Keith Mack
The issue of whether sanctuary states can defy federal law is a complex and contentious one. Sanctuary states, also known as sanctuary cities, are jurisdictions that have adopted policies aimed at fostering greater trust and cooperation between local law enforcement and communities with significant immigrant populations, regardless of their legal status. These policies often include offering English language classes, issuing identification documents, and ensuring equal access to bail. While supporters argue that these policies improve public safety and allow immigrants to work with police without fear of deportation, others argue that they shield dangerous criminals and prevent federal officials from enforcing immigration laws. The federal government has the authority over immigration and the removal of unlawful aliens, and it is a crime to conceal, harbor, or shield them. However, the jurisdiction over the detention and deportation of unlawful immigrants is a tricky and unsettled issue, with both federal and local governments claiming authority.
| Characteristics | Values |
|---|---|
| Sanctuary cities, states, and counties in the US | Over 560 cities, states, and counties considered themselves sanctuaries as of 2018 |
| Sanctuary jurisdictions violating federal law | Breaking the law by forbidding compliance with federal immigration law and cooperation with officials |
| Federal law on immigration | Aliens unlawfully in the US are subject to removal, and it is a crime to conceal, harbor, or shield them |
| Federal law on obstruction | Imposes serious consequences for obstructing the execution of federal immigration law |
| Sanctuary policies | Include offering English classes, municipal ID documents, equal access to bail, and training for prosecutors and defenders on immigration consequences |
| Sanctuary policy objectives | Protect public safety, allow state and local governments to allocate resources, and shield local law enforcement from liabilities |
| Federal government authority | The Supremacy Clause gives federal law precedence over state law, but the US Constitution does not provide a clear answer on jurisdiction |
| Executive Order 13768 | Signed by President Trump in 2017, directing the defunding of sanctuary jurisdictions that refuse to comply with federal immigration law |
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What You'll Learn
- Sanctuary jurisdictions violate federal law by forbidding compliance with federal immigration law
- The US Constitution does not provide a clear answer on jurisdiction to detain and deport illegal immigrants
- Sanctuary policies promote trust and cooperation between law enforcement and immigrant communities
- Sanctuary cities protect public safety by allowing immigrants to work with police without fear of deportation
- Sanctuary jurisdictions are prohibited from requiring employees to violate federal immigration law
Sanctuary jurisdictions violate federal law by forbidding compliance with federal immigration law
The term "sanctuary city" does not have a precise legal definition, but it generally refers to a city, state, or county with policies that prohibit the use of resources to assist federal immigration enforcement. Sanctuary jurisdictions may adopt policies that restrict the ability of local police to make arrests for federal civil immigration violations or to detain individuals on civil immigration warrants. They may also prohibit agreements with Immigration and Customs Enforcement (ICE) that deputize local law enforcement.
While compliance with immigration detainers is voluntary, federal law is clear that aliens unlawfully present in the United States are subject to removal, and it is a crime to conceal, harbor, or shield them. Sanctuary jurisdictions that forbid compliance with federal immigration law and cooperation with federal officials are therefore breaking the law. The Supremacy Clause of the U.S. Constitution states that federal law supersedes any contrary State or local laws, and federal law imposes serious consequences for obstructing the execution of federal immigration law.
The Supreme Court has affirmed that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision, as it did in Section 1373 of the INA. This means that sanctuary policies forbidding State or local officials from communicating with the Department of Homeland Security (DHS) are unlawful. Additionally, employees involved in implementing sanctuary policies that prevent federal immigration officers from carrying out their duties could potentially face criminal charges and imprisonment.
Despite the legal risks, there are several reasons why jurisdictions adopt sanctuary policies. These include a desire to protect public safety by encouraging immigrants to work with police without fear of deportation, allowing local governments to determine how to allocate resources, and shielding local law enforcement agencies from liabilities resulting from local enforcement of federal immigration laws. It is important to note that sanctuary jurisdictions may still cooperate with federal immigration officials in various ways, such as sharing fingerprint information for potential deportation purposes.
