The Conservative Case for Sanctuary Cities

We’ve seen a lot of talk about sanctuary cities in the news lately, especially given the role immigration reform played during the 2016 campaign.  As was reported on Bearing Drift, Charlottesville toyed with the idea of declaring itself a sanctuary city before abruptly reversing itself, and Northern Virginians have been hearing all about neighboring Maryland’s Howard County debating the idea of becoming a sanctuary county.

What happens in public policy when you’ve got two conflicting conservative principles in play on a single issue?  It tends to get messy, and the inevitable purity tests arise.  The sanctuary cities debate is yet another example of where this is happening, and the resulting arguments on both sides should leave every true conservative a little uncomfortable.  On one side you’ve got the rule of law and the desire to end illegal immigration, and on the other side you’ve got states’ rights, federalism, and the Tenth Amendment.

What exactly are “sanctuary cities” in the first place?  The name brings to mind images of Quasimodo sweeping in to save Esmerelda in the Hunchback of Notre Dame, and the old right of asylum that barred authorities from arresting those who claimed sanctuary in a church.  That’s probably what the folks who originally coined the term “sanctuary city” wanted to call into mind back in the late 1970s, when it first saw widespread use.  This has led to the belief, in some circles, that in certain cities, illegal immigrants will be shielded from arrest for violating immigration laws.

The reality is far less sinister.  Basically, sanctuary cities are cities that have adopted either a de jure or de facto policy of not checking immigration status at the time of an arrest or other lawful law enforcement encounter.  At the same time, many of these de jure policies also bar local law enforcement from coordinating with federal law enforcement when the local law enforcement does learn of a suspect’s immigration status.  It’s the immigration equivalent of “don’t ask, don’t tell.”

To many on the right, this smacks of nullification and interposition, with a local government telling the federal government they aren’t going to abide by federal law.  But here’s the rub – the federal government can’t compel this information from localities, or force local law enforcement to collect it.  The reason why it can’t is a principle that’s fundamental to federalism and the state government vs. national government check and balance that has long existed within our Constitutional framework.  Not only that, its author is none-other than Justice Antonin Scalia.

It’s called the anti-commandeering doctrine.  It’s an idea that’s been around for a long time, going back as least as far as the debate over the Fugitive Slave laws in the 1840s.  In Prigg v. Pennsylvania, 41 U.S. 539 (1842)Justice Joseph Story outlined the rough outlines of the doctrine, when he held that state governments could not be compelled to enforce the federal Fugitive Slave laws.  As Story noted in describing the enforcement scheme for the Fugitive Slave Laws,

The state officers mentioned in the [the Fugitive Slave extradition law] are not bound to execute the duties imposed upon them by Congress, unless they choose to do so, or are required to do so by a law of the state; and the state legislature has the power, if it thinks proper, to prohibit them. The [Fugitive Slave extradition law], therefore, must depend altogether for its execution upon the officers of the United States named in it.

Prigg was a masterful example of the Supreme Court splitting the baby on a contentious issue, although its long term implications were severe.  On its face, the decision gave slave-holders what they wanted, invalidating Pennsylvania’s law barring extradition of slaves, which was clearly an attempt at nullifying the federal Fugitive Slave law.  At the same time, it created the idea that would eventually become the anti-commandeering doctrine, by leaving the door open to allowing states to bar their law enforcement officials from enforcing the federal law.  Both sides got something they wanted, but the decision would be used by southerners two decades later to justify secession.

Future cases, such as New York vs. United States, 488 U.S. 1041 (1992) and South Dakota vs. Dole, 483 US 203 (1987) would expound upon the idea that the Federal Government couldn’t compel state governments to enact and enforce a federal regulatory regime, essentially commandeering their legislative processes.  In New York, the issue was the disposal of radioactive waste, and in Dole, it was tying highway funding to a uniform drinking age.  In Dole, even though the Court upheld Congress’ scheme to coerce states into adopting a uniform drinking age, they made clear that an “unduly coercive” scheme would likely run afoul of the Tenth Amendment.  This holding would be one of the justifications for what is the silver lining in the Obamacare decision, where the Court struck down the Medicaid expansion as being unduly coercive.

