Donald Trump fought “sanctuary cities” from the very start of his presidency, but these efforts came to an unsuccessful end in 2020 for two reasons. The first was that sanctuaries beat the administration at the Supreme Court in June of that year; technically, the justices declined to hear United States v. California, thereby letting stand an appeals court ruling that upheld the bulk of California’s sanctuary laws. The second was that Joe Biden won the presidential election. The federal government is no longer opposed to state and local sanctuary policies. This raises a question: when a Republican returns to the White House, should that person carry on the Trump administration’s fight against sanctuaries or choose other battles?
This is a consequential matter. Sanctuary jurisdictions impede the ability of Immigrations and Customs Enforcement (ICE) to identify and remove unauthorized immigrants. A report by Stanford political scientist David Hausman in PNAS found that sanctuary policies reduce deportations by about a third. Alex Nowrasteh, writing in the Cato at Liberty blog, noted a 50 percent decline in deportations during the first seventeen months of the Trump administration in comparison to the same period during Barack Obama’s first term. He attributed this primarily to local jurisdictions becoming less likely to cooperate with federal immigration authorities.
Because the political debate about these local and state laws can generate more heat than light, this essay addresses the following questions: what is an immigration sanctuary; must states and localities follow the immigration enforcement priorities of the federal government; and what are the implications of the sanctuary controversy for policies beyond immigration?
A successful federal attack on sanctuary legislation could lead to spillover effects in many policy areas, and in ways that go against core conservative values. Many conservatives would be unwilling to pay such a price, so it is crucial for the sanctuary debate to consider this larger context.
For example, some conservatives rely on the constitutional principle that underlies sanctuary cities to resist federal gun control legislation. As the New York Times noted about a recent Missouri law, “The bill’s supporters said they were adopting a strategy that has been used frequently for liberal causes, such as ‘sanctuary city’ laws that prohibit local officers from enforcing federal immigration laws.” Undermining sanctuary cities could endanger these “Second Amendment sanctuary” laws.
In addition, principled conservatives must ask whether attacks on sanctuary cities, and the more general impulse toward immigration restriction and enforcement, are consistent with prosperity, freedom, and family values. In his “Farewell Address to the Nation,” President Reagan said the following:
“I’ve spoken of the shining city all my political life, but I don’t know if I ever quite communicated what I saw when I said it. But in my mind it was a tall, proud city built on rocks stronger than oceans, windswept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That’s how I saw it, and see it still.”
Any discussion of sanctuary cities needs to keep in mind Reagan’s vision, which welcomed the world to America. Maybe the root problem is not “sanctuaries” but the problematic “walls” and “doors” of contemporary immigration law and policy that lead to illegal immigration.
Federalism Is the Issue
What is a sanctuary city or state?
The legal answer is that no city or state is a true sanctuary. Federal immigration law applies everywhere in America, and unauthorized immigrants can be arrested and removed from any location in the United States. States and their localities cannot stop federal immigration operations, and federal immigration laws override state and local immigration laws. As Justice Kennedy wrote for the majority in Arizona v. United States (2012), “the state may not pursue policies that undermine federal law.”
The debate is hampered by the various ways in which the media, politicians, and pundits portray and discuss sanctuary cities. This reflects the many tools available for jurisdictions that do not want to participate in immigration enforcement. For example, the American Immigration Council’s “Fact Sheet: Sanctuary Policies: An Overview” lists eight dimensions to the term. It can therefore mean different things to different people, and some of the uses we encounter are vague, inaccurate, or misleading. Because a sanctuary city is not defined in federal law, it is as much a rhetorical device as a meaningful category.
In everyday politics, the term is primarily used for localities and states that seek to avoid cooperation with federal immigration enforcement efforts. The most common description is something like that found in a 2018 Fox News story: “Sanctuary city policies overall limit just how much local law enforcement officials cooperate with federal immigration authorities.”
The most contentious element is whether local officials honor what is called a “detainer” or “hold” request from ICE. As explained in another Fox News story, “ICE issues detainers to federal, state and local law enforcement agencies to provide notice of its intent to assume custody of a removable alien. A detainer requests that the law enforcement agency notify ICE, ideally within at least at least forty-eight hours, before a removable alien is released from local custody so that ICE can assume custody.”
