The Unconstitutionality of Sanctuary Policies

In the United States, 167 cities and counties and four states have some type of sanctuary policy in place. This means that four states and 167 local jurisdictions routinely practice a violation of federal immigration law. These policies run the gamut from mild policies that give law enforcement discretion as to whether or not to comply with an Immigration and Customs Enforcement detainer all the way to blatant refusal to comply with ICE detainers and prohibition of law enforcement from examining a person’s immigration status. Supporters of sanctuary policies claim that states’ rights are at issue, that is, whether the state or federal government has the ultimate authority on issues of immigration. They also go on to claim that the Federal Government lacks the authority to suspend funding to states and municipalities that do not comply with the law—essentially, that the Federal Government cannot punish them for breaking this particular law. The question in this case is whether a legal precedent exists to inform the legality and constitutionality of sanctuary policies, and there is such a precedent: Arizona v. US, 567 US ___ (2012). It concerns Arizona’s 2010 law SB 1070. That law attempted to enact several provisions that enhanced existing federal immigration law, but an Arizona District Court issued an injunction to block four of the provisions: misdemeanor status for aliens’ failure to comply with federal alien-registration requirements, misdemeanor status for illegal aliens seeking work without a permit, authorization of state and local police to arrest illegal immigrants without a warrant, mandatory verification of a person’s legal status during any detention of an individual. The Ninth Circuit upheld the injunction, and the case ultimately went to the Supreme Court to be heard. The United States’ response to the lawsuit read in part: “[t]he Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.” The same pro-immigrant groups that supported and cheered this lawsuit, which was ultimately held in favor of the US, also support the establishment of the exact patchwork of state and local laws that this lawsuit was filed to prevent. The Federal Government’s broad authority over this area of the law is established “in part, on its constitutional power to ‘establish a uniform Rule of Naturalization,’ Art. I, §8, cl. 4,” as well as on Article VI, cl. 2 of the Constitution, better known as the Supremacy Clause, which gives Federal law preeminence over State law. Arizona’s law in this case, even though complementary to Federal laws on the books, intruded on “a field in which Congress has left no room for States to regulate.” That decision by the Court must now inform immigration policy from the state level down to the municipal level. Whether the Federal Government will be able to withhold funding to states or municipalities that refuse to comply with the law must still be decided. However, the illegality of sanctuary policies is obvious given this precedent: if the Supreme Court struck down a state’s enhancement of Federal law by deciding that the US Code as written leaves no room for independent state legislation, then another state or municipality’s contradiction of Federal law must also be struck down by the same logic.

Written By: Matthew Vitale

Executive Editor, The New American Right

Vice President, College Republicans at UCR

One thought on “The Unconstitutionality of Sanctuary Policies

  1. Cities are being encouraged to support “Sanctuary Status” by liberal group and Liberal Unions by promising to pay the Cities “Legal Fees” if SANTUARY STATUS is challenged in court!


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