A new executive order signed by President Donald Trump sets up a showdown over immigration enforcement that could threaten at least $3.6 billion in federal aid this year for the city of Chicago and sister agencies, a BGA analysis shows.

Trump’s crackdown could imperil an array of federal grants from so-called sanctuary cities like Chicago for refusing help in his efforts to identify and deport undocumented residents.

In his executive order, signed by Trump on the same day he ordered construction of controversial border wall with Mexico, the president said sanctuary jurisdictions “willfully violate federal law in an attempt to shield aliens from removal from the United States.”

“We want safe communities and we demand safe communities ­­– for everyone,” Trump elaborated in a speech at the Department of Homeland Security in Washington.

The action, loudly telegraphed by Trump during his campaign, was met with defiance by Mayor Rahm Emanuel and other city leaders. 

Rahm Emanuel
   Rahm Emanuel

Shortly before Trump signed the order, the City Council voted overwhelmingly for a resolution reaffirming Chicago’s sanctuary city status. “You mess with one in Chicago, you mess with all of us,” declared Ald. John Arena, 45th.  Ald. Ameya Pawar, 47th, likened Trump’s order to that of a “despot.”

Sean Spicer, Trump’s press secretary, said details of how to administer financial punishment for sanctuary cities had yet to be worked out. And many legal experts doubt Trump has the authority to carry out much of his fund-slashing threat.

That said, the game of chicken between Trump and urban mayors has the potential to jeopardize resources for an array of critical services in Chicago from feeding low-income pregnant women and school-aged children to fixing roads, bridges and train stations. Federal funding also pays for hiring new police officers, retraining workers, as well housing low-income families and supplementing the costs of educating most children in the Chicago Public Schools.

The term “sanctuary” is not a legal definition, but a loose designation that stems from policies adopted by hundreds of counties and municipalities that limit their cooperation with federal immigration authorities. The term is disliked by sympathetic politicians who argue that the intent is not to harbor undocumented immigrants but to signal to those residents that local resources won’t be used to hunt them down in the service of federal authorities.

Trump’s executive order leaves it up to new Homeland Security Secretary John Kelly to choose which local governments should be deemed “sanctuaries” and candidates for losing federal grants except those “deemed necessary for law enforcement purposes.”

The undocumented live, by definition, in the shadows. But a recent study by the Pew Research Center estimated that in 2014 there were some 11.1 million foreign born people lacking legal immigration status in the U.S., a figure that has remained unchanged since 2009. Of them, 8 million, or 5 percent of the labor force, were either working or seeking to find jobs, including 450,000 in Illinois.

Chicago’s “sanctuary” policies date back to a 1985 executive order from then Mayor Harold Washington that prohibited city employees from asking people about their immigration status and required all city forms to delete any questions about a person’s citizenship or residency status. In 2006, City Council expanded the executive order by adopting the “Welcoming City” ordinance, which also set clear guidelines for the Chicago Police Department. 

The ordinance prohibits the arrest or detention of a person solely on the belief that they are in the country illegally. City officials wanted to build trust between the police department and undocumented immigrants, with the hope that they would come out of the shadows if they are victims or witnesses of a crime.

The ordinance allows police officers to ignore requests from immigration authorities to hold people in detention after they would have been released for up to 48 hours so that they can take custody and possibly deport them. The “detainers” are part of federal programs that since 2001 have expanded local involvement in the enforcement of immigration laws.

This lack of cooperation underlies a simmering feud with Trump and many other conservatives who argue that it allows dangerous criminals to roam free. “These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic,” Trump wrote in his executive order.

But studies of cities which cooperate with detainer requests have found that most of the undocumented being flagged do not have serious criminal histories.

Last year, a federal court in Chicago ruled that immigration detainers violate federal law because they are not supported by warrants. The law allows Immigration and Customs Enforcement, or ICE, to detain a person without a warrant, but only if it has reason to believe the person “is likely to escape before a warrant can be obtained for his arrest.”

ICE acknowledged that it didn’t make that determination for every person but argued it didn’t need to because, by definition, any undocumented person arrested is likely to escape once released. U.S. District Judge John Z. Lee rejected that argument, noting that federal authorities had ample time to obtain a warrant if an undocumented person was being held in law enforcement custody on an unrelated matter.

 “(The immigration detainers) are basically as good as a postcard, for legal purposes,” said Mark Fleming, an attorney at the Chicago-based National Immigrant Justice Center and one of the attorneys in the case.

Trump didn’t create the idea of stripping funding from sanctuary cities, but he is the megaphone that brought it to the masses. In the last decade, Republican lawmakers in Washington have introduced at least 19 bills with a similar goal.

Some single out specific funds, such as the Community Development Block Grant, a program created in the 1970s to combat poverty in cities. Chicago alone is expected to receive at least $72 million from the program this year to build or rehabilitate affordable homes and to pay for an array of services for low-income residents.

The Edward Byrne Memorial Justice Assistance Grant program, which injects funds to local law enforcement agencies, including at least $9.6 million to the Chicago Police Department, has also been in the chopping block.

Bill Ong Hing, a law professor at the University of San Francisco and director of the Immigration and Deportation Defense Clinic, pointed to ironic parallels between Trump’s threat to financially punish sanctuary cities and legal arguments made by conservatives in opposition to Obamacare.

Conservatives, including 26 states and the National Federation of Independent Businesses, challenged two key provisions of the healthcare law. One required most Americans to purchase health insurance or pay a penalty. The second required states to expand their Medicaid programs or lose all federal funding for them.

The court ruled that the federal government had the authority to tax individuals who do not buy health insurance. But it also said that Washington could not unilaterally cut Medicaid funding to force a state to participate in Obamacare through an expansion of Medicaid.

Applying the same logic to the sanctuary city debate, Ong Hing said it could be unconstitutional to cut all federal funding to cities. One exception, he said, could be funds closely related to immigration enforcement, including reimbursements to local law enforcement for the costs of detaining undocumented immigrants.

However, the executive order specifically shields funding for law enforcement purposes.

In Chicago, federal aid mostly funds the city’s social safety net.

For city government proper, federal funding accounts for about 15 percent of the estimated $10 billion total revenue for fiscal 2017. Most of the federal money comes in form of grants, including more than $100 million to combat homelessness and preserve affordable housing.

The city also expects $178 million in federal funds for infrastructure projects, such as fixing roads and bridges. That money is separate from anything that might be contained in a $1 trillion national infrastructure plan proposed but not detailed by Trump.

The Chicago Public Schools and the Chicago Housing Authority receive the biggest chunk of federal funding after the city.

CPS expects to receive $861 million, including more than $300 million as part of a program to help underwrite education for low-income students who comprise more than 80 percent of youngsters enrolled in Chicago schools. The federal government also injects some $208 million into CPS to feed low-income children.

The $826 million in federal funds flowing into the Chicago Housing Authority accounts for more than 90 percent of the revenue the agency receives to administer public housing and housing voucher programs.

Meanwhile, the city college system expects $165 million in grants to help low-income students pay for tuition and fees, for developing new programs and for an array of student services, such as financial counseling.  

The Chicago Transit Authority expects to receive more than $292 million in federal money for capital improvement projects, including upgrades to the O’Hare Blue Line, purchasing or repairing rail cars and buses, and the purchase and installation of a security system in CTA facilities and vehicles.   

The Chicago Park District doesn’t detail its federal funding by year, but its 2017 budget says the agency expects nearly $4 million in federal grants to help pay for capital improvement projects in the five years ending in 2021.