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Sanctuary Cities and the Rule of Law
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Earlier this week, the Trump Department of Justice told the mayor of Chicago that it would cease funding grants to the Chicago Police Department that had been approved in the Obama administration because Chicago city officials were not cooperating with federal immigration officials.

The DOJ contended that Chicago officials were contributing to lawlessness by refusing to inform the feds of the whereabouts of undocumented foreign-born people, thereby creating what the feds derisively call a “sanctuary city,” and Chicago officials have argued that their police officers and clerical folks are not obligated to work for the feds.

Who is correct?

The concept of a sanctuary city does not mean it is a place where federal law is unenforced by the feds. Rather, it is a place where local authorities have elected not to spend their tax dollars helping the feds to enforce federal law. The term “sanctuary city” is not a legal term but a political one. The Trump administration has used the term to characterize the governments of towns and cities that have created safe havens for those who have overstayed their visas by refusing to tell the feds who these folks are and where they can be found.

Can local authorities refuse to help the feds enforce federal law? In a word, yes. There is no legal obligation on the part of local authorities to help the feds with manpower or resources or data to enforce federal law within the jurisdiction of those local authorities.

During the Clinton administration, when Congress passed legislation that directed local law enforcement to enforce a federal gun registration scheme, the Supreme Court invalidated the statute. It ruled that the feds cannot commandeer local and state officials and compel them to enforce federal laws; the feds can enforce their own laws.

The federal compulsion, the court held, violated the Guarantee Clause of the Constitution, which guarantees a representative form of government in every state. If the feds could enter a state and nullify the will of elected state officials not to spend state tax dollars, that would unconstitutionally impair representative government in those states.

Can the feds withhold federal funds from cities that refuse to cooperate in the enforcement of federal law? Yes and no. In the post-World War II era, Congress began purchasing state compliance with its wishes in areas that the Constitution did not permit it to regulate. Stated differently, since Congress can spend money on any matter it wishes, as long as it is arguably for the general welfare, but it cannot regulate for the general welfare, it has used its power of the purse as a way around the constitutional limitations on its regulatory powers.

This is legalized bribery of the states.

ORDER IT NOW

In the Reagan administration, Congress offered hundreds of millions of dollars to the states to repave federal highways if the states lowered their maximum speed limits to 55 miles per hour. South Dakota objected. Its government wanted the federal cash for the highway repaving but did not want to lower its speed limits.

The Supreme Court ruled in favor of the feds. It held that South Dakota is free to reject federal dollars, but if it accepts them, it must accept the strings that accompany them, as long as those strings are clearly spelled out before the cash flows and rationally related to the expenditure of the federal funds. Because repaving highways and the maximum speeds that vehicles would travel on them were rationally related, South Dakota had to choose between its cherished liberal speed limits and federal cash. No surprise, it chose the cash.

Now back to sanctuary cities. When the Obama administration offered Chicago and other cities cash to purchase new police communication equipment, it attached strings to those offers — but compliance with federal immigration authorities was not among them. Chicago’s complaints about DOJ threats are constitutionally sound because federal strings can be imposed only by Congress and they cannot be imposed retroactively.

Thus, federal funds awarded in the Obama administration without the string of cooperation with immigration authorities attached may not be interfered with by the Trump administration. If the feds do withhold committed funds that lack a cooperation condition attached, a court will invalidate that withholding.

Is the refusal to cooperate with the feds a form of nullification? In a word, yes. Federal law is superior to local law in areas that are primarily or exclusively federal, and immigration is unambiguously federal. Yet having pockets throughout the country without local cooperation with the feds fosters what the courts have called “laboratories of democracy.”

Stated differently, if the local government in Manhattan or Chicago or Seattle aggressively protects undocumented immigrants who live there in return for the purchasing power and cultural diversity that immigrants bring, that may relieve social and legal pressure on governments elsewhere and will be a social experiment — a laboratory of democracy — worthy of cultural and political scrutiny and perhaps even indifference when it comes to the feds.

