Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs

The Roundtable


Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.


Do Sanctuary Cities Violate the Law?

2/19/2018

1 Comment

 
Picture
By Justin Yang 
Justin Yang is a junior at the University of Pennsylvania studying Politics, Philosophy, and Economics.


The controversy over state and local governments declaring themselves to be so-called “sanctuaries” for undocumented immigrants may have been more salient months ago, but it hasn’t died down. In mid-January, Secretary of Homeland Security Kirstjen Nielsen announced she would look for ways to file criminal charges against sanctuary cities for refusing to cooperate with federal deportation efforts. [1] There have been many other efforts by the federal government and Republicans to curb efforts by mainly Democratic states and cities to shield undocumented immigrants from federal enforcement agencies, all based on accusations of illegal and unconstitutional efforts by state and local governments to obstruct and nullify federal immigration law. However, unlike many other partisan issues these days, the law seems clear cut here: cities and states are perfectly entitled to set themselves up as sanctuaries for undocumented immigrants.

This claim may seem counterintuitive on its face—how can states and local governments pick and choose whether to enforce federal law? After all, our Constitution clearly states that federal law shall be supreme over state and local law; some have even asserted that sanctuary cities harken back to a time when states and cities would defy the federal government during the Jim Crow era. [2] In addition, there are specific federal statutes that require state and local officials to aid federal immigration authorities; Section 1373(a) of Title 8 of the U.S. Code says state and local governments can’t ban officials from sending or receiving information regarding the immigration or citizenship status of people to the Department of Homeland Security. [3] President Trump has chosen to enforce this particular statute through a withdrawal of federal grants and funds for violators, as per a January 25, 2017 executive order. [4]


Of course, this is all a total misunderstanding of what state and local governments do when they proclaim themselves to be sanctuaries. Rather than nullifying or violating federal law, what states and cities are doing is opting “not to use its resources to help federal agents identify, and deport, undocumented immigrants.” [5] These actions include a refusal to gather immigration-related data when police interact with local residents, as well as a refusal to detain undocumented people at the federal government’s request, with few exceptions. [5] Rather than a nullification or defiance of federal immigration law, these policies are about the allocation and prioritization of scarce public funds, as well as bolstering trust between residents and law enforcement. [6] These governments can put the collection of immigration data low on the list of priorities, and as long as they aren’t actively blocking information sharing with federal immigration authorities, the law is not violated. Instead, the result is that there is no information to be shared, which means there is nothing to be blocked.

In addition, while the federal government can require or prohibit certain acts, they cannot force state and local governments to require or prohibit the same acts or force them to enforce federal law. One of the most basic tenets of federalism and the Tenth Amendment is that the federal government cannot commandeer states and cities by compelling them to actively enforce federal laws at their own expense. [7] Otherwise, the federal government could offload its constitutional and legal responsibilities onto state and local governments, and political accountability of local, state, and federal officials would be severely diminished. This principle has been upheld by the Supreme Court in cases such as Printz v. United States. [5] Clearly, then, state and local governments cannot be forced to enforce federal immigration law, meaning they can decide to allocate as few resources to this endeavor as they want, becoming sanctuaries for undocumented immigrants.

Still, federal immigration officials are trying to find different ways to square this circle and make a case for why sanctuary cities are illegal, and their newest weapon is the anti-harboring laws. According to officials like Immigration and Customs Enforcement Director Thomas Homan, Section 1324 of Title 8 of the U.S. Code, which imposes penalties on those who “conceals, harbors, or shields from detention” undocumented immigrants “in any place, including any building,” can be used to charge state and local officials for maintaining sanctuary states and cities. [5] The theory is by refusing to cooperate with federal officials, these locales are harboring undocumented immigrants and are thus violating federal law.

However, this claim also holds no water. Although federal courts are divided on the exact definition of “harboring,” they all generally require affirmative conduct such as providing shelter, transportation, and direction about how to obtain false documentation. Simply failing to assist federal officials or passively declining to report an undocumented immigrant does not count as harboring. [8] The extent of the actions taken by sanctuary cities and states certainly fall outside such a definition, as all these jurisdictions are doing is refusing to gather immigration information, to use local resources to help federal authorities, and to detain people on behalf of the federal government. Even if harboring includes these activities, state and local officials cannot be punished because doing so would effectively be the federal government commandeering states and local governments and compelling them to act, violating the aforementioned principles of federalism. Clearly, then, the basic tenets of federalism and dual sovereignty mean that state and local jurisdictions can choose to become sanctuaries and reduce the risk of deportation for undocumented immigrants.

The wisdom of a policy where state and local governments refuse to cooperate with federal authorities in order to reduce the risk of deportation for undocumented immigrants is clearly controversial and should be debated; however, the legality of such a policy is clear. No federal law requires state and local governments to cooperate with federal authorities; in fact, the Constitution prohibits the federal government from hijacking states and cities, forcing them to carry out its will. The current administration may despise sanctuary cities, but until voters change their minds or the Constitution is amended, sanctuary cities very clearly do not violate the law.

