Constitutional Cities

It’s too late to stop reading the brightly-illustrated children’s book by the time I realize it will upset my eight- and five year-old sons. They listen quietly as the tale unfolds: a mother is taken away from her husband and young daughter because she doesn’t have papers. The little girl struggles to understand asking her father, “Can Mama have my papers?” She can only see her mother in prison and when visiting hours are over, she kicks and screams in protest unwilling to leave her mother’s embrace.

My older son declares, “This can’t happen here! This is America!” My younger son, wide-eyed with worry, asks, “Mommy, will they take you away too?” I try to balance truth with reassurance. At least I can tell them this won’t happen to me because I am one of the lucky ones, my immigrant parents were in the right place at the right time.

My children, like so many Americans, have a keen sense of justice. But this means different things to different people. Take the word “sanctuary,” for instance. To some, it conjures images of safety and refuge for undocumented immigrants escaping intolerable living conditions. In others, it evokes a fear of lawlessness, an intentional thwarting of laws that will flood our country with illegal aliens.

The terminology itself evidences the wide chasm that separates the two sides of this country’s immigration debate. So it comes as no surprise that the current administration, which came to power exploiting the real and imagined differences that keep Americans apart, vilified so-called “sanctuary jurisdictions” through an Executive Order issued in January 2017.

Because the Order fails to specify what it means by “sanctuary jurisdiction,” and because it is otherwise riddled with constitutional infirmities—potential separation of powers, unlawful commandeering of state and local authority, and Fourth, Fifth, Tenth and Fourteenth Amendments violations—a federal judge blocked its “sanctuary” provisions on April 25, 2017.

Nevertheless, the Order’s language has created a perception that so-called sanctuary jurisdictions—the administration has singled out several including cities such as San Francisco, Seattle, New York, Chicago, Miami, and Los Angeles—have violated federal laws by harboring and protecting illegal immigrants from deportation. But here’s the curious thing, they haven’t. Rather, these jurisdictions adhere to policies that uphold federalism principles, protect constitutional rights, and enhance public safety.

Federalism, a concept dear to the founders of our nation and memorialized in the Tenth Amendment to the Constitution, prevents the federal government from coercing localities to fulfill unfunded federal mandates. It is also known as the Constitution’s “anti-commandeering” clause. So-called sanctuary jurisdictions limit the use of local resources to implement and enforce federal immigration laws. This is wholly consistent with federalism principles and the Tenth Amendment.

But why not help the Feds round up illegal immigrants? Tenth Amendment anti-commandeering problems (which cannot be waived) aside, there are many good reasons beginning with the United States Constitution.

More than anything else, the federal government wants immigration assistance from local law enforcement agencies. This presents several problems, not least of which is that law enforcement deals with criminal acts while lack of documentation, without more, is a civil matter. When Immigration and Customs Enforcement (ICE) issues a detainer request asking local police departments and/or jails to hold someone beyond the state law reasons for a person’s original detention, that request is civil in nature and is not based on a probable cause warrant issued by a judge. If local police and jails honor these requests, they risk violating due process rights.

Another federal government wish is that local public employees make immigration status-related requests. Several states—including Arizona and Texas— have passed laws that require law enforcement and public benefits agencies to ask about immigration status under certain circumstances. This presents an equal protection problem since people who have dark skin, speak with an accent, or were born outside the U.S. are far more likely to be asked immigration questions than those who lack these characteristics.

These state laws might not present a problem if public employees were directed to ask each and every person they come into contact with for immigration information but this is not how these laws are written. For instance, Arizona’s now-infamous SB 1070 requires law enforcement officials to inquire into immigration status if there is reasonable suspicion to believe an individual is undocumented. Although the law was later interpreted by an informal Attorney General opinion stating that an individual’s race, ethnicity or national origin could not be taken into account when determining whether reasonable suspicion existed, it’s difficult to imagine circumstances in which reasonable suspicion of alienage could exist without unlawful racial/ethnic profiling.

