How Final Removal Orders Can Overcome Sanctuary City Defiance
The question of whether sanctuary jurisdictions can legally ignore ICE detainers is more than a debate over immigration policy; it is a fundamental dispute over the balance of federal and state authority. The supremacy of federal law, the obligation of local jurisdictions to uphold national sovereignty, and the very nature of the constitutional order are at stake. The legal arguments against sanctuary cities’ refusal to honor ICE detainers rest on well-established constitutional and statutory principles.
Federal law is unambiguous in its supremacy over immigration matters. Under the Supremacy Clause of the Constitution, federal law takes precedence over conflicting state or local policies. The Immigration and Nationality Act (INA) grants the federal government exclusive authority over immigration enforcement, and Congress has determined that cooperation between local law enforcement and federal immigration authorities is essential. Statutes such as 8 U.S.C. §1373 explicitly prohibit state and local governments from enacting policies that restrict communication with federal immigration agencies. This statute ensures that local officials cannot block or impede the flow of critical information needed to enforce federal immigration laws.
Moreover, the refusal to honor ICE detainers undermines the public safety rationale underlying immigration enforcement. Detainers are issued against individuals who have been arrested for violating state or local laws, meaning these are individuals already found to pose a threat to the community. By refusing to comply with ICE detainers, sanctuary jurisdictions actively shield criminal aliens from deportation, allowing them to be released back into communities where they may reoffend. The Trump administration has repeatedly cited cases in which violent criminals, shielded by sanctuary policies, have gone on to commit additional crimes, including murder, rape, and assault. This dereliction of duty by local officials places political posturing above the safety of law-abiding citizens.
The deliberate lawlessness of sanctuary cities is a direct affront to the rule of law. Cities and states that refuse to cooperate with ICE are not simply exercising discretion; they are willfully obstructing federal immigration enforcement. This reckless defiance emboldens criminals, undermines border security, and weakens national sovereignty. President Trump, alongside Border Czar Tom Homan and DHS Secretary Kristi Noem, has pledged to end this dangerous practice and restore federal authority over immigration enforcement.
Sanctuary jurisdictions argue that ICE detainers are merely requests, not mandates, and that the Tenth Amendment prevents the federal government from compelling states to enforce federal immigration laws. They further argue that detaining individuals without a judicial warrant may violate the Fourth Amendment’s protection against unlawful seizures. However, these objections do not withstand scrutiny. The anti-commandeering doctrine established in cases such as Printz v. United States and Murphy v. NCAA applies to instances where the federal government seeks to directly force state officials to administer a federal regulatory program. Immigration enforcement, however, is not a regulatory program but a matter of national sovereignty, over which the federal government has plenary power. The detainer system is merely a mechanism by which federal officials take custody of individuals already arrested and detained by local authorities.
The Fourth Amendment concerns raised by sanctuary jurisdictions are similarly misguided. ICE detainers are based on probable cause determinations by trained immigration officers that an individual is unlawfully present in the United States. These detainers provide notice to local law enforcement that ICE intends to assume custody, and they request that the individual be held for a limited period, typically 48 hours, to facilitate a seamless transfer. The notion that local law enforcement must ignore these detainers unless accompanied by a criminal warrant ignores the reality that immigration violations fall under civil jurisdiction. Federal courts have repeatedly affirmed that immigration arrests do not require a criminal warrant, as they are administrative in nature. Moreover, local law enforcement agencies routinely detain individuals for civil matters—such as mental health holds or extradition requests—without running afoul of the Fourth Amendment.
Given the constitutional and statutory authority behind ICE detainers, the Trump administration must take decisive action to overcome the obstruction posed by sanctuary jurisdictions. The most effective solution is for ICE to issue final removal orders to every criminal migrant currently in local custody. A final removal order, issued by an immigration judge, provides a legally binding determination that the individual must be deported. Once a final removal order is in place, the Department of Justice can obtain a criminal arrest warrant for failure to comply with a lawful removal order under 8 U.S.C. §1253. This converts the civil immigration matter into a criminal offense, thereby forcing sanctuary jurisdictions to comply with federal law.
The benefits of this approach are twofold. First, it eliminates the argument that ICE detainers lack judicial oversight. A final removal order is issued by an immigration judge following due process, ensuring that the detained individual has had an opportunity to contest their deportation. If the individual refuses to appear for their immigration hearing, the judge can issue a default removal order, strengthening the legal foundation for their arrest and deportation. Second, the issuance of a criminal arrest warrant under §1253 compels state and local law enforcement to comply, as criminal warrants carry legal obligations that cannot be ignored under the Tenth Amendment’s anti-commandeering doctrine. Unlike civil detainers, which sanctuary jurisdictions claim are voluntary, criminal warrants mandate action by local law enforcement and can trigger federal penalties for obstruction.
Opponents may argue that this strategy amounts to an escalation of immigration enforcement and could overwhelm the federal court system. However, this concern is exaggerated. The process of issuing final removal orders and criminal arrest warrants would be targeted at individuals already in local custody, streamlining enforcement efforts. Moreover, it creates a legal framework that forces compliance from sanctuary jurisdictions while reinforcing federal supremacy in immigration matters. If local officials persist in obstructing federal law, they could be held accountable for violating 18 U.S.C. §1071, which criminalizes harboring or concealing individuals subject to arrest.
The refusal of sanctuary jurisdictions to honor ICE detainers is not a matter of states’ rights but of political defiance that undermines the rule of law. The Constitution grants the federal government exclusive authority over immigration, and state and local governments cannot pick and choose which laws they wish to enforce. By utilizing final removal orders and criminal arrest warrants, President Trump, Border Czar Tom Homan, and DHS Secretary Kristi Noem can ensure that sanctuary jurisdictions are compelled to comply with lawful immigration enforcement, restoring the integrity of federal authority and protecting the American public from criminal aliens who would otherwise evade justice.
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