Trump Officials Are Exploring Mass Arrests of US Mayors
Tuesday, January 30, 2018
By Ron Fein, Truthout | Op-Ed
(Photo: filo / E+ / Getty Images)
It's 4 am in New York. Federal agents in tactical gear confront the police
department's mayoral security detail outside Manhattan's Gracie Mansion.
After a tense standoff, the NYPD stands down and steps aside as the
bedraggled mayor is removed in handcuffs. Across the nation, carefully
coordinated pre-dawn raids sweep up the mayors of Boston, Chicago, San
Francisco and Seattle, and the governor of California. Two hours later,
President Trump tweets victory.
Paranoid conspiracy thriller? Feverish dystopian fantasy? Hardly. This is a
plan that the Trump administration is actively considering. On January 16,
Secretary of Homeland Security Kirstjen Nielsen told the Senate Judiciary
Committee that, at her department's request, federal prosecutors are
"reviewing what avenues might be available" to arrest and prosecute mayors
of sanctuary cities for harboring unauthorized immigrants.
Nielsen's testimony wasn't even the first time in January that the
administration floated the idea of arresting mayors and governors. Two weeks
earlier, Acting Director of Immigration and Customs Enforcement Thomas Homan
told a Fox News host, "We gotta start charging some of these politicians
with crimes."
This is dangerous, dangerous talk.
It's important to understand what a sanctuary city (or state) status means.
While local policies vary and there is no universal definition of the term,
in sanctuary cities, local police stick to enforcing local and state law,
not federal immigration law. That frustrates federal authorities, but it's
not obstruction, let alone nullification. Federal officers can still enforce
federal immigration law. They just have to do it on their own.
The question here is not whether sanctuary policies are wise. The question
here is whether our constitutional democracy can survive mass roundups of
mayors and governors for refusing to use local resources to help enforce
federal immigration.
To be sure, elected officials are not immune from the law. Many have spent
time in the federal penitentiary for corruption. And elected officials who
deliberately violate court orders can be subject to criminal contempt of
court. For example, in the 1960s, Mississippi's governor was charged with
criminal contempt for defying a court order to desegregate the University of
Mississippi. And former Arizona Sheriff Joe Arpaio was convicted for
disobeying a court order to stop unconstitutional policing practices.
(President Trump pardoned him, but that pardon is the subject of ongoing and
potential future litigation.)
It's possible that administration officials are performing elaborate theater
for an audience of one -- the president. Trump himself often says "We're
looking into it" as a way to dodge an awkward question.
Or perhaps the Department of Justice chuckled at the request for criminal
prosecution of mayors, but is considering narrower options to punish
sanctuary cities. There aren't many, partly because most sanctuary policies
don't even violate any federal statute. More importantly, as the late
Justice Antonin Scalia explained in 1997, the Constitution prohibits the
federal government from "commandeering" local law enforcement to enforce
federal law. Even Congress's power to condition federal funds is limited; as
Chief Justice John Roberts explained in 2012, Congress cannot use its
spending power to "coerce" a state "to adopt a federal regulatory system as
its own." That's partly why a federal judge issued a permanent injunction
against Trump's earlier attempt to withhold federal funds from sanctuary
cities.
But let's not lose the forest for the trees: The United States government is
contemplating a mass arrest of US mayors and governors for refusing to help
the president's agenda.
We've seen this before in other countries. Mass purges of dissident local
officials are moves from Putin's Russia (if not Stalin's) or Erdoğan's
Turkey. But nothing in our own history has prepared us for this moment.
Is this a red flag for autocracy? Some take comfort in Trump's
disorganization and distraction. On this theory, breaking the republic is a
full-time job, not something you squeeze in between golf and live-tweeting
morning television. But as longtime Putin critic Masha Gessen notes, the
first rule for survival in an autocracy is to "believe the autocrat. He
means what he says." And even if Trump himself doesn't know how to achieve
his goals, the people running the president's immigration enforcement policy
-- Secretary Nielsen, Acting Director Homan and, of course, Attorney General
Jeff Sessions -- know what they are doing, and how to achieve what they and
the president want.
Maybe it won't happen. Maybe cooler heads will prevail. But we should
reflect on the chilling fact that President Trump's handpicked appointees to
run immigration enforcement openly discuss prosecuting the mayors of US
cities. We must prepare for the day when the administration makes good on
its threat.
We may not get a second chance.
Copyright, Truthout. May not be reprinted without permission.
Ron Fein
Ron Fein is the legal director of Free Speech For People, a national
nonpartisan, nonprofit organization that engages in legal advocacy to
confront the misuse of the US Constitution.
Related Stories
States and Local Advocates Lead the Way for Criminal Legal System Reform
By Jessicah Pierre, Inequality.org | News Analysis
What Jeff Sessions' Latest Attack Means for the Future of Legal Marijuana
By Mike Ludwig, Truthout | News Analysis
Sessions Vows to Issue Subpoenas in Immigrant-Demonizing Inquest Against
"Sanctuary Cities"
By Sam Knight, The District Sentinel | Report
