Much of this Kafkaesque insanity derives from the City and County of San Francisco suffering under a delusion. Its delusion is that it is responsible for the determination of United States immigration and naturalization policy. Under the Constitution of the United States, however, the City and County of San Francisco has no power to determine immigration and naturalization law. Only the United States Congress, pursuant to Article I of the Constitution, has the power to make such law.
The City and County of San Francisco may view its status as a matter of high principle. In fact, here is what the City says about its City and County of Refuge status:
In 1989, San Francisco passed the "City and County of Refuge" Ordinance (also known as the Sanctuary Ordinance) which prohibits City employees from helping Immigration and Customs Enforcement (ICE) with immigration investigations or arrests unless such help is required by federal or state law or a warrant. The Ordinance is rooted in the Sanctuary Movement of the 1980's, when churches across the country provided refuge to Central Americans fleeing civil wars in their countries. In providing such assistance, faith communities were responding to the difficulties immigrants faced in obtaining refugee status from the U.S. government. Municipalities across the country followed suit by adopting sanctuary ordinances.
In recent years, the Sanctuary Movement has experienced a rebirth, as grassroots organizations, faith communities, and local government have stood firmly against repressive immigration proposals in Congress and immigration raids that separate families. In February 2007, Mayor Gavin Newsom reaffirmed San Francisco's commitment to immigrant communities by issuing an Executive Order that called on City departments to develop protocol and training on the Sanctuary Ordinance.So San Francisco adopted its City and County of Refuge Ordinance. Its ordinance quite directly declares the City's refusal to cooperate with federal law enforcement. But San Francisco's neat principle comes with a price and Kathryn Steinle appears now to be the latest known victim of San Francisco's "principled" stand.
Before government officials begin spinning their lines, YOU NEED TO KNOW that THERE IS SOMETHING THAT CONGRESS CAN DO about American cities that choose to sacrifice the lives of American citizens in the name of "Sanctuary." Congress can CONDITION THE RECEIPT OF FEDERAL FUNDS on COMPLIANCE by program recipients with ICE detainer requests.
The Congress has the SPENDING CLAUSE power to coerce Cities of Sanctuary to comply with detainer requests. Understand, I am not saying that Congress can, or should, simply enact a law demanding that Cities, Counties and States provide that cooperation. Rather, I am saying that Congress can require that cooperation of cities, counties and States as a condition of the receipt of federal program funds by them.
On several occasions, the Supreme Court has confirmed that Congress can condition the receipt of federal program monies on compliance with federal program requirements. For example, back in late 1970s, Congress conditioned receipt by the States of a portion of highway funding on States raising the legal drinking age to 21 years. South Dakota complained that the condition violated the 21st Amendment, the one which ended prohibition, and gave, essentially, plenary power of the sale and distribution of alcohol to the States. In South Dakota v. Dole, affirming the constitutionality of the requirement and the program, the Supreme Court explained the interplay of the Spending Clause power and such federal program requirements:
The Constitution empowers Congress to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." . Incident to this power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power "to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives." . The breadth of this power was made clear in United States v. Butler, , where the Court, resolving a longstanding debate over the scope of the Spending Clause, determined that "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." Thus, objectives not thought to be within Article I's "enumerated legislative fields," , may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.
The spending power is of course not unlimited, , but is instead subject to several general restrictions articulated in our cases. The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of "the general welfare." . In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.  Second, we have required that if Congress desires to condition the States' receipt of federal funds, it "must do so unambiguously . . ., enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation."  . Third, our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated "to the federal interest in particular national projects or programs." . Finally, we have noted that other constitutional provisions may provide an independent bar to the conditional grant of federal funds. .
Essentially, South Dakota v. Dole (and other Supreme Court cases) allow Congress to pursue policy goals by a "carrot and stick" approach. In the South Dakota case, the goal Congress sought was to raise the legal drinking age across the Nation; the carrot was a portion of reserved federal highway funding; the stick was the loss of that portion of funds reserved for States that brought their legal drinking age limit into compliance with federal policy.
To be clear, as South Dakota quoted above makes clear, Congress cannot tie just any carrot to just any stick. In other words, as the opinion above explained, "several general restrictions" limit that power. Of those restrictions, one that is important here is that "conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs.'" In the South Dakota case the connection between drinking age, drivers' licensing, and highway funding was sufficient to permit Congress to apply that carrot and stick.
So what can Congress do?
Congress can condition the receipt of relevant funding on actual cooperation of program recipients with special, related requirements designed to serve policy goals identified by Congress. In South Dakota v. Dole, the receipt of a portion of highway funds depended on raising drinking ages as desired by Congress. In the first Supreme Court decision on the constitutionality of Obamacare, the Court actually rejected a portion of the statute that condition receipt of ANY MEDICAID FUNDING BY THE STATE with the State's expansion of Medicaid as proposed by the Patient Protection and Affordable Care Act. Chief Justice Roberts' opinion, mostly remembered because it saved the challenged individual mandate by identifying it as a tax, rather than a penalty, concluded that COMPLETE DENIAL OF MEDICAID FUNDS was too big a stick, and that the proper stick might have been to limit MEDICAID funding to pre-Obamacare levels.
So Congress can identify the funds that it is appropriating that relate to immigration, naturalization, law enforcement, community policing, and justice programs. Then, Congress can condition receipt of a relevant portion of funds (not necessarily all, but that would have to be decided on, as a matter of policy, and in keeping with the Supreme Court's decisions on the subject). Having forecast how the money it appropriates will be distributed and for what purposes, Congress need only adopt a statutory requirement of cooperation with ICE detainer requests as a condition on the receipt of funds.
How would this impact the City and County of San Francisco?
Well, of course, that depends on the size of the carrot and the size of the stick.
Here is what we know for sure. San Francisco receives a relatively princely sum from the federal government.The City and County of San Francisco receives about a QUARTER BILLION DOLLARS in federal funding annually. But that is only about 5% of the City's general funds each year.
But, had Congress the will to do so, it could invite San Francisco and other federal grantees to respect our Constitutional order, and to give place to national policy over its own preferences about immigration and naturalization. Whether Congress will act, of course, remains to be seen.