My New Dispatch Article, "In Defense of Sanctuary Cities"

It explains how sanctuary policies are justified on both constitutional and moral grounds.

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Today, The Dispatch published my new article, "In Defense of Sanctuary Cities" (gift link). Here is an excerpt:

Sanctuary cities and states have been a major focus of political conflict in the second Trump administration, perhaps even more than in the first. These jurisdictions refuse or severely limit assistance to federal efforts to detain and deport suspected illegal immigrants. Most only provide such assistance in cases involving undocumented migrants who have committed serious crimes. Regardless of the politics, the 10th Amendment protects sanctuary jurisdictions from compulsion by the federal government. And their policies are also well justified on moral and pragmatic grounds. This is particularly true at a time when many federal immigration enforcement efforts are cruel and illegal….

The 10th Amendment states that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In a series of decisions primarily supported by conservative justices, the Supreme Court has held that the 10th Amendment bars federal "commandeering" of state and local government personnel and resources, including forcing them to help enforce federal law against private parties….

The constitutional basis for protecting sanctuary jurisdictions against executive-created spending conditions is also strong. As numerous court decisions have held, the Constitution gives Congress, not the president, the power of the purse. Thus, the executive cannot attach its own conditions to federal grants to the states, as Trump has repeatedly tried to do. In addition, even Congress' power to spend for the "general welfare" is not unlimited, and it cannot use this authority to completely gut state autonomy…

Conservatives tempted to jettison these constitutional rules in order to stick it to liberal immigration sanctuaries would do well to remember that the same principles also protect red-state "gun sanctuaries," such as Missouri and Montana, which deny state assistance for enforcement of federal gun control laws. The two types of sanctuary jurisdictions stand or fall together….

In addition to being constitutionally protected, sanctuary policies are also right and just. Sanctuary jurisdictions have rightly concluded that police resources are better used to combat violent and property crime instead of aiding in deportation efforts….. Undocumented migrants actually have much lower crime rates than native-born citizens, and most of those detained, especially in recent months, actually have no criminal records at all. Local and state participation in deportation efforts also makes it more difficult to combat crime by poisoning relations between law enforcement agencies and minority communities.

The cruel and illegal nature of much of the federal deportation effort provides additional justification for denying it state and local assistance. In more than 4,400 immigration cases over the last year, courts have ruled that the second Trump administration illegally detained people. The true number of illegal detentions is likely much greater….

Meanwhile, federal immigration agents routinely engage in unconstitutional discrimination in the form of racial and ethnic profiling. The incredible extent of racial and ethnic profiling by federal immigration authorities is demonstrated by the fact that immigration arrests in Los Angeles County declined by 66 percent within just 16 days after a court order barred the use of such tactics… Conservatives and others who advocate color-blindness in government policy should support state governments' refusal to facilitate such massive racial discrimination…..

Immigration and Customs Enforcement detention facilities routinely feature shockingly callous treatment of those imprisoned there, including overcrowding, inadequate food, denial of needed medical treatment, and child abuse, including hundreds of violations of a legal settlement barring detention of children for more than a 20-day period. State and local governments should not help imprison still more people in these horrific conditions.

I also covered Tenth Amendment issues related to sanctuary cities in two other recent articles linked below:

"Does the ICE Crackdown in Minnesota Violate the Tenth Amendment?," Brennan Center State Court Report, Feb. 2, 2026.

"Minnesota's Compelling 10th Amendment Case Against Trump's ICE Surge," Lawfare, Jan. 30, 2026.

Comments

[MickeyFitz]

The problem with just about every article by Somin is that it seems that he starts off with the premise that open borders is the prime directive and that finds a way to legally support his premise. Rarely, if ever, does he ever vary from that. Of course, the tendency to analyze the law based upon your own prejudices is common both on this site as well as in the real world, bur Somin takes it to an extreme level. Unfortunately, it renders him probably the most boring writer on this site.

[SRG2]

And this really is an example of the ad hominem fallacy.

[Krayt]

On the other hand, in science, it's bad form to attack the arguer. One addresses the argument.

In politics, one presumes hidden motives until proven otherwise.

You will almost never be wrong. Having said that, rare are motivations to freedom for freedom's sake. A lot of defense of the Constitution, a document whose core design principle is thwarting power grabs, is a historical novelty as it is under continuous assault. Legion is the hot air to increase power mongers' power.

It should be fairly obvious, though, when people support Putin because of a balls out intramural political war in the US. How silly.

[JoeFromtheBronx]

Somin is generally a libertarian. He has listed his preferences in the past, including for such things as organ markets.

Some people here are selectively so and single out one subset of his libertarianism and allege he is somehow notably different and biased. There is a problem with that.

Also, he has repeatedly shown that "open borders" are not necessary to support his position. He in fact in a recent entry granted it was not the case. As is often the case on this blog, "open" here means "to a significantly greater degree than I support."