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The US Constitution does not provide a clear answer on jurisdiction to detain and deport illegal immigrants
The US Supreme Court has consistently upheld the federal government's jurisdiction over immigration law, but there are exceptions. While states must remain within specific parameters, they have some freedom in determining the laws of their own jurisdictions. For example, California is a "sanctuary state" that provides more generous benefits to immigrants, while Texas has been notoriously unfavorable to immigrants and migrants, successfully restricting those benefits. Many states have passed legislation limiting immigrants' access to public benefits and directing state and local police to check legal immigration status.
Some states have directly challenged parts of the 14th Amendment, which grants automatic citizenship to those born on US soil. These states argue for a narrower interpretation that would exclude children born to immigrants without proper documentation. The Supreme Court often reviews these controversial bills. Immigrant rights groups, civil liberties groups, and the federal government sometimes challenge state laws affecting immigration, especially those requiring proof of citizenship or legal residence.
Sanctuary policies are adopted by an increasing number of states, counties, and cities to promote trust and cooperation between local law enforcement and immigrant communities. These policies do not conceal or shelter unauthorized immigrants but limit cooperation with federal immigration officials. Common sanctuary policies include offering English classes, issuing municipal identification documents, ensuring equal access to bail, and training criminal prosecutors on the immigration consequences of convictions. One of the most common forms of sanctuary policy is restricting the use of jails to hold immigrants following a "detainer" issued by ICE.
Undocumented immigrants have certain constitutional rights, such as due process in deportation proceedings, as established by the Fifth Amendment. The Sixth Amendment guarantees the right to legal counsel in criminal prosecutions, but this often doesn't apply in deportation proceedings, which are typically civil cases. The Fourth Amendment protects against unreasonable searches and seizures, and the Fourteenth Amendment ensures equal protection under the law, including access to public education for undocumented immigrant children.
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Sanctuary policies promote trust and cooperation between law enforcement and immigrant communities
Sanctuary policies are intended to promote trust and cooperation between local law enforcement and communities with significant immigrant populations, regardless of their immigration status. These policies do not conceal or shelter unauthorized immigrants from detection. Instead, they aim to foster a collaborative environment where immigrants feel safe reporting crimes and working with the police to prevent and solve crimes.
Community policing policies, also known as trust acts, are a crucial aspect of sanctuary jurisdictions. These policies recognize that when immigrants view local law enforcement with distrust due to fear of deportation, it creates conditions that make them vulnerable to criminal prey. By limiting entanglement between local police and federal immigration authorities, sanctuary policies encourage all community members, including immigrants, to cooperate with the police. This approach enhances communication and strengthens the relationship between law enforcement and the communities they serve.
To promote trust and cooperation, sanctuary policies encompass various initiatives. These include offering English language classes, issuing municipal identification documents and driver's licenses to all residents, ensuring equal access to bail for immigrants, and facilitating non-citizen victims of crime in obtaining necessary documents from law enforcement agencies to pursue immigration relief. Additionally, sanctuary policies emphasize training for criminal prosecutors and public defenders on the immigration consequences of convictions and plea deals.
Research supports the effectiveness of sanctuary policies in maintaining public safety. A 2020 study by the National Academy of Sciences found that sanctuary policies did not hinder deportations of individuals with violent convictions and had no impact on crime rates. This indicates that sanctuary policies do not shield dangerous criminals but instead foster an environment where immigrants are more likely to report crimes and collaborate with law enforcement.
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Sanctuary cities protect public safety by allowing immigrants to work with police without fear of deportation
Sanctuary cities are jurisdictions that forbid compliance with federal immigration law and cooperation with the officials who enforce it. In the United States, municipal policies include prohibiting police or city employees from questioning people about their immigration status and refusing requests by national immigration authorities to detain people beyond their release date if they were jailed for breaking local law. The designation "sanctuary city" does not have a precise legal definition, and there is no consensus on what it means for a state or local government to adopt sanctuary policies.
