated release date just so ICE has time to show up and arrest them on immigration violations. When police have complied with ICE orders, they have left their departments open to litigation for violating the detained person’s 8th Amendment rights, wherein “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Law enforcement in sanctuary regions also avoids inquiring into the immigration status of people reporting crimes, because it’s ethical and because when the immigrant community feels the need to hide from police, it can impede law enforcement’s efforts to investigate serious crime. The decision against Arizona’s infamous Sheriff Arpaio should serve as a cautionary lesson to the current administration. By targeting immigrants and focusing on immigration at the expense of real crime, the US District court ruled that he violated the 4th Amendment protection against illegal searches and seizures and the 14th amendment guaranteeing equal protection under the law.

How will this play out? Can Trump actually take funding away from areas acting within the law at their own discretion, as the Order threatens to do? It is possible that he can restrict federal funding for law enforcement, but little else. Even that is unlikely since it seems to blackmail law enforcement into putting federal priorities above their own (see 10th Amendment, above). But the Court did allow the Reagan administration to give massive grants of cash and military equipment to local police agencies willing to “prioritize” drug crimes in the 1980s. The current administration might try something similar to pass (questionable) legal muster. No committed police department wants to put nonviolent drug crimes or nonviolent immigrants at the forefront of their work – they want to find and arrest criminals who are victimizing the community they serve. But they also need money, and, thus, are vulnerable to influence.

To the eyes of someone with a logical mind, a passing knowledge of the highest law of the land, and a decent search engine, this Order seems significantly unconstitutional, but to receive that ruling from the Court, someone or some group has to suffer harm under the Order and have the will and resources to pursue legal redress. I personally am hoping that it gets abrogated, gutted, or ceremonially burned before it ever gets to that point.

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