How the Federal Fight Against Sanctuary Cities Undermines the Constitution

We all need to fight the temptation to abandon constitutional principles when they conflict with our policy preferences.

I recently appeared on a radio show to talk about the Tenth Amendment and nullification. The conversation moved along marvelously as I explained Madison’s blueprint, and how state and local governments can thwart unwarrantable federal actions (and even warrantable actions that happen to be unpopular) by simply refusing to cooperate with officers of the union. The host loved the application of Madison’s advice to federal gun control, asset forfeiture and even the “war on drugs.”  But he said there was one current nullification movement he absolutely opposed.

Sanctuary cities.

Then he asked me about my position on the issue.

Talking about sanctuary cities and immigration on a conservative radio show feels a lot like walking through a minefield.

Many conservatives who generally love efforts to confront federal authority suddenly become ardent federal supremacists when it comes to immigration. They want the feds to come down hard on sanctuary cities. They support “defunding” them to the fullest extent possible. Some even want the feds to arrest city officials in sanctuary cities.

So, how do you explain the constitutional justification of sanctuary cities and their strategic importance in the broader context of American constitutionalism without alienating the entire audience?

Here’s how I explained it on the show.

The key is in separating the constitutional and policy issues.

So, the first question to ask is whether a local jurisdiction can operate as a sanctuary city (or state) within the American constitutional system.

The answer is yes.

In fact, sanctuary city supporters follow Madison’s blueprint for limiting federal power – a refusal to cooperate with officers of the union. Even the Supreme Court has upheld this principle through the well-established anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. In the foundational case, the Court held that the federal government could not force states to assist in fugitive slave rendition.

“The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.”

Joseph Story’s opinion in Prigg affirmed a basic pillar of American constitutionalism – separation of powers. The federal government has its sphere of authority, and the states have their sphere of authority. The federal government can’t force state to act within the federal sphere.

This includes mandating local jurisdictions must enforce federal immigration.

Affirming the legitimacy of sanctuary cities doesn’t mean you have to support the policy. But you shouldn’t call on the federal government to stop it. When you insist the feds should use their power to shut down sanctuary cities, you obliterate separation of powers. Ultimately, you risk destroying the most powerful tool states have to confront federal authority. When you break down the wall between the federal and state spheres, you can’t put it back up when you need it later. Once you’ve admitted federal power into the realm of state and local authority, it will never go away.

So, if you oppose sanctuary cities, what do you do?

Stop them at the state level.

While the federal government cannot legitimately prohibit sanctuary cities, states have full control over their political subdivisions. For instance, Texas passed a bill that effectively bans sanctuary cities. Tenth Amendment Center executive director Michael Boldin summed it up perfectly.

“Whether that’s good policy or bad policy for Texas is up to Texas. But it’s a decision for Texas, not Washington D.C.”

Instead of begging the federal government to intervene and put the kibosh on sanctuary cities, those who support the constitution and limited federal authority would be better served to take a page from the sanctuary city playbook. Use the same formula to create sanctuary cities and states for guns. In the same way opponents of tough immigration laws have hindered enforcement through local policies of noncooperation, you could hinder federal gun control using the same strategy.

If we truly care about the Constitution, we must avoid doing anything that will further empower the federal government above all else. If that means sacrificing some of our policy preferences, we should always chose that course. We should place constitutional principle over our desired policy outcomes every single time.

James Madison did this.

His last act as president was to veto an internal improvements bill that would have funded the construction of roads and canals. He approved of the policy. But he refused to sign it into law because, “The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.”

Madison put constitutional fidelity over his policy preference.

We should do the same.

Every issue.

Every time.

No exceptions.

No excuses.

