by “Hart Celler” – 20 September 2026
A 20‑minute read.
Introduction
“Then ignore them …
When they all believe
You reject it
When they all laugh for
Be against it”
If instead of writing “Speeding Up to Slow Down,” Better Than Ezra had had the foresight to write “F***ing Around to Find Out,” two decades later Arlington County’s Board of Supervisors would now have a theme song for its idiotic and assuredly illegal decision.
Truth be told though, Arlington already has a soundtrack. Released two decades later by local band Emmet Swimming, it captured the restless, self‑impressed, self‑important virtue‑signaling that explains the county’s latest immigration policy as just the newest verse.
For decades, DHS and DOJ, and before that, just DOJ, have watched cities posture, gesture, and grandstand, waiting for the moment when a policy crossed from symbolism into something actionable. Most never did. Sanctuaries are noise. Sanctuaries are theater. Sanctuaries exist to make illegal aliens and certain members of the community feel safe and empowered. But those protests never ripen into a crime. Congress has tried to legislate them away, and administrations have tried to starve them through grant conditions, but like everything else in immigration, lawsuits ensue and the first few rounds rarely go well for the Federal Government.
Fast‑forward to this month, and Arlington County—a jurisdiction most Americans have never heard of unless they live in the D.C. metro area—unsatisfied with its longstanding sanctuary posture, decided to test the limits and asked its larger, better‑known contemporaries to hold its artisanal, small‑batch, double‑dry‑hopped India Pale Ale.
This piece is part explanation for people who insist sanctuaries are already illegal, part correction for politicians who insist DOJ has been asleep at the wheel rather than quietly watching patrons leave the bar after last call, and part reminder that Federal enforcement does not become “illegal” just because it is unpopular, and sanctuaries are not “criminal” just because they are provocative. The line between protest and prohibited conduct has always been clear. It is simply rarely approached by municipalities.
Until now…
Because when DHS finally enforced the law at a level some jurisdictions convinced themselves would never occur—when ICE arrests stopped being abstract and started being local—Arlington took the moment not as a cue for restraint, but as an invitation. What had been decades of passive‑aggressive municipal signaling suddenly became something else: a jurisdiction choosing to treat federal enforcement as a trigger for municipal counter‑enforcement. Being a sanctuary had thus far always about doing nothing. Arlington intends to build a program that does something. And that “something” is where the legal story begins.
The True Origins of Sanctuaries
Sanctuary policies did not begin as political statements about illegal immigration. They began as administrative measures inside large municipal police departments during the 1970s and 1980s, when routine policing in immigrant neighborhoods was breaking down. Victims weren’t calling. Witnesses weren’t cooperating. Detectives couldn’t clear cases. Patrol officers couldn’t gather basic facts or effect arrests. Residents feared that any interaction with police might trigger immigration consequences, and entire communities withdrew from contact. Departments needed a way to restore investigative access and keep basic policing from collapsing, so they issued directives limiting civil‑immigration entanglement.
What Sanctuaries Actually Were
These directives were not ideological. They were not moral gestures. They were not designed to shield illegal aliens from deportation. They were practical instructions meant to keep officers focused on criminal activity and to prevent routine encounters from being misinterpreted as immigration enforcement. They accomplished this by declining to take actions they were not required to take: patrol officers did not ask victims about immigration status, detectives did not notify INS about witnesses, and jails honored hold requests because sanctuaries did not oppose the deportation of criminals.
Why They Existed
Their purpose was straightforward:
• restore investigative capacity,
• protect victims,
• rebuild neighborhood trust,
• and prevent routine policing from being mistaken for immigration enforcement.
What They Were Not
The first sanctuaries were not active resistance, or defiance, they were more feel-good political theater than attempt to obstruct Federal immigration enforcement. They were administrative restraint — municipal decisions to stand still so that local law enforcement could move.
Where They Emerged
1979 – Los Angeles (LAPD Special Order 40)
The LAPD prohibited officers from initiating police action solely to determine immigration status and barred detentions for INS civil purposes. The order was issued to prevent routine policing from being misinterpreted as immigration enforcement and to restore cooperation in immigrant neighborhoods.
