This executive order issued by President Donald Trump focuses on immigration law enforcement activities in the interior, non-border areas of the United States, and has the purpose to “direct executive departments and agencies to employ all lawful means to enforce the immigration laws of the United States.” In prefatory statements that sound more like campaign rhetoric rather than statements of federal government policy, the executive order also states: “[m]any aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety.”
Much of the executive order is focused on facilitating federal immigration law enforcement activities with state and local governments: “[a]lthough Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility.” Section 2(c) states that it is now that policy of the executive branch to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” On its face, this is simply stating the obvious, that state and local jurisdictions must comply with any conditions for receiving federal funding that are established in federal laws authorizing and appropriating that funding (for example, following eligibility and benefit rules to provide a Medicaid program with federal funding). However, this executive order could be interpreted much more broadly, conditioning ANY federal funding with compliance with ALL federal laws, and the executive branch’s interpretation of those laws, such as affirmatively requiring cooperation with federal immigration law enforcement activities. Such a broad, over-reaching interpretation would be subject to immediate legal challenge.
Section 8 of the executive order states: “It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.” This delegation of federal immigration enforcement activities has been rejected by numerous courts, which consistently have ruled that state and local law enforcement agencies do not have the responsibility, expertise, or resources to enforce federal immigration law. However, the executive order gives authority to the Secretary of Homeland Security to declare a state or local government a “sanctuary jurisdiction” that the Secretary determines is not complying with a federal law governing communication between federal immigration officials and state and local governments (8 USC Section 1373). The Attorney General would then be authorized to act to make such a “sanctuary jurisdiction” ineligible “to receive federal grants”; it is unclear how the Attorney General could achieve this, or under what legal authority.
Section 5 of the executive order establishes priorities for federal immigration law enforcement and restores the Secure Communities program that was replaced by the Priority Enforcement Program in 2014. The priorities stated in the executive order essentially continue the Obama Administration’s prioritization of enforcement again undocumented immigrants convicted of crimes and engaging in fraud and misrepresentation about their immigration status. However, the addition of the subsection now prioritizing individuals who “have abused any program related to receipt of public benefits” is alarming.
The most chilling section of the executive order is section 6: “As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.” The last phrase including “those who facilitate their presence in the United States” is vague and overbroad but could empower the Department of Justice to seek prosecution of family members, neighbors, friends, schools, employers, health and social service agencies, and almost any other individual or institution that has contact with undocumented immigrants. While such prosecutions would be subject to legal challenges given the historical interpretation and application of current laws against “harboring” undocumented immigrants, this is a dangerous shift in executive policy.
Section 14 also authorizes the exclusion of any individual who is not a U.S. citizen or lawful permanent resident from federal privacy law protections. This would have unprecedented impact on a law such as the Health Insurance Portability and Accountability Act (HIPAA), which always have applied to all residents of the U.S., regardless of immigration status. This overbroad exclusion would revoke privacy protections for millions of Americans who have other legal immigration statuses, including those who have employment-based visas, student visas, refugees, and asylees.
While candidate and President-elect Trump never was specific about what federal “deportation force” he envisioned, the executive order now specifies the hiring of 10,000 additional immigration officers. This hiring is subject to availability of funding, which means the Department of Homeland Security adjusting its current budget to begin these hires as well as seeking additional appropriations in the yet to be finalized budget for this Fiscal Year 2017.
Ignatius Bau 