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Executive Power

New UnPopulist Article About How Sanctuary Jurisdictions Can Help Curb Overreaching Presidents

I cover both liberal immigration sanctuaries and conservative gun sanctuaries, and the more general principles behind them.



Today, the UnPopulist published my new article on sanctuary jurisdictions, their role in our federal system, and their value as tools for curbing overreaching federal power. Here are some excerpts:

Since Donald Trump's victory in the 2016 election, "sanctuary" jurisdictions have become a focus of political and legal controversy. Sanctuary policies are adopted by state and local governments that refuse to aid federal officials in enforcing certain federal laws…..

[I]mmigration sanctuaries forbade local law enforcement organizations from helping to enforce some federal immigration laws. Those policies have been imitated by conservative states passing gun-sanctuary laws. In the future, especially if Trump returns to power, we may well see controversy over other types of sanctuaries, such as state and local governments seeking to protect abortion rights.

Sanctuary policies have their flaws and limitations. But they have strong constitutional grounding and are a useful check on federal power, especially on overreaching presidents of both parties…..

Sanctuary policies are laws and regulations adopted by state and local governments that deny assistance to federal officials seeking to enforce particular federal laws. Currently, the most widespread sanctuary policies are left-liberal immigration sanctuaries. Over the last 20 years, numerous liberal "sanctuary cities" and "sanctuary states" have adopted policies barring their law enforcement agencies from assisting in the deportation of many categories of undocumented immigrants—usually those not convicted of serious crimes….

In recent years, left-wing immigration sanctuaries have been imitated by conservative gun sanctuaries, beginning with Montana. Gun sanctuary laws—or "Second Amendment Protection Acts," as advocates like to call them—deny cooperation with enforcement of a variety of federal gun control laws. Three states—Idaho, Missouri, and Wyoming—have full-blown gun sanctuary laws, thereby earning a "gold" rating from Gun Owners of America (a pro-gun rights advocacy group). Seven other red states have more limited legislation….

[S]anctuary jurisdictions are not actually complete sanctuaries. Undocumented immigrants protected by immigration sanctuaries may still be caught and deported by Immigration and Customs Enforcement (ICE) or other federal agencies. Gun owners protected by gun sanctuaries may, similarly, be apprehended by federal law enforcement agencies, such as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Federal prosecutors remain free to charge violators of these laws in federal court.

Nonetheless, sanctuary jurisdictions' denial of state and local assistance to federal law enforcement makes a difference. In the U.S. federal system, some 90% of law enforcement personnel are state and local government employees; only about 10% work for the federal government. Because of this imbalance, federal law enforcement agencies are heavily dependent on state and local cooperation to effectuate enforcement of most federal laws. When states and localities deny such assistance, it becomes extremely difficult for federal law enforcement to catch more than a small fraction of violators…..

Politicians' and activists' positions on sanctuary laws often reek of "fair weather federalism." Their stances depend on whose ox is being gored. Supporters of immigration sanctuaries oppose gun sanctuaries, and vice versa, even though the constitutional issues in the two types of cases are very similar.

But there are good reasons to support state and local rights to adopt sanctuary policies that go beyond one's specific policy preferences. If the federal government has broad power to force states to do its bidding, that power could easily be abused—especially in an era where there is severe ideological polarization, and many on both sides of the political spectrum are eager to coerce their adversaries.

The danger is heightened by the ways in which such power is likely to be concentrated in the hands of the executive. If the president can use vaguely worded laws to attach new conditions to federal grants, as Trump tried to do, he could easily use that to consolidate power and impose his own preferences on unwilling states and localities.

The case for sanctuary policies is even stronger if you fear that Trump—or some other potential future president—has authoritarian tendencies. Sanctuary jurisdictions can make such authoritarian aspirations harder to realize by giving refuge to the would-be dictator's opponents.

Even when there is no authoritarian threat looming, sanctuary policies play a valuable role in preserving diversity in our federal system. In a highly diverse nation like the U.S., federally imposed uniformity would deny millions of people the opportunity to live under policies they prefer.

Sanctuary policies also help empower people to "vote with their feet" for the policies they prefer. People who dislike their home state's policies on immigration, guns, or some other issue, have the opportunity to relocate to a more congenial jurisdiction. Where authority devolves to local governments, foot-voting opportunities are even greater, as it is often cheaper and easier to move between local governments than between states.

Other parts of the article address the constitutional basis for sanctuary jurisdictions, and the history of litigation on the subject (which mostly consists of cases won by immigration sanctuaries). I previously covered immigration sanctuary jurisprudence in much greater detail in a Texas Law Review article. More recently, I analyzed currently ongoing litigation over Missouri's gun sanctuary law.

The UnPopulist article is part of a series on "Fireproofing the Presidency," which deals with various tools for curbing abuses of executive power.