1985 – Chicago (Executive Order 85-1)
Mayor Harold Washington directed police and city agencies not to participate in civil immigration enforcement and not to hold individuals solely on INS administrative requests. The purpose was to keep criminal policing distinct from civil‑immigration matters.
Mid-to-Late 1980s – San Francisco (Resolution No. 1087-85, Ordinance No. 375‑89)
San Francisco’s first sanctuary action — a Board resolution declaring the city a “City of Refuge” for Central American refugees. It preceded the later codified ordinance.
Codified as Administrative Code Chapter 12H. It limited cooperation with INS, restricted civil detainer holds, and narrowed immigration‑status inquiries. The purpose was to prevent civil‑immigration concerns from derailing criminal investigations.
1985 – Seattle (Police Department Immigration Policy)
A police‑department directive limiting immigration‑status inquiries and restricting cooperation with INS on civil matters. The policy instructed officers to treat immigration enforcement as a federal responsibility and to avoid detaining individuals solely for civil‑immigration purposes. Its purpose was to prevent routine policing from collapsing into immigration enforcement and to maintain trust in immigrant neighborhoods.
1989 – New York City (Executive Order 124)
Prohibited immigration‑status inquiries during patrol, restricted voluntary assistance to INS on civil matters, and directed agencies to provide services without regard to immigration status. The goal was to prevent routine encounters from collapsing under immigration fear.
The Debunking: Why the Justification Fails on First Contact With Reality
The justification for sanctuaries does not survive empirical, operational, or legal examination.
1. Patrol officers do not conduct immigration enforcement.
Routine policing does not involve civil‑immigration checks. Officers responding to calls for service do not ask victims or witnesses about status, do not run immigration queries, and do not act on administrative immigration information. Sanctuary policies did not change this because the conduct never occurred.
What about the 287(g) program you might be wondering? The short answer is nothing. Authority granted to state and local law LEOs via deputation is delegated Federal authority exercised by individual officers, not an expansion of local policing power.
2. Local police lack authority to enforce civil immigration law.
Sanctuary policies did not surrender authority; it never existed. Local officers cannot arrest, detain, or hold individuals on civil‑immigration grounds, cannot execute administrative warrants, and cannot extend custody solely because a federal agency has an administrative interest. The legal structure itself prevents the conduct sanctuaries were supposedly created to avoid.
3. Cooperation follows legitimacy and neighborhood conditions, not immigration policy.
Victim and witness cooperation tracks crime type, neighborhood dynamics, and officer conduct. It rises when officers are viewed as legitimate and falls when they are not. Municipal immigration posture does not determine reporting behavior, and jurisdictions have never demonstrated otherwise.
4. The original policies were administrative, not humanitarian.
Early directives were designed to prevent officers from detaining individuals without criminal cause and to avoid liability for unlawful holds. They were internal administrative controls to keep criminal policing distinct from civil‑immigration matters. The humanitarian narrative was layered on decades later and was not part of the original rationale.
5. The “victims won’t call” narrative was reverse‑engineered.
The claim that sanctuary policies were needed to protect victims emerged only after academics and advocates reframed administrative restraint as moral protection. The original directives did not cite humanitarian concerns. They cited operational collapse: stalled investigations, silent victims, and neighborhoods withdrawing from contact. The moral framing was a post‑hoc justification.
6. Contemporary claims are contradicted by available data.
Sanctuary jurisdictions now assert that restrictions are necessary because aliens will not call police. The Center for Immigration Studies (CIS) has examined crime‑reporting data and found little evidence for that claim. Its analysis concludes that immigrants are not less willing to report crime than natives and that reporting rates do not collapse because of immigration concerns. When a restrictionist organization’s own findings undermine the rationale sanctuary jurisdictions use to defend their policies, the “victims won’t call” narrative cannot stand.
