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Separating the wheat from chaff (Luke 3:17)
The term “sanctuary city” has no legal meaning or significance. It is a term that does not have a precise definition and, as a result, creates confusion and misunderstanding. The term “sanctuary” implies immunity from the law. As we will see, no state, county, or city can provide an unauthorized alien immunity from federal immigration law.
Facts about Immigration: Separating the wheat from chaff (Luke 3:17).
The “Sanctuary” City:
“There…is…no…sanctuary!”
“That does not compute Logan 5…”
Logan’s Run 1976
The term “sanctuary city” has no legal meaning or significance. It is a term that does not have a precise definition and, as a result, creates confusion and misunderstanding. The term “sanctuary” implies immunity from the law. As we will see, no state, county, or city can provide an unauthorized alien immunity from federal immigration law.
1.The historic roles between federal and state law enforcement
Before we try to define this elusive phrase, it is important to note that generally federal law trumps state law. See Art. VI, Sect. 6, United States Constitution. Additionally, the “[p]ower to regulate immigration is unquestionably exclusively a federal power.” DeCanas v. Bica, 424 U.S. 351, 354–55 (1976). Thus, no state, county, or city can offer legal immunity to an individual that has violated federal immigration law. Historically, there has been a clear division of duties between federal immigration officials and local law enforcement. A 2006 Congressional Research Service Report (“CRS”) summed the relationship this way:
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“Congress defined our nation’s immigration laws in the Immigration and Nationality Act (INA) (8 U.S.C. §§1101 et seq.), which contains both criminal and civil enforcement measures. Historically, the authority for state and local law enforcement officials to enforce immigration law has been construed to be limited to the criminal provisions of the INA; by contrast, the enforcement of the civil provisions, which includes apprehension and removal of deportable aliens, has strictly been viewed as a federal responsibility, with states playing an incidental supporting role.”
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You can read the whole report here: http://www.ilw.com/immigdaily/news/2006,0912-crs.pdf. There are many reasons why some local law enforcement agencies and municipalities have been reluctant to take on the historically federal responsibility of detention and deportation. These local entities cite their lack of training, manpower, resources, money, the potential for civil rights violations, and the erosion of trust by the local community that such activities may cause.
Sanctuary in 1980s
In the late 1980s, the “sanctuary movement” occurred. During that time, there were some churches that provided sanctuary to thousands of unauthorized Central Americans that had fled the civil wars in their homelands. The “sanctuary movement” churches provided social services to these immigrants and engaged in various acts of civil disobedience. Some of these acts included actively hiding or harboring aliens or refusing to cooperate with federal authorities even if required them to do so by law. Read about it here:
http://www.newsanctuarymovement.org/build-tradition.htm
Also during this time, some states and municipalities passed various laws or implemented certain policies that restricted local law enforcement from performing historically federal functions. For example, in 1987, Oregon passed Statute §181.850, which prohibited state and local law enforcement personnel from using state money and equipment “for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws.” The statute did not prohibit the exchange of information with federal immigration officials in order to verify an arrested individual’s immigration status nor did it prohibit the arrest of an undocumented immigrant pursuant to a federal warrant. Likewise, in 1989, San Francisco passed the "City and County of Refuge" Ordinance. It prohibited city employees from helping immigration officials with immigration investigations or arrests unless such help is required by federal or state law or a warrant. You can read about it here:
http://www.sfgov.org/site/sanctuary_index.asp.
Legislative, Judicial, and Administrative responses
In 1996, Congress passed Section 434 of the Welfare Reform Act. It states in relevant part:
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Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.
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A similar provision is found in Section 642 of the Immigration Reform Act. New York City challenged the law in federal court but the provision was upheld and is the current law today. See New York v. United States, 179 F.3d 29 (2nd Cir. 1999). It is important to note that this federal law does not require states, counties, or cities to inquire about immigration status or even report immigration status. Rather it merely prohibits those entities from specifically restricting their employees and agents from relaying such information immigration authorities.
In 1997, the United States Supreme Court has ruled that federal authorities cannot direct state or local law enforcement officials to administer or enforce a federal program. See Printz v. United States, 521 U.S. 898, 922 (1997). Thus, Congress cannot force state and local police agencies to enforce federal immigration law. As a result, the federal government has attempted to enter into certain agreements with local law enforcement agencies in order to administer immigration enforcement at the local level. See 8 U.S.C. §1357(g). These types of agreements are called “cooperation” agreements. According to U.S. Immigration Customs and Enforcement (“ICE”), there are 55 such agreements with various local law enforcement agencies in 18 states across the country. Read it here: http://www.ice.gov/partners/287g/Section287_g.htm.
Usage of the term “Sanctuary City”
Those cities that have opted not to inquire about their resident’s immigration status or not enter into “cooperation” agreements with federal immigration officials have been termed “sanctuary cities.” The 2006 CRS report states:
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“Most cities that are considered sanctuary cities have adopted a “don’t ask-don’t tell” policy where they don’t require their employees, including law enforcement officers, to report to federal officials aliens who may be illegal present in the country.”
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The CRS report then lists 32 cities as having such “sanctuary policies.” It is important to note that the CRS puts “sanctuary policy” in quotes because its definition is elusive.
For example, Austin, Texas is listed in the CRS Report as one of the “sanctuary cities.” Indeed, the city was sued by the parents of a slain woman who was killed by an illegal alien. The family claimed that Austin’s unofficial “sanctuary policy” contributed to her death. In the lawsuit, the city denied that it had such a policy and a federal judge later dismissed the lawsuit on various grounds.
See here:
http://www.statesman.com/news/content/news/stories/local/05/04/0504jailann.html.
Irrespective of its denials and the outcome of the lawsuit, Austin is still considered a “sanctuary city” by some. Houston, Texas, on the other hand, does have a formal policy which forbids its police officers from inquiring about the immigration status of people they encounter. Some claim this makes it a “sanctuary city” as well. See here: http://www.chron.com/CDA/archives/archive.mpl?id=2006_4140457
Summary
As noted earlier, the term “sanctuary city” has no legal significance. It also does not have a precise definition. It is generally used to signify states, counties, or cities that don’t require their law enforcement officers to report the names of potential illegal aliens to federal officials.
It is also a phrase that has grown out of the convoluted relationship between federal and state agencies. The federal government cannot force local law enforcement to detain or deport illegal aliens since that is a federal function. The federal government and local authorities can enter into agreements which give those local agencies authority to enforce federal immigration law. Such agreements are, however, strictly voluntary. Currently, only 55 cities and counties in 18 states have entered into such agreements with the federal government.
A series of 1996 federal laws prohibits states, counties, and cities from restricting their employees from relaying information about someone’s immigration status to the proper federal authorities. The laws, however, do not require states, counties, and cities to report individual illegal aliens to the authorities. Finally, since immigration law is federally based, no state, county, or city can provide legal immunity to an individual in violation it.
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