Importantly, localities risk violating due process and equal protection rights of citizens as well as non-citizens when they engage in immigration enforcement because local law enforcement can’t know with certainty whether someone is a citizen, noncitizen, documented or undocumented when individuals are detained on suspicion of unlawful immigration alone. Moreover, the federal government will not indemnify local governments if the latter commits constitutional violations. This puts local dollars at jeopardy even when a locality’s wrongful actions are based on furtherance of federal immigration law.

Local enforcement of immigration laws also adversely affects public safety. The current administration would have us believe that so-called sanctuary jurisdictions are making cities less safe. Indeed, it has given speeches that trumpet these claims and invoke research studies to support their assertions.

There is one (very big) catch: the claims are untrue. The researchers who conducted the very studies cited by the administration have made clear that their research provides no such support. Rather, as law enforcement experts have explained, maintaining a clear separation between law enforcement and immigration furthers, rather than detracts from, public safety.

Law enforcement agencies nationwide have resisted enforcing federal immigration laws because people avoid police when they fear that they, their relatives or community-members might be deported if they report crime or cooperate in police investigations. This is a particularly serious concern because demographic research shows that mixed status families, with U.S. citizen and undocumented persons living in the same household, are highly prevalent

Several jurisdictions have reported that the mere perception of law enforcement’s involvement in immigration has already led to fewer women reporting domestic violence and sexual assault. Police chiefs in cities across the nation have warned that when their officers seek (or are regarded as being able to seek) immigrant status-related information, their effectiveness is drastically reduced. For instance, the Tucson Police Department’s website emphasizes that “[t]he need for community trust and cooperation is an essential component of effective policing and public safety.”

Other problems attend local involvement in federal immigration enforcement, such as the siphoning of finite local resources away from local needs and the erection of roadblocks to vital public benefits like immunizations. Perhaps most antithetical to American sensibilities is that federal conscription of local governments strikes at the heart of federalism principles upon which our nation was founded to ensure that a central government would not usurp the lawful exercise of autonomous local power.

And yet localities may want to think twice before clamoring for the sanctuary jurisdiction label. Sanctuary can and has implied civil disobedience (e.g., churches sheltering undocumented migrants fleeing Central American violence in the 1980s). While that practice may be appropriate for individuals or non-governmental organizations, it is not proper for local governments (and to date, no jurisdictions have engaged in such action).

Furthermore, localities should assist in matters of federal immigration law when doing so would not violate constitutional rights and might enhance public safety such as assisting ICE in apprehending violent convicted criminals. All so-called sanctuary jurisdictions have policies that allow for doing just that.

Finally, jurisdictions within states that have state-level policies regarding cooperation with federal immigration enforcement —such as Tucson, Arizona and Austin, Texas —may, under certain circumstances, be required to adhere to state standards. In considering their options, these jurisdictions may be better served by a commitment to constitutional principles rather than the vague and loaded concept of sanctuary.

One thing is clear—states, counties and cities cannot stand by silently in the face of this administration’s blatant disregard for constitutional rights and federalism principles. Local

jurisdictions’ very existence is predicated upon doing what’s in the best interest of their communities, which consist of a combination of people: those with and without documentation, those with light skin and those with color, those comfortable in sameness and those who embrace difference. Localities must rise to the challenge of protecting their unique communities or be in danger of succumbing to an all-powerful federal government that would deny them the right of local self-determination.

In our bedtime book, the little girl writes her story and mails it to reporters. Local people come together, send letters to the immigration judge, and help secure her mother’s release. The happy ending is a welcome relief. It is also pure fiction.

But it could become reality if we can agree that families should remain intact, that absent heinous crimes parents should not be separated from their children, that compromised police effectiveness, rights violations and federal usurpation of local power are not in the best interest of any community.

Then we can get to work creating safe and constitutional jurisdictions.


Shefali Milczarek-Desai is a Rhodes Scholarship finalist, former Arizona Supreme Court law clerk and VONA Fellow. Her book-length manuscript was selected by author Lidia Yuknavitch as a finalist in the 2016 Kore Press memoir competition, and her work appears in the UCLA Women’s Law Journal, the Arizona Journal for International and Comparative Law, HipMama and the anthology This Bridge We Call Home. She currently is co-authoring a legal paper on federal and state regulatory power over so-called sanctuary cities, litigating an asylum case and finalizing her hybrid memoir.