7. Reporting remains stable even where immigration status is more likely to surface.
Jurisdictions with 287(g) agreements—the exact opposite of a sanctuary—where immigration status is more likely to be identified during booking or post‑arrest processing, do not experience the reporting collapse predicted by the rhetoric of their peers. Immigrant residents continue to report crimes because offenders who exploit vulnerability disproportionately target them, and communities want those offenders removed. Reporting persists even when immigration consequences for offenders are more likely, demonstrating that the claimed rationale does not match observed behavior.
The premise fails because it neither reflects the origins of these policies nor corresponds to how victims, officers, or jurisdictions actually behave. It survives—perpetuated—because politics rewards a compelling story, even when the facts never supported it.
Modern Sanctuary Hypocrisy
Modern sanctuary jurisdictions believe they are “thwarting ICE.” In reality, they are performing symbolic non‑cooperation within narrow legal boundaries. Their conduct falls into three categories:
1. Non‑execution of civil detainers.
Jurisdictions refuse to honor ICE detainers—administrative hold requests, citing state law, liability concerns, and the Tenth Amendment’s anti‑commandeering doctrine. I recognize that the amendment applies; the federal government cannot compel state officers to perform civil‑immigration functions. But the claim that sanctuaries must exist because of the threat of anti‑commandeering is weak. A detainer is a request, not a command, and honoring it is a choice, not an obligation. Therefore, deciding not to honor one isn’t heroic resistance. Instead, it’s manifested cowardice stemming from fear of litigation and liability. The doctrine explains why cooperation cannot be compelled; it does not justify constructing an entire political identity around refusing to do so.
2. Restrictions on information sharing.
Cities limit communication with ICE regarding release dates or detainee status. Again, omission, not necessarily active interference. But unlike honoring requests to hold aliens for ICE, the justification for restricting information sharing is far more legally dubious. There are two statute on ‘Communication between government agencies and the Immigration and Naturalization Service,’ now Immigration and Customs Enforcement, 8 U.S.C. § 1373 and 1644, which collectively read:
Notwithstanding any other provision of Federal, State, or local law, no State or local government entity, and no government agency or official, may be prohibited or restricted from sending to or receiving from federal immigration authorities information concerning an individual’s citizenship or immigration status, whether lawful or unlawful. The statutes bar any rule that would prevent a government entity or its personnel from communicating such status information to federal officials or from obtaining that information from them.
As CIS’ George Fishman notes, those laws don’t make sanctuary policies unlawful; they simply keep States from banning voluntary communication. Once you accept that the statutes are permissive rather than mandatory, the rest follows naturally: sanctuary jurisdictions will share as little as possible, and the only real way the Federal Government can potentially influence that behavior is through the leverage of Federal grants.
3. Litigation against federal grant conditions.
Jurisdictions—sanctuary and non‑sanctuary alike—enjoy receiving federal grant funding as a way to increase or maintain the size of their police forces without raising local taxes. During the first Trump Administration, DOJ attempted to impose notice, access, and § 1373 compliance conditions on financial incentives like the Edward Byrne Memorial Justice Assistance Grant (JAG) program (Byrne JAG for short). Cities challenged those conditions as exceeding statutory authority and violating separation‑of‑powers principles. Initially, sanctuaries racked up district‑court wins nationwide. But once appellate courts began weighing in, the win-loss rate was 4-1. Rather than litigate to finality, the Biden Administration abandoned the defense of its predecessor’s position, after a writ had been submitted to SCOTUS, but before the Court had made a decision whether to hear the case. Upon returning to office, the Trump Administration set out not only to restore the prior conditions but to extend them to other grants, including those associated with the Victims of Crime Act and Violence Against Women Act.
The above actions never crossed into true interference, however publicly unpalatable—save for some modern exceptions that define the current landscape.
A. Oakland, California (2018)
In late February, then-Mayor of the City of Oakland, Libby Schaaf, acting on what she said was information from multiple credible sources about impending ICE operations in the San Francisco Bay Area, released a statement which was also posted to what was then, Twitter, which closed:
According to reporting, the at-large operation was targeting ~800 aliens, but ended up resulting in the arrest of about 1/5 that many. Tom Homan, then ICE’s Deputy Director was quoted in a Press Release criticizing Schaaf, and suggesting there were closer to 1,000 aliens targeted with “more than 150” caught. “During a segment on Fox News’s Fox & Friends,” a few days later, “Homan said the Justice Department [was] ‘reviewing’ Schaaf’s comments for possible obstruction of justice.” But of course, nothing came of it.
