The Trump administration's Department of Homeland Security and Department of Justice have declared open war on sanctuary cities — cities that have refused to aid Immigration and Customs Enforcement (ICE). And New York state residents are the latest casualties.
In February, the Trump administration told New Yorkers that they will no longer be able to apply for Trusted Traveler programsto go through shorter and faster security and customs lines at New York ports of entry. Trump and Gov. Andrew Cuomo metto try to negotiate a compromise, but as yet, none is forthcoming.
Instead, state Attorney General Letitia James has filed a complaint to block Homeland Security's move, assuming it isn't resolved. James says the White House didn't give New Yorkers enough notice or time to respond to the proposed ban, which she says violates constitutional provisions ensuring, among other things, state sovereignty and equal protection.
Trump's feud with New York has finally reached something of a low boil. The question now is whether he's pushed the temperature up higher than he can control. Meanwhile, applicants stuck in the middle are still waiting for refunds.
Trump was born and raised in New York, but he's recently turned his back on the city (and state) that made him rich and famous. There are plenty of reasons for this, but New York CIty's status as a sanctuary city is a big one. (Full disclosure: I, as counsel to New York Mayor Bill de Blasio, worked on the legislation that blocked city police and jails from helping ICE agents in all but the most serious criminal cases.) Sanctuary cities and states cannot and don't prevent ICE from entering their jurisdictions and detaining undocumented immigrants. They just prevent state and city agencies from helping.
Imagine if the New York lawyer who just this week tested positive for COVID-19 was an undocumented immigrant afraid of health authorities. What if he didn't get medical help because he feared deportation? Sanctuary cities want residents to use city services without worrying that seeking help would result in their being turned over to federal immigration authorities.
Recently, New York became one of 15 states to allow undocumented immigrants to apply for noncommercial driver's licenses. New York's "Green Light Law" means state officials won't turn over DMV data to ICE.
This doesn't sit well with the president. During his State of the Union address last month, Trump attacked New York City explicitly, claiming that "radical politicians" choose to harbor "criminals." The next day, Homeland Security told New York that residents would lose access to its special Trusted Traveler programs that allow designated travelers to clear security more efficiently, notably the Global Entry program. James responded with her lawsuit, asking the courts to block what she claims is simple political retribution.
The fates of about 50,000 state residents who have applied for the speedy entry programs still hang in the immediate balance. Another 175,000 New York residents who are already part of the program could lose their status when it expires this year. This isn't just inconvenient for travelers. It's also bad for tourism and commerce.
New York's lawsuit claims that state residents are being barred from the program because of political gamesmanship and the whims of the president. Homeland Security says the issue is access to state driver's license data. Officials say they need the data to verify whether applicants meet the eligibility requirements for Trusted Traveler programs. But Cuomo has offered to turn over data pertaining to program applicants, so Washington's rejection of the offer just strengthen's New York's case.
New York is also arguing that the Trump administration is trying to pressure the state into changing its driver's license policy to cut out undocumented immigrants entirely. The acting secretary of homeland security, Chad Wolf, claims instead that the problem is that New York is denying Homeland Security access to information it needs to verify what applicants tell it. New York denies this is true. (And driver's license data doesn't include criminal or immigration histories.)
The 10th Amendment limits the reach of the federal government. The Constitution grants federal authorities various powers; states can make policies on everything else. For example, the Supreme Court has used the 10th Amendment to rule that the federal government cannot force background checks on gun owners. This was a controversial opinion — and some legal analysts think it may be overturned — but for now, it remains an important precedent. The Supreme Court has made it clear that immigration is the federal government's job. But driver's licenses are supposed to be left to the states.
Trump doesn't seem to agree. His administration is also suing California and New Jersey, claiming some specific sanctuary laws are unconstitutional. So far, California has been winning its case — although the conservative Supreme Court has yet to weigh in. New York's case here may be stronger if it can prove the Trump administration is trying to coerce the state into deciding whom to give drivers licenses to.
Meanwhile, Trump hasn't targeted the majority of other states with similar laws. Coupled with Trump's rejection of a reasonable compromise, this suggests that the president really is treating New York differently. Under the Constitution, Homeland Security would need a compelling reason to deny New York residents federal privileges that the residents of other states get, including those that give driver's licenses to undocumented immigrants.
The claim that Trump's administration is violating the Constitution's equal protection requirements is New York's strongest. New York is also arguing that Homeland Security violated the Administrative Procedures Act, which basically requires notice and an opportunity to weigh in on rule changes. In other words, it makes sure the federal government can't act "arbitrarily and capriciously." But the Trump administration sure looks pretty capricious right now. No notice. No opportunity to comment. And the ban came the day after Trump attacked New York publicly. It doesn't take a "stable genius" to follow those bread crumbs.
- Maya Wiley is a legal analyst for NBC News and MCNBC. She also serves as university professor at The New School.
This piece was first published by NBC Think.
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