Over 100 jurisdictions, from Manhattan to Malibu, refuse to assist federal law enforcement in their immigration law enforcement duties, especially as to criminal aliens arrested for crimes here in the United States but released before federal law enforcement can detain and deport.
These governments labeled themselves “sanctuary” cities, but a better label would be secessionist cities.
Two means of redress and remedy exist: first, the current path, of defunding sanctuary cities, a path much more legally perilous, but well-founded in the same doctrine that integrated American society; and second, an alternative, complimentary path of funding law-abiding cities with aid to enforce immigration law, an indubitably and indisputably legal remedy.
The legal argument the “sanctuary” cities rely upon bears merit, but they misuse and abuse the doctrine behind it. The “anti-commandeering” doctrine found one of its most articulate voices in Justice Scalia. The doctrine best distilled is this: “even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” The feds cannot shift enforcement to local government. That same doctrine makes the current path of defunding sanctuary cities a legally rocky road, especially in the current judiciary environment.
The Supreme Court made clear in two prior precedents the federal government cannot coerce states into acting as conscripted agents of federal law enforcement. When properly used, this anti-conscription doctrine is mostly a good thing, foreclosing the federalization of local life and municipal governments. When abused, it invites secessionist thinking. That is where a seminal precedent from the Second Circuit gives direction to support Sessions and Trump against the secessionist cities.
The seminal case supporting Sessions and Trump arises from the Second Circuit in enforcing comparable provisions of federal law passed by Clinton and Gingrich. Federal law then prohibited state and local governmental entities or officials from directly restricting the voluntary exchange of immigration information between local and federal officials. The statute Sessions cited and Trump relied upon for his executive order confers the same power: it only prohibits state and local governments from precluding voluntary participation in immigration enforcement, an area uniquely vested in the federal branches of power. As the statute states: “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
Where did the Second Circuit look for precluding lawless, secessionist minded municipal government going rogue against appropriate federal law and respect of federal elections? Brown v. Board of Education, the most famous and celebrated case in Supreme Court history.
As the Second Circuit properly summarized: the sanctuary city argument “asks us to turn the Tenth Amendment’s shield against the federal government’s using state and local government to enact and administer federal programs into a sword allowing states and localities to engage in passive resistance that frustrate federal programs,” including those programs of unique federal provenance and priority, such as immigration. Such actions could cause federal programs to “fail or fall short of their goals,” force the federal government to “restore to legal processes in every routine or trivial matter,” and invite “a refusal by local government to cooperate until a court order to do so.”
As the Second Circuit further noted: “A system of dual sovereignties cannot work without informed, extensive and cooperative interaction of a voluntary nature between sovereign systems for the mutual benefit of each system. The operation of dual sovereigns thus involves mutual dependencies” that can hardly survive as separate, antagonistic sovereigns. “Without the Constitution, each sovereign could, to a free, hold the other hostage by selectively withholding voluntary cooperations as to a particular program.” That is why the Supremacy Clause “bars states from taking actions that frustrate federal laws” in those areas of law the Constitution empowers the federal branches of government, like immigration. As the Second Circuit concluded almost two decades ago in undisturbed law: “states do not retain under the Tenth Amendment an untrammeled right to forbid all voluntary cooperation by state or local officials with particular federal programs.”
This opens the door to a complimentary, alternative option: formally funding cities, counties, and states that assist with enforcement of immigration laws against criminal and potentially dangerous aliens, a power all courts recognize Congress and the President enjoy. This parallel strategy employs the carrot rather than the stick, but avoids the traps of the deep state allies and their secessionist city friends in the federal courts, much as federal funding of integrated schools acted as a deterrent to less-funded segregated classrooms.
Let liberty ring. Let the laws be enforced to safeguard those whose liberty the law protects in the first place: the citizens of the United States.
Robert Barnes is a trial lawyer with high profile wins in constitutional, criminal, and civil law. You can follow him @Barnes_Law.