Document Type

Article

Publication Date

4-1-2019

Abstract

A new front in the war against sanctuary cities has emerged. Until recently, the fight against sanctuary cities has largely focused on the federal government's efforts to defund states like California and cities like Chicago and New York for resisting federal immigration enforcement. Thus far, localities have mainly prevailed against this federal anti-sanctuary campaign, relying on federalism protections afforded by the Tenth Amendment's anticommandeering and anticoercion doctrines. Recently, however, the battle lines have shifted with the proliferation of state-level laws that similarly seek to punish sanctuary cities. States across the country are directly mandating local participation, and courts thus far have upheld those state policies. These laws, like Texas's S.B. 4, prohibit local sanctuary policies and impose severe punishments on the cities and officials that support them. This new state-versus-local terrain has doctrinal, political, and normative implications for the future of local government resistance to immigration enforcement. These implications have thus far been undertheorized in immigration-law scholarship. This Essay seeks to change that.

This Essay is the first to focus on this emerging wave of state anti-sanctuary laws. In so doing, it makes three contributions. First, descriptively, the Essay documents the upsurge of anti-sanctuary laws that have appeared across the United States and explains how they differ from prior anti-sanctuary laws. Second, doctrinally, it argues that the passage of these laws nudges sanctuary cities to uncharted legal territory in immigration law--localism. Under conventional localism principles, state anti-sanctuary laws are in a position to more fully *838 quash local sanctuary policies and effectively conscript local officials into federal immigration enforcement. However, the draconian structure of state anti-sanctuary laws provides a unique context in which to advance what we call “immigration localism” claims and protect three distinct interests that concern local governments: structural integrity, accountability, and local democracy. Third, normatively, this Essay contends that immigration localism provides a more accurate descriptive and theoretical account of how current immigration enforcement operates and promotes community engagement with immigration enforcement. Specifically, the reorientation toward localism accounts for the powerful role that cities play in immigration enforcement and decenters the federal government's dominant role in that enforcement. To be sure, this Essay recognizes that casting a theoretical gaze toward local discretion may end up emboldening the most exclusionary impulses of localities and supporting local anti-sanctuary policies. In the long run, however, local discretion in immigration enforcement is likely to better serve the interests of noncitizens and citizens alike.

Publication Title

Columbia Law Review

First Page

837

Last Page

893

Required Text

This article originally appeared at 119 Colum. L. Rev. 837 (2019). Reprinted by permission.

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