OPINION: ICE Did Not Want Killer of Kathryn Steinle Deported So Giving Him to San Francisco Suited Its Purposes

Be very careful how you hear what you hear. Even on Fox News, where the preferred candidate is not, I think, Donald Trump. Do not let them, or anyone, give you the impression that the federal government is innocent of the blood of Kathryn Steinle.

Remember this fact: ICE turned Sanchez over to the SF Sheriff KNOWING that SF declared itself a Sanctuary City 26 years ago, that SF declared non-cooperation with ICE detainers 26 years ago, and that, when ICE turned Sanchez over to SF, it was for possible prosecution for a marijuana charge.

Ask yourself, if ICE had Sanchez, and if Sanchez was DUE TO BE DEPORTED yet again, and ICE turned Sanchez over to SF for prosecution of a very old marijuana related charge (with high likelihood that SF would choose not to prosecute such charge), what was ICE actually doing?

Think.

Even if it hurts, think.

Sanchez was, according to news reports, "ready" to be deported. Instead, ICE delivered him to the city authorities in a declared Sanctuary City. They did not deport him.

Come on.

You can do it.

YES! YOU'RE RIGHT!

The federal government, the Immigration and Customs Enforcement, were avoiding the deportation of a convicted felon DELIBERATELY. Rather than deport him, they transferred him to a city that they KNEW would likely (a) not prosecute him and (b) not comply with its detainer request but, instead, release him.

Heads should roll. In San Francisco. In Washington, DC.

City of Refuge, or City of Sitting Ducks?

It has been TWENTY-SIX years since the City and County of San Francisco declared itself a "Sanctuary" City, a City and County of Refuge.

It has been TWENTY-SIX years since the City and County of San Francisco ENACTED AN ORDINANCE DECLARING that it would not cooperate with Immigration and Customs Enforcement ("ICE"), declaring that San Francisco, not the government of the United States, would determine the policy to be followed regarding the treatment of undocumented aliens, including ones previously convicted of violent felonies.

It has been TWENTY-SIX years since the City and County of San Francisco TOLD THE FEDERAL GOVERNMENT that its laws, its rules, its requirements were irrelevant.

Now, Kathryn Steinle is dead. And perhaps we would not even know her name, but for the unhappy coincidence of the timing of her execution while on an afternoon stroll with her father as Donald Trump was being lambasted for remarks about the sad reality that many many undocumented aliens entering the USA from Mexico are not GOOD PEOPLE, but EVIL, CRIMINAL PEOPLE.

Trump's prescience and candor doesn't mean you or I should vote for him. It does mean, however, that every "harrumphing" fool who tosses down pretense to offense at Trump's remarks must be made to feel the discomfort of answering for Steinle's murder. They must not be allowed to soften the blows to themselves by referring to Steinle's death as "senseless" or "random."

Steinle's death makes perfect sense. The curve of policy and practice, the criminal history of the accused, these things made what happened the day Steinle died predictable, and, by the way, avoidable.

A man commits MULTIPLE felonies, and has the convictions for seven of them to prove it. That man is DEPORTED five times, but is again in the USA. What? In the USA after having been excluded FIVE TIME?

Do not forget these points. The ICE folks at DHS KNOW his record. They have his record. They see his record. They know that he has pending charges in San Francisco. AS A COURTESY, ICE delivers the alleged killer to San Francisco, and places a detainer request with the San Francisco Sheriff's Office.

WAIT. WHAT?

The San Francisco Sheriff's Office is part of the City and County of San Francisco. That is the same entity that TWENTY SIX YEARS AGO declared itself a CITY AND COUNTY OF REFUGE. That is the same entity that TWENTY SIX YEARS AGO declared as a matter of policy that IT WOULD NOT HONOR such detainer requests. ICE KNEW, at the time when it transferred Francisco Sanchez to San Francisco's Sheriff's Department along with a detainer request THAT THE SHERIFF'S DEPARTMENT HAD A POLICY OF NON-COOPERATION. Yet ICE still delivered him into the Sheriff's hands, the hands that would not protect Steinle, the hands that are stained with her blood.

Nothing about this incident was UNAVOIDABLE.

Nothing about this incident was UNPREDICTABLE.

If you LIVE in a City of Refuge, or a Sanctuary City, you live in place that has declared itself above the Constitution, above the law of the land. That doesn't, however, equate with converting the place where you live into a safer, a more beautiful, a more kind, or a more gentle place.  As the death of Kathryn Steinle teaches us, it simply means that you are in a place where a dangerous person, with an established and lengthy criminal record, will nonetheless be released by your city officials as a defiant taunt against federal requirements for how to handle undocumented aliens.

If you are the governing officials of such cities, you are, yourself, a criminal. Your city's defiant declaration to disregard the constitutional role of the Congress in establishing immigration and naturalization policies shows that this is the case. Feel self-righteous and smug? I guess, that's understandable. You've blinded yourself to the blood of victims like Kathryn Steinle.

