How Kamala Harris Dodged California’s 'Sanctuary State' Debate

The increasingly vocal immigrant rights champion shied away from her state’s trailblazing effort to pass a statewide “sanctuary” policy.

As she seeks the Democratic presidential nomination, Sen. Kamala Harris (Calif.) has become an ambassador for her state’s “sanctuary” laws that limit local law enforcement’s power to hold migrants on behalf of federal immigration authorities.

But in her first years as California attorney general, Harris was far more cautious about endorsing policies that protect undocumented people from deportation. From 2011 to 2013, as pro-immigrant California activists and legislators struggled to pass a trailblazing, statewide sanctuary law called the Trust Act over the objections of then-Gov. Jerry Brown (D) and the Obama administration, Harris remained largely silent.

“Around the Trust Act, it was bupkus. It was zilch. It was invisible. There was just no help from that office,” Trust Act author Tom Ammiano, who is now backing Bernie Sanders in the presidential primary, told HuffPost of Harris’ office. “It didn’t land well with the immigrant rights folks.”

Harris is now a leading foe of President Donald Trump’s immigration crackdown. The daughter of immigrants, she has called for the deprivatization of the immigrant detention system and vowed that, if elected, she’d issue a far-reaching executive action that would extend citizenship to many Dreamers. And Harris supporters, including a spokesperson for her campaign, insist that she harbored misgivings about state collaboration with Immigration and Customs Enforcement since before her election as California’s top law enforcement officer, even if she rarely aired them publicly and declined to take a position on legislation that would have addressed the issue.

Many activists and political figures who pushed the Trust Act see Harris’ growing support of their cause as a genuine evolution that has gained urgency since Trump upended the immigration debate. But they also view her reluctance to get involved as a misunderstanding of where the immigrant rights movement was heading ― and her caution left some worrying she may continue to lead from behind on immigration, Trump’s signature issue.

“The Trust Act was a new way to limit ICE at the state level,” Angela Chan, policy director for Asian Americans Advancing Justice, told HuffPost. “We were at the forefront. She didn’t get why it was important to support it at the time. … She only signaled support when it was safe to do so.”

Caution And Silence

Dating from her time as San Francisco district attorney, Kamala Harris kept discussions about immigration at arm’s length, immigrant rights activists say.
Dating from her time as San Francisco district attorney, Kamala Harris kept discussions about immigration at arm’s length, immigrant rights activists say.

Today, support for sanctuary policies is widespread among Democrats, who now see such laws as a last line of defense against Trump’s draconian immigration measures.

But when Harris took office as California attorney general in January 2011, Democratic leaders were at war with each other over the subject.

Under President Barack Obama, deportations from the interior of the country had climbed to the highest levels recorded since the mass expulsion of the 1950s. That increase was driven by Secure Communities, a program that requires local police to share the fingerprints of arrested migrants with Immigration and Customs Enforcement. ICE, in turn, slaps local arrestees with a request to hold them in jail on the feds’ behalf, even if their charges are dropped or they are eligible to bond out.

Local jurisdictions racked up tens of millions of dollars in unreimbursed costs annually because of those holds. Meanwhile, migrants who commanded public sympathy — most notably, victims of domestic abuse — routinely got trapped in the program’s wide net.

Enraged by the growing scale of deportations, immigrant rights groups and a few Democratic legislators took aim at Secure Communities, aiming to sabotage it by limiting the ability of local police to share fingerprint information with ICE or hold migrants at the feds’ request. If they could pass those measures into law, they reasoned, they could limit deportations in California, the state with the country’s largest unauthorized migrant population, at around 2.2 million. At the time Ammiano introduced the bill, no state had passed such a policy.

But as Trust Act backers tried to cultivate Harris’ support over the three years it took to push the legislation through the state House, she declined to take a position.

The tension between Harris’ office and Trust Act supporters emerged shortly after Ammanio submitted the first draft of the bill in early 2011. When local police make an arrest and submit the identification info to the feds, that information is channeled through the state attorney general’s office. The first version of the bill would have required Harris’ office to publish regular reports showing how many people had been transferred to ICE under Secure Communities.

A few weeks after Ammiano introduced the bill, Chan, the policy director for Asian Americans Advancing Justice and a major proponent of the measure, got word that the Trust Act would land in the Appropriations Committee “suspense file” ― a holding bin for legislation likely cost the state money. Harris’ office had set the price tag for the reporting provisions at $5 million per year, according to two sources with knowledge of the deliberations.