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2 Responses to “How the Federal Fight Against Sanctuary Cities Undermines the Constitution”

  1. SJAugust 5, 2017 at 3:09 pm #

    You are not taking in the whole picture when discussing sanctuary cities or looking back in history as to who and why illegal immigrants were allowed in this country. What is my Constitutional right when government uses taxpayer money to house, feed, provide medical care, education, telephones, driver licenses, etc., for illegal aliens? Illegal aliens don’t just stay in the sanctuary cities, they have the ability to move to any one of the 50 states at their pleasure.
    Rep. Paul Gosar
    Immigration and Border Security
    The federal government’s failure to enforce the Rule of Law and secure the border are some of the most pressing national security risks facing our country. No one knows this better than the people of Arizona, who have to deal with these problems on a daily basis. The Obama Administration’s unwillingness to uphold the laws of this land has led to large scale illegal immigration, and has inflicted social costs, economic losses, unemployment and crime on U.S. citizens. There is an immigration crisis in the United States, and that crisis is a failure to secure our border and enforce our laws.

    It is true that the United States is a nation of immigrants. But more importantly, the United States is a nation of laws. The Rule of Law, in addition to the God-given rights protected by our Constitution, is perhaps the main attraction for those who wish to immigrate to our great country. Having said that, I want to be absolutely clear: I oppose the President’s efforts to grant any sort of amnesty by executive fiat, and I oppose any efforts in Congress to grant amnesty to those who have broken our laws. To do so would be a slap in the face to the millions of people who have respected our immigration process and have waited their turn to come to this country. The executive branch must enforce the laws on the books with equal application and without executive orders that undermine those very laws. But it must also verifiably secure the border with personnel, technology, and weaponry, if necessary.

    The status quo is unsustainable, immoral, and very dangerous for the general public. In the last two years, the federal government has released nearly 70,000 convicted criminal alien offenders into our communities. The recent murders of innocent American citizens, Kate Steinle of San Francisco and Grant Ronnebeck of Arizona, by illegal immigrants are a direct result of the Obama Administration’s failure to uphold our immigration laws and secure the border. President Obama and Secretary Johnson have blood on their hands. How many innocent lives have to be lost before this administration understands the dangers associated with their failed policies? The actions and flawed policies of this administration have violated the first and foremost role of the federal government, to defend our homeland and protect our citizens.

    President Obama consistently stated during his first six years in office that he did not have the authority to take executive action on immigration. President Obama’s egregious and unconstitutional executive amnesty orders threaten to create a dangerous precedent for ideological lawlessness which cannot be reversed. One of the hallmarks of our Constitutional Republic is the separation of powers among the branches of our government. Our Founding Fathers shed their blood to fight against an oppressive monarchy and set up a government with the necessary system of checks and balances to prevent the type of rule by fiat—a trait that has become all too common with this administration. When the president takes action by executive fiat in defiance of Congress, it is an affront to every bedrock principle of this country and opens the door to further expand our monolithic federal regime.

    Article I, Section 8, Clause 4 of our Constitution gives Congress clear jurisdiction on immigration matters. I have consistently supported and introduced legislation to enforce the laws on our books and crack down on illegal immigration. For my leadership and action on these issues, I have a career grade of “A+” with the immigration enforcement advocacy group NumbersUSA and a career 100% rating with the Federation for American Immigration Reform (FAIR). I will continue my efforts to secure the border, to fight the president’s unconstitutional executive amnesty orders, and to demand a return to the Rule of Law.

    Ending Sanctuary Cities
    Sanctuary Unheard of Until 1960’s

    The United States is a federal Republic, with a Constitution containing Article VI, Clause 2 that grants federal laws supremacy over state and municipal laws. Democrat politicians in states and cities stating their jurisdictions are sanctuaries for foreign nationals who are in the country illegally, are, themselves violating the law of the United States of America.

    Sanctuary is a myth that Democrats, immigrant advocates, coastal elitists, and the newsmedia created. Sanctuary cities and states have no Constitutional nor legal basis.