Jurisdictions that decline such detainer/hold requests are often labeled as sanctuaries. Even this definition is not precise, as they can cooperate to varying degrees. For example, as Ballotpedia notes, some jurisdictions characterized as sanctuaries refuse detainer requests “for minor offenses or non-capital crimes” but not for more serious crimes. As this suggests, considerable variation can exist within the sanctuary label.
Another component of the sanctuary debate is 8 USC Section 1373, a federal statute enacted in 1996. According to the National Conference of State Legislatures, it “prohibits state and local jurisdictions from restricting communication to federal officials of information regarding citizenship or immigration status.” When you work through the double negative, it means state and local government entities and employees may voluntarily provide such information about individual immigrants to federal immigration authorities. As discussed below, however, it is unclear if any jurisdictions actually have a policy that prevents such communications, and the statute may soon be found unconstitutional.
Critics see sanctuaries as local jurisdictions that harbor criminal aliens, threaten the rule of law, and undermine federal authority. Why, critics ask, should local law enforcement agencies not help ICE to deport illegal immigrants?
Defenders see sanctuaries as local jurisdictions that make lawful decisions about whether to participate in what they consider intrusive, overbearing national enforcement efforts. Why, defenders ask, should states and localities in our federal system voluntarily enforce policies that tear families apart, hurt the economy, and reduce freedom?
Federal courts have largely found national government efforts to curtail city and state sanctuary policies to be unconstitutional. For instance, the Trump administration threatened to withhold federal funds from states with sanctuary policies, but federal appeals courts largely blocked such efforts.
To change this status quo would require a dramatic weakening of federalism, which would be contrary to core conservative values and could come back to haunt conservatives. As Ilya Somin of George Mason University and the Cato Institute discusses in an essay in The Hill, such a constitutional change would be “a major blow to state and local autonomy in our constitutional system. Both left and right have good reason to fear such an outcome.”
For example, consider the policy implications of a more “unitary” federal government with Democrats in power in Washington. Such a government could potentially deny funding to conservative locales unless they changed their laws and policies, thereby pressuring “red” states and locales into directly carrying out and enforcing “blue” federal policies. This could allow Washington to override state and local decisions about the best way to promote safety, health, growth, and education.
Is the squelching of sanctuary cities worth such consequences? Many conservatives would say no. Any legal precedents or policy tools created today to fight sanctuary jurisdictions could be used tomorrow in other policy realms. Imagine if Trump had won in US v. California. While some conservatives would have celebrated, the party would have ended on January 20, 2021. What Trump can do, Biden can do, and the targets over the next four to eight years could have been red states.
Conservatives have long asserted that local voters and elected officials know best. In the sanctuary debate, by contrast, some have demanded that localities do whatever the federal government says, even if not legally required to do so.
Unless there is also a federal judicial warrant, localities and states have every right to refuse federal immigration detainer/hold requests from ICE, just as they are free to refuse many other requests from Washington. When they do so, they are not acting illegally or contrary to federal law. They are following the Constitution and exercising the local discretion that conservatives have historically supported.
The only jurisdiction that can pre-empt city or county non-compliance laws is a state, as follows from Dillon’s Rule, and this is a policy choice that cannot be required by the federal government. The Fifth Circuit upheld such a Texas law, and Florida enacted one in 2019. Whether such legislation—and the more general recent spate of state pre-emptions of local laws across policy areas—is consistent with a properly balanced federalism is another question for principled conservatives to ponder.
Politicians and pundits may use phrases like “flouting” or “non-cooperative” to imply that sanctuaries are breaking the law, but this only confuses the issue. Nor are sanctuary policies a modern form of nullification, an attempt by a state to prevent the enforcement of federal laws or judicial decisions in its territory. Federal law does not require state and local authorities to hand over immigrants because of their unlawful presence.
At issue is the commandeering doctrine. This says that the federal government may not require states and localities to enforce federal laws. While such units cannot violate federal law, they cannot be turned into de facto agents of the national government. They can voluntarily agree to follow federal requests, but they cannot be forced.
Justice Antonin Scalia made this explicit in Printz v. United States (1997), writing for the majority that “the framers rejected the concept of a central government that would act upon and through the states, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people.” Looking more historically, he also noted that “the court’s jurisprudence makes clear that the federal government may not compel the states to enact or administer a federal regulatory program.”
