Are sanc­tu­ary cities le­gal?

The U.S. can’t force lo­cal­i­ties to carry out fed­eral law

The Washington Times Daily - - OPINION - By Andrew P. Napoli­tano

Last week, Pres­i­dent-elect Don­ald Trump re-em­pha­sized the ap­proach he will take in en­forc­ing the na­tion’s im­mi­gra­tion laws, which is much dif­fer­ent from the man­ner of en­force­ment uti­lized by Pres­i­dent Obama. The lat­ter point­edly de­clined to de­port the 5 mil­lion un­doc­u­mented im­mi­grants in the United States who are the par­ents of chil­dren born here — chil­dren who, by virtue of birth, are Amer­i­can cit­i­zens. Mr. Trump has made known his in­ten­tion to de­port all un­doc­u­mented peo­ple, ir­re­spec­tive of fam­ily re­la­tion­ships, start­ing with those who have com­mit­ted crimes.

In re­sponse to Mr. Trump’s stated in­ten­tions, many cities — in­clud­ing New York, Chicago, Los An­ge­les and San Fran­cisco — have of­fered sanc­tu­ary to those whose pres­ence has been jeop­ar­dized by the pres­i­dent-elect’s plan. Can they do this?

Here is the back story.

Un­der the Con­sti­tu­tion, the pres­i­dent is the chief fed­eral law en­force­ment of­fi­cer in the land. Though the pres­i­dent’s job is to en­force all fed­eral laws, as a prac­ti­cal mat­ter, the fed­eral govern­ment lacks the re­sources to do that. As well, the pres­i­dent is vested with what is known as pros­e­cu­to­rial dis­cre­tion. That en­ables him to place pri­or­ity on the en­force­ment of cer­tain fed­eral laws and put the en­force­ment of oth­ers on the back burner.

Over time — and with more than 4,000 crim­i­nal laws in the United States Code — Congress and the courts have sim­ply de­ferred to the pres­i­dent and per­mit­ted him to en­force what he wants and not en­force what he doesn’t want. Un­til now.

Ear­lier this year, two fed­eral courts en­joined Mr. Obama — and the Supreme Court, in a tie vote, de­clined to in­ter­fere with those in­junc­tions — from es­tab­lish­ing a for­mal pro­gram whereby un­doc­u­mented peo­ple who are the par­ents of nat­u­ral-born cit­i­zens may law­fully re­main here. It is one thing, the courts ruled, for the pres­i­dent to pri­or­i­tize fed­eral law en­force­ment; it is quite another for him to at­tempt to re­write the laws and put them at odds with what Congress has writ­ten. It is one thing for the pres­i­dent, for hu­man­i­tar­ian rea­sons or be­cause of a lack of re­sources, to look the other way in the face of un­en­forced fed­eral law. It is another for him to claim that by do­ing so, he may con­sti­tu­tion­ally change fed­eral law.

Mr. Trump bril­liantly seized upon this — and the elec­torate’s gen­eral be­low-the-radar-screen dis­en­chant­ment with it — dur­ing his suc­cess­ful pres­i­den­tial cam­paign by promis­ing to de­port all 13 mil­lion un­doc­u­mented im­mi­grants cur­rently in the United States, though he later re­duced that prom­ise so as to cover only the 2 mil­lion among them who have been con­victed in the United States of vi­o­lat­ing state or fed­eral laws.

En­ter the sanc­tu­ary cities. These are places where there are large im­mi­grant pop­u­la­tions, among which many are un­doc­u­mented, yet where there is ap­par­ently not a lit­tle pub­lic sen­ti­ment and lo­cal gov­ern­men­tal sup­port for shel­ter­ing the un­doc­u­mented from fed­eral reach. Mr. Trump has ar­gued that these cities are re­quired to com­ply with fed­eral law by ac­tively as­sist­ing the feds — or at least not ag­gres­sively re­sist­ing them.

Thus the ques­tion: Are state and lo­cal gov­ern­ments re­quired to help the feds en­force fed­eral law? In a word: No.

The term “sanc­tu­ary cities” is not a le­gal term, but it has been ap­plied by those in govern­ment and the me­dia to de­scribe mu­nic­i­pal­i­ties that of­fer ex­panded so­cial ser­vices to the un­doc­u­mented and de­cline to help the feds find them— in­clud­ing the case of Chicago’s of­fer­ing un­doc­u­mented im­mi­grants money for le­gal fees to re­sist fed­eral de­por­ta­tion. As un­wise as these ex­pen­di­tures may be by cities that are es­sen­tially bank­rupt and rely on fed­eral largesse in or­der to re­main in the black, they are not un­law­ful. Cities and towns are free to ex­pand the avail­abil­ity of so­cial ser­vices how­ever they please, tak­ing into ac­count the lo­cal po­lit­i­cal cli­mate.

En­ter the Supreme Court. It has re­quired the states — and thus the mu­nic­i­pal­i­ties in them — to make so­cial ser­vices avail­able to ev­ery­one res­i­dent within them, ir­re­spec­tive of cit­i­zenry, or law­ful or un­law­ful im­mi­gra­tion sta­tus. This is so be­cause the con­sti­tu­tional com­mand to the states of equal pro­tec­tion ap­plies to all per­sons, not just to cit­i­zens. So the states and mu­nic­i­pal­i­ties may not deny ba­sic so­cial ser­vices to any­one based on na­tion­al­ity or im­mi­gra­tion sta­tus.

The high court has also pro­hib­ited the fed­eral govern­ment from “com­man­deer­ing” the states by forc­ing them to work for the feds at their own ex­pense by ac­tively en­forc­ing fed­eral law. As Ron­ald Rea­gan re­minded us in his first in­au­gu­ral ad­dress, the states formed the fed­eral govern­ment, not the other way around. They did so by ced­ing 16 dis­crete pow­ers to the fed­eral govern­ment and re­tain­ing to them­selves all pow­ers not ceded.

If this con­sti­tu­tional tru­ism were not rec­og­nized or en­forced by the courts, the fed­eral govern­ment could ef­fec­tively erad­i­cate the sovereignty of the states or even bank­rupt them by forc­ing them to spend their tax dol­lars en­forc­ing fed­eral law or pay­ing for fed­eral pro­grams.

Thus the Trump dilemma. He must fol­low the Con­sti­tu­tion, or the courts will en­join him as they have his pre­de­ces­sor. He can­not use a stick to bend the gov­ern­ments of sanc­tu­ary cities to his will, but he can use a car­rot. He can ask Congress for leg­isla­tive grants of funds to cities con­di­tioned upon their com­pli­ance with cer­tain fed­eral im­mi­gra­tion laws.

All of this is part of our con­sti­tu­tional repub­lic. By di­vid­ing pow­ers be­tween the feds and the states — and by sep­a­rat­ing fed­eral pow­ers among the pres­i­dent, Congress and the courts — our sys­tem in­ten­tion­ally makes the ex­er­cise of gov­ern­men­tal power cum­ber­some by dif­fus­ing it. And since govern­ment is es­sen­tially the nega­tion of free­dom, the dif­fu­sion of gov­ern­men­tal pow­ers helps to max­i­mize per­sonal lib­erty.

If this con­sti­tu­tional tru­ism were not rec­og­nized or en­forced by the courts, the fed­eral govern­ment could ef­fec­tively erad­i­cate the sovereignty of the states.

Andrew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

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