Sanctuary Policies: Constitutional Or Not?

Sanctuary policies are laws and regulations adopted by state and local governments that deny or restrict assistance to federal officials seeking to enforce particular federal laws. They are intended to promote a greater level of trust and cooperation between local law enforcement and communities with sizeable immigrant populations, regardless of immigration status. The Trump administration has argued that sanctuary policies obstruct federal immigration enforcement efforts, suing Chicago, Cook County, and the state of Illinois, and attempting to cut federal grants to sanctuary jurisdictions. However, the federal government is unable to commandeer state and local officials to carry out federal immigration enforcement activities, and sanctuary policies have strong constitutional grounding in the Tenth Amendment, which prohibits the federal government from compelling states and localities to participate in immigration enforcement.

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Sanctuary policies and the Tenth Amendment

Sanctuary policies are laws and regulations adopted by state and local governments that deny or restrict assistance to federal officials seeking to enforce particular federal laws. The most widespread type of sanctuary policy is left-leaning immigration sanctuaries. These policies do not conceal or shelter unauthorized immigrants from detection. Sanctuary jurisdictions may have policies that direct local law enforcement to, under limited circumstances, either honor requests from ICE to be notified of an individual’s release from local custody or comply with immigration detainers.

The Tenth Amendment of the U.S. Constitution stipulates that:

> 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'

This means that it is the right of the people of the states to rule themselves and to exercise power in areas not delegated to the federal government. Legally, states cannot prevent the federal government from enforcing federal law, but the Tenth Amendment offers jurisdictions (states and cities) the right not to enforce federal statutes. This is known as the "anti-commandeering doctrine".

The anti-commandeering doctrine has been affirmed by the Supreme Court in several cases dating back to 1842. The most illustrative example of the Tenth in action can be drawn from the Fugitive Slave Act enforced in the 1850s, which authorized federal authorities to capture escaped slaves and return them to their owners. The Supreme Court has clarified that immigration enforcement is the sole duty of the federal government, and state and local police may only carry out immigration enforcement if specifically authorized to do so by the federal government.

Research published in 2020 by the National Academy of Sciences found that sanctuary policies did not prevent the "deportations of people with violent convictions". The research found that the implementation of sanctuary policies between 2010 and 2015 did not affect crime rates in jurisdictions with such policies or result in fewer people with violent convictions being deported.

Immigration enforcement and federalism

Sanctuary policies are laws and regulations adopted by state and local governments that deny or restrict assistance to federal officials seeking to enforce federal immigration laws. They are often referred to as "sanctuary cities" or "sanctuary states". While sanctuary policies do not actively prevent federal officials from carrying out their immigration enforcement duties, they do limit cooperation with federal immigration officials. For example, a sanctuary jurisdiction may have a policy that directs local law enforcement to only comply with immigration detainers if the individual in question has been convicted of a serious or violent crime.

The debate surrounding sanctuary policies centres on the role of state and local governments in implementing national policies, specifically immigration enforcement. Supporters of sanctuary policies argue that they uphold the Tenth Amendment of the U.S. Constitution, which states that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States...or to the people". The Tenth Amendment is interpreted as an anti-commandeering doctrine, which limits federal authority over local officials and prevents the federal government from requiring states to enforce federal policies. This interpretation has been supported by several Supreme Court decisions, including New York v. United States (1992), Printz v. United States (1997), and Murphy v. NCAA (2018).

On the other hand, opponents of sanctuary policies argue that they defy federal laws and prevent local and state law enforcement officers from doing their jobs. The Department of Justice (DOJ) has filed litigation and taken other steps to challenge sanctuary jurisdictions, arguing that sanctuary policies violate federal immigration law, specifically 8 U.S.C. § 1373. This statute prohibits state and local governments from enacting laws or policies that restrict the sharing of information regarding an individual's immigration status with the Department of Homeland Security (DHS). The DOJ asserts that sanctuary policies obstruct federal immigration enforcement efforts and has attempted to cut funding to sanctuary jurisdictions.

While there are currently no federal laws against sanctuary policies, the debate over federalism and the role of state and local governments in immigration enforcement continues to evolve. The Trump administration, for example, made efforts to break sanctuary states and incentivize compliance with federal immigration authorities through funding conditions. The outcome of these efforts and their impact on the autonomy of state and local jurisdictions remains to be seen.

Sanctuary policies and public safety

Sanctuary policies are laws and regulations adopted by state and local governments that deny or restrict assistance to federal officials seeking to enforce particular federal laws. The most widespread type of sanctuary policy is left-leaning immigration sanctuaries. Sanctuary jurisdictions may have policies that direct local law enforcement to, under limited circumstances, either honour requests from ICE to be notified of an individual's release from custody or comply with immigration detainers.

Sanctuary policies are based on the anti-commandeering doctrine, derived from the Tenth Amendment of the U.S. Constitution, which states that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States...or to the people". This doctrine limits federal authority over local officials and prevents the federal government from requiring states to enforce federal policies, including immigration law. This interpretation has been upheld in several Supreme Court decisions, including New York v. United States (1992) and Printz v. United States (1997).