That sum, which Chan viewed as inflated, would likely doom the effort to failure. Bills that bleed the public coffers are far more difficult to pass than ones that don’t.

“Her office argued that it was too expensive,” Chan said. “The bill almost died in appropriations.”

“Around the Trust Act, it was bupkus. It was zilch. It was invisible. There was just no help from that office.”

- Trust Act author Tom Ammiano

After two months of private wrangling from May to June of 2011, which did not become public at the time, Ammiano dropped the reporting provisions to keep costs down. The bill passed the next year.

But Gov. Brown, a Democrat who put Secure Communities into effect back when he served as attorney general before Harris, vetoed the proposal, contending that the protections for migrants were too broad. Harris said nothing.

The following year, Ammiano revised the bill once again, broadening the list of crimes for which local police would hold migrants on behalf of ICE. Advocates, including dozens of legal groups and a growing number of Democratic legislators, continued to push for Harris’ support without success.

Some political figures close to Harris, like former California Senate President Pro Tempore Kevin de León, who’s backing her presidential bid, insist that in private conversations dating back to the Trust Act’s introduction, Harris always supported efforts to limit the state’s cooperation with ICE.

“There’s no question about it ― there were individuals that were very cautious and circumspect about being openly public about the Trust Act,” de León told HuffPost. “However, that did not apply to Kamala. In my conversations with her at the time, she was never hesitant … I would call it out if I thought some individual was overly cautious or not supportive at all.”

But immigrant rights defenders involved in that legislative battle more often view Harris as unwilling to get involved in a fight with little upside.

If Harris had publicly backed the Trust Act in 2011 or 2012, she would have invited ill will from Obama administration officials, who at the time still held out hope that tough interior enforcement would help the White House convince Republican lawmakers to back comprehensive immigration reform. And it would have put her in direct conflict with several prominent sheriffs who wanted to keep working closely with ICE shortly after she became the state’s top law enforcement officer.

Dating from her time as San Francisco district attorney, where she supported a local policy to hand youths over to ICE if they were accused of felonies, Harris kept discussions about immigration at arm’s length, immigrant rights activists say. (Harris disavowed her support of the San Francisco policy on information-sharing with ICE after a report by HuffPost.)

“Kamala was always seen as a very law-and-order type who was not very supportive of pro-immigrant legislation,” said David Campos, a Trust Act supporter and former member of the San Francisco Board of Supervisors. “At the best, she was not involved, and at the worst, she opposed.”

Other observers viewed her as an ambitious politician who reserved judgment while the wider movement played out.

“She acted cautiously,” Kevin Johnson, the dean of public interest law at the University of California, Davis, told HuffPost. “She wasn’t really a leader when it came to anything like the Trust Act or any of the movements that would later become the sanctuary movement in the state … I think she was seeing where the state was going to go, instead of being a trailblazer on the issue.”

Having Trump as president “makes it easier” for Democrats to support sanctuary policies, “because he’s so extreme that you can confront him,” Ammiano said. “But in those days, it was lack of political will. She was cautious. And sometimes in politics, you have to be inspirational.”

“I think she was seeing where the state was going to go, instead of being a trailblazer on the issue.”

- Kevin Johnson, dean of public interest law at the University of California, Davis

The closest Harris came to offering support for the sanctuary bill was a bulletin she issued in December 2012 clarifying that ICE detainers amount to non-binding requests — a position consistent with several federal court rulings. Some 28 percent of people slapped with ICE detainers had no criminal convictions, according to her office’s review of four month’s worth of data. Those that chose to honor the detainers, Harris wrote, opened themselves up to the possibility of federal lawsuits.

“I want that rape victim to be absolutely secure that if she waves down an officer in a car that she will be protected,” Harris said at the time, according to The Los Angeles Times, “and not fear she’s waving down an immigration officer.”

In a spate of public comments following the release, Harris would simultaneously claim that Secure Communities ensnared too many law-abiding migrants and undermined faith in the police, while also defending her ally Brown for signing the agreement that put the program into place. She walked a narrow path, deriding the program as “flawed” while declining to weigh in on legislation that promised to rein it in. In the only contemporary comment on the legislation found by HuffPost, Harris told the LA Times that she opposed the version of the Trust Act that Brown vetoed two months earlier because it went “too far.”

Facing the prospect of another veto from Brown, Nancy Pelosi and 21 other Democratic members of California’s congressional delegation publicly backed the bill after it passed the legislature for the second time in 2013. In October of that year, satisfied with the number of exceptions requiring local cops to hold migrants with certain serious criminal charges for ICE, Brown finally signed the Trust Act into law.

