image: Jonathan Ernst via Reuters
by Jake Della Pasqua
Throughout the 2016 presidential campaign, Donald Trump was a hardliner on immigration. In addition to his infamous proposal to “build a wall” between Mexico and the U.S., Trump threatened to deport between two and three million illegal immigrants once in office. On January 25, in an effort to make good on this promise, Trump signed an executive order promising to cancel federal funding for municipalities that did not comply with federal immigration laws. However, history shows that this order is legally unsound.
The term “sanctuary city” originated in the 1980s when American churches provided shelter for Central American immigrants who had escaped the war and poverty of their home countries in search of a better life. Today, many people have strong views on sanctuary cities, but often without understanding what the term means. Contrary to popular belief, a sanctuary city neither harbors nor houses undocumented immigrants. A sanctuary city is a city in which an individual cannot be arrested or detained based solely on her or his immigration status, although the protections provided vary from city to city. In addition, most sanctuary cities guarantee all people access to basic government services.
In non-sanctuary cities, law enforcement agents generally comply with “detainer requests” from the Immigration and Customs Enforcement (ICE), the federal organization charged with deporting undocumented immigrants. Detainer requests instruct law enforcement agents to continue to detain individuals after their planned release, and sometimes to arrest individuals without a warrant. This allows the ICE to take them into federal custody. In contrast, the majority of sanctuary cities either officially or unofficially prohibit their law enforcement agents from asking about someone’s immigration status, and they almost never comply with detainer requests. This is a legal choice for cities to make, because being undocumented is a civil offense rather than a criminal offense, meaning incarceration is not a necessary response.
Sanctuary cities are meant to ensure the safety and well-being of all their inhabitants, but many, including President Trump, have attempted to paint them as violent places. During the 2016 election cycle, those who oppose sanctuaries pointed to the murder of Kate Steinle to suggest that sanctuary cities are dangerous places to live. Steinle, 32, was shot in the prominent sanctuary city of San Francisco on the evening of July 1, 2015. The murderer was a man named Francisco Lopez-Sanchez, an undocumented immigrant from Mexico who had previously been convicted of seven felonies and had been deported five times. Lopez-Sanchez had been taken into custody for drug charges only a few months prior to the shooting, but the charges were dropped and he was not deported. Opponents of sanctuary cities frequently use Steinle’s death as an example of a preventable tragedy, blaming San Francisco’s sanctuary status for allowing Lopez-Sanchez to stay in the country. (These claims ignore evidence suggesting that undocumented people are less likely to commit crimes than American citizens.)
Though conservatives’ weaponization of Steinle’s story brought the issue of sanctuary cities to the fore during the 2016 election cycle, legally speaking, there is no debate to be had. A brief study of constitutional law and Supreme Court precedent shows that President Trump has no legal ground to defunding sanctuary cities. Past Supreme Court cases make it clear that the federal government cannot, under any circumstances, defund states and localities to force compliance with a federal law.
Two cases in particular establish this stance. First, there is the 1997 case of Printz v. United States, in which the court decided that the federal Brady Handgun Violence Prevention Act, which required that local officials enforce federal gun control provision, was illegal. The opinion, written by Justice Antonin Scalia, stated that the basis for the court’s decision was that the act “violated principles of federalism.” This makes it a clear violation of the 10th Amendment, which guarantees 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.” The Court ruled similarly in the 2012 case of National Federation of Independent Businesses v. Sebelius, which would have cut federal Medicaid funding to states that refused Obamacare’s Medicaid expansion. Again, the court decided that the federal government was impeding on states’ rights and in turn violating the 10th Amendment. Both cases are examples of the federal government overstepping its bounds by attempting to force states to comply with laws they are not legally required to enforce.
These two Supreme Court verdicts explicitly outline the limitations of the federal government. They reaffirm the 10th Amendment in ruling that, in instances where the Constitution neither delegates power to the federal government nor prohibits the states from having that power, the power is reserved for the states. Thus, it is illegal for the federal government to mandate that states and localities check the immigration status of their citizens. The law prevents President Trump from defunding sanctuary cities for not turning over undocumented immigrants, an assertion that a group of California state senators plan on bringing to court.
The sanctuary cities themselves may recognize President Trump’s bluff; they have not changed their positions in the wake of his election. A Politico investigation found that officials from 37 of the known 47 sanctuary cities affirmed that they will remain sanctuaries. In a recent news conference, New York Mayor Bill de Blasio said, “We’re going to defend all of our people regardless of where they come from, regardless of their immigration status.” Officials from the other ten cities stated that they would wait and see how serious Trump’s threats are but that they are not yet changing their status. Possibly the most telling statistic is that, since Trump was elected, at least four additional cities have become sanctuaries. Although Trump can use the power of the federal government to deport undocumented immigrants, cities don’t have to make it easy for him to find them.