Friday, April 13, 2018
Immigration Article of the Day: "Anti-Sanctuary" by PRATHEEPAN GULASEKARAM, ROSE CUISON VILLAZOR, and RICK SU
Sanctuary policies limiting state and local participation in federal immigration enforcement now dominate the popular and scholarly debate in immigration law. Less attention, however, has been paid to the rise of the anti-sanctuary movement targeting these policies, especially those proliferating at the state level. In the past year, the federal government has turned to lawsuits and defunding threats to induce states like California and cities like Chicago and New York to reconsider their resistance to federal immigration enforcement. At the same time, states across the country-and most recently Texas with SB 4-are directly mandating local participation in ways that the federal government cannot, and doing so through state laws that prohibit sanctuary policies entirely and impose severe punishments on the cities and officials that support them. This turn towards anti-sanctuary legislation at the state level, we argue, marks a fundamental shift in the focus of contemporary immigration federalism debates.
This Article is the first to analyze this new wave of anti-sanctuary laws. We examine these laws in the context of broader immigration federalism debates in which states are taking either complementary or oppositional stances towards federal enforcement decisions. We also show how, by relying on states, the anti-sanctuary movement has been able to bypass the legal and constitutional constraints that have traditionally cabined efforts at the federal level. Because of this, we argue, the next chapter in the battle over sanctuary policies and federal immigration enforcement will revolve around doctrines concerning localism and state-local relations that have thus far been overlooked in a field accustomed to federal plenary power and principles of federalism.
Despite the strategic advantages of the new state-based anti-sanctuary efforts, we ultimately contend that local autonomy principles offer a strong defense in favor of local sanctuary policies against state anti-sanctuary laws. Importantly, we argue that such a localist approach over engagement with immigration law is more desirable than state approaches. To be sure, this localist defense of sanctuary would also support local anti-sanctuary policies. Yet, such autonomy, we suggest, would serve to decenter the federal government's role in setting immigration enforcement policy, and would diminish the role that sovereignty plays in immigration legal theory. In the long run, both outcomes are likely to better serve the goals of civic engagement and inclusionary policies for noncitizens.
Part I provides a descriptive account of state anti-sanctuary laws that were enacted in the past year. As this Part explains, by seeking to punish sanctuary cities, these anti-sanctuary efforts amplify the federal hyper-enforcement regime. Part II examines legal challenges that sanctuary cities may bring against state anti-sanctuary laws. This part offers doctrinal analyses of the various legal rationales, grounded in local empowerment and municipal power doctrines, which might support discretion for local sanctuary policies in the face of state level crackdowns. Part III makes the normative and legal case for local autonomy over sanctuary policies. In doing so, however, we note that challenging state anti-sanctuary laws will present thorny questions of legal strategy for immigrant advocates. Nevertheless, the Article concludes with a guarded defense of local autonomy, arguing that local control is more desirable than a state or federal orthodoxy with regards to participation in immigration enforcement.