[BFranklin1776]

I don't even bother to read your crap. I just come to the comments section to watch people justifiably lambast you for your idiotic views.

[r]

The easy rebuttal to the "right and just" argument is detainer requests. Detainers permit ICE to take criminal illegal aliens into custody without confrontations, chases, or searches through the community. The detainers only affect aliens that are in custody for committing a crime - the criminal illegal aliens that a vast majority in the US wants deported. If detainers were respected, it would undercut almost all the offensive use of force that we see with ICE in places like LA and Minnesota.
Other aspects of cooperation with ICE and border patrol are more debatable, but there is really no reason for states and cities not to comply with requested detainers in most cases.

[Longtobefree]

" . . . but there is really no reason for states and cities not to comply with requested detainers in most cases."

How can they vote for democrats once there are deported?

[MollyGodiva]

ICE detainees are legally problematic because honoring them would mean keeping people in local jails beyond what is allowed. That is a 4A violation. A memo from ICE does not over ride one's right not to be deprived of liberty without due process of law.

[Scooter]

DERP.

The detainer IS due process of law.

You just don't like seeing your pets removed.

[Darwinnie]

Unless immigrants are to be treated wholesale differently, I would think they have to be brought before a judge (a real judge with judicial authority not an executive), and given a chance to plea and be informed of the charges and so forth before they are held in jail. They should only be held as long as needed for that hearing to happen, which absolutely can’t be indefinite or until the police decide what to do with them. I don’t understand what’s happening in this immigration context.

[Brett Bellmore]

What's happening is that you're dealing with people who as an original matter simply lack any right to be in the country, and consequently very little process is due to deprive them of it, as depriving them of it is not a criminal penalty, but instead a simple administrative matter.

Really, all the process they're due is confirming that they don't, in fact, actually have the right to be here, and at the point where a detainer has been issued, that's already done.

[MollyGodiva]

All people in the US have the same due process rights. And we are seeing ICE arrest and deport many who are not deportable.

[MollyGodiva]

A detained is nothing more than a memo ICE writes. It is even weaker than an administrative warrant. And it is civil. Why would you want LEOs to write themselves memos that gives them the ability to hold someone without any suspicion of criminal activity?

[Scooter]

Entering in or remaining in the country illegally is a criminal act.

[David Nieporent]

If detainers were respected, it would undercut almost all the offensive use of force that we see with ICE in places like LA and Minnesota.

Not only are detainers not limited to people who have been convicted of committing a crime, but it would not in fact do that, because the entire point of this administration's policies — ask any of its bootlickers here — is that they're not going after "the worst of the worst," but want to round up and deport everyone. You can't do that by targeting the narrow slice who are in prison. (Remember Stephen Miller telling DHS last year that its numbers weren't high enough and that they could just go to the local Home Depot parking lot to boost them.)

Indeed, Minnesota does honor detainers; it is not a sanctuary state. (To be sure, many municipalities in the state that operate jails do not honor detainers, but those jails are for arrestees and low level criminals; state prisons are where the dangerous convicted criminals are generally housed.)

And as further empirical evidence that your premise is flawed, when ICE broke into a citizen's home in Minneapolis last month (the one where he was hauled out in freezing conditions in his underwear) under the false pretense that two illegal immigrant sex offenders lived there — neither did — one of those two was listed on the state inmate locator website as currently being in prison.

Your argument might have worked if we were talking about past administrations, but this one is just about cruelty, not about public safety.

[Brett Bellmore]

"Conservatives tempted to jettison these constitutional rules in order to stick it to liberal immigration sanctuaries would do well to remember that the same principles also protect red-state "gun sanctuaries," such as Missouri and Montana, which deny state assistance for enforcement of federal gun control laws. The two types of sanctuary jurisdictions stand or fall together…"

I'm not so sure about that, because while both have anti-commandeering on their side, only the 'gun sanctuaries' have the Bill of Rights on their side. The immigration sanctuary states are refusing to assist in enforcement of federal law that they merely dislike, the gun sanctuary states in enforcement of federal law that is arguably unconstitutional.

[Sarcastr0]

Your distinction is really that you like one set of laws and not another; 'arguably' cannot bear the weight you put on it here.

The Constitutional patina you put on it is just BrettLaw until the Court holds otherwise, at which point there's no need to do sanctuary anything.

[Brett Bellmore]

My distinction is really the one that I actually expressed: That one set of laws they merely dislike, the other is, no matter how much it offends you, argued to be unconstitutional.

Somin may argue that immigration laws are unconstitutional, the sanctuary states are not, so far as I know, willing to argue that position in court.

The gun sanctuary states, by contrast, expressly take the position that federal gun laws are, not merely bad policy, but unconstitutional.