B. Newton, Massachusetts (2018)
A Massachusetts state judge, Shelley M. Richmond Joseph and court officer Wesley MacGregor were charged with conspiracy to obstruct justice, aiding and abetting obstruction of justice, and aiding and abetting obstruction of a federal proceeding (plus MacGregor perjury) for their role in a scheme to help an illegal alien, Jose Medina-Perez from the Dominican Republic evade an ICE Officer, by allowing him to leave a court hearing through a rear door of the courthouse.
The Biden-DOJ agreed to dismiss the case in exchange for Richmond Joseph to refer herself to the Massachusetts Commission on Judicial Conduct, The commission ultimately found, she “engaged in willful judicial misconduct that brought the judicial office into disrepute” by creating the appearance of impropriety and ordering the audio recorder turned off, and in September 2026, received a public reprimand, which I’m sure upset her greatly having been able to keep her job and ne paid during her time off the bench.
C.Milwaukee County, Wisconsin (2025)
Milwaukee County Circuit Court Judge Hannah C. Dugan involved herself in an immigration enforcement operation when members of a mixed federal team—one ICE ERO officer, one CBP Office of Field Operations officer, two FBI agents, and at least one DEA agent—were positioned outside her courtroom seeking to arrest Eduardo Flores Ruiz, who was appearing before her. Dugan directed the agents to speak with the Chief Judge and, once they were gone, allowed Flores Ruiz and his attorney to exit through the rear door of her courtroom. Flores Ruiz was ultimately captured after being spotted by a member of the team Dugan had not seen, but not until after a nearly block‑long foot pursuit.
DOJ charged Dugan with felony obstruction, and though her sentence included no prison time, she was convicted in December 2025.
D. Tompkins County, New York (2025)
The Tompkins County Sheriff’s Office (TCSO) released illegal alien, Jesus Romero-Hernandez upon completion of his sentence for assault despite his detainer request from ICE including a judicial arrest warrant—the type sanctuaries demand, but which are notoriously difficult to obtain for immigration offenses, and in this case was only possible because of Romero-Hernandez’s illegal reentry.
Rather than show contrition, Sheriff Derek R. Osborne, backed by the county attorney who had this to say:
~ Tompkins County Attorney Maury Josephson
told a local Ithaca-area news station, he “100% supports his decision not to detain Hernandez for ICE, stating he fully stands by his actions”.
As is typical of the Trump Administration, it made a big fuss about criminally investigating Osborne and the TCSO before apparently quietly dropping the effort despite the release of e-mails between the TCSO and ICE showing the latter pointing out the existence of the Federal arrest warrant for Romero-Hernandez.
The Two Fatal Inconsistencies for Any County or State
1. If a jurisdiction claims it cannot execute a Federal warrant, then it must hold the individual until Federal LEOs or arrive.
A jurisdiction cannot say “We cannot execute the warrant,” and simultaneously claim “We can release an inmate despite knowing a warrant exists.” If execution is forbidden, holding is required. If holding is forbidden, execution is required. Refusing both is interference.
2. If a warrant were from the U.S. Marshals Service, the jurisdiction would have executed it immediately.
No city, county, or state would have knowingly released a wanted criminal fugitive: a DEA‑sought drug kingpin, a gunrunner wanted by ATF, or an FBI terrorism or espionage suspect because “the agents didn’t show up,” “the paperwork was confusing,” or “state law doesn’t require us to help.” Selective refusal to execute only immigration‑related warrants—first civil and now criminal—is not constitutional doctrine. It is policy preference masquerading as law.
The Anti‑Commandeering Argument Collapses at the Administrative Level
Executing an administrative warrant requires almost no effort: pick up a fax, print a PDF, hand it through the bars, inform the inmate that ICE is coming, and refrain from releasing him prematurely. And even here, sanctuaries would not be “executing a civil warrant”—they would be upholding a detainer request. That distinction matters. Upholding a detainer is not commandeering; it is simply not defeating federal process. If a jurisdiction claims even this minimal act is unconstitutional, its argument is performative. And once the argument fails at the administrative level, it is dead on arrival at the judicial level.
