The Mendes/Sledge Ordinance BL2017-739 that passed on second reading by twenty-five Metro Nashville Council members on Tuesday will, if passed on a final vote, force Davidson County and Nashville law enforcement personnel to violate federal and state laws.
The sponsors’ other bill, BL2017-743 seeking to terminate a 1996 contract that reimburses the Davidson County jail when it detains criminal aliens for ICE pick-up, has been deferred to the Council’s August 1, 2017 meeting.
Both bills are in line with Nashville Mayor Megan Barry’s left-wing open borders, pro-illegal immigrant political philosophy.
BL2017-739 expressly prohibits the “use of any funds, resources or facilities” to assist ICE and also prohibits Davidson County and Nashville employees, including law enforcement, from providing pertinent information to ICE regarding criminal aliens. Federal law, however, specifically addresses these information exchanges:
a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [federal immigration authorities] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
The Mendes/Sledge bill attempts to circumvent this law by prohibiting the collection of immigration status information, possibly inviting the Tennessee General Assembly to pass a law similar to Arizona’s allowing law enforcement to question the immigration status of anyone stopped or arrested if there is “reasonable suspicion” that they are in the country illegally. In 2012, the U.S. Supreme Court upheld this part of the Arizona law.
The Star asked Sarah Rehberg, an attorney with the Immigration Reform Law Institute (IRLI) whether the Metro Nashville Council’s effort to obstruct cooperation with federal immigration authorities runs afoul of federal law:
Congress made clear more than 20 years ago when it passed the Illegal Immigration Reform and
Immigration Responsibility Act (IIRAIRA) that no federal, state, or local government entity can restrict or prohibit the sharing of immigration status information – regardless of whether there is reasonable
suspicion that an individual is in the country unlawfully. In addition to enacting provisions expressly to
this point, throughout our federal immigration laws as a whole, Congress has created a broader cooperative scheme between local, state, and federal officials when it comes to enforcing our immigration laws. Any attempt to prohibit the inquiry into such immigration status therefore undermines the delicate balance Congress established for communication between federal, state, and local governments about immigration status, and thwarts the express congressional objective of cooperation in acquiring and sharing immigration-related information.
The Mendes/Sledge ordinance conditions compliance with an ICE detainer on the issuance of a judicial as opposed to an administrative warrant. Advocates for illegal immigrants have tried to use this Fourth Amendment argument to slow down arrests and deportation of illegal aliens.
However, DHS’ new consolidated detainer form which includes the administrative warrant, along with two recent New York Supreme Court cases may have made this a non-issue. The new form requires a statement of probable cause for arresting the illegal alien and the New York cases held that an ICE detainer based on probable cause did not violate any constitutional rights. IRLI’s attorney also points out that:
Removal under federal immigration law is a civil matter – not criminal. As such, Article III judges do not have jurisdiction over immigration matters to issue the judicial warrants… Even before ICE revealed its new consolidated detainer form, the agency required probable cause that an immigration violation had occurred. Adding the administrative warrant requirement, which further states the probable cause that ICE has to arrest a suspected removable alien, only strengthens the agency’s authority and removes any alleged Fourth Amendment hurdles.
Seattle, which in 2003, established itself as a sanctuary city, has filed a lawsuit challenging the President’s Executive Order defunding cities that prohibit their employees from sharing immigration status information with the federal government. The Mendes/Sledge ordinance contains a similar prohibition potentially putting it in the crosshairs of the 2009 Tennessee statute prohibiting the establishment of sanctuary cities in the state.