Trump order targets "sanctuary cities"

• They are to publish the list of jurisdictions that don't cooperate with immigration agents, and to notify each sanctuary jurisdiction of non-compliance, providing an opportunity to correct it.
• Sanctuary jurisdictions that don't comply "may" lose federal funding, the White House said.

Catch up quick: The executive order comes after Trump promised during his 2024 campaign to eliminate sanctuary policies and to use the federal government's weight to dole out consequences for jurisdictions that refuse to comply.

• He then signed an executive order the day he was inaugurated, calling for federal grants to sanctuary cities to be cut.
• But a federal judge last week blocked the administration from cutting funds for jurisdictions that limit cooperation with federal immigration enforcement, calling parts of Trump's order unconstitutional.

State of play: Lawfare Project senior counsel Gerard Filitti told Axios on Monday that an order identifying sanctuary jurisdictions, and even directing prosecutions, does not run afoul of the judge's ruling last week addressing funding.

• Executive action on funding arguably violates the Constitution's spending clause, which gives Congress — not the President — the power to finance programs, Filitti said in an email.

Yes, but: "The new executive order does not run afoul of the spending clause, nor is it susceptible to arguments that changes are being made without due process."

Zoom in: Monday's executive order marks a shift in the administration's approach to targeting sanctuary cities.

• "We have already seen the Administration try to restrict funding going to sanctuary cities (albeit so far unsuccessfully), but what we are seeing now is an anticipated shift to legal proceedings targeting these cities for their willful failure to comply with federal immigration law," Filitti said.
• The distinction between non-cooperation and obstruction is subtle in the new order, but it is critical to the Trump administration's approach to enforcement, Filitti noted.
• "Put simply, the Justice Department will be looking at the DHS list of sanctuary cities and look to prosecute officials in them for obstruction," he said. "Because while sanctuary cities may have the 'right' to not cooperate (because of the Tenth Amendment), they do not have a legal right to obstruct enforcement through harboring."
• He called it a new and potentially very powerful tool to induce officials in sanctuary cities to cooperate in Trump's deportation agenda.

Between the lines: Jurisdictions often have sanctuary policies in place as state law, and an executive order doesn't have the power to rescind them, Kathleen Bush-Joseph, an attorney and policy analyst at the Migration Policy Institute, told Axios.

• "So then the conflict becomes, how does a court decide whether or not one trumps the other?" she added.

Shayna Kessler, an attorney and director of Vera's Advancing Universal Representation initiative, which advocates for legal services for immigrants facing deportation, told Axios that "attacks on sanctuary jurisdictions are just another continued example of scare tactics."

• There are have already been court orders "affirming that state and local governments have the authority to decide how their own local resources and their own local law enforcement are used," she said in a phone interview Monday.
• State and local governments "can't be coerced into doing the federal government's work of immigration enforcement," Kessler added.

What they're saying: White House Press Secretary Karoline Leavitt described the executive order earlier Monday as "focused on protecting American communities from criminal aliens."

• She added: "It's quite simple: Obey the law, respect the law, and don't obstruct federal immigration officials and law enforcement officials when they are simply trying to remove public safety threats from our nation's communities."

More from Axios:

• Judge halts "sanctuary city" crackdown
• What's at stake if we lose sanctuary city laws
• Republicans lead sanctuary city probe targeting Democratic mayors