The New Policy Landscape: Jurisdictions Fighting Back Against D.C. and Each Other
Arlington’s move is not part of a national pattern. In fact, the national pattern is moving the other way. But before turning to the national trend, it is important to understand the immediate landscape in which Arlington sits—a landscape defined by jurisdictions that bend over backwards to avoid cooperation with ICE, even when doing so undermines criminal enforcement and raises civil‑rights concerns.
Virginia
Arlington’s only neighbor in this discussion is Fairfax County, and Fairfax has made non‑cooperation a defining feature of its criminal‑justice posture. The Commonwealth’s Attorney—Virginia’s equivalent of a district attorney—has been accused of offering sweetheart deals to aliens at risk of ICE arrest, even when they are repeat offenders or violent criminals. According to reporting, these deals were structured specifically to avoid triggering federal custody, raising concerns that criminal outcomes were being manipulated based on immigration status—a practice with an unmistakable civil‑rights tinge.
The consequences of this posture are visible. In February 2026, an illegal alien named Abdul Jalloh was arrested for stabbing a woman to death at a bus shelter along the Richmond Highway corridor. By that time, Jollah had been arrested 30 times—that’s right, 3-0—in the county after 100 encounters with the Fairfax County Police Department (FCPD), 18 of which were reportedly between January 2023 and February 2026. Jollah was considered such a danger that in November 2025, the Commander of the local police district asked the Commonwealth’s Attorney’s office warning “it is not a matter of if, but when he [would] maliciously wound (or worse) again.
In December 2025, an illegal immigrant named Marvin Morales-Ortez was arrested for murdering his roommate the day after being released from the county detention center after the county attorneys declined to prosecute him for assault and gun offenses. DHS rarely issues public rebukes of local jurisdictions; Fairfax earned one the, and several more since.
The pattern extends beyond plea negotiations and release decisions. In 2019, a Fairfax County police officer was suspended after holding a driver for ICE when a law enforcement database check revealed an outstanding federal administrative warrant. The officer followed the database alert; the county punished him for it. Fairfax’s leadership later stated that officers were not permitted to detain individuals solely on the basis of civil‑immigration information. The message was unmistakable: even when there are flags on aliens wanted by ICE, cooperation is treated as misconduct.
Colorado
Outside Virginia, the same pattern appears in countless other states. In Colorado, the Attorney General filed a civil‑rights lawsuit against a Mesa County sheriff’s deputy for allegedly using federal immigration information disclosed by a driver, Brazilian illegal immigrant Caroline Dias Gonçalves during a traffic stop. According to the complaint, the deputy accessed federal databases, identified the driver’s immigration status, and then used that information to justify further detention. The State alleged violations of Colorado’s civil‑rights laws and sought injunctive relief. The message was clear: even referencing federal immigration information during a routine stop can trigger state‑level civil‑rights enforcement.
These examples matter because they show the immediate and national environment: jurisdictions suppress cooperation, punish officers for following NCIC alerts, manipulate criminal outcomes to avoid ICE involvement, and treat communication with Federal law enforcement as a civil‑rights exposure rather than a public‑safety obligation.
The Mesa County Sheriff’s Office filed its own lawsuit arguing the state’s law was vague and violates the U.S. Constitution’s Supremacy Clause, but it was dismissed by a Federal District Court judge as lacking standing.
Against this backdrop, the national trend is moving in the opposite direction.
Across the country, county sheriffs are suing their own states for imposing sanctuary mandates that prevent cooperation with ICE. These lawsuits are not symbolic. They are structural challenges to state‑level restrictions on Federal cooperation.
Maryland
Sheriffs in Cecil, Frederick, Harford, and 14 other counties have sued Annapolis over legislation that restricts 287(g) agreements, limits jail‑to‑ICE communication, and prohibits certain forms of cooperation. Their position is straightforward: the State cannot compel sanctuary posture on counties that wish to assist federal enforcement.
