Can Trump Administration Make Good On Its Threat To Pull Cincinnati's Federal Funds?

Feb 12, 2017

The repercussions of the city of Cincinnati declaring itself a "sanctuary city" have spread like kudzu on a Georgia highway.

We've had Sean Spicer, the White House press secretary, standing at the lectern in the White House briefing room specifically singling out Cincinnati as one of those cities that could lose federal funding because of its policy toward immigrants, without distinction between those here legally or illegally.

Then, we've had Ohio's State Treasurer Josh Mandel (who, not coincidentally, is a Republican candidate for the U.S. Senate) recruiting a freshman state representative from Butler County to introduce a bill that would potentially throw Mayor John Cranley and city council members in jail if an illegal immigrant commits a serious crime in the city.

Except that the state representative Mandel recruited, Candice Keller, told WVXU her bill is nowhere near ready for a final draft and is being reviewed by the Legislative Service Commission to see if it would pass muster in a court challenge.

All of this over the words sanctuary city.

Two words that under the law – federal, state or local – have no meaning whatsoever.

It means whatever a city wants it to mean.

And, when Cincinnati City Council passed the sanctuary city resolution on Feb. 1, it represented a set of principles that the city has been practicing under for years.

"Passing that resolution didn't change our policy one bit,'' said Kevin Flynn, who voted for the resolution because he believes in the principle behind it.

The Trump administration, after issuing its ban on travel to the U.S. by people from seven Muslim countries (a ban that is on hold now, thanks to an appeals court decision), issued a threat that federal funding would be yanked from cities who are "sanctuary cities."

Friday, the Trump administration was talking about continuing the fight for the original executive order in court, but the president also said that he might sign "a brand new order" - presumably one that would be more acceptable to the courts. 

Whatever happens, the threat of the withdrawal of federal funds from sanctuary cities persists. 

On Wednesday, Spicer made it clear.

"The president is going to do everything he can within the scope of the executive order to make sure that cities who don't comply with it; they will not get federal funding,'' Spicer said. "Areas like Miami-Dade down in Florida understand the importance of this order; and we hope that cities like Cincinnati and other communities around the country follow their lead and comply with that."

After Trump's executive order last month, Miami-Dade County's mayor rushed to make sure everyone knew that his city wasn't a "sanctuary city" and would comply with all federal immigration laws.

Cincinnati's mayor was short and sweet in his response to Spicer's threat.

"Given that Mr. Spicer said that only cities that violate federal law will lose federal funds, and the city of Cincinnati has not and will not violate federal laws, the city is not in jeopardy of losing federal funds,'' Cranley said in a written statement.

Cranley was hanging his hat on a legal opinion written by the city solicitor, Paula Boggs Muething.

"Because the city is not in violation of President Trump's executive order on immigration enforcement, there is no basis under law or under the Executive Order itself for withholding federal funding from the city of Cincinnati,'' Muething wrote.

"The city's resolution declaring itself a sanctuary city is constitutionally-protected free speech, which the city will defend as it seeks to uphold the fair and just application of laws within its boundaries,'' Muething said.

The city's police department has, since March 2015, had a policy of not doing immigration status checks on people who are pulled over on traffic stops or placed under arrest.

Cincinnati's police don't get in the way of federal immigration agents. But the fact is this: Local police don't have the authority to enforce federal law. They can cooperate with them voluntarily.

"If our police enforced federal immigration laws, we would be violating federal law,'' Flynn said.

Hamilton County commissioner Todd Portune, a Democrat, said local law enforcement "can't be commandeered by the president to be federal agents."

Trump's attitude, Portune said, "is that 'I'm the president; I run everything.' He believes he is the final authority in all matters. Well, the laws of this country prevail."

Trump could order that federal funds be cut off to Cincinnati and other sanctuary cities - money that has already been appropriated by Congress or future funds that the president might be able to convince Congress to withhold.

Thursday, in a teleconference with Ohio reporters, Ohio's Democratic senator, Sherrod Brown, was asked about the threat of pulling federal funding.

"It's pretty simple,'' Brown said. "You don't take support away from Ohio police and firefighters to score political points. It makes our cities less safe."

Brown said he would do everything he could to work with Trump and the Ohio congressional delegation to protect federal funding for Ohio cities.

Chase College of Law professor Ken Katkin, who teaches and writes about constitutional law, said he likes the city of Cincinnati's chances if they took the Trump administration to court over the withdrawal of federal funds.

"It is a case the city would likely win,'' Katkin said.

As if the threat of losing federal funding, including transportation dollars for big projects like the Brent Spence Bridge, was not enough, city officials are now being threatened with jail time over the sanctuary city designation.

Last week, Mandel, who is running for the Senate by sticking close to the Trump party line, arranged a press call with Keller, the new state representative from Middletown, where they outlined Keller's proposed legislation.

Under this proposed bill, mayors and other elected officials could be charged with a fourth-degree felony for crimes committed in their cities by undocumented immigrants. They could get up to 18 months in jail and a $5,000 fine. In a civil suit, they could be fined up to $1 million.

No other state has such a law.

In an interview with WVXU Thursday, Keller said "there are a number of issues that have to be worked out" before her bill would be ready to be introduced.

"First of all, we have to define what a sanctuary city is; and a host of other things have to be clarified,'' Keller said. "We're very, very early in the process."

Keller said her desire is "to simply make sure that city officials are following federal law."

"We have no beef with any city,'' Keller said. "We have no reason to believe that the mayor of the city of Cincinnati has done anything wrong. I am not anti-immigrant; I am anti-crime."

Katkin took a close look at Ohio's constitution and case law and came to the conclusion that if Keller's bill is passed and enforced as law, it probably wouldn't stand up to judicial review.

He said he believes it would violate the municipal home rule provisions in Article XVIII of the Ohio Constitution.

"These provisions general vest Ohio cities with legal authority to exercise all powers of local self-government, including the power to set policing policies for city police,'' Katkin said in an email to WVXU.

Strike one.

Further, Katkin said that "since the state legislature lacks power under our constitution to prescribe any particular enforcement policies for local police, I believe it follow that the Ohio legislature cannot punish local elected officials for failing to prescribe such policies."

Strike two.

Under Article II of the Ohio Constitution, state legislators are immune from civil or criminal liability for their legislative work, Katkin said.

The constitution doesn’t extend the same immunity directly to local officials. But Katin said a 1980 Ohio Supreme Court decision held that the same absolute privilege enjoyed by state legislators also applies to local governing bodies.

"I believe that courts would adhere to that holding today,'' Katkin said.

Strike three. You're out.

Under Katkin's legal analysis the Keller bill – which doesn't exist yet – is not much of a threat.

Cranley and the six council members who voted for sanctuary city status don't have to pack their tooth brushes for a trip to the county jail any time in the foreseeable future.

And there is reason to believe that the Trump administration can't make good on its threat to yank federal funding. Maybe in the short term, but not in the long run.

Which makes us wonder what all the turmoil over sanctuary cities is all about.