The landmark case in the Supreme Court outlining the doctrine is Printz v. United States, 521 U.S. 898 (1997), one of the most important Supreme Court cases for conservatives in the last forty years.  The case, which is one of the core cases pushing back on an expansive commerce clause reading of the Constitution that was threatening the entire system of federalism, essentially held that the federal government could not commandeer state and local law enforcement to enforce a federal law – which, in Printz, was the Brady handgun regulation.  Justice Scalia, writing the opinion, made this clear, saying

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 State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

This is a fundamentally conservative view of the role of the federal government, expounded by the Supreme Court’s most conservative icon.  And it stands directly athwart any Republican led attempts to coerce or otherwise compel states and localities into aiding the federal government enforce our immigration laws.

Thus, when you look at it from this perspective, the idea of sanctuary cities is, essentially, a conservative position.  It’s a states’ rights issue.  The federal government does not have the power to force a state government to enforce federal law.  You’d be hard pressed to find any legal conservative who would argue with that.

Yet we’ve seen multiple members of Congress and the President on the other side of this, arguing that the federal government should be able to compel the states and should be able to punish sanctuary cities by withholding federal funding until they choose to cooperate.  Obviously, such a law, if enacted, would probably be struck down under existing precedent.  After criticizing President Obama for his government’s overreach, especially into areas traditionally left to the states, it’s hard to defend those Republicans in Congress and the executive branch when they’re trying to do the same thing.

Thus, there’s a legitimate conservative case to be made for sanctuary cities – at the very least, there’s a legitimate, conservative case to be made for state and local governments not being forced by the federal government to enforce what is a core federal responsibility.

This isn’t to say that sanctuary cities are a good thing or that we should be encouraging them.  The debate over these sanctuary policies is an important one, and it’s one that should be held across the country.  But the correct place for that debate is in state capitals and in the chambers of city and county governments across the country, not the halls of Congress or the White House.

The result of that debate, unfortunately, is likely to be that some places will remain sanctuary cities.  That outcome, while not ideal, is to be expected and tolerated in our system of federalism, where each locality develops laws and regulations based on the needs and wants of individual communities.  It’s the system the framers developed, and it’s the system that conservatives have fought long and hard to preserve over the years.  At the same time, you’d be hard pressed to find an issue that has gotten more attention or evoked more passion from conservatives than illegal immigration.

So which conservative principle wins here?  States’ rights or the rule of law? Federalism or strong borders?

If that doesn’t leave you squirming a little in your chair, you’re probably not a conservative.

  • Stephen Spiker

    The Republican Party has long been filled with so-called conservatives who drop the pretense as soon as they encounter a federal action that accomplishes the means to their end.

    I actually give Trump and President Bannon credit for fully dropping the act that the Republican Party is conservative.

    • MD Russ

      Very well said. Republicans are opposed to Big Government until it is needed to control medical procedures such as end-of-life decisions and abortion. They are opposed to Big Government until it is needed to restrict free market capitalism that allows manufacturing jobs to naturally follow the labor market and allows consumer products to cost less. And they are opposed to Big Government until the evangelical right needs to impose its religious beliefs on the people under the guise of “freedom of religion.”

      Of course, Democrats are no better. They believe that abortion for convenience is more moral than capital punishment of a serial killer, that wealth is evil and should be redistributed by confiscatory taxation, and that the government is responsible for the health and welfare of the population, regardless of personal responsibility.

      • Turtles Run

        They believe that abortion for convenience is more moral than capital punishment of a serial killer, that wealth is evil and should be redistributed by confiscatory taxation, and that the government is responsible for the health and welfare of the population, regardless of personal responsibility.

        Please tell me who these are Democrats? Is it some loud mouth loony or people that actually govern?

        Matt Suarez

        • MD Russ

          Barack Obama, Chuck Schumer, Nancy Pelosi, among others as well as the 2016 Democratic Platform Committee.

          http://www.presidency.ucsb.edu/papers_pdf/117717.pdf

          • Turtles Run

            Must not be reading this platform right. I did not read anything about abortion for convenience (or anything about convenience) more moral than the death penalty. No reference to confiscatory taxation. There was also no mention of personal responsibility and health care. In fact the platform seems to support claims the United States has made concerning heath care.

            Article 25 (1) of the U.N.’s Universal Declaration of Human Rights that was ratified by the United States.

            Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

            Should we violate our commitment to human rights that we spelled out to the world? Maybe I am not understanding your use of the term: regardless of personal responsibility. Perhaps you are referring to paying taxes to support universal health care or at least subsidies to the poor. Or is it referring to those the Heritage Foundation labeled as “free riders”.

