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Maryland's Upcoming Special Session Could Override Veto, Ban Immigration Detention, Impose Sanctuary Policies Statewide

December 3, 2021
Maryland state flag

FAIR Take | December 2021

The Maryland General Assembly will convene on December 6 for a special session. The main focus will be the redistricting process that states must complete every decade after the census.  However, in addition to redistricting, the legislature will likely consider overriding Governor Larry Hogan’s (R) veto of the so-called “Dignity Not Detention” bill (House Bill (HB) 16).   HB 16 bans immigration detention and makes Maryland a sanctuary state. 

HB 16, as introduced and sponsored by Delegate Vaughn Stewart (D-Montgomery County), bans immigration detention contracts.  However, on the last day of the legislative session, it was amended with language from the so-called “Trust Act.”  If the legislature overrides Governor Hogan’s veto, then Maryland will become a sanctuary state.

HB 16 as vetoed by Governor Hogan:

  • Prohibits state and local law enforcement from asking about an individual’s immigration status or birthplace;
     
  • Forbids public officials from detaining or extending the detention of individuals suspected of being illegal aliens to investigate their immigration status or transfer them to federal immigration authorities “unless required by federal law;”
     
  • Bans state agencies and local governments in the future from contracting with private entities for immigration detention;
     
  • Bans local governments from permitting private immigration detention facilities unless they go through a complex set of hearings and administrative approvals; and
     
  • Requires termination of existing immigration detention contracts by local governments by October 2022.

HB 16 passed by a vote of 86-46 in the House (with seven abstentions) and passed by 30-17 in the Senate.  In past legislative sessions, the last-minute sanctuary language has been strongly opposed by local law enforcement, including both the Maryland Sheriffs Association and Maryland Chiefs of Police Association.  This year, despite little time to respond to the amendments, several law enforcement officials including Frederick County Sheriff Chuck Jenkins (R) and Harford County Sheriff Jeff Gahler (R) condemned it again. 

In his veto message, Gov. Hogan stated that “[l]ocal law enforcement should fully cooperate with federal law enforcement—a principle I have consistently upheld throughout three federal administrations led by presidents from both political parties. Flawed legislation such as this sets a dangerous precedent regarding the state’s commitment to upholding the law and ensuring the safety of our citizens.”  He further emphasized that “[w]e need to ensure that our law enforcement officers have every tool at their disposal in order to keep our citizens safe and protect them from felons, terrorists, repeat violent offenders, domestic abusers, and sexual predators, regardless of immigration status.”

In the months since Gov. Hogan vetoed HB 16, the U.S. Court of Appeals for the Ninth Circuit struck down a California law that likewise would have banned detention contracts, saying the state was “not simply exercising its traditional police powers … but rather impeding federal immigration policy.”  While the decision isn’t binding on Maryland, which is in the Fourth Circuit, the high likelihood of similar litigation should be something for Maryland lawmakers to consider before overriding the veto. 

Democrats could override the veto without any Republican support since they outnumber Republicans 99-42 in the House and 32-15 in the Senate. However, to override the veto a three-fifths super majority is required.  Therefore, the Democrats cannot lose more than one vote in either chamber.