[1] Dinan, Stephen. “Homeland Security pursues charges against leaders of sanctuary cities.” Washington Times, January 16, 2018. Accessed January 31, 2018.  https://www.washingtontimes.com/news/2018/jan/16/dhs-asks-prosecutors-charge-sanctuary-city-leaders/
[2] Colleluori, Salvatore, Jessica Torres, Cristina Lopez G. “Fox News Falsely Claims ‘Sanctuary Cities’ Violate Federal Immigration Law.” Media Matters, July 7, 2015. Accessed January 31, 2018. https://www.mediamatters.org/research/2015/07/07/fox-news-falsely-claims-sanctuary-cities-violat/204286
[3] Lee, Michelle Ye Hee. “The White House’s claim that ‘sanctuary’ cities are violating the law.” Washington Post, April 28, 2017. Accessed February 1, 2018.  https://www.washingtonpost.com/news/fact-checker/wp/2017/04/28/the-white-houses-claim-that-sanctuary-cities-are-violating-the-law/
[4] Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 30, 2017). https://www.federalregister.gov/documents/2017/01/30/2017-02102/enhancing-public-safety-in-the-interior-of-the-united-states
[5] Savit, Eli. “A New Threat to Punish Sanctuary City Officials.” Take Care Blog, January 24, 2018. Accessed February 1, 2018. https://takecareblog.com/blog/a-new-threat-to-punish-sanctuary-city-officials
[6] Lynch, Sarah N., Mica Rosenberg. “Four U.S. ‘sanctuary cities’ may be violating the law: U.S. Attorney General.” Reuters, October 12, 2017. Accessed February 11, 2018. https://www.reuters.com/article/us-usa-immigration-sanctuary/four-u-s-sanctuary-cities-may-be-violating-law-u-s-attorney-general-idUSKBN1CH20R

[7] Hing, Bill. “Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy.” UC Irvine Law Review 2 (February 2012): 247-311. Accessed February 1, 2018. https://www.ilrc.org/sites/default/files/documents/immigration_sanctuary_policies_constitutional_and_representative_of_good_policing.pdf
[8] Herrling, Karen A. “Harboring: Overview of the Law.” Catholic Legal Immigration Network, March 2013. Accessed February 1, 2018.  https://cliniclegal.org/sites/default/files/harboring_memo_6-13-13_karen_edit.pdf

Photo Credit: Flickr User Robert Couse-Baker 

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
1 Comment
Olivia Fambrini
6/17/2020 02:45:33 pm

Great post and writing, Justin! I am using this text as a source in an assignment for my Political Science degree at the University of Colorado Denver.

Reply

Your comment will be posted after it is approved.


Leave a Reply.


    Categories

    All
    Aaron Tsui
    Akshita Tiwary
    Alana Bess
    Alana Mattei
    Albert Manfredi
    Alexander Saeedy
    Alexandra Aaron
    Alexandra Kanan
    Alexandra Kerrigan
    Alice Giannini
    Alicia Augustin
    Alicia Kysar
    Ally Kalishman
    Ally Margolis
    Alya Abbassian
    Amanda Damayanti
    Anika Prakash
    Anna Schwartz
    Arshiya Pant
    Ashley Kim
    Astha Pandey
    Audrey Pan
    Benjamin Ng'aru
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Catherine Tang
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Clarissa Alvarez
    Cole Borlee
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    David Katz
    Davis Berlind
    Derek Willie
    Dhilan Lavu
    Edgar Palomino
    Edna Simbi
    Ella Jewell
    Ella Sohn
    Emma Davies
    Esther Lee
    Evelyn Bond
    Filzah Belal
    Frank Geng
    Gabrielle Cohen
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Habib Olapade
    Hailie Goldsmith
    Haley Son
    Hannah Steinberg
    Harshit Rai
    Hennessis Umacta
    Henry Lininger
    Hetal Doshi
    Ingrid Holmquist
    Iris Zhang
    Irtaza Ali
    Isabela Baghdady
    Ishita Chakrabarty
    Jack Burgess
    Jessica "Lulu" Lipman
    Joe Anderson
    Jonathan Lahdo
    Jonathan Stahl
    Joseph Squillaro
    Justin Yang
    Kaitlyn Rentala
    Kanishka Bhukya
    Katie Kaufman
    Kelly Liang
    Keshav Sharma
    Ketaki Gujar
    Khlood Awan
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Lyan Casamalhuapa
    Lyndsey Reeve
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Margaret Lu
    Matthew Caulfield
    Michael Keshmiri
    Michael Merolla
    Mina Nur Basmaci
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nathan Liu
    Nayeon Kim
    Nicholas Parsons
    Nicholas Williams
    Nicole Greenstein
    Nicole Patel
    Nihal Sahu
    Omar Khoury
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Paula Vekker
    Pheby Liu
    Pragat Patel
    Rachel Bina
    Rachel Gu
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Sajan Srivastava
    Samantha Graines
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Saranya Das Sharma
    Saranya Sharma
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Serena Camici
    Shahana Banerjee
    Shannon Alvino
    Shiven Sharma
    Siddarth Sethi
    Sneha Parthasarathy
    Sneha Sharma
    Sophie Lovering
    Steven Jacobson
    Suaida Firoze
    Suprateek Neogi
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Thomas Cribbins
    Todd Costa
    Tyler Larkworthy
    Tyler Ringhofer
    Vatsal Patel
    Vikram Balasubramanian
    Vishwajeet Deshmukh
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    April 2025
    March 2025
    February 2025
    January 2025
    December 2024
    November 2024
    September 2024
    May 2024
    April 2024
    January 2024
    December 2023
    November 2023
    May 2023
    March 2023
    January 2023
    December 2022
    November 2022
    September 2022
    June 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    May 2019
    April 2019
    March 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Powered by Create your own unique website with customizable templates.