By then, even former Secretary of Homeland Security Janet Napolitano, who oversaw the implementation of Secure Communities during the Obama administration, had publicly urged Brown to do so. Harris had not.

A Zigzagging Path

A man is detained by Immigration and Customs Enforcement agents on Oct. 14, 2015, in Los Angeles.
A man is detained by Immigration and Customs Enforcement agents on Oct. 14, 2015, in Los Angeles.
John Moore via Getty Images

Members of the Harris campaign now contend that her reluctance to get involved in the Trust Act debate stemmed from her role as a law enforcement executive, rather than a legislator. They point to Harris’ public comments in 2009 questioning the state’s responsibility to enforce immigration law. The bulletin she issued in December 2012 gave proponents of the Trust Act the legal cover they needed to pass the bill into law, a campaign spokesperson said.

“In 2012, Kamala Harris stood up to her own party’s president by telling California law enforcement that they were not required to comply with Secure Communities,” a campaign spokesperson said, adding that her “commitment to fighting for immigrant communities is clear and has been for her entire career in public office.”

Some of the Trust Act’s backers viewed the tacit support implied in the bulletin as analogous to an endorsement, because it helped overcome objections from sheriffs who thought they had no choice but to follow ICE requests.

“It was a real breakthrough,” Angelica Salas, executive director of the Coalition for Humane Immigrant Rights, told HuffPost. “It was a new thought process in California. Coming from the top law enforcement official in California, that mattered. Brown had been in opposition to us.”

But Harris’ role as attorney general did not stop her from weighing in on other critical issues of the day, from the Affordable Care Act to pollution to medical marijuana. She led the charge for a truancy law that would allow the state to prosecute parents whose kids repeatedly missed school — a move she now says she regrets. She released several statements defining where she stood on pending state legislation and defended the Obama administration’s executive actions on immigration with briefs filed in federal court.

Over the next few years, Harris became an increasingly vocal critic of Secure Communities as it became less popular among Democrats. In 2014, with comprehensive immigration reform all but certain to fail in Congress, Obama canceled the program and replaced it with one that focused on identifying migrants with more serious criminal convictions or prior deportations. Harris praised the move. (Trump revived Secure Communities in his first week in office.)

By the next year, while she was still serving as California’s attorney general, Harris was defending the Trust Act publicly as Republicans in Congress threatened to punish California for refusing to cooperate with ICE.

And after Harris became a U.S. senator in 2017, California would expand its sanctuary policies with measures like the California Values Act that went beyond those that Brown vetoed — this time with his support. Harris did not take a public position on the California Values Act either, despite prodding from the same groups that backed the Trust Act. In less specific language, however, she defended limiting immigration authorities’ reach under Trump in her first speech before the Senate.

“As a prosecutor, I can tell you, it is a serious mistake to conflate criminal justice policy with immigration policy as if they are the same thing,” she said. “They are not.”

“Her position has evolved significantly since she was attorney general. That only raises my expectations.”

- Chris Newman, legal director for the National Day Laborer Organizing Network

As California widened its sanctuary protections, the percentage of California ICE arrests that took place outside a jail nearly doubled to 30 percent, according to an affidavit submitted by former Acting ICE Director Thomas Homan in response to a lawsuit by California challenging Trump’s decision to withhold grant money from sanctuary jurisdictions. The state’s ICE arrest rate, in general, had slowed, Homan wrote, casting the blame on the series of state laws that began with the Trust Act.

The state — and her party’s — shift on the issue has left Harris serving as an ambassador for a sanctuary movement she initially shied away from.

But in the Trump era, the politics of the sanctuary movement have become far more palatable to the Democatic establishment than they were under Obama. Ten state legislatures, along with the District of Columbia, have passed laws limiting cooperation with ICE detainers. All but two of those laws passed after Trump took office.

Immigrant rights advocates, who have far less leverage under Trump than they did when a Democrat held the White House, have mostly applauded the shift.

“Her position has evolved significantly since she was attorney general,” said Chris Newman, the legal director for the National Day Laborer Organizing Network. “That only raises my expectations that she will take the opportunity of being on the national stage to defend and build upon California’s trajectory.”

Even Ammiano, who harbors lingering resentment over Harris’s reticence on the Trust Act, views her as more progressive these days.

“She may feel differently now, and that’s great,” Ammiano said. “But there’s got to be some admission of ‘That was a mistake. I’ve changed.’”

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