            Matt Suarez

          • MD Russ

            Matt,

            It is code. When a Democrat says, “we need to make the wealthy pay their fair share,” that means confiscatory taxation. When they call for abolishing the death penalty but abortion on demand, “reproductive rights,” that is paid for by taxpayers, the inference is that abortion is more moral than the death penalty. When they say that health care is a right that means the government should provide it, irregardless of your taking personal responsibility for your own well-being. Why do you think that the insurance pools under ObamaCare failed so quickly forcing insurance premiums to skyrocket? Because the younger healthy people would rather pay the IRS penalty than pay for health insurance membership in a pool when they might not need health insurance for decades. That is a lack of personal (and societal) responsibility.

          • Turtles Run

            When they say that health care is a right that means the government should provide it, irregardless of your taking personal responsibility for your own well-being.

            Where in our country’s public claim that health care is a human right is the part – but only if you are responsible.

            I remember the GOP claiming that the Obama’s were endangering peoples lives by asking them to walk more. They attacked Michelle Obama’s fight against childhood obesity. So which is it, do we want people to be responsible for their health or not. Because I have a feeling exercise and eating healthy are a part of personal responsibility and people should be educated on the matter.

            I agree not enough young people are signing up is one issue but you have to admit their are others. For example the GOP limited the funding for the Risk Corridors that were modeled after the GOP’s Risk Corridors for the Medicare expansion they passed under Bush. Only 12.6% of claims were paid. This forced the costs to be passed into the new insurance rates. Risk Corridors are bailouts if Democrats use them the exact same way Republicans do, so they must have their funding avenues cut.

            Lets look at the other side of your lacking personal (or societal) responsibility claim. The people signing up were much sicker than anticipated forcing costs to be higher. Isn’t that a lack societal responsibility and against the very public claims we made as medical care being a human right.

            Matt Suarez

          • MD Russ

            You know, you might be reading into the UN Declaration just a little bit. To me, Medicaid and Medicare satisfy the requirement of the declaration, not ObamaCare. Universal health care is nice, but to make it work people have to do their part. It is like Social Security. You only collect benefits if you work and contribute payroll taxes. If you don’t work, or if you work off the books, you are not eligible for benefits, except possible survivor benefits for those who don’t work outside the home but have a spouse who does.

            As for the rest of your comment, go back and read my original comment to Stephen. I’m not here to defend Republicans, certainly not the current batch who are in the majority in Congress right now and are knuckling under to a potentially mentally ill President who is a Republican in name only and seems to be hellbent on destroying the entire political establishment.

          • Turtles Run

            You have been very critical of the current state of the GOP. That is very obvious and I am not implying differently. I was pointing out the attacks on trying to encourage personal responsibility.

            Interesting angle on a Social Security type program, of course the details would have to fleshed out to insure some type of coverage for all citizens and legal residents.

            As for me reading a bit much. Elanor Roosevelt was instrumental in developing the UN Declaration and she was very in favor of national health insurance. Either way it destroys the argument that health care is not a human right.

            Matt Suarez

          • MD Russ

            You are missing my point, Matt. Define what constitutes meeting the human right of medical care. Is it a VIP suite at Sibley Memorial Hospital in The Palisades of Washington , DC, with no deductibles, co-pays, or premiums? Or it something a little less extravagant?

            You see, that is what makes politics so contentious. There are no absolutes in public policy–it is a tangled web of compromises and trade-offs. And that is why both conservatives and liberals piss me off. They would have the voters believe that you can have your cake and eat it, too.

          • Turtles Run

            As the biggest lib who ever libbed a lib I do not ask for cake, but I won’t settle for shaite. Compromise and trade-offs involve working with people that want to negotiate realistically. In discussing your SS idea I stated that details will have to be worked out. Those details involve give and take on both sides. There is no question that at this point there is little room for that word “compromise” in today’s heated environment.

            At a minimum there needs to be some basic level of care guaranteed to the public. A basic level of care for all people. You want more, pay for it. That is how most systems around the world work.

            Matt Suarez

  • Immigration Question

    I don’t see the dilemma.

    The immigration debate is the battle. Sanctuary cities are a tactic.

    It isn’t that unlike the debate over whether Virginia should go along with Obamacare via expanded Medicaid. Obamacare is the battle, the fight over expanded medicaid is a tactic.

    The issue of state’s rights is a different battle, and though I see the equivalence the OP is drawing, it’s a false equivalence because the premise that something like the Constitutionally defined power of the Congress to pass laws regarding immigration and naturalization is somehow equal to the federal government having some right to force everyone to purchase health insurance is flawed.

