Even before President Trump signed an executive order to strip funds from "sanctuary cities" like Philadelphia, immigrant advocates had warned that his administration was in for a fight. And for the last two days, city solicitors, immigration lawyers, and constitutional scholars have been picking through the order, opining on what might hold up in court.
Beneath the legal debate, undocumented immigrants in Philadelphia are worrying about what the order could mean for themselves and their families.
A coalition of lawyers gathered in Philadelphia on Thursday morning to pledge support for immigrants and any legal challenges to come.
What kind of challenges? They see no shortage of options.
“It’s a legal land mine,” Molly Tack-Hooper, a staff attorney for the Pennsylvania office of the ACLU, said of Trump’s immigration order. “The president's policies are not firmly grounded in our laws.”
The order directs the secretary of homeland security and the attorney general to ensure that sanctuary cities are not eligible for federal grants “except as deemed necessary for law enforcement purposes.” The order is unclear how or when that might be implemented, or what funds might be targeted.
In several cases where the government attempted to pull funding to get states and cities to comply with federal programs, the Supreme Court has ruled that the government cannot take so much money that it coerces jurisdictions into complying with those programs, and that the funds that it withholds have to be connected to the issue it is seeking to enforce, said David Rivkin, a Washington-based constitutional lawyer.
Cody Wofsy, a lawyer with the ACLU’s Immigrants’ Rights Project, said the president alone lacks the authority to pull funds from cities. Even if Congress defunded a sanctuary city, that city could challenge the move under the 10th Amendment, Wofsy said.
But Rivkin, who served in the Reagan and George H.W. Bush administrations, said the government could argue that all federal funds sent to a sanctuary city are related to immigration-enforcement issues, and thus are fair game for funding cuts.
“Having a sanctuary city policy, you’re going to be a magnet for illegal aliens, and chances are pretty high that they will partake of [services funded by a federal grant], and the funds will not be spent in a way that Congress intended them” – on people who are lawful residents of the United States, he said. Of cities’ threatened challenges to the order, Rivkin said: “I have every confidence that they will lose.”
Boston, Washington, and New York City have already said they would remain sanctuary cities. (New York Mayor Bill De Blasio has threatened a lawsuit over the order.) Mayor Kenney on Tuesday said he had no plans to change the city’s policy.
Nearly two dozen city departments received more than $340 million in federal grant money in fiscal year 2015. But Kenney said the executive order does not target any specific portion of that, and added that if Trump did move to pull specific funding, he would need congressional approval – and ultimately, that of the courts.
City officials have declined to discuss their legal strategy. If federal funds were to be pulled from Philadelphia, any legal challenge would likely come from the city.
Ken Trujillo, a former city solicitor and candidate for mayor, called the order “flatly unconstitutional.” He said that the city will be assessing any immediate impact but that there could also be a far broader impact if this is indicative of how Trump will govern.
“The broader threat is very significant,” he said. “And so I think right now, you’re thoughtful in your approach. You’re strategic. You look at political implications as well as legal. And you look at every avenue you have.”
Immigrant rights activists said that regardless of the legal challenges the law presents, the order has set a frightening tone for undocumented immigrants in Philadelphia.
“There’s so many questions – what is in the executive order, and how it’s going to be implemented,” said Sundrop Carter, the executive director of the Pennsylvania Immigration and Citizenship Coalition. “But really, what this is doing is creating a sense of fear.”
Estela Hernandez, originally of Oaxaca, Mexico, who has lived in Philadelphia for 12 years, said that is what she felt when she learned of the executive order -- fear that she would be separated from her family. Her three children were born here. She works nights cleaning a grocery store in New Jersey and now worries about what could happen if she is pulled over on her way home
Hernandez is a member of the immigrant activist group New Sanctuary Movement. Speaking through an interpreter on Friday afternoon, she said she feels safe in Philadelphia. Before the city instituted its sanctuary policy, her husband was mugged at gunpoint. She initially called police to report the crime, but hung up on a police officer after he asked her immigration status, she said, adding: “I am afraid we will go back to that place of being fearful, being afraid of the police."
Hernandez and other activists say they are offended by characterizations of undocumented immigrants as criminals or freeloaders.
The executive order “labels all immigrants as criminals and all cities that welcome immigrants as somehow protecting criminals,” said Caitlin Barry, a Villanova University law professor who runs the school’s Farmworker Legal Aid Clinic.
“We have seen Philadelphia grow because of the immigrants,” Hernandez said. “The president has been saying he will cut funds for the cities that are a sanctuary, but the president is not thinking about all of the citizens it’s going to affect too.”
Jennifer R. Clarke, executive director of the Public Interest Law Center of Philadelphia, called the pressure on sanctuary cities a threat, not an imminent danger. But because Trump’s order could target essentially everything but public safety grants, she said, the threat is nonetheless disturbing.
“The money goes to affordable housing. It goes to helping homeless people,” she said. “It's kind of this punishment at the, quote, city, but the money he's talking about goes to the poorest people in the city. It's punishing people who can't afford to be punished."