Anti-Sanctuary & Immigration Localism

Abstract

A new front in the war against sanctuary cities has emerged. Until recently, the fight against sanctuary cities has largely focused on the federal government’s efforts to defund states like California and cities like Chicago and New York for resisting federal immigration enforcement. Thus far, in this federal anti-sanctuary campaign, localities have mainly prevailed on federalism grounds, based in the Tenth Amendment’s anti-commandeering and anti-coercion doctrines. In the past year, however, the battle lines have shifted with the proliferation of state level laws that similarly seek to punish sanctuary cities. States across the country are directly mandating local participation and courts thus far have upheld those state policies. These laws, like Texas’ SB 4, prohibit local sanctuary policies and impose severe punishments on the cities and officials that support them. This new state vs. local terrain creates doctrinal, political and normative implications for the future of local government resistance to immigration enforcement, which have thus far been under-theorized in immigration law scholarship. This Essay seeks to change that.

This Essay is the first to focus on this emerging wave of state anti-sanctuary laws. In so doing, it makes four contributions. First, descriptively, the Essay documents the upsurge of anti-sanctuary laws that have appeared across the United States, and explains how they differ from prior state enforcement efforts. Second, doctrinally, it argues that the passage of these laws nudges sanctuary cities to unchartered legal territory in immigration law—localism. Under conventional localism principles, state anti-sanctuary laws are in a position to more fully quash local sanctuary policies and effectively conscript local officials into federal immigration enforcement. However, as the Essay’s third point contends, the draconian structure of state anti-sanctuary laws provides a unique context in which to advance what we call immigration localist claims and protect three distinct interests that concern local governments—structural integrity, accountability and local democracy. Fourth, as a normative matter, the Essay contends that immigration localism provides a more accurate descriptive and theoretical account of how current immigration enforcement operates and promotes community engagement on immigration enforcement. Specifically, the reorientation towards localism accounts for the powerful role that cities play in immigration enforcement and decenters the federal government’s dominant role in immigration enforcement. To be sure, this Essay recognizes that casting our theoretical gaze towards local discretion may end up emboldening the most exclusionary impulses of localities and supporting local anti-sanctuary policies. In the long run, however, local discretion in immigration enforcement is likely to better serve the interests of noncitizens and citizens alike.

Keywords: Sanctuary City, Anti-Sanctuary, Immigration, Immigration Federalism, Preemption, Commandeering, Tenth Amendment, Dillon’s Rule, Home Rule, Localism, Undocumented, Undocumented Immigrants