Washington Post
By Allan Colbern
August 13, 2015
Three
weeks ago, the Republican-controlled House passed the “Enforce the Law
for Sanctuary Cities Act” (H.R. 3009). The bill would deny federal
funding to cities that
refuse to report detained immigrants, also known as “sanctuary cities.”
As I will explain below, the federal government cannot require cities
to enforce federal law by detaining and handing over people in their
jails, which is why the bill uses funding as
an incentive for local partnerships. This bill was sparked by a
conservative backlash over the tragic shooting death of Kathryn Steinle,
a San Francisco native. Juan Francisco Lopez-Sanchez, a convicted felon
and undocumented immigrant, was charged with murder
in the shooting last month.
Lopez-Sanchez
had been in the custody of San Francisco police for an outstanding
warrant on a marijuana charge. Immigration and Customs Enforcement asked
local police
to hold Lopez-Sanchez by issuing an immigration detainer. But local
police ignored that request and released Lopez-Sanchez from custody
under San Francisco’s 2013 “Due Process for All” ordinance and 2015
sherriff’s policy. Those prevent city officials from
cooperating with federal detainer requests, except for inmates
convicted of a felony crime or when ICE has a court warrant.
These
policies are part of San Francisco’s history as a “sanctuary city,”
which its sanctuary ordinance first established in 1989. The House bill
would punish cities like
San Francisco for not partnering to enforce federal law.
Fugitive slave laws and “sanctuary states”
Within
our federalist system, there’s a long history of states and localities
deciding to integrate and protect residents, regardless of their legal
status under federal
law.
To
prevent slaves from escaping, the U.S. Constitution and a 1793 federal
law granted slave owners the right of capturing and reclaiming their
“property,” and made it
a crime to harbor runaway slaves. In 1842, the Supreme Court ruled in
Prigg v. Pennsylvania that Congress had exclusive power over fugitive
slave laws. An 1850 federal law took those further by appointing a
federal body to administer search and arrest warrants,
certificates of removal, and fines for interference, and to form
federal partnerships with states, localities and private citizens to
enforce the law and return escaped slaves to their “owners.”
In
response, northern states passed a range of “sanctuary” laws, as you
can see in the table below. Pennsylvania and Massachusetts led this
movement, uniformly protecting
all blacks within the state regardless of their status under federal
law. This included due process protection laws that granted all blacks
the rights of: habeas corpus (ensuring that a judge investigated
“recaption” claims — the legal term for reclaiming
runaway slaves — in a full hearing); writs of repliven (ensured that
all detained blacks were brought to court); trial by jury; and giving
testimony in court. Other features included anti-kidnapping laws that
made it a punishable crime to remove any black
person from the state without court approval.
Although
Prigg had recognized the federal government’s exclusive authority on
fugitive slaves, the court also ruled that the federal government could
not mandate states
to enforce federal law. And so northern states passed a range of
non-enforcement laws banning state and local officials from
participating in recaption, and denying the federal government the right
to use state and local courts to hear cases.
The feds cannot require cities and states to hold and hand over detainees, according to the Supreme Court
Today,
undocumented immigrants similarly face restrictions on their movements.
Federal laws make it a crime for unauthorized immigrants to be in the
country and a crime
for employers to knowingly hire unauthorized immigrants, and they
require proof that someone is here lawfully before they can receive
welfare benefits. One way that the federal government enforces these
laws is through partnerships with states and localities,
including detainer requests to hold people. Much like removal
certificates issued to remove runaway slaves, a detainer request today
is a formal notice by ICE to federal, state or local law enforcement
agencies that it intends to take custody of detainees
that ICE believes to be unauthorized immigrants.
But
the Supreme Court has consistently said that the federal government
cannot require state or local cooperation in these efforts. It also
cannot require their compliance
with ICE’s directives or to use their own resources and personnel. The
federal government can, however, offer incentives for state and local
partnerships with these goals in mind. This rule was established under
Prigg (1842), and was recently upheld on immigration
detainers in Galarza v. Lehigh County (2014) and Miranda-Olivares v.
Clackamas County (2014) under both Tenth Amendment and Fourth Amendment
grounds.
New immigrants are less likely than natives to commit crimes, according to studies
While
undocumented immigrants are in violation of federal law, they are not
linked to increased crime. In fact, many studies have found the
opposite. One study that looks
at increased immigrant populations and its effect on homicide rates in
cities from 1980-2010 found that immigrants were less likely than native
born to commit crimes. Immigrants that very recently entered the
country are also less likely to commit crimes and
more likely to do well in school than immigrants that have been in the
country for more than four years.
In
fact, increased immigration is linked to an overall decrease in crime.
Therefore, it is misguided to use the criminal record of Lopez-Sanchez
to paint all undocumented
immigrants as criminals.
Sanctuary
policies may actually improve policing by giving all residents —
including those whose immigration status may be in question — confidence
that they can report
crimes without risking deportation. In a recent joint statement, the
U.S. Conference of Mayors and the National League of Cities opposed H.R.
3009 on the grounds that sanctuary policies “strengthen
police-community relations and build trust.” Studies support
this view, showing that in areas with large immigrant and undocumented
communities, the enforcing immigration law creates a barrier between
local police and the community, and that police relations are vital for
serving immigrant communities’ unique needs.
Moreover, studies show that local policies that enforce immigration law
through partnerships lead to increased fear and distrust among
immigrants.
Federalism gives states the right to exclude or integrate undocumented immigrants
In
America’s early history, northern states granted runaway slaves a range
of due process rights, access to employment and education, and
protections from capture. Today,
in an effort to increase integration, 11 states have granted driver’s
licenses and 17 states have granted in-state tuition to undocumented
immigrants. While only two states, California and Connecticut, currently
have Transparency and Responsibility Using
State Tools (TRUST) Acts, which stipulates that officers can only
enforce immigration detainers issued by the ICE for persons convicted of
serious crimes, more than 100 localities have passed anti-detainer
ordinances limiting their enforcement of federal immigration
law.
To
be sure, some states and cities are going in the opposite direction,
with different beliefs about creating a safe community. Arizona has
moved to exclude immigrants
and strengthen immigration enforcement by restricting access to welfare
benefits, state driver’s licenses and in-state tuition, and to prevent
localities within the state from passing “sanctuary” ordinances.
Our
federalist system allows states and localities to integrate and protect
“illegals” as part of their decisions about the welfare of their own
communities. California
in particular appears to be leading a new approach by passing laws that
grant undocumented immigrants access to state driver’s licenses,
in-state tuition, financial aid, health care and professional licenses,
and that shield undocumented immigrants by limiting
state participation in the enforcement of federal immigration. My
recent policy report with Karthick Ramakrishnan calls this new approach
the “California Package,” one that creates a new type of citizenship at
the state level that includes undocumented immigrants.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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