Lamb or Lion? How Does March End?

Navigating Uncertain Times:  Friday Roundup

Friday March 31, 2017

 

Lamb or Lion?  How does March End?

The old weather saying is that if March ‘enters like a lion, it leaves like a lamb’ – and vice versa.

Now that we are at the end of March – and another month of immigration drama – do we find ourselves with a sense that the turbulence is settling down into a predictable pattern – irrespective of your position on the issues – or is it heading for new levels of chaotic uncertainty?

It’s hard to say.  Perhaps we’ll just declare that it is leaving like a ‘liomb’.

In the past week, the federal judge in Hawaii has converted the ‘Temporary Restraining Order’ into a ‘Preliminary Injunction’ on the implementation of President Trump’s Executive Order limiting the admission of persons into the U.S. from six predominately Muslim countries.  This simply means that the ‘stay’ on the enforcement of the Executive Order will continue until a hearing can be held on the merits of the case.  Given the consistency of federal court rulings on this Executive Order, it’s probably safe to say that the ultimate decision will have to ultimately be made by the U.S. Supreme Court.  For all of the uncertainty and confusion that accompanied these Executive Orders thus far, at least the wheels of justice run on an orderly procedure.

In an earlier day, the term ‘The Wall’ was typically a reference to  Pink Floyd.  Now, ‘The Wall’ is undoubtedly a reference to President Trump’s efforts to build a wall on the Southern border of the U.S. to deter unlawful entry into the U.S. 

Candidate Trump famously declared that Mexico would pay for The Wall.  But the reality of his efforts now rely upon a supplemental spending bill that President Trump has asked Congress to pass to use U.S. Government funds to build ‘The Wall’. 

The problem with that approach is that Fiscal Year 2017 funding has yet to be approved to keep the U.S. operating beyond April 28, 2017 – (one month away).    You may recall the ‘Continuing Resolution’ that Congress most recently passed in December 2016 is the new normal for how Congress keeps the government funded: several months at a time.

Since it would require additional appropriations to fund the immediate construction of ‘The Wall’, the senior member of the Appropriations Committee, Republican Senator Roy Blunt of Missouri has indicated that attempting to deal with a supplemental spending bill from the President would unnecessarily complicate the negotiations going on now simply to keep the government operating beyond April 28.  Consequently, it appears that finding U.S. funds to build ‘The Wall’ will have to wait at least until later.

And finally, there were new statements from the White House this week taking aim at so-called ‘Sanctuary Cities’ – threatening to withhold federal funds if these municipalities refuse to assist Immigration & Customs Enforcement, (‘ICE’) in detaining persons who are subject to removal for immigration violations.

One of the problems in discussing this issue is that there is no legal definition for the term ‘Sanctuary City’.  Generally, it means some government jurisdiction, (town, city, county, state, etc.), that does not assist ICE in detaining and/or removing immigrants subject to removal.

The law relating to this is found in 8 US Code §1373, which generally prohibits such government entities from refusing to share information on an individual’s immigration status with ICE.  Several legislative efforts have been initiated to enforce President Trump’s Executive Order of January 25, 2017 by withholding federal assistance from these entities.  The proposed punishment variously identifies such federal assistance as economic grants, FEMA and Justice Grant programs.

One of the challenges to enforcing the Executive Order is that it grants authority to the U.S. Department of Homeland Security to designate which states or municipalities are to be defined as ‘Sanctuary Jurisdictions’ – absent a legal definition.  In fact, the Executive Order broadens the scope beyond violation of 8 USC §1373, to any entity that impedes the enforcement of ‘any federal law’.  Consequently, a city might simply refuse a request from ICE to detain a person (which the courts have confirmed is not required of a city) and still be punished for being a ‘Sanctuary City’. 

Like some of these other issues, it’s complicated.  And ultimately it will be the Courts that make the determination of what might be enforceable and what is not enforceable.

So if you think watching a controversial issue wind its way through our U.S. Court system is an exciting proposition, March might just be leaving like a lion.  If you think allowing our U.S. Court system to decide these issues is a long and inefficient way to deal with our problems, March might be leaving like a lamb …(but you would be wrong….)

 

Have a nice weekend,

HS&D Immigration Group