There is a small but vocal minority that argues against sanctuary cities because
they believe undocumented immigrants harm our country. Some claim they steal
American jobs — as if “Available Jobs” were a fixed quantity that natural born
citizens and immigrants have to fight over in a zero-sum competition. Countless
studies prove that the economic reality is more complex. Others, including our
current president, defame immigrants on a more base level, by falsely casting a
massive, heterogeneous group of people as “criminals and rapists.”
Those arguments are both laced with xenophobia and demonstrably false, however,
most serious critics of sanctuary cities choose a different line of reasoning.
I’d wager that many who oppose sanctuary cities do not even support the
resulting policy outcome — expedited deportation of America’s 11 million
undocumented immigrants. Critic’s arguments typically rely on a higher ideal:
law and order, or the idea that, no matter how unfortunate the consequences, we
are a nation of laws. A change in policy requires a change in the law. Until
then, breaking the law, even for the noblest cause, is still not acceptable. And
sanctuary cities break the law, plain and simple. But do they?
To determine the legality of sanctuary cities, we have to start with the
fundamentals: what are they? This question is easier to propose than to answer.
The first locality to use the formal designation was San Francisco. In 1985,
then-mayor Dianne Feinstein (now California’s Senior Senator) passed an
ordinance which provided asylum to refugees from Guatemala and El Salvador. Over
the next decade, the city expanded the ordinance to protect all undocumented
immigrants without a criminal record.
But what exactly does “protecting” undocumented immigrants mean? Does it mean
undocumented immigrants living in sanctuary cities cannot be deported? No.
Immigrants in sanctuary cities can and are being deported every day. A sanctuary
city is defined as any locality (it can also be a county or even a state) which
has, either by law or just by public statement, said they will not cooperate
with the Federal Government in the enforcement of immigration law. According to
the Immigrant Legal Resource Center, there are currently five states, 633
counties, and hundreds of cities have which have rebuked the Federal Government
in such a manner.
More specifically, the non-cooperation almost always takes one of two forms: (1)
refusal to share information between local and federal law enforcement and (2)
refusal to honor federal detainer requests. The nuance of what is happening here
stems from our country’s federalist design. Immigration has continuously been
designated as the jurisdiction of the Federal Government, pursuant to the
Article I, Section 8, Clause 4 of the Constitution, which grants Congress the
power to “establish a uniform Rule of Naturalization.” Local law enforcement
does not have the authority to enforce immigration law.
Instead, immigration policy is executed by U.S. Immigration and Customs
Enforcement, commonly known as ICE. Part of the Department of Homeland Security,
ICE has broad authority to locate, investigate, and deport undocumented
immigrants wherever and whenever they see fit — a terrifying power they have
been willing to act upon with increasing frequency, such as when ICE arrested
Romulo Avelica-Gonzale only seconds after dropping his daughter off for school
near downtown Los Angeles.
Here’s the crux of the problem, though. As of 2016, ICE only has 5,800 officers
who carry-out removal. Deporting immigrants has long proven logistically
difficult for decades. In 1996, Congress and President Clinton amended U.S.
immigration law in order to change this. The amendments contained a provision, 8
U.S.C. 1373, that allowed the Federal Government to “deputize” state and local
police to enforce federal immigration law. When undocumented immigrants are
arrested by local police— for whatever reason: murder, DUI, broken taillights,
and sometimes no reason at all — the new law required that the Federal
Government be notified. Many sanctuary municipalities refuse to share such
information. This practice is not common and actually somewhat trivial. Even in
sanctuary cities, fingerprint data from arrestees is shared with the FBI, which
then gives the fingerprints to ICE.
The second form of non-cooperation occurs during an arrested immigrant’s release
from jail. Arrested immigrants still have to fulfill the sentence for the crime
of which they were convicted. Just like citizens, at the conclusion of their
sentence, they are set free — unless ICE issues a detainer request. The term
sanctuary city has almost become synonymous with ignoring detainer requests. An
ICE detainer tells local law enforcement agencies to hold individuals for an
additional 48 hours after their scheduled release, in order to give ICE time to
locate them and transfer them to federal prison. Many agree that this practice
violates an individual’s right to due process. Yes, even undocumented immigrants
are protected under the Bill of Rights. Detainer requests raise legal issues on
their face, but further analysis shows that any federal mandates on state and
local authorities are subject to intense legal scrutiny.
