Iowa better off holding fire on anti-sanctuary city law — for now

The Iowa state Senate approved a bill known as, “Senate File 481” (SF 481) near the end of its 2017 session on a 32-15 vote. All of the Republicans and four Democrats voted for it. If enacted, SF 481 will prohibit Iowa’s city and county governments from employing sanctuary policies to provide safe havens for undocumented aliens.

{mosads}SF 481 might not pass in the state House. Although the Republicans currently have a 58-41 majority in the House, all of the House seats are up for election in 2018.

And SF 481 will face serious legal challenges if it is enacted.

Key SF 481 provisions.

SF 481 would require local governments to comply with U.S. Immigration and Customs Enforcement (ICE) immigration detainer requests, and prohibit them from preventing their police departments from:

• Inquiring about the immigration status of a person under lawful detention or under arrest;
• Maintaining or sharing immigration information with another local government or a federal or state governmental entity;
• Assisting ICE with its enforcement responsibilities, as reasonable or necessary; or
• Permitting ICE to enter and conduct enforcement activities at a jail or other detention facility.  

SF 481 also responds to the concern that, if police cooperate with ICE, undocumented aliens will be afraid to report crimes. To address this, it prohibits police from finding out whether someone reporting or providing information about a crime is an undocumented alien. 

Police would be prohibited from requesting immigration information from a victim or a witness to a public offense, or from a person reporting a public offense, unless the immigration information is pertinent to investigating the offense.

SF 481 would make local governments ineligible for any state funds if they intentionally violate its provisions.

The need for state anti-sanctuary city laws was greater under President Barack Obama than it is under the Trump administration.  

Obama focused his immigration enforcement efforts on aliens who had been convicted of serious crimes or had been caught in the vicinity of the Mexican border after making an illegal entry.

This created what I called a “home free magnet.”  Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country, unless they were convicted of a serious crime.  This was a strong incentive to do whatever was necessary to cross the border into the United States.

Trump has destroyed this magnet. No deportable alien is safe under his enforcement policies.

Opposition.

A federal district court issued a decision in late August granting a temporary injunction to halt the implementation of five allegedly unconstitutional provisions in the Texas anti-sanctuary bill, Senate Bill 4, which is very similar to Iowa’s SF 481.

The most vulnerable provision in SF 481 is the one that requires local police to comply with ICE immigration detainers.

ICE detainers ask local police departments that are detaining an allegedly removable alien to maintain custody of the alien for up to 48 hours beyond the time he would otherwise be released from custody to give ICE time to pick him up.

But state and local police only have authority to detain someone if there is probable cause that the person has committed a crime.

According to the district court judge that granted the injunction, if police want to hold an alien beyond his release date, they have to make a new probable cause determination or the new detention period will violate the alien’s constitutional rights under the Fourth Amendment.

The justification for the original detention no longer applies, and the police cannot start a new detention period on the basis of the detainer. It only provides probable cause to believe that the alien is deportable.

Iowa should consider waiting on SF 481 until the fate of the Texas anti-sanctuary bill is decided, which is likely to require a decision from the Supreme Court.

If Iowa actually needs a bill to eliminate sanctuary policies, it is not an urgent need.

State Senator Julian Garrett, the bill’s floor manager, has acknowledged that the vast majority of Iowa cities and counties cooperate with ICE enforcement efforts already.

And Iowa has a relatively small population of undocumented aliens. According to the PEW Research Center’s 2014 per-state estimate, Iowa only had 40,000 undocumented aliens in 2014, which was 1.3 percent of Iowa’s population. California had 2,350,000 undocumented aliens (6.0 percent of its population), and Texas had 1,650,000 (6.1 percent of its population).

SF 481 also has substantial political opposition.

Numerous organizations have registered opposition to SF 481, including the Iowa League of Cities, Iowa State Bar Association, Iowa Police Chiefs Association, Iowa County Attorneys Association, Interfaith Alliance of Iowa, American Civil Liberties Union of Iowa, Iowa Catholic Conference, and Iowa Annual Conference of the United Methodist Church.

Only one organization has registered support for SF 481, the Iowa Minuteman Civil Defense Corps.

Perhaps Iowa should just leave the decision on whether to cooperate with ICE up to the discretion of its police departments.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.