    The U.S. Court of Appeals for the Ninth Circuit upheld the convictions of sanctuary workers for violating the immigration laws involving the smuggling of non-citizens into the United States while saying the aliens were refugees—transporting, concealing, harboring, and shielding undocumented aliens. Sanctuary was no defense. (U.S. v. Aquilar, 1989)

    In 2002, the U.S. Court of Appeals for the Second Circuit denied sanctuary as a defense for a person charged with bringing a non-citizen into the United States without inspection—illegally. (U.S. v. Francine La May)

    Historically, the ancient Greeks and Romans had forms of sanctuary where criminals using temples of worship were protected from punishment until the user gave up and was tried and convicted, banished, or freed.

    In 392 AD sanctuary was officially recognized by the Theodosian Code which limited sanctuary to the altar of the Church. The Anglo-Saxon code of laws, complied by Ethelbert, King of Kent, in 597 officially recognized sanctuary and then Ine, King of the West Saxons also issued sanctuary laws during his reign 688-725.

    The Roman Catholic Church in the Middle Ages continued the Greek and Roman practice of extending sanctuary to all criminals who enter a church for sanctuary, however it died out by the 1600s. European sanctuary was for individual criminals, not waves of foreign nationals disregarding a nation’s sovereignty and laws. England abolished church sanctuary for criminals in 1623.

    Sanctuary was not part of the common law brought to the New World, and the pilgrims did not consider the new land as a sanctuary. American sanctuary advocates refer to biblical passages to justify their actions, quoting Leviticus, “The stranger who sojourns with you shall be to you as the native among you.” Ironically, the same people who espouse sanctuary with its religious connection and protection also support the “separation of church and state” concept.

    The idea that sanctuary was on the minds of the Founding Fathers is false. Nowhere was it mentioned in the Federalist Papers or the record of the Federal Convention, or in the debate on the adoption of the Constitution.

    During the Civil War and the days of the “underground railroad” — assisting slaves escaping to the North — no effort was made to institute the concept of sanctuary for the freed slaves. Sanctuary was unheard in America until the late 1960s.

    As part of the objection to the Vietnam War begun by President Lyndon Johnson (D), the concept of sanctuary arose to protect draft dodgers but no claim was made for legal approval of sanctuary. The illegality of the act, an act of civil disobedience, gave sanctuary its symbolic power confronting the war. In two federal court decisions (U.S. v. Beyer, 1970 and Bridge v. Davis, 1972) a deserter and Selective Service violators were arrested in churches. Yet, a sanctuary defense was never raised. Thus, at that time sanctuary was a mere symbolic gesture.

    In the 1980s, the sanctuary myth was adopted by advocates for undocumented aliens allegedly fleeing civil war in El Salvador and Central America, but soon Mexican nationals seeking economic opportunities in America claimed the sanctuary myth.

    Beginning in 1987 the numbers of illegal aliens entering the United States was in the millions as word was spread world-wide and open-borders advocates promoted sanctuary for all foreigners. State and local politicians in Democrat strongholds began to realize that illegal aliens meant votes and sanctuary gave the aliens validity.

    Today, the corrupt state and local officials sell their integrity for retention in office so they promulgated a myth—sanctuary for all illegal aliens. National security is at risk with no substantial vetting for illegal aliens, national wellbeing is at risk with illegal alien criminal gangs importing illegal drugs and committing murder on a daily basis, national and local government financial solvency is at risk with the costs of education, health care, and welfare for millions of illegal aliens, and American citizens have been put at risk by crimes committed by illegal aliens. These risks are belittled and dismissed by Democrat political hacks, educational pooh-bahs, and the newsmedia.

    The most dangerous risk of the sanctuary myth is the internal disintegration of the American identity, culture, ethos, heritage, and future due to a lawless sanctuary existence. Arthur Schlesinger, Jr., the famous liberal intellectual in The Disuniting of America concluded that multiculturalism was dividing the country and illegal immigration was factor.

    James H. Walsh was associate general counsel with the U.S. Department of Justice Immigration and Naturalization Service from 1983 to 1994. Read more reports from James Walsh — Click Here Now.


    • Michael MaharreyAugust 5, 2017 at 5:11 pm #

      You’ve made a policy argument. Not a constitutional argument.The federal government does not have any authority to dictate how state and local government utilize their personnel and resources.

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