Annotations by David A. Martin, the Warner-Booker professor of law emeritus at the University of Virginia. He served as principal deputy general counsel of the Department of Homeland Security from January 2009 to December 2010, as general counsel of the Immigration and Naturalization Service under President Clinton, and as special assistant in the human rights bureau at the State Department under President Carter.

EXECUTIVE ORDER ENHANCING PUBLIC SAFETY IN THE INTERIOR OF THE UNITED STATES

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation's immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:

Section 1. Purpose. Interior enforcement of our Nation's immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.

Sanctuary jurisdictions (a.) across the United States willfully violate Federal law (b.) in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.

a. This is a very casual and sweeping reference to a complicated set of federalism issues. “Sanctuary jurisdictions” is not a settled phrase and is not defined in this EO. The label has been applied, sometimes in praise and sometimes in scorn, to a wide range of actions taken by state and local law enforcement agencies (SLEAs). At one end are SLEAs that refuse nearly all support and communication with DHS about persons thought to be unlawfully present, even if the person has committed serious crimes. At the far end of the “sanctuary” spectrum are jurisdictions that won’t keep a person in detention beyond the end of their local sentence to allow for ICE to pick them up (ICE sometimes requests this, for up to 48 hours) unless ICE pays the full additional cost. In between, one finds a huge variety of practices, such as cooperating with ICE only upon either the person’s formal arraignment or actual conviction of specified serious crimes. b. With small exceptions, no federal law mandates that states or localities directly aid ICE in enforcement. For example, an ICE detainer, which requests notification of release and up to 48 hours of additional detention to allow ICE pickup, is, by ICE’s own analysis, merely a request, which the state or local law enforcement agency may ignore. Noncooperation can certainly be critiqued as a matter of policy, but it is rarely a clear violation of federal law. And there are constitutional limits on the extent to which even a new statute could mandate that states or localities participate in federal enforcement, under the Supreme Court’s anti-commandeering doctrine. That doctrine holds that the federal government may not require states to enforce federal laws. It may, however, authorize or encourage such a role, including through federal grants to participating states or the withholding of certain funding — as long as the withholding is not so big that the courts see it as unduly coercive.

Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation.

Though international law requires states to accept return of their nationals, “tens of thousands” is probably a fair estimate of aliens released into the US because of home-state delay or refusal of return. A 2001 Supreme Court decision placed a presumptive six-month limit on detention of deportable aliens while efforts to remove them are underway.

Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.

The Supreme Court’s release rule applies even to convicted criminals. Because they have finished serving their criminal sentences by the time ICE gets them, the Court held that the commission of the crime can no longer justify extended incarceration. Further detention can be justified only by showing real progress toward removal.

Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.

A subtle slam on the large deferred action programs President Obama ordered, which generally included work authorization for the covered individuals. DACA (deferred action for undocumented individuals who came to the US before age 16, had been present five years, and had no significant criminal record), launched in 2012, remains in effect as of January 27, 2017. About 700,000 people have benefited. A broader Obama deferred-action order issued in 2014 (DAPA) would have covered perhaps 4 million others who have US citizen children, but a court stayed its implementation, and it is now clear that DAPA will never take effect.

Sec. 2. Policy. It is the policy of the executive branch to:

(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;

An odd reference. The mention of Article II, Section 3 makes sense, because that section imposes on the president a duty “to take care that the laws be faithfully executed.” But this part of Title 5 merely sets forth the broad oath that officers of the United States must take when sworn in. There is no “faithful execution” reference there.

(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;

(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;

(d) Ensure that aliens ordered removed from the United States are promptly removed; and

Removing such persons after a formal ruling against them may seem straightforward, but a high percentage, probably well over half, of the non-detained people ordered removed do not show up for deportation. This situation has existed through many presidencies, both Republican and Democratic. Part of the issue is the great delay in proceedings, often stretching over years while people develop deeper ties to their communities. And even after an immigration judge has ruled, the order may not be enforceable for years owing to appeals, first to the Board of Immigration Appeals and then to the courts. Finding the deportee after years of no direct contact is difficult and expensive investigative work, and DHS has only intermittently prioritized the use of resources for this purpose.

