Legal Watch: Resistance in the ICE Age

By Risa L. Lieberwitz

Almost immediately after taking office, President Donald Trump began carrying out his preelection threats against immigrants. His administration has a dual-pronged strategy: creating broad bans on entry into the United States from certain Muslim-majority countries and escalating US Immigrations and Customs Enforcement (ICE) raids and deportations of undocumented persons residing in the United States. Both prongs severely affect individuals and families targeted by the administration on the basis of religion and ethnicity. The negative impact of these actions extends to colleges and universities, increasing the vulnerability of undocumented students and undermining an institution’s ability to welcome faculty and students regardless of their citizenship or immigration status.

Federal courts have issued and upheld restraining orders against the president’s first executive order travel ban and a second revised travel ban, in both cases based on evidence of the administration’s discriminatory intent against Muslims. The US Department of Justice plans to continue to litigate to defend the second executive order.

From the start the AAUP has been part of the resistance movement, launching campaigns against the Muslim ban and in support of the nationwide sanctuary movement in states, cities, and other localities and across college and university campuses. Sanctuary city or sanctuary campus are not legal terms and do not have fixed or uniform definitions. However, they are generally understood to denote a policy of limited cooperation with federal immigration authorities.

As the Supreme Court held in New York v. United States (1992), the federal government may not “compel the States to enact or administer a federal regulatory program.” State and local governments thus have significant discretion to limit their assistance in the enforcement of federal immigration law. For example, they can direct police not to inquire about an individual’s immigration status and not to investigate, arrest, or detain individuals based solely on their immigration status. While state and local governments are not required to share information with ICE or US Customs and Border Protection, under federal law state or local governments cannot ban their employees from providing information on individuals’ citizenship or immigration status to federal immigration authorities. However, state and local governments may adopt and enforce policies to fulfill their duty to protect the public welfare. This includes policies against questioning individuals about their immigration status, because the prospect of facing such questions might make individuals unwilling to report crimes or seek government assistance.

Campus sanctuary movements have followed the model of sanctuary states and cities. Some colleges and universities, including Wesleyan University and the University of Pennsylvania, have declared themselves to be sanctuary campuses, stating that they will not voluntarily assist the federal government with immigration enforcement. Other college or university administrations have rejected the use of the term sanctuary, which they worry could lead to misunderstandings about the extent to which they can lawfully refuse to comply with judicial orders related to federal immigration enforcement. Even without using the term, though, many colleges and universities have adopted policies of limited cooperation with federal authorities. These include policies stating that the institution will not collect immigration-related information about undocumented students, including students covered by the Deferred Action for Children Arrivals (DACA) program, and that it will not voluntarily comply with administrative warrants unless accompanied by an enforceable judicial warrant. Colleges and universities have also taken measures to provide continued support to DACA and DACA-eligible students. Such support includes admitting students at in-state tuition rates and providing financial aid, legal advice, and other counseling services. Some colleges and universities have extended such support to all undocumented students.

A federal district court has issued a nationwide preliminary injunction against enforcement of Trump’s executive order to withhold federal funds from “sanctuary jurisdictions.” The court held that the executive order violates the Tenth Amendment by imposing unconstitutionally coercive conditions on federal funding and compelling states and localities to enforce federal immigration law. Some state legislatures also have threatened to cut funding to campuses that do not cooperate with federal immigration authorities. Such legislation may not be adopted, though, as colleges and universities are acting lawfully in refusing to voluntarily assist in federal immigration enforcement.

Risa L. Lieberwitz is professor of labor and employment law at Cornell University and general counsel of the AAUP.