New York
Multiple sheriffs are suing Albany over the NY law that prohibit them from honoring ICE detainers, restrict communication with DHS, and bar cooperation on civil immigration matters. Their argument mirrors Maryland’s: the State cannot forbid a county from cooperating with federal law enforcement when that cooperation is lawful, voluntary, and within the county’s authority.
These suits matter because they demonstrate the actual trajectory of local‑federal relations. Most jurisdictions are not escalating sanctuary behavior. They are resisting it. They are fighting to preserve cooperation with DHS, not to undermine it.
Arlington is the exception.
While other counties are suing their states to restore cooperation, Arlington is building a program to counteract Federal enforcement. It is thankfully the only jurisdiction currently attempting to convert DHS activity into a municipal enforcement trigger. It is the only jurisdiction attempting to act because ICE acted. It is the only jurisdiction attempting to operationalize counter‑enforcement. And now, nearly a decade after Emmet Swimming sketched them, Ivana—the bartending sculptor—and Rick—the tattooed non‑conformist accountant—are probably now greyhairs, and undoubtedly both all for it.
This contrast is the point.
Arlington is not expanding sanctuary. Arlington is abandoning it.
Arlington’s Folly: Its Counter‑Enforcement Program
For almost 50 years, sanctuaries operated through omission. They declined to take actions they were not required to take. They did not interfere with federal enforcement. They did not obstruct federal warrants. They did not convert federal operations into municipal triggers. They stood still.
Arlington is not standing still.
Before explaining the break, it is important to be clear about what Arlington is not doing. Arlington is not the first jurisdiction to spend public money on immigration‑related programs. States and cities across the country already fund legal aid for aliens who are plainly removable under § 237(a)(1)(B), and they do so without screening for relief eligibility — thereby throwing good money after bad.
California’s One California Program funds universal representation.
Illinois’s Access to Justice initiative does the same.
Washington State operates WIDEN.
New Jersey funds the Detention and Deportation Defense Initiative.
New York City’s NYIFUP was the first municipal universal‑representation program.
Los Angeles, San Francisco, Chicago, Seattle, Denver, and Baltimore all maintain publicly funded defense programs that do not screen for relief eligibility and routinely represent aliens with final orders, criminal bars, or no plausible relief.
Minnesota attempted a statewide immigrant‑benefits program and collapsed under fraud. But its failure was administrative, not legal: the program was a universal benefits scheme with no screening, verification, or enforcement triggers. It did not activate in response to federal immigration enforcement and did not condition assistance on ICE activity. Minnesota’s collapse underscores the categorical difference between a reckless statewide benefits program and Arlington’s new mechanism, which is designed to activate only when DHS enforces federal law.
But none of these jurisdictions—not the states, not the cities, not Minnesota — ever attempted what Arlington is attempting now.
Arlington’s new policy is the first attempt by any jurisdiction to build a county‑run program whose operational trigger is federal immigration enforcement. It does not exist in the absence of ICE activity. It activates only when DHS enforces federal law inside the county. It is not a standing immigrant‑services posture, not a general benefits program, and not administrative restraint. It is a mechanism designed to respond to federal enforcement with county action.
This is the categorical break.
Sanctuaries historically said: “We will not act.”
Arlington says: “We will act because DHS acted.”
The county’s program is built on three elements no prior sanctuary has ever attempted:
1. A county‑level process triggered by ICE arrests.
The program does not exist unless ICE conducts operations in the county.
2. A county intervention into the consequences of federal enforcement.
Arlington intends to provide benefits because ICE acted — not because the county has a general immigrant‑services policy.
3. A deliberate attempt to convert federal enforcement into a municipal enforcement condition.
This is the first time a jurisdiction has attempted to build a program whose operational trigger is DHS activity.
This is not sanctuary.
This is not non‑cooperation.
This is not administrative restraint.
This is counter‑enforcement—a county choosing to act in response to federal enforcement, and designing a program whose existence depends on DHS doing its job.
Arlington is not expanding sanctuary.