Many Trump supporters see in the president a champion who will rid the country of those they see as unlawfully here, and they also see in liberal big-city mayors politicians pandering to interest groups. But there is a rich history to federalism, and there are two sides to its coin. The rich history is that of state and local resistance to the tyranny of the majority in Washington — a resistance as old as the country itself. The refusal of Massachusetts authorities to cooperate with the feds in the enforcement of the federal Fugitive Slave Act comes to mind.

The other side of the coin is unthinkable to my conservative brethren. If Hillary Clinton had been elected president along with a Democratic Congress and it had offered state and local governments federal funds with strings attached requiring cities to make abortions available on demand, they all would be whistling a very different and very federalism-based tune.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
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  1. It’s a thin line between asserting your constitutional privilege and harboring certain aliens in violation of 8 USC 1324.

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  2. Flavius says:

    This is not one of the Judge’s best, even though I, like the Judge, favor defering to the local authority – in this case, the City of Chicago – whenever it is possible.
    If the Obama Administration did not attach the condition that requires some specified level of cooperation with the Federal Government as an executive decision, I see no reason why the Trump Administration should not be able to attach just such a condition, at least going forward.
    Also, if the Federal Government really wanted to play hardball, the misprison statute could be applicable, and perhaps even conspiracy wherein Chicago City officials are conspiring to aid and abet illegal immigration both by failing to act also and acting in furtherance of the conspiracy in the administration of welfare programs, etc.
    I’m not sure what the Federal Government is asking the city to do other than to alert Immigration officials when it has a person who is in the country illegally in custody on a local matter. Would the City really not prefer to cooperate in a relatively orderly fashion than to have the Federal Government flood the City with gestap0 like task forces Elian Gonzalez style to ameliorate its perceived problem.

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    • Replies: @jtgw
    I agree it wasn't clear whether the Obama-era funding was purely executive action or came from Congress, but I expect that the allocation of funds itself came from Congress. Actually prosecuting local authorities for violating federal law is another matter, one that I'm sure Sessions' DOJ is already considering. Bribery is cheaper, which is probably why they're trying that approach first.
  3. jtgw says:
    @Flavius
    This is not one of the Judge's best, even though I, like the Judge, favor defering to the local authority - in this case, the City of Chicago - whenever it is possible.
    If the Obama Administration did not attach the condition that requires some specified level of cooperation with the Federal Government as an executive decision, I see no reason why the Trump Administration should not be able to attach just such a condition, at least going forward.
    Also, if the Federal Government really wanted to play hardball, the misprison statute could be applicable, and perhaps even conspiracy wherein Chicago City officials are conspiring to aid and abet illegal immigration both by failing to act also and acting in furtherance of the conspiracy in the administration of welfare programs, etc.
    I'm not sure what the Federal Government is asking the city to do other than to alert Immigration officials when it has a person who is in the country illegally in custody on a local matter. Would the City really not prefer to cooperate in a relatively orderly fashion than to have the Federal Government flood the City with gestap0 like task forces Elian Gonzalez style to ameliorate its perceived problem.

    I agree it wasn’t clear whether the Obama-era funding was purely executive action or came from Congress, but I expect that the allocation of funds itself came from Congress. Actually prosecuting local authorities for violating federal law is another matter, one that I’m sure Sessions’ DOJ is already considering. Bribery is cheaper, which is probably why they’re trying that approach first.

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  4. TheOldOne says:

    When your nation is founded upon the principles of liberalism, these dilemmas inevitably arise. Sorry!

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  5. Rich says:

    What if a city, or state, refused to arrest KKK members who violated federal laws? Could the feds then force cooperation by withholding funds? You can bet every judge in every state in the Union would be ordering those local authorities to enforce federal law. If the commerce clause can be twisted to force private businesses, that do business only within one state, to serve everyone the feds order them to, I’m sure some enterprising lawyer can find a way to arrest those who give aid and comfort to illegal aliens. Especially if they are government officials who swore an oath to uphold the Constitution.

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    • Replies: @jtgw
    I'm not sure you're right about that. Do you know of a specific example where the feds order local authorities to cooperate with federal law enforcement and the locals complied? Note that we're not talking here about federal encroachment on local jurisdiction by abusing the commerce clause and such; we're talking about the feds actually forcing local police to do its work.
  6. David says:

    It’s not a sanctuary, that’s political. It’s a haven. Thanks, Judge Stated-Differently. What a penetrating man you are!

