WASHINGTON — Senators sparred at a hearing Tuesday over local jurisdictions that have policies against cooperation with federal immigration enforcement, as the Senate teed up another floor procedural vote to end a Department of Homeland Security shutdown.

Senate Budget Chairman Lindsey Graham, R-S.C., used the hearing to highlight his proposal to make it a crime for local officials to release migrants if they received a request from federal immigration agents to keep them in custody. Penalties would increase if a migrant went on to commit a crime and cause harm.

The Justice Department has identified 200 cities and 12 states that have sanctuary city policies. Graham said local officials who don’t cooperate with federal immigration efforts should “feel the pain, not just the public.”

“There is no upside to sanctuary cities,” Graham said. “It’s all downside.”

Sen. Jeff Merkley of Oregon, top Democrat on the panel, said research justifies sanctuary city policies because those jurisdictions perform better than those with law enforcement officials who “get commandeered to be assistant ICE agents.”

“No upside other than higher median household income, less poverty, less reliance on public assistance, lower unemployment and safer communities, all of which seem pretty much on the upside, from my point of view,” Merkley said.

Graham and other Republicans on the panel said states and localities don’t have a right to interfere with immigration enforcement.

Jessica Vaughn, director of policy studies at the Center for Immigration Studies, which seeks to limit immigration, told the lawmakers that sanctuary jurisdictions refused more than 26,000 requests from federal officials to keep migrants with criminal records in custody between October 2022 and February 2025.

“What possible reason can there be for not cooperating with ICE for their removal?” Vaughn said. “It’s certainly not a public safety reason, and it seems as if they actually want to make immigration enforcement as costly and labor intensive as possible.”

Democrats on the committee defended the policies on the basis that they enable cooperation between immigrants and local enforcement to reduce crime rates, asserting localities have a right to refuse to cooperate with federal officials under the 10th Amendment.

David Bier, an immigration expert at the libertarian-leaning Cato Institute and witness at the hearing, said a proposal to coerce localities to cooperate with federal immigration enforcement presents serious problems under principles of federalism.

“Congress should not itself violate the Constitution by threatening local law enforcement, not for interfering with ICE, but rather for following their own local laws that they swore an oath to uphold under our system of federalism and the Constitution,” Bier said. “Congress can’t force cities to do its bidding whether on immigration, guns or the environment.”

DHS funding

The hearing comes as DHS remains the sole portion of the U.S. government that has not received funding for the rest of fiscal 2026 through the regular appropriations process.

Democrats have refused to agree to additional funds for immigration enforcement agencies unless there are changes to the tactics of agents during searches, arrests, protests and the use of force during those interactions, in response to the fatal shootings of two U.S. citizens.

Senate Majority Leader John Thune, R-S.D., on Tuesday set up a procedural vote on a fiscal 2026 Homeland Security spending bill as the Trump administration and Republicans point to the fallout of withholding funds, including airport security delays ascribed to the lapse in appropriations.

Graham on Tuesday floated the idea of reaching an agreement on Democrats’ demands for changes at Immigration and Customs Enforcement and Customs and Border Protection in exchange for a deal that includes his proposal against sanctuary cities.

“If we can make ICE more professional, if we can do things at DHS that make it more professional, count me in,” Graham said. “But to my Democratic colleagues, we’ll never fix illegal immigration until you get to the source of the problem.”

Sen. Sheldon Whitehouse, D-R.I., pointed to a federal court decision in his state that makes local officials liable for errors if they hand to immigration enforcement an individual wrongfully requested under a detainer.

And he described an incident where ICE officers went after an intern high school student in a state courthouse when they were seeking someone over age 30.

Whitehouse said agents wearing masks broke rules in the courthouse about operating and filming inside, then threatened a state judge with breaking the windows of his car for protecting the student before they realized they were going after the wrong person.

“I think a lot of sensible decisions are being made by local police chiefs about whether they want to cooperate with an organization that behaves in unreasonable and unprofessional ways, that threatens judges with violence,” Whitehouse said.

Graham pointed to local officials in Fairfax County, Va., who released Abdul Jalloh from custody when the migrant’s criminal record included 30 arrests, rape and assault. ICE said it had previously lodged a detainer against Jalloh in 2020, and he was issued a final order of removal.

The Fairfax County Police Department charged Jalloh with fatally stabbing a woman on Feb. 23 at a bus stop.

Sen. Tim Kaine, D-Va., said the blame for the incident should be placed on federal immigration officials for not apprehending Jalloh sooner, citing “repeated instances of ICE having this person in their purview, in their grasp, and then letting them go.”

Kaine called for liability for federal immigration enforcement officials if they are notified of the pending release of a migrant with a criminal history but don’t act soon enough.

Graham said that “sounds like pretty good idea to me” and that he would be open to that as part of a deal to move forward on his sanctuary city proposal.

“I think those days are probably over with this administration, but the idea that the federal government had notice and the local community was willing to turn them over, and they turned a blind eye, and somebody got hurt, I would be willing, definitely, to create liability there,” Graham said.

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