Fox News Hosts Claim So-Called “Sanctuary Cities” Are Violating Federal Immigration Law

Bill O'Reilly: “Attorney General Loretta Lynch Could Order The FBI Today To Arrest” The Mayor Of San Francisco. During a segment titled, “The Vilification of Donald Trump,” The O'Reilly Factor host claimed that the release of Kate Steinle's alleged killer from custody was “unconstitutional.” O'Reilly added that the “mayor and city supervisors of San Francisco are directly responsible for the murder of Kate Steinle and the Obama Administration is complicit.” [Fox News Channel, The O'Reilly Factor, 7/6/15]

Bill O'Reilly: Cities “Have To Obey” Federal Law But Because Obama Won't Enforce It, “It's Anarchy.” O'Reilly claimed the prior release from detention of the undocumented immigrant accused of killing Steinle constitutes “a criminal offense” on the part of the San Francisco authorities. In response to O'Reilly's assertion that “the federal government should crack down on sanctuary cities,” guest Charles Krauthammer reasoned, “You would have thought that we got over this notion of states and localities proclaiming their own laws in defiance of the federal law with the civil rights era 50, 60 years ago.” [Fox News Network, The O'Reilly Factor, 7/6/15]

Gregg Jarrett: “San Francisco Is Breaking The Law.” Happening Now's host Jarrett claimed Congress has “outlawed sanctuary cities” and “made it a crime to shield illegal immigrants.” Reading from a city ordinance, Jarrett quoted a city policy that said San Francisco would not “assist in the enforcement of federal immigration law.” [Fox News Channel, Happening Now, 7/6/15]

Eric Bolling Calls San Francisco "The Sanctuary City [That] Decided To Ignore Federal Law And House These People." On the July 6 edition of Fox News' Hannity, Fox guest host Bolling declared, “we know for a fact that these cities, these 31 American cities, have told their police departments and anyone who works for the city that they cannot communicate with ICE (U.S. Immigrations and Customs Enforcement).” Fox contributor Katie Pavlich added that the “Barack Obama ICE agency, which he is controlling through his executive orders on illegal immigration, he has said to the ICE agents, don't go into these cities even though you have the authority, to get these bad guys off the streets.” [Fox News Channel, Hannity, 7/6/15]

Andrea Tantaros: "[Sen.] Feinstein: Blood On Her Hands?" During the July 7 episode of Fox's Outnumbered, co-host Tantaros argued that the “Gang of Eight” 2013 Senate bill “gutted immigration reform in a way that would have kept these criminals here,” laying specific blame on an amendment offered by Sen. Dianne Feinstein (D-CA) that “would have prevented DHS (Department of Homeland Security) from penalizing the local sanctuary governments.” Tantaros also argued that “there is a law on the books, Sandra, a 1996 law that was passed by President Bill Clinton that put the pressure on. If you have illegals, you've got to turn them over.” [Fox News Channel, Outnumbered, 7/7/15]

Kimberly Guilfoyle: “The Prosecutor Should Be Taken Away In Handcuffs For Some Felony Crime.” Referencing her past as a former prosecutor, The Five's Guilfoyle argued San Francisco officials involved in the alleged killer's case are responsible for “obstructing justice.” Guilfoyle added “this administration has been part and parcel of it, they have been an aider and abetter.” (Fox News Channel, The Five, 7/7/15]

“Sanctuary Cities” Are Not Breaking Federal Immigration Law

CRS: “Sanctuary Cities'” Policies Don't “Conflict With Federal Requirements.” According to a 2009 Congressional Research Service report that discussed local law enforcement agencies' responsibilities under § 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and § 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the “primary federal restrictions on state and local sanctuary policies” concern a state or local refusal to maintain or share immigration status information. However, the report noted that the 1996 law “does not require entities to collect such information in the first place” and the U.S Court of Appeals for the Second Circuit indicated that “Congress cannot directly compel states to collect and share information regarding immigration status with federal immigration authorities”:

Although IIRIRA § 642 prohibits states and localities from barring the transfer or maintenance of information regarding immigration status, it does not require entities to collect such information in the first place. Reportedly, some states and localities seeking to limit assistance to federal immigration authorities have barred agencies or officers from inquiring about persons' immigration status, a practice sometimes described as a “don't ask, don't tell” approach. Though this method does not directly conflict with federal requirements that states and localities permit the free exchange of information regarding persons' immigration status, it results in specified agencies or officers lacking any information about persons' immigration status that they could share with federal authorities. [Congressional Research Service, 1/15/09]

