There is no obvious way for a mayor to defend a law her lead attorney already said couldn’t be enforced legally.
But that is the position Mayor Cherelle L. Parker found herself in when President Donald Trump’s administration sued her, the city, and other officials over an ordinance that bars law enforcement officers from concealing their identities as part of the ICE Out legislative package.
Noted in the feds’ lawsuit: When the ordinance was making its way through the legislative process, City Solicitor Renee Garcia advised the mayor it would be “inaccurate” to suggest the city can “legally and practically enforce the Bill.”
The city responded Thursday afternoon to the Trump administration’s request for an injunction preventing the ordinance from taking effect next month by arguing the federal government doesn’t have standing until the city attempts to enforce its provisions.
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Even if the administration had standing to sue, the bill’s provisions don’t interfere with the federal government’s work and “at most imposes an incidental burden,” the city’s response said.
Additionally, the filing contended the Trump administration can’t show irreparable harm because of exceptions that allow officers to conceal their identity The city, meanwhile, has “a significant interest in protecting its residents and law enforcement officers,” it said.
“The Bill was enacted in response to the confusion and fear generated by the federal government’s deployment of large numbers of federal agents who subsequently applied aggressive enforcement tactics behind the mask of anonymity, undermining public safety and trust,” the city said.
The defendants in the case — the city, Parker, Garcia, and District Attorney Larry Krasner — are represented jointly by Ballard Spahr attorneys.
“In essence, the city’s argument, which we have joined, is that this ain’t the right time,” Krasner said in an interview. “The City Council ordinance is not in effect yet. There has been no enforcement by the Philadelphia Police Department yet. You don’t even have a real case to consider.”
Krasner added that while he was in lockstep with the Parker administration on Thursday’s filing, further developments could necessitate his office to seek separate representation.
The Department of Justice declined to comment on the new filing.
A city Law Department spokesperson did not immediately respond to a request for comment.
The ordinance at the heart of the litigation makes it a crime for law enforcement officers, including Immigration and Customs Enforcement agents, to wear face coverings or conceal personal identifiers like badges and nameplates while carrying out their official duties in Philadelphia, and requires officers to identify themselves. It also prohibits the use of unmarked vehicles.
The bill includes exceptions allowing officers to wear masks in certain circumstances, such as medical emergencies or SWAT operations.
An officer who violates the ordinance could be prosecuted, and risks up to 90 days in jail plus a fine.
The ICE package, including the mask law, goes into effect July 7.
The Trump administration sued in Philadelphia’s district court last week, challenging the ordinance as “blatantly unconstitutional.”
The bill’s requirements would “prevent effective federal law enforcement within Philadelphia” and put federal officers in harm’s way, the suit said.
U.S. District Judge Chad F. Kenney, whom Trump appointed during his first term, will rule on the injunction without holding a hearing.
The Trump administration has sued other jurisdictions, including New Jersey, over similar requirements. In April, the U.S. Court of Appeals for the Ninth Circuit found that a California bill requiring agents to “visibly display identification” violated the U.S. Constitution’s supremacy clause, which bars the states from regulating federal government activities.
An awkward position for Parker
Defending the bill puts Parker and her administration in an awkward position.
The ordinance passed City Council with a veto-proof supermajority in April as part of a package of seven bills pitched as “ICE Out” by its authors, progressive lawmakers Rue Landau and Kendra Brooks. The other bills prohibit federal immigration agencies from staging raids on city-owned property, ban discrimination on the basis of citizenship status, and prohibit the city from engaging in most forms of information-sharing with ICE.
The legislation also codified some of Philadelphia’s long-standing sanctuary city status, which a recent poll found most city residents support.
Brooks said she did not want the lawsuit to hold up the Parker administration’s implementation of the law.
“There is nothing in the lawsuit stopping the administration from implementing our ICE Out package on time,” she said.
Brooks had good reason to question the administration’s commitment to the legislation given Parker’s handling of it.
After the bills’ passage, Garcia advised Parker not to sign the bill banning law enforcement officers from concealing their identity, saying doing so “would send an inaccurate signal to the public that the Administration can legally and practically enforce the Bill.”
Parker followed her solicitor’s advice, signing six bills and allowing the seventh to become law without her signature.
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As for Garcia’s concerns about the bill, the new filing from the city only notes that her letter advising Parker didn’t address the issue of standing or whether the issue is ripe for litigation.