Sanctuary Policies & Immigration Federalism: A Dialectic Analysis

Abstract

This Article explores the doctrinal and theoretical challenges confronting San Francisco’s non-cooperation ordinance, and similar subfederal actions. It does so using a non-conventional but useful method where we, the authors, engage in a dialectic exchange. Through a fictional conversation, we present the opposing doctrinal views on whether San Francisco’s ordinance is preempted by 8 U.SC. § 1373.19 Agreeing that only one provision of the ordinance potentially faces a preemptive strike, we articulate the underlying doctrinal and theoretical issues facing sanctuary laws specifically and sub-federal immigration regulation generally. Ultimately, through our exchange, we develop how inclusionary measures such as sanctuary laws may survive preemption analysis and exclusionary measures such as bans on rental housing may be invalidated on preemption grounds. In addition, apropos to the focus of this symposium, we assess the impact of any potential comprehensive federal immigration reform on such policies.