Arlington is abandoning it..
This is the moment DHS and DOJ have been waiting for—not because Arlington is provocative, but because Arlington is the first jurisdiction to move from non‑action to action, from posture to program, from symbolism to mechanism.
DOJ’s Likely Litigation and Arlington’s Absence of an Excuse
Arlington’s program does not merely raise policy concerns. It raises statutory ones—specifically under 8 U.S.C. § 1324, the federal alien‑smuggling statute, which includes prohibitions on harboring, shielding, encouraging, inducing, and facilitating an alien’s ability to remain in the United States.
Section 1324 is not limited to coyotes, stash houses, or cartel operations. It applies to any person or entity that knowingly or recklessly facilitates an alien’s ability to evade detection or remain unlawfully. The statute has been used against individuals and entities who provide material assistance with knowledge of unlawful presence, i.e., being here illegally.
Arlington’s program, by design, activates only when ICE enforces Federal law. It provides benefits because DHS acted. If those benefits materially assist another alien in avoiding Federal custody, evading removal, or remaining unlawfully, the program risks falling within the “shielding,” “encouraging,” “inducing,” and “facilitating” prongs of § 1324.
DOJ’s likely posture will depend on three factors:
1. Intent.
Arlington’s program is explicitly reactive to Federal enforcement. That reactive posture is evidence of intent to counteract federal operations.
2. Material Assistance.
If the program provides benefits that materially assist an alien in avoiding Federal custody or remaining unlawfully, DOJ will treat it as facilitation. Given the program is intended to replace money earned by a breadwinner arrested by ICE, materiality seems assured.
3. Pattern and Practice.
If Arlington institutionalizes counter‑enforcement, DOJ will view it as a pattern of conduct rather than isolated incident. Sure, at this point, the program is only funded for a few tens of thousands of dollars, but the issue isn’t limited to a lack of a larger allocation of seed money.
Arlington also faces a second, independent defect—one that removes any plausible civil‑rights defense. The program is available only to families of individuals arrested by ICE. It is not available to families of individuals arrested by other Federal departments or agencies than DHS or by state or local law enforcement. Arlington has created a benefits program that is triggered solely by Federal immigration enforcement and is functionally limited to aliens. No similar program exists for citizens arrested by federal agencies, citizens arrested by state police, or citizens arrested by county officers. The county has created a status‑based benefits scheme with no neutral justification. That is the kind of selective, immigration‑status‑based allocation of public benefits that carries its own civil‑rights exposure—and eliminates any argument that Arlington is acting pursuant to a general public‑safety rationale.
A further statutory problem arises from conduct sanctuaries already engage in. When a jurisdiction is notified by ICE that an alien is unlawfully present and releases that alien—especially when the detainer includes a judicial warrant—that release itself constitutes shielding, encouraging, and inducing under § 1324. The release is an affirmative act that foreseeably enables unlawful presence. Arlington is not the first jurisdiction to cross that statutory line; but arguably is the first to build a program around crossing it.
Arlington is not a private actor, and § 1324 does not exempt counties.
If Arlington’s program materially assists aliens in evading Federal custody or remaining unlawfully, DOJ will have no choice but to act. Then again, it seems like DOJ routinely snatches defeat from the jaws of victory, and routinely through inaction.
Conclusion
Sanctuaries began as a bandage, an omission, administrative restraint. They were symbolic. They were political theater. They were noise.
Arlington is not noise.
Arlington is not theater.
Arlington is not omission.
Arlington has purposefully introduced a program that exists only because DHS is enforcing federal law—as if it didn’t before. It is the first known jurisdiction to justify financial enticement to remain unlawfully despite federal enforcement.
This is the figurative moment the line between protest and prohibited conduct is not only approached—and crossed. And if DOJ allows the county to do it without pushback and without consequences, then though Arlington is one of the first, it will not be the last.
Arlington is not speeding up to slow down.
Arlington is effing around to find out.
And it will.
Other sanctuaries, be they state or local, would do well to pay close attention to what happens next, because it’s not likely to be pretty, and for county taxpayers, it won’t be cheap.