(e) Support victims, and the families of victims, of crimes committed by removable aliens.

Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.

Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.

Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:

These priorities replace a set of priorities adopted by then–Secretary of Homeland Security Jeh Johnson in November 2014, and they sweep far more broadly. And unlike Secretary Johnson’s, they do not set up an internal hierarchy to indicate which categories should be emphasized when resources are short — as they always are. An old canard applies: When everything is a priority, nothing is a priority. In practice, this feature gives individual agents wide latitude to follow their own preferences — or perhaps biases. (Johnson placed in Priority 1 national security threats, persons convicted of serious crimes, and those caught at the border attempting illegal entry. Priority 2 included persons guilty of serious or repeated misdemeanors, recent border crossers, and those who committed significant visa abuse. Priority 3 covered people with a final order of removal issued after 2013.)

(a) Have been convicted of any criminal offense;

(b) Have been charged with any criminal offense, where such charge has not been resolved;

(c) Have committed acts that constitute a chargeable criminal offense;

Before this order issued, President-elect Trump and his staff had often emphasized that they would energize removals but would prioritize “criminal aliens.” This was met with relief in some liberal circles, thinking the result would be something like Obama’s priorities. But the earlier statements turn out to have been head fakes. This set of priorities seems to be designed so that the administration can say they kept to that “criminal alien” statement — but Section 5 stretches that category to its furthest extremes. There is no distinction between felonies and misdemeanors, and even people charged but not yet tried get thrown into this capacious criminal pot. Indeed, there doesn’t even need to be a charge — just an immigration agent’s determination that the person committed a criminal act, even years ago — presumably including even the misdemeanor of entering the US without inspection.

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e) Have abused any program related to receipt of public benefits;

(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.

This section seems designed to insist on use of certain enforcement tools enacted by Congress in 1996 but never implemented. Congress authorized civil fines of up to $250 on persons apprehended while trying to enter without inspection, but provided no clear procedure for levying. INA section 275(b). The cost and delay involved in the procedure would far outweigh any added punishment or deterrence from this small penalty, and INS chose not to proceed. Another unimplemented 1996 provision is more sensible, as a means to induce compliance with final removal orders, and probably deserves this closer look. INA section 274D provides for civil fines of $500 per day for persons who willfully fail to comply with removal orders when they become final.

Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C. 1357).

Politicians wanting to show greater toughness on enforcement usually only call for more Border Patrol agents. (Trump’s other January 25 order called for adding 5,000 of them, but this ICE call doubles that.) If implemented, this provision may indicate a real commitment to invigorated internal enforcement. But like all these actions, it is subject to appropriations; see Section 18(b). Expect a real fight in Congress over so large an increase for ICE personnel. Unlike enforcement at the border, strict interior enforcement routinely steps on powerful toes, disrupting businesses or neighborhoods, suddenly taking away employees, or affecting individuals known to many influential community members.

Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.

(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).

Section 287(g) agreements authorize local officials, after training and under federal supervision, to assist with the investigation, apprehension, or detention of unauthorized aliens. The locals don’t get to issue removal orders or even formally initiate the removal process. That’s still for the feds alone.

(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.

(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.

This unassuming language is important. Section 287(g) agreements historically took two forms: the task force model, which gave authority to local officers to arrest solely for immigration violations, and the more limited jail model, which gave authority for locals to act only with regard to persons already validly arrested for a local, non-immigration offense. The task force model gave rise to allegations of racial profiling and in any case did not reliably mesh with federal enforcement priorities. As a result, the Obama administration eliminated many task force agreements and emphasized the jail model. The Trump order gives DHS the authority to remain choosy in this way. The secretary would be wise to concentrate on the jail model.

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

Section 1373 is actually a rather modest federal law, which does not force broad cooperation on unwilling states or localities. It merely says they may not forbid their employees from communicating immigration-related information to federal officials. The state or local law enforcement agency doesn’t have to collect or provide any requested information itself, and it can even remind its employees that they aren’t obligated to send such information. Section 1373 has been upheld by a leading circuit court case, but it has not been ruled on by the Supreme Court. It might still be vulnerable to a challenge under the Court’s anti-commandeering doctrine, which provides that the federal government may not dragoon states into enforcing federal laws.