If you are an official of ICE, please, do not pretend that you do not bear responsibility for these kinds of mayhem. You know which are the Cities of Refuge, the Sanctuary Cities. When you KNOW that these cities choose to lawlessly defy the policy of the Congress established in our immigration and naturalization statutes, and extend courtesies of any kind to them, you bear responsibility too.

And, as I explained here yesterday, if you are a member of the United States Congress, you are on notice of this problem. You have the means to bring appropriate pressure to bear on Cities of Refuge that receive federal funds simply by conditioning the receipt of federal funds on cooperation with ICE Detainer requests.

If you are a citizen, if you are a person of good will, even a person who, as I do, knows that many undocumented aliens in the United States are not criminals, are not filled with disregard for life and limb of others, you too have a responsibility. Speak and act. Speak out against the unlawful practices of Cities of Refuge, such as the one exposed by the murder of Kathryn Steinle. Speak out against the carelessness and disregard for life and safety reflected in acts of "courtesy" by ICE that result in the release of dangerous criminals into the hands of law enforcement officials in Cities of Refuge. And demand that Congress bring financial pressure to bear on Cities of Refuge so that the safety of each and all is enhanced.

Kathryn Steinle: Sad Death in a City of Refuge and How Congress Can Address the Failure of CoRs to Protect The Public

The City and County of San Francisco sacrificed one of its newer residents last week as part of its on-going flaunting of US immigration laws. Across the Nation, as we learned the identity of the accused shooter of Kathryn Steinle, we felt the anger burning in our minds and hearts. How is it possible that the City's Sheriff's Department released a convicted (seven times), felon on the thin excuse that ICE detainer requests are "not legal?" How is it possible, in the first instance, that ICE surrendered the accused to the Sheriff "as a courtesy" so that the City could prosecute him on outstanding warrants, knowing as ICE did that the Sheriff's Department would NOT honor ICE detainer requests?

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 US Constitution, 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 declared the City's refusal to cooperate with federal law enforcement. 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 or forgo federal funds. 

Understand, I am not saying that Congress can, or should, simply enact a law demanding that Cities, Counties and States provide that cooperation. Such unfunded mandates offend important federalism principles. 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 funds on compliance with federal program requirements. For example, back in the late 1970s, Congress conditioned receipt by the States of a portion of highway funding on their raising the legal drinking age to 21 years. South Dakota complained that the funding condition violated the 21st Amendment. [The 21st Amendment, ending Prohibition, gave plenary power over 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. [].

South Dakota v. Dole.

Essentially, South Dakota v. Dole (and other Supreme Court cases) confirm that the Constitution allows Congress to pursue policy goals by a "carrot and stick" approach. In South Dakota, the Court recognized that the goal Congress sought to achieve was to raise the legal drinking age across the Nation to improve safety. The "carrot" was a portion of reserved federal highway funding; the "stick" was the loss of that portion of funds by States that would refuse to bring their legal drinking age limit into compliance with federal policy.

To be clear, as South Dakota makes clear, Congress cannot tie just any carrot to just any stick. In other words, "conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs.'" In South Dakota, the connection between drinking age, driver licensing, and highway funding was sufficient to permit Congress to apply that carrot and stick.

So what can Congress do in response to the murder of Kathryn Steinle?

Congress can condition the receipt of relevant funding on actual cooperation of program recipients with requirements designed to serve policy goals identified by Congress. In South Dakota v. Dole, receipt of a portion of highway funds depended on raising drinking ages as desired by Congress. More recently, National Federation of Independent Businesses v. Sebellius, the first Supreme Court case about Obamacare, the Court actually rejected a portion of the Obamacare statute that conditioned receipt of ANY MEDICAID FUNDING BY STATES with States' agreement to expand Medicaid programs as proposed the Act. Chief Justice Roberts concluded that COMPLETE DENIAL OF MEDICAID FUNDS to States was too big a stick, and that the proper stick might have been to limit MEDICAID funding to pre-Obamacare levels. [Most will recall this case for a separate holding by the Court sustaining the constitutionality of the "Individual Mandate" on the ground that the mandate was a tax, not a penalty.]

Congress can identify the funds appropriated in relation to immigration, naturalization, law enforcement, community policing, and justice programs. Then, Congress can condition receipt of a relevant portion of funds (not necessarily all, Congress would have to make that decision, 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 would need only to impose as a condition of receipt of the funds a 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.

http://sfcontroller.org/modules/showdocument.aspx?documentid=4497

Perhaps not all of that $250,000,000.00 in federal funds would be affected by a congressional "carrot and stick." Perhaps it would. That determination belongs to Congress, guided by an understanding that the Supreme Court does give such programs a careful review to insure that relevant Tenth Amendment interests are preserved, and that Congress has not overstepped.

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.