In Printz, the Supreme Court overturned a gun control provision of the Brady Bill that would have required local law enforcement to conduct background checks on potential gun purchasers until the federal government could create a new, national system.
Those who want the national government to force state and local governments to act as federal agents when it comes to immigration enforcement should ponder this: you are endorsing the power of the federal government to “commandeer” subnational governments not just for immigration enforcement but for all sorts of other purposes. If you oppose the attempt to compel states and localities to enforce federal gun control legislation, you are in favor of the bulwark imposed by the commandeering principle.
Furthermore, Section 1373, mentioned above, may ultimately be found to violate the commandeering doctrine. This is the statute that says a state or local jurisdiction would be in violation of federal law if it prevented the voluntary communication of citizenship or immigration information. It is also unclear if this type of sanctuary policy exists anywhere in America. In Murphy v. NCAA (2018), the Supreme Court struck down the Professional and Amateur Sports Protection Act (PASPA), a federal law that prohibited state laws allowing sports gambling. According to Somin, “Like PASPA, Section 1373 qualifies as an ‘order’ to state and local officials, and —like PASPA—it undermines states’ control over their governmental machinery and partially transfers it to the federal government.”
Trust and Safety
Rather than escalating legal battles in a way that puts federalism at risk, both political parties might benefit from respecting the decisions of local democracies. Moreover, principled conservatives should be alert to the possibility that anti-sanctuary policies have unintended consequences.
Sanctuary jurisdictions make the case that such policies reduce crime, while some police chiefs have argued that local enforcement of immigration laws actually encourages criminality. The reasoning is that immigrants grow fearful of contacting the police, which gives criminals greater latitude. Such criminality may also spread out beyond immigrant communities. Blanket bans on sanctuary policies may therefore increase the very lawbreaking that sanctuary critics decry.
As Matthew Feeney of the Cato Institute has argued, “Although some might like to portray sanctuary cities as lawless holdouts run by politicians who consider political correctness their North Star, the fact is sanctuary policies can help improve police‐community relationships.” He observes that “such trust is crucial to policing” and that “it’s not hard to see why officers in some communities prefer sanctuary policies to being perceived as deputized federal agents.” More generally, he notes that Republicans often make the case for federalism, including in the 2016 GOP platform, so perhaps they should “consider that local officials know more than White House staffers about what policing strategies are best for their constituents.”
Recent research finds no support for the claim that sanctuary cities increase crime. For example, a 2017 review of the literature by Daniel Martínez, Ricardo Martínez-Schuldt, and Guillermo Cantor found that “the few empirical studies that exist illustrate a ‘null’ or negative relationship between these policies and crime.” A 2019 study of city crime statistics by Martínez-Schuldt and Martínez found evidence that becoming a sanctuary is “associated with a reduction in robberies but not homicide.” A 2021 study by Martínez-Schuldt and Martínez also found that “Latinos are more likely to report violent crime victimization to law enforcement after sanctuary policies have been adopted.”
Some politicians and pundits respond by pointing to instances of violence committed by individual unauthorized immigrants who might have been deported but were not. This is a serious concern, but it also shows the difficulty of seeing the big picture. If a locality declines an ICE detainer and that individual later commits a crime, the effect of non-cooperation is highly visible. On the other hand, if a crime is not committed because a locality declines to cooperate with ICE, that non-event is invisible (but still germane). Because politics are often driven by what is immediate and visible, elected officials may choose policies contrary to their goals or unsubstantiated by evidence.
In time, as the constitutionality of sanctuary jurisdictions is further established and the political heat on them reduced, some locales may decide to expand their voluntary cooperation with federal immigration authorities when it comes to the most serious crimes. Some local officials do so already, taking a pragmatic approach.
United, not Divided
President Reagan saw immigration as key to America and its success. He would be appalled to see the disparaging of immigrants and the disrespecting of federalism, and he would be shrewd enough to know that decisions made today in the name of fighting sanctuary cities might come back to haunt conservatives when party fortunes change, as they always do.
In the 1980s, Reagan worked with lawmakers of both parties to find a legislative compromise. Through the leadership of Alan Simpson (R-Wyoming) in the Senate and Romano Mazzoli (D-Kentucky) in the House, the result was the 1986 Immigration Reform and Control Act (IRCA). Although we see varying opinions today about this law, the problem-solving spirit of its authors is something the United States needs more than ever. We can do no better than follow their example.