(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

The order still provides no definition of “sanctuary jurisdiction.” Though the term is commonly applied more broadly (see comment 1), the preamble to this section and this subsection seems to tie it only to violations of section 1373. Subsection 9(b) of the order, however, indirectly links the concept to declined detainers — a far more significant hindrance to ICE effectiveness. Complete funding cutoffs are basically the nuclear option to secure cooperation. Frugal and highly targeted use of this discretionary designation authority would be preferable, permitting the DHS secretary to rely primarily on cooperative outreach as a way of gradually restoring better cooperation with states and localities.

(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.

(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.

Cutting all federal grant money to such jurisdictions, even by statute, would raise serious questions under the Supreme Court’s Obamacare decision from 2012 (NFIB v. Sebelius). The Court there overturned the part of the Affordable Care Act that withheld all Medicaid funding from states that failed to expand their Medicaid eligibility to conform to ACA rules. The Court regarded such a broad funding cutoff as unconstitutionally coercive. But narrower funding restrictions more closely linked to the specific federal interest would pass muster. President Trump would probably be able to cut grants clearly related to immigration enforcement, and maybe a wider range of law enforcement grants as well — but almost certainly not grants in unrelated fields like urban planning or environmental protection.

Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as "Secure Communities" referenced in that memorandum.

Secretary Jeh Johnson ended Secure Communities in that memorandum, but he retained one key operational component — the immediate sharing by the FBI with ICE, for checking of ICE’s databases, of fingerprints received from local jurisdictions taken at the time of arrest and booking. Secure Communities became highly controversial when it led to the ICE arrest of long-resident unauthorized immigrants, often based on mere traffic offenses. The political reaction led many localities to cut back more generally on ICE cooperation. The Priority Enforcement Program was designed to restore SLEA cooperation. It called for ICE to narrow greatly the circumstances in which custody requests or information requests would issue on the basis of those ICE fingerprint checks, so that jurisdictions would generally be asked to hold or turn over only persons with serious criminal offenses. PEP succeeded in winning back at least tentative cooperation from many SLEAs. President Trump’s decision to revive “Secure Communities” — even using that controversial name — is almost a taunt, likely to be counterproductive, strengthening the resolve of non-cooperating jurisdictions.

(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.

(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.

Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.

Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.

This term refers to countries that refuse or delay the return of their nationals when the United States wants to deport them. INA Section 243(d) provides for the cutting off of visa issuance to nationals of a recalcitrant state, but the full sanction has been imposed infrequently — a longstanding sore point for those who favor strong immigration enforcement. In February 2016, ICE listed 23 recalcitrant countries, including China and India. As of late 2017, only Gambia was subject to an actual visa cutoff.

Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U.S. Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

Services to crime victims make sense (though whether this is best done by ICE is debatable), and enhancing efforts to deport immigration violators who have committed violent crimes is also wholly justified. But this innocuous-sounding report requirement, coupled with Section 16 of this order, could signal something more problematic — the possible launch of ongoing high-volume publicity featuring the victims of crimes committed by aliens. (Candidate Trump took this tack in important settings on the campaign trail.) A drumbeat of such reports would skew an honest understanding of the dimension of the enforcement challenge facing this nation. The overwhelming majority of immigration violators are otherwise law-abiding; only a very small minority are implicated in violent crime. One can develop a genuine and resolute strategy for truly effective enforcement against immigration violations without demonizing the violators. We need balanced policy analysis about better interior enforcement, not the inflaming of passions through selective presentation of data or anecdote.

Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.

Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are hereby directed to collect relevant data and provide quarterly reports on the following:

(a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons;

(b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and

(c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States.

Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order.

Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

A very important — and inescapable — qualification on the directives in the Order. President Trump can’t decree the blockage of funds to a sanctuary jurisdiction, for example, if the statute and regulations setting up the grant program did not include cooperation in immigration enforcement among the program’s requirements — nor provide discretion for the agency later to add further criteria.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,

January 25, 2017.

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