A Constitutional Challenge to Sanctuary Policies

The Trump administration has filed multiple lawsuits against sanctuary jurisdictions pursuant to their refusal to comply with both administrative and criminal immigration law that will likely be met with persistent politically based resistance.

One jurisdiction that has an illegal immigrant-friendly/anti-ICE ordinance that has managed to evade the Department of Justice’s attention is Bernalillo County, N.M., home of Albuquerque, the state’s largest city. In 2019 the County Commission passed administrative resolution 2019-22 to protect the rights of illegal aliens against civil enforcement of immigration laws. Contained in the ordinance is the county’s prohibition of employees, particularly from the Metropolitan Detention Center (MDC), to cooperate in any way with Immigration and Customs Enforcement.

The resolution essentially prohibits detention officers at MDC, the largest detention center in New Mexico, from “Notifying any federal immigration enforcement agency about the release date or pending release date, contact information, or other sensitive information of any person in custody.”

Ironically, the resolution does not specify criteria for ICE cooperation in the case of illegal immigrants with felony warrants, merely addressing issues surrounding detainers and administrative warrants.

I inquired of the jail as to what the policy is if a request for the release date for a U.S. citizen inmate being held on a felony warrant were made by local law enforcement such as the Albuquerque Police Department or Bernalillo County Sheriff’s Office. The official answered that the release date would be provided upon request. A follow-up query, as to whether the same information would be provided to ICE in reference to the release date of an illegal alien being held on a felony warrant, the answer was in the negative.

This dual policy brings into question whether there is a violation of the 5^th and 14^th amendment equal-protection rights of U.S. citizen inmates, possibly opening an alternative strategy for ICE to gain access to inmate information.

Rather than hit sanctuary cities head-on with lawsuits intended to erode municipal ordinances and resolutions, confronting them with the constitutional rights of inmates, in a sort of flanking attack, would be a political nightmare and potentially expose municipalities such as Bernalillo County to discrimination lawsuits which they would not have the energy, money, or political capital to withstand.

Essentially, the 5^th Amendment due process clause implies equal protection under the law on the federal level. While many illegal aliens are held on state felony warrants, the concurrent order of deportation would satisfy the federal requirement. The 14^th amendment, which provides for equal protection under the law on the civilian side, would also come into play when inmates, defense attorneys, and families learn illegal immigrants have more protection against ICE intervention than Americans would against their local law enforcement entities. This would expose the county to civil lawsuits. Or the U.S. Department of Justice could file civil rights lawsuits noting these discriminatory practices.

An HSI agent has told me the tactic of challenging sanctuary jurisdictions based on the constitutional rights of inmates may compromise the meager crumbs currently being offered. This statement is indicative of the demoralizing impact sanctuary municipalities have on agents enforcing codified federal law and not whimsical and lazy political agendas disguised as resolutions they know would never pass as actual law. 

This novel approach can potentially paint sanctuary municipalities into a corner. They will have to choose which marginalized group deserves constitutional rights protection more, an inmate who is an American citizen or an illegal alien inmate. Granted, this can be a slippery slope; municipalities could, in response to such a challenge, block out all law enforcement, but to what extent will a municipality come into conflict with its local law enforcement entities over non-immigration issues may be worth a test case.