The No Bailout for Sanctuary Cities Act, or H.R. 5717, is a bill that would define the term “sanctuary jurisdictions” and prohibit those localities from receiving federal funds intended to be “use[d] for the benefit” of undocumented immigrants. The bill was introduced by Representative Nick LaLota (R-New York) on September 26, 2023, and has been co-sponsored by 35 Republican members of Congress as of September 12, 2024.
The No Bailout for Sanctuary Cities Act:
- Would define sanctuary jurisdictions as subdivisions of a state that prohibit or restrict their government entities from
- sharing information with federal, state, or local law enforcement entities regarding the citizenship or immigration status of any individual (excepting policies limiting information sharing relating to crime victims or witnesses); or
- complying with voluntary immigration detainers issued by the U.S. Department of Homeland Security (DHS).
- Would prohibit cities and localities deemed sanctuary jurisdictions from receiving “any Federal funds” that the jurisdiction “intends to use for the benefit” of undocumented immigrants “including the provision of food, shelter, healthcare services, legal services, and transportation.” (Note: The bill mistakenly refers to section 101 of the Immigration and Nationality Act (INA) to define who constitutes a lawfully admitted immigrant. The correct section of the INA that defines this term is §1101).
Discussion
A. Broad Definition of “Sanctuary Jurisdiction”
There is no statutory definition of what comprises a sanctuary city or jurisdiction. “Sanctuary jurisdiction” has been colloquially used to refer to a wide variety of jurisdictions, from those that have passed ordinances barring many types of cooperation with federal immigration authorities to those that merely have expressed concern about controversial state-level immigration enforcement laws to those that have placed limits on whether or how long they will hold individuals subject to immigration detainers.
The No Bailout for Sanctuary Cities Act would adopt an expansive and rigid definition of the term. Under the broad definition proposed by the bill, jurisdictions placing any limitations on the sharing of citizenship or nationality information with federal authorities or on the honoring of an immigration detainer are deemed a “sanctuary jurisdiction” and subject to the bill’s penalties.
Many jurisdictions have adopted community policing strategies to enhance cooperation between law enforcement and the public, including immigrant communities. Such policies may provide for extensive levels of engagement with federal immigration authorities in many areas while placing limits on others – like the collection and/or sharing of immigration and nationality information.
Many jurisdictions similarly adopt rules and limits relating to honoring immigration detainers, which courts have determined are voluntary. Because cities and localities may face 4th amendment lawsuits for wrongfully detaining individuals without a court order or warrant, many jurisdictions have placed limits on how they honor detainers. Many jurisdictions opt not to hold individuals beyond their release times, especially when they were initially taken into custody for a non-violent or low-level offense. However, many such cities and localities continue to cooperate extensively with federal immigration authorities, including honoring immigration detainers for those who have committed serious offenses.
Far from being limited to self-proclaimed “sanctuary cities,” H.R. 5717 threatens to penalize counties and municipalities that cooperate with federal immigration authorities in many areas.
B. Substantial Costs to Cities and Localities
Unlike previous similar proposed legislation, which sought to more narrowly strip federal funding related to law enforcement, immigration, and other related areas from non-compliant jurisdictions, the No Bailout for Sanctuary Cities Act would block “any Federal funds that the sanctuary jurisdiction intends to use for the benefit” of the undocumented population. Even though undocumented people are not eligible for most federal benefits, the breadth of this definition could impact large categories of spending benefiting U.S. citizens and undocumented people alike. Read expansively, the penalties in H.R. 5717 could imperil a host of healthcare, nutrition, and legal services programs, placing substantial pressure on cities and localities already facing budget challenges.
H.R. 5717 would also entail substantial costs for those jurisdictions who attempt to comply with its requirements to avoid its penalties. Compliance with the bill’s requirements would create additional burdens, including litgiation costs and civil damages arising from honoring warrantless detainers, as well as new costs arising from shifting personnel and resources to fulfill the bill’s information-sharing and detainer requirements.
C. Legal Concerns
In addition to the policy concerns highlighted above, H.R. 5717 raises significant legal concerns. Federalism principles and the 10th Amendment limit what Congress can do to mandate that state and local law enforcement carry out federal immigration priorities and programs. Constitutional restrictions prevent the federal government from attempting to “commandeer” state and local governments into directly carrying out federal regulatory programs. By compelling state and local law officers to honor immigration detainers as part of a broader federal enforcement program, the bill may be in tension with an “anti-commandeering” principle articulated by the U.S. Supreme Court.
The wide range of funding impacted by the bill also would be in tension with existing legal precedents placing limits on how coercive federal funding conditions can be, including requirements that conditions imposed must be reasonably related to the funding, a requirement arguably violated by including large swaths of federal spending in H.R.5717.