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 [1] of declaring itself a sanctuary city before abruptly reversing itself [2], and Northern Virginians have been hearing all about neighboring Maryland’s Howard County [3] debating the idea of becoming a sanctuary county.
What happens in public policy when you’ve got two conflicting conservative principles [4] 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 [5], 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 [6], 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 [7], 488 U.S. 1041 (1992) and South Dakota vs. Dole [8], 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 [9], 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 [10], 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 [11] and the President [12] 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.