[MollyGodiva]

There is no legal distinction there. Local sheriffs do not have the authority to interpret federal gun laws. The legal analysis in both cases is the same.

[Brett Bellmore]

On the contrary, it's the difference between, "We don't have to!" and "We're forbidden to!".

[David Nieporent]

arguably unconstitutional.

Brettlaw strikes again!

Hint: if the laws were actually unconstitutional — which they are only in your head — then sanctuary status would be irrelevant since states would be forbidden from enforcing them.

[Brett Bellmore]

Oh, go pound sand. The gun sanctuary states have expressly taken the position that the laws they are providing sanctuary from are unconstitutional. Not merely that they oppose them as a matter of policy.

You can disagree with them all you like, it's still their stance.

Alabama, for instance:

"(4) The State of Alabama hereby declares that any and all federal acts, laws, orders, rules, and regulations related to firearms, firearm accessories, or ammunition are a direct infringement on the Second Amendment to the Constitution of the United States of America and therefore are unconstitutional."

If any immigration sanctuary state has adopted Somin's position that the existence of immigration laws is unconstitutional, it has escaped my notice.

[ReaderY]

But their opinions on the subject just aren’t are legally relevant. When the Constitution itself imposes no obligations on them, states have the power to choose not to cooperate with the feds for any reason they want. Their reason just doesn’t matter.

If the Alabama legislature had passed the same law with a more mudane preamble saying we’d prefer to devote our resources to things we find more important, if had passed it with no preamble at all, it would have made no difference. The law would have had the same legal effect.

[Josh R]

I guess you think (assuming the Tenth Amendment basis for the anti-commandeering doctrine is thrown out) states can refuse to assist in the enforcement of the federal ban on partial-birth abortion because the states believe that law is unconstitutional (notwithstanding SCOTUS has ruled otherwise).

The problem is if merely arguing a law is unconstitutional suffices, that argument is always going to be made, even for immigration. The states haven't done so for immigration because they don't have to.

[ReaderY]

People can disagree about the moral issue. But on the constitutional issue, Professor Somin is basically right here.

People have been comparing this situation to past ones where states defied federal policy, particularly over racial segregation and voting rights in the 1950s and 1960s, and the courts uniformly backed forceful federal intervention, and to a lesser extent to state defiance during the Prohibition era.

Bit there is a fundamental difference between the current situation and these past ones.

The Constitution’s 14th and 15th amendments impose obligations ON STATES with respect to de jure segregation and voting, and give Congress power to enforce those obligations. This in turn empowered Congress to authorize the President to use force to ensure those obligations. The same was true with Prohibition. With the passage of the 18th Amendment, alcohol became prohibited by the constitution itself. The 18th Amendment, which gave the federal government and the states concurrent power to enforce Prohibition, imposed obligations on both. States were not and are not free to defy a constitutional amendment.

But immigration is fundamentally different from both of these cases. The Constitution imposes no obligations on states at all with respect to it. With no obligations, there is nothing for the federal government to enforce against them.

This means that states are free, as separate sovereign powers rather than mere agents of the federal government, not only to decline to cooperate with the federal govermment, but to pursue their own policies which are inconsistent with federal policy.

There are limits to this. The Supremacy Clause says that states have to comply with federal law. But the Supremacy Clause is itself more limited than this administration and its supporters acknowledge. First, only Congress can make federal law. The Supremacy Clause requires states to comply with Acts of Congress. It does NOT require them to comply with executive orders or other presidential pronouncements. And second, the 10th Amendment prohibits the federal government, including Congress, from commandeering state personnel to enforce federal objectives. Congress (and only Congress) can use its spending power to give states incentives to cooperate. But it hasn’t done so. And unless and until it does, states are free to do nothing to help the feds. Moreover, even if Congress uses its spending power to incentivize states to help with immigration enforcement, states remain free not to take the money and to continue with non-cooperation.

The President has no power in any of this. States don’t have to pay any attention at all to anything he says. Only Congress has any power in the matter. And its only lever is a carrot that states can choose to take or not take as they see fit. The constitution gives the federal government no power at all to use force against non-cooperating states.

[Josh R]

As I understand the anti-commandeering doctrine, states do not have to assist in the enforcement of federal anti-discrimination law, but cannot impede federal enforcement. I think the same applies to immigration law.

[JoeFromtheBronx]

"In addition to being constitutionally protected, sanctuary policies are also right and just."

Some argue it is unjust and selectively care about the first part.

When it involves the enforcement of a federal gun law, for instance, they will apply different standards.

In a vacuum, I'm somewhat wary about these "Tenth Amendment" appeals, though there is a long line of precedent (some of which liberal justices didn't support), and that is what we are working with. And that, on top of what policy overall is sensible.

Local discretion is often good policy even if it is not constitutionally required. Again, both in a vacuum and as the law is now applied.