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.  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.  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.  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. 
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.”  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.  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.  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.  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.  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.  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.  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.
 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/
 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
 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/
 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
 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
 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
 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
 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.