LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
Peter L. Markowitz, Mar. 9, 2018 - "President Trump has been saber-rattling against “sanctuary” jurisdictions since the early days of his campaign. He and Attorney General Jeff Sessions have frequently threatened to withhold federal funding and even to jail local officials who refuse to help deport immigrants. But until recently, their talk was mostly just that: talk.
This week, however, the Justice Department filed suit against California, challenging three state laws that make up the heart of its sanctuary policies.
The department is framing the lawsuit as a natural extension of the Obama administration’s successful challenge of an Arizona law that required state officers to engage in immigration enforcement. The logic is seductively simple: If it was illegal for Arizona to insert itself into federal immigration enforcement, then it is equally illegal for California to do so.
This framing has been so effective that the news media has been repeating the analogy without significant scrutiny. The comparison between the two lawsuits, however, is as flawed as it is simple.
... It is fair to ask whether states should have the power to abstain from federal law enforcement programs that they view as immoral or adverse to their local interests. It is not, however, a new question.
In fact, the question was decisively answered by the Supreme Court in 1997 in a case called Printz v. United States. That case involved a challenge to the federal Brady Act, which required local sheriffs to conduct background checks for gun purchasers. Some sheriffs resisted because they objected to the federal regulation of firearms. The Supreme Court, in a decision written by Justice Antonin Scalia, made clear that the sheriffs, and states generally, have a right to abstain from federal law enforcement schemes with which they disagreed.
It is this principle that distinguishes California’s decision to opt out of deportation efforts from Arizona’s decision to opt in.
The Justice Department is correct that the regulation of immigration is a federal matter. That’s why the Supreme Court made clear in the Arizona case that states may not insert themselves into immigration enforcement by directing its officers to arrest people on immigration charges. California, far from inserting itself, has extracted itself from federal immigration enforcement efforts in precisely the same way that the sheriffs in Printz extracted themselves from the federal effort to regulate the purchase of firearms.
Attorney General Sessions’s attempt to spin his attack on sanctuary laws as a logical extension of the Supreme Court’s Arizona decision is a transparent attempt to sidestep the clear rule established in Printz.
As California’s attorney general, Xavier Becerra, recently explained, “California is in the business of public safety, not in the business of deportations.” By exercising their constitutional right to stay out of the business of deportation, California and other sanctuary jurisdictions have been able to strengthen ties between local law enforcement and immigrant communities. Those ties, in turn, mean that immigrant witnesses and victims of crime are not fearful of coming forward to assist the local police. That is why a recent report by the Center for American Progressdemonstrated that, contrary to Mr. Trump and Mr. Sessions’s heated rhetoric, sanctuary laws improve public safety by driving down overall crime rates.
This is precisely the type of legitimate justification for local abstention that the Supreme Court established as a bedrock principle of our federal system of government over two decades ago."
- Peter L. Markowitz is a professor at the Benjamin N. Cardozo School of Law.