The name “Sanctuary Cities,” which has been absurdly borrowed by Sanctuary Campuses because college administrators adore meaningless words and realize their frightened students are so utterly clueless as to substance that they could tell them anything and the dumbass kids would believe it because they so desperately want to, is where it starts. We’re so wrapped up in empty words that it’s unclear what words are “permitted” to describe the nice folks who benefit from sanctuary cities.
Are they undocumented aliens? Illegal immigrants? Would they give a damn what they were called if they could be left alone and not deported? Those who obsess over the words tend not to be the nice folks trying to stay below the radar, but their privileged champions who believe that if you don’t call them “illegals,”* people will like them better and not notice that they’re here illegally. Will it work? Beats me. A lot of people seem far more concerned these days with words than substance.
But here’s the part that teary-eyed advocates prefer not to discuss: These are people who have entered or remained in the United States illegally. They’re not bad people because of their nationality. They’re not bad people because they commit crimes once here, though some do while others don’t. But they have violated immigration law. They are here illegally. Get over it.
That has nothing to do with the policy implications of what to do about people here illegally, but that they are here illegally is beyond dispute. Conflating the policy question, whether deporting people, forcing them to hide, denying them benefits such as education and health care, or turning a blind eye to their immigration status when providing “privileges” such as a driver’s license, is an entirely different matter. It doesn’t change the fact that they are in the United States in violation of federal immigration law.
Harvard lawprof Noah Feldman, who has undertaken the role of chief progressive legal confabulator, says, “Ha, feds!!! Your beloved conservative justices make it impossible for you to do anything about ‘Sanctuary Cities’!!!”
Two core rules of federalism preclude Trump’s idea: The federal government can’t coerce states (or cities) into action with a financial “gun to the head,” according to Supreme Court precedent developed by Chief Justice John Roberts in the 2012 Affordable Care Act case. And federal officials can’t “commandeer” state officials to do their work for them under a 1997 decision that involved gun purchases under the Brady Act.
Behold the revenge of conservative federalism: Judge-made doctrines developed to protect states’ rights against progressive legislation can also be used to protect cities against Trump’s conservative policies. Ain’t constitutional law grand?
Note the absence of anything remotely resembling a rational argument? That’s not an accident. Feldman’s claim is utter, unadulterated gibberish, of the sort that would be fortunate to muster a D- if he wrote that in a law school paper. It’s total nonsense, but the sort of nonsense that people who want to believe will latch onto because, well, he is a Harvard law professor so he couldn’t possibly be that much of a blithering idiot.
And, of course, he’s hardly an idiot. He’s an advocate, and he’s trying his best to make people stupider to sell his cause. But he’s shooting blanks. He’s got nothing. He gets a C for effort, but an F for substance.
For all the heartfelt descriptions of what illegal aliens do for America, and they do a lot, not the least of which is pay taxes, their supporters studiously avoid mentioning the only thing that distinguishes them from every other nice person walking down the street: they are here illegally.
At the New York Times Room for Debate, the question was posed whether cities have “a right” to “defy Trump.” The bias is given away in the question. The issue isn’t Trump at all, but federal immigration law. The same immigration law relied upon by President Obama to deport more illegal aliens than the totality deported by all presidents before him.
But having made deportation a cornerstone of his campaign, because you didn’t care too much when the Obama administration deported 2.5 million illegals, the Times ignores history to create the appearance that this never happened before and will suddenly be a problem when Trump takes office.
Under the headline, “Sanctuary Cities Have a Legal Right to Defy the Federal Government,” Cesar Vargas, New York’s first openly undocumented alien lawyer, argues:
It is not only legally defensible but crucial to our national security for cities and states to be allowed to pass and uphold sanctuary laws to assure taxpaying residents — regardless of immigration status — that their local government will protect them from federal overreach.
Whether or not it’s “crucial” is a policy argument. Whether it’s “legally defensible,” having forfeited from the first sentence any claim to cities having a “right” (people have rights; governments have authority) is the open question. Vargas tries to leap over the primary question, because maybe nobody will notice if he goes straight for the policy argument.
It is fundamental principle for any local, state or federal sovereign to have discretion over how it will enforce its laws. As the Supreme Court noted in Heckler v. Chaney, an enforcement agency’s decisions should reflect “factors which are peculiarly within its expertise.” Localities, not Washington bureaucrats, are best suited to determine local law enforcement according to a multitude of factors, in any given situation.
This is why Feldman got a D- rather than an F. Room was needed for someone to make a worse argument, and Vargas filled the gap. Immigration is left exclusively to the federal government, and the Supremacy Clause demands that states and local governments adhere to its laws. This isn’t hard stuff.
But the question of what constitutes a putative sanctuary city remains open, as cool phrases are rarely a substitute for actual definitions. Nobody has ever demanded that local cops roam the streets in search of illegals. What is expected is that when someone is arrested for a local crime, their immigration status is forwarded to Immigration and Customs Enforcement for disposition. If they’re incarcerated, and ICE filed a detainer (a request to hold the individual rather than release him back onto the streets), they expect that local jails and prisons will comply.**
What if they don’t? Then the feds say they will refuse to give them money. There is a lot of “cooperation” between various levels of law enforcement, such as asset forfeiture sharing and criminal record sharing, that both rely upon. While the feds could theoretically send in troops, pulling funding is a lot easier.
Can it be done? Remember Attorney General Loretta Lynch’s transgender bathroom letter to North Carolina? I know you do. And that didn’t even have law behind it. Does this make the policy good or bad? That’s a fair question, and one that would be worthy of serious discussion if people weren’t rendered incapable by language tricks and absurd references to irrelevant Supreme Court opinions and were capable of distinguishing law from policy.
But on the question of law, there is no such thing as a Sanctuary City (and don’t even mention the ludicrous sanctuary campus crap), and there is no “right” for local governments to defy federal immigration law. There is no policy discussion that can be premised on lies and nonsense, and none that ignores the one critical fact: the people under discussion may be absolutely lovely, but they are here illegally. So what are we gonna do about it?
*Calling undocumented immigrants “illegals” is deemed offensive and reductivist, as most are human beings who have come here to pursue a better life for themselves and their family, just as our predecessors did. But the inability to get beyond the “offense” and “outrage” of the word makes any serious discussion impossible. Remember, you can always hit the pink button on the sidebar if this is more than you can take.
**You should note that the focus here is on people either arrested for, or convicted of, separate criminal offenses. Some may be trivial. Some may be significant. Some may not be guilty of anything, but have taken pleas of convenience or been wrongfully convicted. Do not leap to the conclusion they are all guilty or evil, but also don’t pretend they are all sweet and law-abiding victims of the system. Some are victims. Some are killers. It’s not always simple to tell who’s who.