    I don’t think conservatives see a problem with arguing for one and against the other. Don’t take your eye off the ball, states handed over power regarding immigration to the federal government when they formed the union. THAT is why leaning on state’s rights is wrong here, not because Republicans favor the argument when it suits them, but because Republicans are actually right.

    • It’s not a false equivalence – in both situations you have the federal government trying to force the states to do something that it has no business doing.

      The state government can easily force somebody to purchase health insurance – that’s well within a state’s jurisidiction. It’s how you can be forced to buy insurance for your car. But the feds can’t do it and they can’t force the states into doing it.

      The situation is the same here. The states can assist the federal government if they want to, and they can mandate their localities do as well. But the feds can’t force them to. Arguing that they can just isn’t internally consistent for a conservative.

      Then again, some conservatives seem to think it’s okay for government to tell people which bathroom they can use or what kind of clothes they can wear, which I can’t square with conservative ideology either.

      • Immigration Question

        I agree with some of what you’re saying because we are arguing two different points.

        You’re arguing that states shouldn’t be forced to help the federal government in immigration, because state’s rights, so conservatives shouldn’t get mad.

        I’m arguing that even though states shouldn’t be forced to help the federal government in immigration, it’s just a tactic, and a crappy one to use in an area where the federal government so clearly has authority.

        Sanctuary cities aren’t “not helping” the federal government because it’s just too damn inconvenient or expensive to help and they have better things to do, they’re actively “not helping” to sabotage the countries immigration laws.

        • It’s not that they’re actively not helping in order to sabotage the country’s immigration laws, although that’s probably something that some of them are doing. The reality is that this stuff costs money, and it’s resources these localities don’t always have. It would be an unfunded mandate to force them to enforce federal law on top of their other obligations.

          I’m fine with states requiring their localities to do this – as long as they help pick up the tab.

          • Immigration Question

            You say that paying for it would satisfy you, but are you
            by extension saying that it would satisfy the mayor of San Francisco ? I mean, I’m looking at this video and I’m thinking Congress isn’t going to convince these people to stop being sanctuary cities by giving them more money to pay for it.

            He’s not saying “We will continue to be a sanctuary city because we can’t afford to help ICE …”, he’s saying “citizens won’t live in fear”, “continue to get health benefits”, etc. He’s talking about protecting illegal immigrants, not trying to find a way to cooperate.

          • And, unfortunately, there’s no way to force a guy like that to do the right thing because he thinks he’s doing the right thing.

          • Immigration Question

            So then back to the point, arguing against San Francisco being a sanctuary city, not on the basis of state’s rights being invalid, but because state’s rights is being weaponized in an attack on immigration law would be okay, right ? Because I think that’s what Republicans have been doing. I don’t remember hearing any Republicans who want to get rid of sanctuary cities saying they don’t like state’s rights.

          • The problem is there is no way to get rid of sanctuary cities. Only state legislatures have the power to do it, so they are always going to exist unless the GOP manages to win every state house election.

  • FrankUnderwoodSr

    We have bastardized the entire notion of federalism in so many profound ways, for so many decades, that it is preposterous to raise the issue now on the issue of sanctuary cities. The founders would be horrified to see the behemoth that exists as today’s federal government, all created with the pretense of compliance to their constitution. It’s a little late to be asking conservatives to back up to a strict principled position now.

    I’d be satisfied with simple compliance with the law. The law gives the President all the discretion he needs right now.

    • Stephen Spiker

      It’s never too late to display principles. For some of us, our principles are the reason we got involved in politics in the first place. Your mileage may vary.

      • FrankUnderwoodSr

        “Politics: A strife of interests masquerading as a contest of principles.” Ambrose Bierce

        • Stephen Spiker

          Fine. Your’s and Amrbose’s mileage may vary.

  • DJRippert

    People who believe the Federal government can compel states to enforce Federal regulation on sanctuary cities would presumably also believe that the Feds can compel state and local law enforcement of Federal marijuana laws … even in the 7 states and DC where voters have legalized grass.

    • Penguin

      Don’t we have federal laws compelling states to do certain or not do certain things revolving voting, yet voting a completely state matter?

