The portrayal by some Republicans that cities like Chicago, New York, and Boston are infringing on the law by limiting how local law enforcement interacts with federal agents is an unfactual assertion. After President Trump’s inauguration, Immigration and Customs Enforcement agents initiated raids in the so-called sanctuary cities of New York and Chicago; this spurred the Department of Justice to file legal action against these cities due to their sanctuary policies. It’s crucial to note that these cities hold a fundamental right, as encapsulated in the 10th Amendment, to independently determine how they interact with their residents. This amendment stops the federal government from obliging states to solve specific issues or execute a federal regulatory scheme. The reference to the 10th Amendment is common in lower court rulings and Supreme Court deliberations on immigration enforcement legal battles. Currently, over 100 states, cities, and counties are deemed sanctuary jurisdictions, becoming easy targets for the federal government in their quest to realize the mass deportation promises asserted by Trump.
To further comprehend how sanctuary cities function within the confines of the law and sift through the common misconceptions, I had a discussion with Emma Winger, Deputy Legal Director at the American Immigration Council. Emma explained that the reinforcement of sanctuary strategies runs deep into the past decade. Identifying the exact cause behind an individual jurisdiction adopting a welcoming or sanctuary policy is challenging, but many have established such policies due to two primary reasons. Firstly, states, cities, and local organizations were increasingly alarmed about the sense of fear and suspicion caused amongst immigrant residents by the cooperation between local law enforcement and immigration enforcement bodies. Such fears make it more difficult for victims of crime to report incidents. Secondly, there is a universal resolve to manage resources better and not dedicate these towards enhancing such cooperation. There was already an existing framework of welcoming policies before Trump’s presidency, which saw a remarkable expansion of such policies.
So how do these sanctuary policies find their legal protection? The primary source of this power is traced back to the Constitution. Under the 10th Amendment, there is a legal doctrine that restricts the federal government from seizing control of states to implement federal programs, including immigration programs. This principle has been reiterated multiple times by the Supreme Court over several decades. The essential premise is that states have the freedom to decide whether or not to cooperate with immigration enforcement, a point echoed not only by the 9th Circuit Court of Appeals, but also by the 3rd Circuit and the 5th Circuit.
There is a frequent accusation from Republican lawmakers that sanctuary cities are skirting the law because they hinder ICE agents from identifying immigrants involved in criminal activity. However, this point is unsubstantiated, mainly because it’s unclear which rule they are violating. No federal law mandates states to co-operate; instead, the 10th Amendment clarifies that such a law would violate the constitution. Conflicts arise from the misinterpretation of federal laws that make it illegal to actively hide noncitizens and that sanction criminal harboring. Here we’re not discussing actions meant to prevent ICE from performing its duties. Rather, we’re talking about policies that limit voluntary cooperation, none of which is prohibited under federal law.
When discussing these issues, it’s impossible not to mention Title 8 U.S.C. § 1373, a federal law that often makes its way into these debates. This law on the surface seems to outlaw the creation of policies by local or state governments that restrict the exchange of information regarding a person’s immigration or citizenship status with immigration officials. It must be noted, however, that this law has a very specific scope and only applies to information concerning immigration or citizenship status, nothing else. Furthermore, several courts have ruled this law as unconstitutional in violation of the 10th Amendment. Regardless of its constitutionality, this law does not extend its mandate to require local law enforcement to abide by detainers or aid ICE in apprehending immigrants.
The mayors of Chicago, Denver, Boston, and New York have fervently defended their sanctuary policies, asserting that they make their cities safer. This concept is reiterated frequently by local law enforcement. These cities have observed that if they are perceived as an arm of ICE immigration enforcement, immigrant residents (documented and not) are much less likely to communicate and confide in local law enforcement. This hesitation makes it harder for law enforcement to perform their primary duty of enforcing criminal laws effectively. Whenever there is a suggestion that local law enforcement is associated with a raid, crime victims, including victims of domestic violence, retreat from reporting those crimes for fear of ICE involvement. Similarly, witnesses are less likely to support prosecutions. The lack of community trust in law enforcement hampers their ability to protect all members of the community, regardless of their citizenship.
Critics of sanctuary cities often highlight examples where a criminal immigrant has been taken in custody, only to be released before ICE could step in, who then carries out another criminal act. While such instances are tragic, it is important to remember that the vast majority of undocumented noncitizens in the country do not engage in criminal activities and indeed pose no threat to community safety. Creating a local law-enforcement system where noncitizen residents fear interacting with the police decreases overall community safety. Additionally, these singular, tragic incidents should not be utilized as a tool to criminalize an entire demographic or to instill fear in local communities.
Sanctuary cities use limited information sharing with ICE to provide a form of protection for immigrants, but they are not complete safe havens, as some might portray them to be. Most sanctuary cities or welcoming policies have exceptions in place for individuals with certain criminal convictions. For instance, the California Values Act, which has been upheld by the 9th Circuit Court of Appeals, has exceptions for noncitizens with felony convictions or with a history of certain other types of offenses. Most sanctuary cities have similar stipulations, debunking the theory that these cities totally reject cooperation with federal immigration authorities.
While there are limitations on cooperation with immigration enforcement, it is crucial to underline that ICE continues its operations even within sanctuary jurisdictions, undertaking arrests upon release of individuals from criminal custody and arresting people in public areas or at their homes. Despite local policies, a standard practice remains in place: the fingerprints of all arrested individuals are automatically sent to ICE, regardless of their location. This means that ICE’s immigration enforcement becomes easier when an individual has had any sort of contact with the criminal justice system, even when arrested in places that usually limit cooperation with ICE.
The Department of Justice (DOJ) has instituted lawsuits against Chicago and New York City, querying their sanctuary policies. The DOJ argues that these cities are infringing on the supremacy clause. However, this is a misinterpretation, as courts have always considered the supremacy clause as a means of prohibiting local governments from enforcing immigration law themselves, except under specific circumstances allowed by immigration law. The clause has never been used to force these entities to cooperate in federal immigration enforcement. Instead, it only limits the role local governments can play in implementing federal immigration enforcement.