Supporters of sanctuary policies argue that they encourage better relationships between undocumented immigrants and law enforcement, uphold the Tenth Amendment, and protect immigrants from unjust federal immigration laws. Sanctuary cities can provide protection for people fleeing tyranny and oppression and allow them to make valuable contributions to the economy and society.

Opponents of sanctuary policies argue that they prevent local and state police officers from doing their jobs, defy federal laws, and create a safe haven for criminals, making them a public safety issue. They argue that sanctuary policies obstruct federal immigration enforcement efforts and prevent the deportation of dangerous criminals.

Research published in 2020 by the National Academy of Sciences found that sanctuary policies did not affect crime rates in jurisdictions with such policies and did not result in fewer people with violent convictions being deported. While sanctuary policies may constrain deportation efforts, they do not conceal or shelter unauthorized immigrants from detection. Jurisdictions with sanctuary policies may still cooperate with federal immigration officials in various ways, such as sending fingerprints of individuals booked into jails or prisons to the federal government for identification.

The debate over sanctuary policies centres around the balance of power between federal and state governments and the role of states in implementing national policies. While there are currently no federal laws against sanctuary policies, the federal government has attempted to incentivize compliance through funding conditions and litigation. The outcome of these efforts remains uncertain, and the future of sanctuary policies depends on legal and political shifts, particularly in the composition of the Supreme Court.

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Sanctuary policies and federal funding

Sanctuary policies are laws and regulations adopted by state and local governments that deny or restrict assistance to federal officials seeking to enforce particular federal laws. The most widespread type of sanctuary policy is left-leaning immigration sanctuaries. These policies do not conceal or shelter unauthorized immigrants from detection. Sanctuary jurisdictions may have policies that direct local law enforcement to, under limited circumstances, either honour requests from ICE to be notified of an individual's release from custody or comply with immigration detainers.

While there are no federal laws against sanctuary policies, the federal government has attempted to incentivize compliance through carefully structured funding conditions. For example, the Trump administration has filed lawsuits against sanctuary jurisdictions and tried to cut federal grants unless they comply with immigration enforcement. However, these efforts have largely failed in court. The constitutional protection for sanctuary jurisdictions is based on Supreme Court decisions holding that the Tenth Amendment bans federal "commandeering" of state governments. This anti-commandeering doctrine limits federal authority over local officials and states that the federal government cannot require states to directly carry out or enforce federal policies.

While sanctuary policies have been challenged as obstructing federal immigration enforcement, they do not prevent the deportations of people with violent convictions. Research has shown that sanctuary policies did not affect crime rates or result in fewer people with violent convictions being deported. Furthermore, sanctuary jurisdictions may still cooperate with federal immigration officials in various ways, such as sending fingerprints of any person booked into a prison or jail to the federal government.

Supporters of sanctuary policies argue that they encourage better relationships between undocumented immigrants and law enforcement, uphold the Tenth Amendment, and protect immigrants from unjust federal immigration laws. Opponents argue that sanctuary policies harbour criminals, defy federal laws, and prevent law enforcement officers from doing their jobs.

Sanctuary policies and criminal penalties

Sanctuary policies are laws and regulations adopted by state and local governments that deny or restrict assistance to federal officials seeking to enforce particular federal laws. They are often associated with immigration, with sanctuary cities and states adopting policies barring their law enforcement agencies from assisting in the deportation of undocumented immigrants. However, sanctuary policies do not conceal or shelter unauthorized immigrants from detection. Sanctuary jurisdictions may also have policies that direct local law enforcement to honor requests from ICE or comply with immigration detainers under specific circumstances.

The debate surrounding sanctuary policies and their constitutionality is complex. Supporters of sanctuary policies argue that they uphold the Constitution's Tenth Amendment, which states that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States...or to the people." This interpretation is supported by Supreme Court decisions such as New York v. United States (1992) and Printz v. United States (1997), which established an anti-commandeering doctrine that limits federal authority over local officials. The federal courts have also rejected several federal laws attempting to commandeer state agencies' enforcement resources, upholding the autonomy of states to decide their level of collaboration with federal immigration agencies.

On the other hand, opponents of sanctuary policies argue that they defy federal laws to which state and local governments are bound, and prevent law enforcement officers from doing their jobs. The Department of Justice (DOJ) has filed litigation and taken steps to challenge sanctuary jurisdictions, suggesting that sanctuary policies violate federal immigration law, specifically 8 U.S.C. 1373. This statute prohibits state and local governments from restricting the sharing of information regarding individuals' immigration status with federal authorities. However, the Ninth Circuit upheld California's sanctuary statute, finding that federal law does not require states to share such information.

While there is ongoing legal debate about the constitutionality of sanctuary policies, assertions that state and local officials from sanctuary jurisdictions may be subject to criminal penalties lack legal grounding. The federal government is unable to commandeer state and local officials to carry out federal immigration enforcement activities, and local officials have significant discretion in deciding their level of collaboration. The federal government may incentivize compliance through funding conditions, but these must be carefully structured to avoid being overly punitive or coercive.

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