Monday, July 26, 2010

Sanctuary Cities, Immigration, and Federal Preemption

The Obama administration is hypocritical for pursuing Arizona's law to control illegal immigration even as it ignores local governments that order employees not to ask about a person's immigration status or to report it to federal agents, critics claim.  These so-called sanctuary cities are local governments that have elected "not . . . to use their resources to enforce a federal law," according to a Justice Department spokesperson quoted in Monday's Chicago Tribune.  Critics of the administration claim that sanctuary cities run up against federal law, and are therefore preempted by federal law, every bit as much as--indeed, more than--Arizona's SB 1070.  (The Justice Department filed its complaint against Arizona alleging federal preemption earlier this month.  Judge Bolton of the District of Arizona heard arguments on the Department's motion for a preliminary injunction last week.  The law is scheduled to take effect Thursday.)

The preemption arguments against sanctuary cities are similar to the preemption arguments against SB 1070: sanctuary cities regulate in an area, immigration, that is granted exclusively to the federal government and in which the federal government has occupied the field; and sanctuary cities violate a federal prohibition against any government restricting its employees from reporting to the feds the immigration status of any individual:

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

8 U.S.C. Sec. 1373(a).  The provision includes no penalties or enforcement tools.

Critics say the administration is hypocritical for suing Arizona on a preemption theory while ignoring sanctuary cities.  More than hypocrisy, though, critics charge that the administration has its priorities exactly backwards.  After all, Arizona is simply trying to enforce federal law, while sanctuary cities are actively violating it.  Sanctuary cities, and not Arizona, critics argue, ought to be the federal target. 

SDS

http://lawprofessors.typepad.com/conlaw/2010/07/sanctuary-cities-immigration-and-federal-preemption.html

Congressional Authority, Federalism, Foreign Affairs, News, Preemption | Permalink

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Comments

I don't see how sanctuary cities are violating the quoted law. My understanding is that sanctuary cities typically stop city employees from collecting immigration information (e.g., if a person reports a crime to the police, sanctuary cities would typically not allow the officer to ask about the immigration status of the person reporting the crime).
The quoted statute only prohibits governments from banning the sharing of such information. I don't believe most sanctuary cities violate that prohibition.

If your interpretation is in fact correct, it leaves the question -- why in the 3 administrations since IIRIRA was passed, has Justice never gone after any sanctuary cities?

Posted by: Joe C | Aug 9, 2010 10:26:11 AM

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