On Monday, January 30, Mayor John Cranley of the City of Cincinnati, Ohio held a press conference to announce that Cincinnati would officially consider itself a “sanctuary city.” Monday’s announcement is largely for show, as official city policy already requires local law enforcement officials to avoid actively involving themselves in immigration enforcement.
As reported by the Cincinnati Enquirer and USA Today, local law enforcement was already prohibited from stopping, detaining, questioning, or arresting a person solely on the basis that the individual may have unlawfully entered the country or overstayed a visa. Cincinnati was also already providing identification cards to illegal immigrants. Perhaps most aggressively, last November Cincinnati created an online portal to help illegal immigrants get jobs and access to education.
To the extent sanctuary cities actively impede federal authorities from enforcing laws, and to the extent sanctuary cities themselves violate federal laws that are constitutionally binding upon them, conservatives can and should actively oppose them. One such law is codified as Section 1373 of Title 18 of the United States Code. That section requires that no local jurisdiction can actively “restrict law-enforcement officials from communicating with federal immigration authorities regarding an individual’s citizenship or immigration status,” as Alexandra Descantis explains in National Review. Based on the Cincinnati Enquirer’s report, it appears Cincinnati does not necessarily go so far as to run afoul of 18 U.S.C. § 1373, although no attempt was made to verify whether that inference is fair or accurate.
These more subversive actions of sanctuary cities aside, one component of the sanctuary city phenomenon involves the level to which local law enforcement officers actively implement federal immigration law. Under current law, local jurisdictions may, but are not required, to enter into agreements with federal authorities to enforce immigration laws. Local jurisdictions are compensated for their cooperation. This is a common scheme for the implementation of federal policy, often illustrated with the metaphor of a carrot leading a horse. The federal government dangles some funding—the carrot—out in front of the local jurisdiction—the horse—in an attempt to lead the jurisdiction to implement the desired policy.
Because of the potential of such a scheme to smother local decision-making, federal courts, including the Supreme Court in several high profile cases, have carefully scrutinized this technique. The scrutiny comes with another great metaphor: if the federal government is too aggressive with its coaxing, what was presented as a carrot by the federal government is seen as a stick by the courts. The principle animating the scrutiny is preservation of federalism. The federal government is within its powers to coax local governments to implement certain policies, but it oversteps the bounds of federalism when it “commandeers” local officials or effectively takes away local governments’ decision-making prerogative. While the specific decision not to enforce immigration laws may rightly bother us conservatives, we nevertheless should recognize our appreciation for the principle of federalism, which gives Cincinnati and other sanctuary cities the space to make such a decision.
Some of the most recent high profile examples of this scrutiny show that principled conservatism and fidelity to federalism in action require resistance to federal commandeering and overly aggressive coaxing. For example, in Printz v. United States, the Supreme Court ruled that the Brady Handgun Violence Protection Act was unconstitutional. The Act put into effect a requirement that the United States Attorney General establish a system for conducting background checks on prospective handgun purchasers. It further required the chief law enforcement officer of local jurisdictions to conduct the checks and implement the system. Counties in Arizona and Montana resisted implementation of the law. In the majority opinion striking down the law, Justice Scalia wrote:
We held [previously] that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighting of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Thus the federal government cannot use a stick to compel local jurisdictions to implement federal policy.
More recently, federal commandeering of local jurisdictions became an issue in the first Supreme Court case to consider Obamacare: National Federation of Independent Businesses v. Sebelius. Although in the dissent, Justice Scalia again wrote on the importance of federalism and the constraints federalism puts on the federal government’s ability to commandeer local jurisdictions. Unlike the Brady Bill in Printz, Obamacare does not directly command local implementation of a federal policy. Instead, massive amounts of funding from the federal government were conditioned on States “choosing” to implement Obamacare within their boundaries.
For Justice Scalia, the truth was clear:
The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of managing a Federal Government large enough to administer such a system. That obstacle can be overcome by granting funds to the States, allowing them to administer the program. That is fair and constitutional enough when the States freely agree to have their powers employed and their employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the States have no choice.”
Thus the federal government can use a carrot to coax local jurisdictions to implement federal policy, but a proper understanding of federalism requires a limit to that authority. Local jurisdictions must be left with an effective choice.
Commentators in both left-leaning and right-leaning media have recently suggested that progressives have re-discovered federalism under Republican control of the federal government. Cincinnati’s decision to declare itself a sanctuary city strikes me as further evidence of that suggestion. By declaring that it will not actively implement federal laws, despite the enticing carrot it could have if it did, Cincinnati declares that local decision-making matters in our federal system. It declares that the federal government is limited in scope and authority. Those declarations should ring true to conservatives who prize federalism, no matter how much we disagree with the substance of the decision. That’s the silver lining of sanctuary cities for conservatives.
If it is true that progressives are coming home to federalism, I enthusiastically welcome them. I only hope that once the federal government is again controlled by elected officials sharing their views, they will remember their dalliance with federalism and remain principled enough to continue to advocate it.
Which brings me to the principal conservative case for not overreacting to sanctuary cities. For at least the last eight years, conservatives have not had effective control of the federal government. During those eight years we championed federalism, even going so far as to prosecute federal lawsuits resisting the implementation of certain federal policies by states and local governments. With control over the federal government now vested in Republican (albeit not necessarily “conservative”) lawmakers and executive officials, we must resist the temptation to betray our fidelity to federalism in favor of exercising power to get results we like.
It’s a prisoner’s dilemma, and the only way to stop progressives from “punishing” conservatives by abandoning federalism when they are in power is to choose not to “punish” progressives by abandoning federalism while it is our turn. That sentiment is not in vogue, and I suspect the President’s most loyal supporters would disagree. But to the extent we wish to advance a principled conservatism in the future, we must resist the temptation to abandon principle in exchange for results.