Proponents of sanctuary cities cite motives such as reducing the fear of deportation among immigrants, allowing immigrants to report crimes without fear of retribution, and enabling immigrants to access health and social services and enroll their children in school. Sanctuary cities also allow state and local governments to determine how they will prioritize and allocate their resources and shield local law enforcement agencies from liabilities resulting from local enforcement of federal immigration laws.
Research has found that sanctuary policies do not threaten public safety and are effective at reducing deportations, particularly of immigrants with no criminal convictions. Multiple studies have confirmed that sanctuary policies have no measurable effect on crime rates and may even be associated with lower crime rates and higher economic indicators. A 2020 study found that sanctuary policies did not prevent the deportations of people with violent convictions.
Opponents of sanctuary cities argue that they undermine the rule of law by not cooperating with federal immigration authorities and highlight concerns about public safety, pointing to cases where individuals involved in violent crimes were released instead of being deported. Critics also claim that sanctuary cities attract more people to enter the country unlawfully and place a strain on local resources as immigrants may access public services. However, social science research has shown that communities with immigrant populations are safe and vibrant, and policies that marginalize newcomers and breed mistrust of authorities can erode public safety.
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Sanctuary jurisdictions are prohibited from requiring employees to violate federal immigration law
The Supreme Court has clarified that immigration enforcement is solely the duty of the federal government. Compliance with immigration detainers is voluntary, not mandatory, and the federal government cannot force local jurisdictions to honour them. However, sanctuary jurisdictions that forbid compliance with federal immigration law and cooperation with the officials who enforce it are breaking the law. This includes requiring employees to violate federal immigration law, as this would subject them to significant risk of criminal and civil liability.
For example, under 8 U.S.C. § 1324, it is a federal crime to "conceal, harbour, or shield from detection" an undocumented person or to “encourage or induce” someone to come to the United States in violation of the law. While this statute has been debated in courts, it has never been applied to a state or local official for declining to cooperate with federal immigration enforcement. Additionally, Section 1373 of the INA preempts state and local restrictions on officials' communications with the Department of Homeland Security (DHS) regarding immigration status.
The movement towards sanctuary cities in the United States began in the early 1980s, challenging the government's refusal to grant asylum to certain Central American refugees. Sanctuary jurisdictions may have policies that direct local law enforcement to honour requests from U.S. Immigration and Customs Enforcement (ICE) under certain circumstances, such as when an individual has been convicted of a serious or violent crime. However, these policies do not have a precise legal definition, and the term "sanctuary city" has been questioned by some.
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Frequently asked questions
Sanctuary states are states that have adopted policies intended to promote a greater level of trust and cooperation between local law enforcement and communities with sizeable immigrant populations, regardless of immigration status. These policies include offering English-language classes, issuing municipal identification documents, and ensuring that immigrants have equal access to bail.
The U.S. Constitution does not provide a clear answer on whether federal or local government has jurisdiction over detaining and deporting illegal immigrants. However, according to the Supremacy Clause of the U.S. Constitution, federal law takes priority over state law. Sanctuary jurisdictions that forbid compliance with federal immigration law are therefore breaking the law.
In 2017, President Donald Trump signed Executive Order 13768 directing the Secretary of Homeland Security and Attorney General to defund sanctuary jurisdictions that refuse to comply with federal immigration law. The order also instructed the Department of Homeland Security to issue weekly public reports on the criminal actions of aliens and the jurisdictions that failed to honor detainers.
Jurisdictions adopt sanctuary policies for various reasons, including a desire to protect public safety by allowing immigrants to work with the police in reporting and investigating crimes without fear of deportation. Sanctuary policies also allow state and local governments to determine how they will prioritize and allocate their resources and shield local law enforcement agencies from liabilities resulting from local enforcement of federal immigration laws.
Opponents of sanctuary policies argue that they can end up shielding dangerous criminals and that they make it difficult for federal immigration officials to do their jobs and deport criminals who are born outside the United States.
