‘To the extent permitted by state and federal law,” reads the final nine words of San Francisco’s new sanctuary city ordinance. This phrase, which is now at the heart of the sanctuary city controversy, is simply a statement of what is legally obvious: When local law conflicts with federal law, federal law wins.
Sounds simple enough, right? Sadly, the shadowy shape of federal immigration law makes it hard to know when the line into federal territory has been crossed. Supervisor David Campos has made it clear that he means to push the boundaries of federal law with his newly approved ordinance that will prevent city resources from being used to report undocumented juveniles accused of felonies to immigration officials.
In the course of speechifying about this issue, Campos and others have compared the fight to protect undocumented juveniles to The City’s fight for same-sex marriage. In both cases, the argument goes, The City dared challenge the law in the name of equality.
That comparison only goes so far, though, because when it comes to sanctuary city laws, there is a possibility of criminal liability.
Remember that in May of last year, it came to light that The City had been sending some undocumented juveniles out of the country. The Mayor’s Office scrambled to get a new policy in place and by July 2008, and The City began notifying the feds whenever juveniles were arrested for felonies.
The City’s pre-July 2008 shenanigans, however, have not been forgotten. Joseph Russoniello, the U.S. attorney for the Northern District of California, is investigating whether the former policy constituted a violation of federal law making it a crime to harbor or transport illegal immigrants. If Russoniello is successful, city officials can be held personally criminally liable and subject to fines and/or imprisonment for up to five years. Mind you, there is not a lot of precedent for Russoniello’s case, but just to be safe, The City is paying for several (unnamed) city officials to have their own criminal defense attorneys.
It is against this backdrop that the new sanctuary city law appears. Law enforcement officials already fearful of criminal prosecution for “harboring” undocumented persons will be loathe to withhold any information from federal immigration officials and neither the mayor nor City Attorney Dennis Herrera wants to expose employees to such liability. Thus, Herrera sent a letter to Russoniello on Tuesday asking for assurances that no new criminal charges will be brought against individuals who follow Campos’ law.
Of course, Herrera won’t get any such assurance. The more likely scenario is that the new ordinance will be put on hold until Herrera can ask a judge to take a look at it and decide whether it is “permitted by state and federal law.”
At Tuesday’s Board of Supervisors meeting, the supes debated whether to spend $7 million from The City’s general fund reserve to prevent about 150 layoffs and 400 demotions from the ranks of SEIU Local 1021. Here is my dramatic interpretation of the debate (these are NOT quotes):
John Avalos: This was a tough budget year, but the Department of Public Health magically brought in $8.5 million more than we had hoped, plus we’ll be getting several million from the federal government under an improved public health reimbursement law. Also: I think it’s suspicious that these midyear reductions are happening primarily to one union and affect mostly women and people of color.
Chris Daly: The only reason I voted for this stupid budget is because it delayed these staffing reductions until November of this year, giving us time to find money to avoid making the cuts. Lo and behold, we have! The director of the Department of Public Health, Mitch Katz, is the mayor’s best friend — so Katz won’t say it publicly, but behind closed doors he tells me that they cannot afford these reductions. Everybody loves to blab about Healthy San Francisco, but we have to staff it, people.
Sean Elsbernd: Let me share a little something I like to call “The Audacity of Nope.” The
$34 million in anticipated money from the federal government is not going to happen this fiscal year. There is not actually
$8.5 million sitting around waiting to be spent. Because of shortfalls in other departments, overall The City has a teensy surplus of less than $1 million. And even that excess is about to disappear because on Monday we get the controller’s report, which will show that property tax revenue this year is going to be even more paltry than we thought. And you want to take $7 million from the general fund reserve? With a straight face?
David Campos: Numbers schmumbers! This is a policy choice. Ninety-six percent of the affected workers are people of color and 80 percent are women. It is just not fair to single them out for demotions and layoffs.
Daly: If there are budget shortfalls in certain departments, let’s crack down on them. I don’t see why we should take away the $8.5 million that the Department of Public Health worked hard to earn. Y’all are always picking on that department — using it like The City’s ATM machine and never cutting the police and fire departments.
Elsbernd: If the SEIU had agreed to the givebacks in the tentative agreement proposed last year, we wouldn’t be here making these cuts.
The ordinance required eight votes. With supervisors Michela Alioto-Pier, Chu, Elsbernd and Sophie Maxwell voting no, it failed, but was sent back to the Budget and Finance Committee. Layoffs will begin Monday.
QUOTE OF THE MEETING:
“I can think of no greater Elsberndian thing to say here in these chambers.”
— Supervisor Chris Daly, arguing that Supervisor Sean Elsbernd should endorse the practice of rewarding good fiscal behavior by allowing departments that bring in unforeseen revenue to keep that revenue. Elsbernd later expressed his gratitude for the new adjective, but disagreed on the grounds that budget responsibility is citywide.