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  7. KenH says:

    It seems when some states and localities took a proactive stance to root out illegal aliens they were slapped down by the federal courts who said immigration is strictly a federal matter and states cannot make their own immigration law (even though they weren’t regulating who could enter the U.S). I don’t recall any states rights or federalist arguments from Judge Napolitano who certainly appears to sympathize with the cause of illegal aliens in many of his columns on the subject.

    IMO, states and localities who shield illegal aliens via “sanctuary cities” and refuse to work with federal immigration authorities are in effect making immigration law on a de facto basis, so they should be subject to the same rebukes by the federal courts as were states who were doing their duty and ordered to notify ICE and DHS of illegal aliens in their states and cities.

    Governors and mayors who shield illegal aliens in defiance of the law and the wishes of the majority aren’t fostering laboratories of democracy. They are creating labs of treason, lawlessness and dysfunction.

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    • Replies: @jtgw
    I sympathize with what you say though technically I think it's different from what the Judge is talking about.

    On the one hand there's the question of federal supremacy in immigration law, which the courts and I think also the Judge take to mean that states can't regulate the residence of aliens. This seems to be part of the general doctrine that there must be absolutely free trade and movement within the US. I don't necessarily agree with this, but to this extent the Judge seems to be following established precedent. So a state does not have the constitutional authority to make illegal residence a felony if federal law makes it only a misdemeanor (if I remember correctly the dispute between Arizona and the US government on this matter).

    On the other hand there is the question of whether state and local police can be constrained by the federal government to enforce federal law. I'm quite sure the Judge is against this regardless of what the laws in question are.
  8. jtgw says:
    @Rich
    What if a city, or state, refused to arrest KKK members who violated federal laws? Could the feds then force cooperation by withholding funds? You can bet every judge in every state in the Union would be ordering those local authorities to enforce federal law. If the commerce clause can be twisted to force private businesses, that do business only within one state, to serve everyone the feds order them to, I'm sure some enterprising lawyer can find a way to arrest those who give aid and comfort to illegal aliens. Especially if they are government officials who swore an oath to uphold the Constitution.

    I’m not sure you’re right about that. Do you know of a specific example where the feds order local authorities to cooperate with federal law enforcement and the locals complied? Note that we’re not talking here about federal encroachment on local jurisdiction by abusing the commerce clause and such; we’re talking about the feds actually forcing local police to do its work.

    Read More
  9. jtgw says:
    @KenH
    It seems when some states and localities took a proactive stance to root out illegal aliens they were slapped down by the federal courts who said immigration is strictly a federal matter and states cannot make their own immigration law (even though they weren't regulating who could enter the U.S). I don't recall any states rights or federalist arguments from Judge Napolitano who certainly appears to sympathize with the cause of illegal aliens in many of his columns on the subject.

    IMO, states and localities who shield illegal aliens via "sanctuary cities" and refuse to work with federal immigration authorities are in effect making immigration law on a de facto basis, so they should be subject to the same rebukes by the federal courts as were states who were doing their duty and ordered to notify ICE and DHS of illegal aliens in their states and cities.

    Governors and mayors who shield illegal aliens in defiance of the law and the wishes of the majority aren't fostering laboratories of democracy. They are creating labs of treason, lawlessness and dysfunction.

    I sympathize with what you say though technically I think it’s different from what the Judge is talking about.

    On the one hand there’s the question of federal supremacy in immigration law, which the courts and I think also the Judge take to mean that states can’t regulate the residence of aliens. This seems to be part of the general doctrine that there must be absolutely free trade and movement within the US. I don’t necessarily agree with this, but to this extent the Judge seems to be following established precedent. So a state does not have the constitutional authority to make illegal residence a felony if federal law makes it only a misdemeanor (if I remember correctly the dispute between Arizona and the US government on this matter).

    On the other hand there is the question of whether state and local police can be constrained by the federal government to enforce federal law. I’m quite sure the Judge is against this regardless of what the laws in question are.

    Read More
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