      • DJRippert

        I think the question is less about federal vs state law and more about federal vs state enforcement. Could the feds force state and local law enforcement to enforce federal voting laws? A lesson from Virginia’s inept past comes to mind. Long after Brown vs the Board of Education the Democratic Party in Virginia elected to close many school districts rather than integrate the schools. This hare brained and racist thought was labeled Massive Resistance. My understanding is that the Feds didn’t being Virginia to heel by ordering the Virginia State Police to open the schools, but rather by threatening to have federal law enforcement arrest the city and county politicians who were keeping the schools closed. At least, that’s my recollection.

  • Jay Beswick

    Should victims sue Sanctuary Cities when injured by those cities shield?

    Regardless of the why, sheltering will evolve to lawsuits by the public injured by the few that commit theft or assault. Harboring and co conspiracy to hide felons or those who commit crimes opens up a liability to those who defy the law to hide those classified as criminals. NO ONE IS ABOVE THE LAW, churches, cities, businesses, etc.

    • Jay Beswick

      An Illegal ran a stop sign and broad sided my elderly mother. Her Cadillac was totaled! The woman who hit her could not speak english, she couldn’t read a stop sign! She had no license, was not insured and the car did not have current tags. Because it was a sanctuary city, she was not cited or fined. She was able to drive away and do it again to some one new. All of you mindless do gooders need to accept the liability on behalf of these illegals so that the victims of illegals are protected. You want open borders and victims to pay the taxes on the damages caused. You become liable, you do the cost and prison time and I am good with you supporting such violations of existing laws. Its easy to have an opinion when you are not liable for the financial outcome.

      • Turtles Run

        I call BS

        • Jay Beswick

          You call what BS? That it did not happen or that its not right? We got the police report, the illegal got to drive away. If I am BS, lets see your real name, I used mine!

          • Turtles Run

            If I am BS, lets see your real name, I used mine!

            Look down below in the comments, High Speed.

            How does not typing a name change my comments? The whole “names” issue is stupid. How do you know someone is telling the truth? How does posting your name change your argument? Plus some people do it for safety. I picked up a stalker by doing that. This is the only place that I will write a name down because of dumb shaite comments like yours. I am taking it for granted the people here are less unhinged (sometimes).

            Matt Suarez – Does that make you feel better? If not I do not care.

          • How do you know she was illegal?

      • Stephen Spiker

        That’s not what being in a sanctuary city means.

        • Jay Beswick

          It does, the local police refused to impound the car and refused to report the accident to ICE and at that time, we had a ICE detention facility in that city. We had to buy a new car, the driver who was from Mexico had no penalty. Since I worked with San Francisco Mayors, Art Agnos, then Frank Jordan, then Willy Brown, I kind of know from a law enforcement perspective what a sanctuary city is.

          • Stephen Spiker

            I have no reason to believe your story or disbelieve it. I’m just saying, letting a culprit go free because they happen to be an illegal immigrant isn’t what being a sanctuary city means. Either you’re lying or local officials acted incredibly improperly.

    • Turtles Run

      Exactly, what laws are being broken? Unless the federal government has a warrant the localities have no obligation to hold the person.

    • You didn’t read the article.

  • BrianKirwin

    Denying federal funds from sanctuary cities polls positively 55%-33%.

    • So does a lot of stuff that’s unconstitutional.

      • BrianKirwin

        Your legal opinion is that federal funding is a constitutional requirement? Wow!

        • My legal opinion is in the article.

          You want to get rid of sanctuary cities, it has to be done in state capitals, not Washington. I said that in the article, too.

  • Chad Davis

    I think local and state governments ought not to enact sanctuary cities and ought to repeal any on the books. The Dole holding could also have enough wiggle room to allow the Feds to tie funding to cutting sanctuary cities.

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  • Penguin

    Why should I obey laws I don’t agree with? Which laws will politicians enabler lawbreakers with? Again, nobody has ever died from second hand smoke in a bar, yet that’s banned practically everywhere. Some illegal aliens have killed people in this country. I’m not saying remotely all are killers or even go on to commit other substantial crimes, but who decides which law breaking we enable?

  • Biscuit

    I don’t see how the Federal Government can really compel localities to enforce immigration law, that would require too much oversight and energy. However, withholding Federal money and creating new legislation to dis-incentivize this behavior is totally legitimate.

    It is clear that states like California and New York that have a high illegal alien population are allowing the sanctuary cities to attract population to boost census numbers, which by design, increases representation. How many Electoral votes would California have if the illegal aliens were not counted in the census? They would certainly loose seats in the House. What this state is doing is in essence stealing representation from American citizens. And this is an area in which the rest of the states do have an interest.

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