Law Professor Bill Ong Hing: “The Constitutionality Of Sanctuary Policies Is Clear.” As explained by Bill Ong Hing, a law professor at the University of San Francisco School of Law, “sanctuary policies” are clearly constitutional. As he wrote in the UC Irvine Law Review, these state and local policies do not violate federal law “as long as sanctuary communities that choose not to ask about immigration status do not bar volunteer communications and follow other federal requirements of cooperation”:

The constitutionality of sanctuary policies is clear. Unlike anti-immigrant subfederal laws intended to regulate immigration, sanctuary policies, community policing, and confidentiality approaches are not about regulating the admission of immigrants. Sanctuary policies are about public safety and decisions on how to spend public funds and establish priorities, and therefore are not preempted. Congress cannot commandeer local authorities to enforce federal immigration laws. Thus, as long as sanctuary communities that choose not to ask about immigration status do not bar volunteer communications and follow other federal requirements of cooperation, they clearly are not preempted.

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The central teaching of the Tenth Amendment cases is that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the states to require or prohibit those acts. Congress may not, therefore, directly compel states or localities to enact or to administer policies or programs adopted by the federal government. It may not directly shift to the states enforcement and administrative responsibilities allocated to the federal government by the Constitution. Such a reallocation would not only diminish the political accountability of both state and federal officers, but it would also compromise the structural framework of dual sovereignty and separation of powers. Thus, Congress may not directly force states to assume enforcement or administrative responsibilities constitutionally vested in the federal government. Forcing subfederal entities to allow voluntary cooperation raises the spector of violating those principles. [UC Irvine Law Review, 2012]

OIG: San Francisco Policy Is “Consistent With Its Obligations Under State And Federal Law.” In 2007, Congress asked for an analysis of “sanctuary cities” from the Office of the Inspector General of the Department of Justice under the Republican administration of George W. Bush, which concluded: “In each instance the local policy either did not preclude cooperation with ICE or else included a statement to the effect that those agencies and officers will assist ICE or share information with ICE as required by federal law.” The report also stated "[o}ur review did not disclose any instances of outright failure to cooperate with ICE in the removal of criminal aliens from the United States. Instead, we found that local jurisdictions often set the enforcement of state and local law as a priority, while sometimes permitting or encouraging law enforcement agencies and officers to work with ICE to some degree on immigration matters." [OIG, January 2007]

City And County Of San Francisco: Sanctuary Policy Does Not Supersede “Federal Or State Statute, Regulation Or Court Decision.” San Francisco's “Sanctuary Ordinance” explicitly notes that it does not trump federal law. Sec. 12H.2 states that "[n]o department, agency, commission, officer or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or State statute, regulation or court decision." (emphasis added) [San Francisco Administrative Code Chapter 12H: Immigration Status, accessed 7/7/15]

Law Enforcement Experts: Sanctuary City Policies Deter Crime. According to an October 4, 2007 report in Salon, several law enforcement experts -- including “the chiefs of police of the 64 largest police departments in the United States and Canada” -- have found that sanctuary cities policies actually deter crime rather than exacerbate it. The criminal justice coordinator for the City of New York reportedly credited sanctuary city-style policies as “one of the reasons New York City is the country's safest big city”:

When it comes to public safety, meanwhile, defenders of sanctuary cities say their policy deters crime. John Feinblatt, the criminal justice coordinator for the City of New York, says that the city's policy regarding law enforcement involvement with immigration status isn't protecting criminals but helping the NYPD catch them -- and that it is one of the reasons New York City is the country's safest big city.

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In 2006, an organization known as the Major Cities Chiefs, comprising the chiefs of police of the 64 largest police departments in the United States and Canada, put out a position paper that opposed any congressional efforts like the ones currently under consideration. In the position paper, the Major Cities Chiefs said local law enforcement did not have the budget or capability to become an enforcer of federal immigration law. Further, “immigration enforcement by local police would likely negatively effect [sic] and undermine the level of trust and cooperation between local police and immigrant communities. If the undocumented immigrant's primary concern is that they will be deported or subjected to an immigration status investigation, then they will not come forward and provide needed assistance and cooperation. Distrust and fear of contacting or assisting the police would develop among legal immigrants as well ... Such a divide between the local police and immigrant groups would result in increased crime against immigrants and in the broader community, create a class of silent victims and eliminate the potential for assistance from immigrants in solving crimes or preventing future terroristic acts.” [Salon, 10/4/07]