Due to a shifting legal tide over the past few decades, even the most
non-cooperative sanctuary cities may be perfectly legal. There has been a litany
of Supreme Court decisions over the past decade which specifically protect a
State’s right to ignore the Federal Government. Championed by
ultra-conservatives, and resting on radical new interpretations of the Commerce
Clause and the 10th Amendment, this emerging legal doctrine is known as New
Federalism. I personally do not agree with many of the decisions, but if we are
to accept that “the law is the law,” we should take a closer look at some of the
case law currently in effect.
New York v. USA (1992) was one of the first cases where the Court circumscribed
Congress’s Commerce Clause power, a power Congress used liberally throughout the
20th century to enforce their will on States. Justice Sandra Day O’Connor
explained the underpinnings of a new era: “The Constitution has never been
understood to confer upon Congress the ability to require the States to govern
according to Congress’ instructions.” Justice Antonin Scalia expanded the
interpretation in Printz v. USA (1997). He wrote in the majority opinion, “We
held in New York that Congress cannot compel the States to enact or enforce a
federal regulatory program. Today we hold that Congress cannot circumvent that
prohibition by conscripting the States’ officers directly… nor command the
States’ officers, or those of their political subdivisions, to administer or
enforce a federal regulatory program.” The plaintiff in the case, Sheriff Jay
Printz, sued because he did not want to help the Federal Government administer
federally mandated background checks to prospective gun owners, even
temporarily. Precedent does not discriminate based on motive, though, and the
law now clearly reads that localities do not have to help administer federal
Citing a questionably legal law, the President can single out any city he wants,
and then punish them by a method also deemed unconstitutional. In his attempt to
punish the “law-breaking” sanctuary cities, President Trump only succeeds at
breaking the law himself. I’ll concede the almost poetic irony of my arguing for
the legal scholarship of our day’s most conservative justices: William
Rehnquist, Antonin Scalia, and Clarence Thomas. Nonetheless, their precedents
allow for the legality of sanctuary cities. And the precedents are holding, in
federal court after federal court after federal court.
Ultimately, our laws should reflect our values. Legal minutiae aside, we should
ask why localities are refusing to aid the Federal Government. Is it just to
flip the bird to President Trump? No, there have been sanctuary cities since
1985, defying Republican and Democratic administrations alike. Sanctuary cities
were implemented because separating the responsibilities of local law
enforcement and ICE agents makes everyone safer.
Initially, it may seem that utilizing the resources of local police would allow
ICE to do their job better, maybe even safer. But unlike ICE, whose sole mission
is to deport undocumented immigrants, local police officers have numerous other
responsibilities. First and foremost, their responsibility is to keep their
communities safe. When undocumented immigrants fear that any and every police
officer may deport them, it erodes the public trust. Undocumented immigrants may
not come forward as a witness, or even victim, of a crime. Undocumented
immigrants are vulnerable targets when assailants know their victims have no
recourse. In the first months of the Trump presidency, reports of sexual assault
made by Los Angeles’ Latino residents dropped by 25% compared to same time
period in 2016. Think about the locations where law enforcement is stationed:
grocery stores, schools, courthouses, and hospitals. Without sanctuary cities,
an entire subset of the population is driven underground, and we all suffer.
Undocumented children are less likely to enroll in school or apply for a job.
Under Deferred Action for Childhood Arrivals (now also threatened by our
President), DACA-recipients enrolled in college while holding down a job at
rates higher than that of most Americans. When undocumented immigrants fear
going to hospitals, illnesses are not treated until they are the most lethal.
When doctors can’t regularly see their patients, they cannot provide
preventative care, they cannot provide vaccines, and they cannot isolate
contagious diseases. Public health will break down.
For decades, sanctuary cities have existed for those two reasons: public safety
and public trust. For those same reasons, they’ve been remarkably
uncontroversial until only recently. No one thinks sanctuary cities are a
permanent solution. They are a necessary reaction — a reaction to complete
failure from every branch of the Federal Government to address the crises of our
immigration system. We need to have real and difficult conversations about how
we will secure our borders, overhaul our immigration courts, and determine who
can join our country. Sanctuary cities are not part of that conversation. They
are both temporary and legal. They are a way to maintain public safety,
necessitated by longstanding congressional incompetence and under attack by
dangerous executive overreach. In the name of “Law and Order”, we should all be
defending these jurisdictions.