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.