Starting Feb. 1, sheriff’s officials will begin honoring so-called immigration holds or “detainers” placed by federal authorities only when a suspect is booked for capital murder, aggravated sexual assault and “continuous smuggling of persons.” That is an oddly short and arbitrary list. What about other forms of assault and battery? How about gun smuggling or racketeering or major drug charges? It is also not clear why one has to be “continuous” in the business of smuggling people or how one defines “continuous.”
Hernandez will require that the feds get a court order or arrest warrant signed by a judge for the jail to continue housing a person whose immigration status is in question. She insists that “The public must be confident that local law enforcement is focused on local public safety, not on federal immigration enforcement. Our jail cannot be perceived as a holding tank for ICE or that Travis County deputies are ICE officers,” Hernandez said.
Now here’s the question. What if Sessions insists that the public may want the federal government to focus on federal crimes and cut all local and state funding in the criminal justice area? How about federal assistance in turning over federal prisoners with detainers for state crimes? The feds could adopt the view that they are not their problem and release them. This could be a dangerous game of chicken with the public most at risk from the release of some of these prisoners with violent history that are not covered by the relatively short list released by Hernandez.
The county may not have to wait for a decision from the feds. Abbott has said the state is likely to move by cutting off funding. That would mean the loss of $1.8 million in grants, which is hardly crippling for an office with $169 million budget, but it is also not chump change at around one percent. The federal hit could be greater. More importantly, if Hernandez is going to obstruct federal enforcement, she may find less cooperation in a host of other areas.
The coming weeks will see if these confrontations are going to worsen but the politics are not promising for compromise. That would result in the type of confrontation between federal and state authorities that we have not seen on such a large scale. There are over three dozen such cities. It could lead to some interesting constitutional challenges over conditions tied to federal funding. In 1987 in South Dakota v. Dole, the Supreme Court upheld federal conditions that withheld highway funding from cities that did not enforce the federal drinking age. However, the Court noted that the amount was not so high as to be coercive in the denial of state authority over this area. Ironically, these largely liberal cities may rely the most on a ruling against the Obama Administration. In 2012, the Court found such coercion in National Federation of Independent Business v. Sebelius, when the Court struck down a provision of the Affordable Care Act that would have blocked federal Medicaid funding to states that did not adopt a Medicaid expansion.
The result could be a major reconsideration of what constitutes coercion from federal conditions. I have never been a fan of federal conditional spending. I have a hard time with the notion of the federal government taking more in taxes than its needs only to send the money back to the states with conditions on how they handle traditional areas of local and state authority. Having said that, the Court has allowed such conditions and these cities may have to make a choice between defying the federal government or accepting hundreds of millions in federal support for the criminal justice system.
What do you think?