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“Sanctuary” and Local Government Law

By on May 6, 2020 Categories: , ,

“Sanctuary city”, Wikipedia tells us, “refers to municipal jurisdictions, typically in North America, that limit their cooperation with the national government’s effort to enforce immigration law.” This is not an unreasonable definition. The term sanctuary city first came into modern political and legal parlance in the United States in the 1980s when a handful of cities sought to resist federal government efforts to deport asylum seekers fleeing their violence-wracked Central American homes, and then came to be more generally used to describe a range of local refusals to cooperate with the enforcement of federal immigration law with respect to the detention and removal of undocumented aliens. The association of “sanctuary city” with progressive local jurisdictions resisting federal removal of undocumented aliens remains. The top ten hits for “sanctuary city” on Google after Wikipedia all deal with local resistance to federal immigration law enforcement: The first hit after Wikipedia is the sanctuary city webpage run by the Center for Immigration Studies, an anti-sanctuary organization.

Sanctuary city has long been a bit of a misnomer. As the CIS webpage notes there are sanctuary counties (approximately 130) and sanctuary states (eleven), as well as cities, but until recently the association of sanctuary with progressive resistance to federal (and federally-supportive state) policies has been strong. No longer. Starting around 2013, and spreading rapidly from 2018, a host of counties and cities have declared themselves to be “Second Amendment sanctuaries.” By one count there are over 950 Second Amendment sanctuary counties (roughly 25% of all US counties) and nearly 200 Second Amendment sanctuary cities, towns, or townships. Although the meaning of “Second Amendment sanctuary” is even more indeterminate than alien sanctuary – ranging from expressions of opposition to various firearms regulations, to assertions of refusal to enforce by local authorities, to commitments to provide financial support to local resistance – the rapid spread and scope of the movement is impressive.

Nor is the Second Amendment the only new focus for local sanctuary. There are now “sanctuary cities for the unborn[1] – at least nine cities and one county in East Texas[2]  as well as a handful of small communities in Florida,[3] New Mexico,[4] Utah,[5] and perhaps elsewhere in other states — as well as a website for the movement.[6] As with immigration and firearms, the exact meaning of sanctuary in this context is uncertain – again some combination, inter alia, of declaration of views, prohibition of abortion within the jurisdiction (certainly unconstitutional for now, although none of these jurisdictions have abortion clinics within them) and the purported declaration of Planned Parenthood and other pro-choice groups as “criminal organizations.”

What is the significance of this proliferation of “sanctuary” for local government law? That question can be considered three ways – normatively, operationally, and doctrinally.

Normatively, these new sanctuary movements make clear that there is no normative valence to the local in local-state (or local-federal) disputes. Despite the battles over the new preemption and the origin of the contemporary usage of sanctuary in the effort to protect undocumented immigrants, local is not necessarily progressive. To be sure, one reason the Second Amendment and anti-abortion movements have used “sanctuary” is to troll the left. As the state’s attorney in Effingham County, Illinois, credited with first applying the term in the firearms context explained, “We’re just stealing the language that sanctuary cities use.”[7]  But the use of the notion of sanctuary in this context – as with immigration – resonates with basic features of local government. Small size (at least relative to higher levels of government), Tieboutian ease of exit, and Tocquevillean voice together lead to the differentiation of local preferences and the ability of local residents to use local politics to articulate those distinct preferences. Home rule enables local governments to turn the expression of local preferences into formal law.

The term “sanctuary” in particular suggests that the people seeking “sanctuary” feel themselves to be a relatively small group, excluded from political power in the larger state or national community, and, indeed, threatened by those higher levels or broader political, cultural, or social trends. With local government-as-sanctuary they can use law to express their challenge to what they perceive as a dominant opposition, and create a formal legal and political space beyond the control of these perceived-as-hostile outside forces.

This sense of small local unit as haven in a hostile world resonates with a prominent earlier use of “sanctuary” in local government law — Justice Douglas’s validation of traditional-family residential zoning in Village of Belle Terre v. Boraas.[8]  The Supreme Court determined that the Village could use the police power to “lay out zones where family values, youth values” could flourish and so be “a sanctuary for people” – an escape from the surrounding area, just as Second Amendment sanctuaries and unborn city sanctuaries seek to escape from higher level regulations. But as with Belle Terre’s restrictive zoning there is nothing particularly progressive about that.

Operationally, the sanctuary movements underscore how much the implementation of higher level public policies requires the active support of local officials. Firearms background checks and limits on the purchase of guns or gun accessories won’t be enforced unless local officials are willing to do the enforcing; undocumented aliens in local custody won’t be detained unless local officers are willing to detain and the citizenship status of people interacting with local government – the frontlines of government as the COVID-19 crisis underscores – won’t be determined unless local employees ask. Even when, as in the firearms context – which currently involves a primarily state-local conflict – the higher level government has the legal authority to order – or, “commandeer” – the lower level to carry out its bidding and follow its orders, not much will happen unless the higher level government is willing to actually force the issue and punish or remove recalcitrant local officials. Some states supportive of the enforcement of federal immigration law have begun to move in that direction, at least with punitive measures that provide for the removal of local officials or the imposition of financial penalties on local officials or local governments.

Doctrinally, the sanctuary movement has so far only been tested in the immigrant context where – perhaps paradoxically — it has served to underscore the hierarchical superiority of the states. The Fifth Circuit upheld Texas’s law preempting local immigration sanctuary measures, with the exception of the portion of the law that sought to punish pro-sanctuary speech of local elected officials and so was held to fall afoul of the First Amendment. And, from the opposite direction, California as a sanctuary state recently prevailed against a claim by more conservative localities that the California Values Act (CVA), which restricts the ability of local law enforcement agencies to inquire into immigration status, place individuals on an immigration hold, and use personnel or resources to participate in certain immigration enforcement activities, infringes on the authority of charter cities under the state constitution to create, regulate, and govern their police forces. The California constitution is the among the most locally-protective in the country for charter cities but a state appellate court sustained the application of the CVA to charter cities on the theory, set out in the legislature’s findings, that it advances the statewide interests in public safety, public health, the treatment and welfare of immigrants, and the protection of constitutional rights. The court reasoned that uniform application of the CVA throughout the state was necessary to ensure it achieves its statewide concerns. The court also found that the law was narrowly tailored and intruded on municipal control of the police only to the extent necessary to achieve its goals.[9]

As far as I know, states have not passed measures attempting to preempt local Second Amendment sanctuary ordinances, nor have those laws otherwise been challenged. As a matter of general home rule analysis, a state law displacing such an ordinance ought to prevail. The one uncertainty is the murky nature of current Second Amendment doctrine, which could allow firearms sanctuary localities to argue that the state laws they are resisting violate the federal constitution. It is unclear whether they would have standing to assert the Second Amendment claim, either because under Hunter v. City of Pittsburgh and its progeny local governments generally cannot assert federal constitutional claims against their states or whether, even under a narrower reading of Hunter they would be able to assert Second Amendment rights of their own.

The very uncertain legal basis for the local defense of sanctuary measures against state displacement underscores just how much they represent an expression of local political values and an assertion of the operational importance of local governments to the implementation of higher level policies. As such they are a perfect exemplar of the place of local government in our system: formally legally weak, but politically and operationally significant. Local governments may not often prevail in head-to-head conflicts with their states but their actions matter, both for their residents and for their engagement with broader legal, political, and cultural debates.

[Ed. note: This post is part of series of guest posts from scholars at the Center’s recent colloquium on Localism, Popular Constitutionalism, Preemption, and Firearms.]