On Dec 22 2016 by William A. Stock

Past Legal Victories Will Help Phila. Defend Its Immigration Policy

One of the first policy battles the incoming administration will face with cities and states around the country, including Philadelphia, is the ­extent of federal power to conscript local law enforcement to assist with enforcing the civil immigration system. Since the election, Philadelphia Mayor Jim Kenney has repeated his commitment to insisting on appropriate limits of federal power within the city, causing opponents to label Philadelphia a "Sanctuary City."

The battle over states’ role in ­enforcing federal law is as old as the republic. Shortly after the Constitution took effect, one of the most contentious issues ­between the states and federal government was whether the instruments of state police power—reserved to the states by the Tenth Amendment—could be conscripted by those seeking to enforce federal law. The battles in the early 19th century over the ability of states to limit their cooperation in enforcement of the Fugitive Slave Acts. The commonwealth of Pennsylvania lost an early Supreme Court battle over its ability to bring kidnapping charges against “slave catchers” from Maryland. That case established the principle that states, given the Supremacy Clause of the Constitution, could not take measures to thwart federal laws in their territories.

As a general matter, however, so-called “sanctuary” cities do not bar or inhibit ­federal law enforcement within their ­boundaries. Rather, they insist generally to instruct their law enforcement organizations to conduct business without regard to residents’ immigration status. Such status, after all, is normally irrelevant to local law enforcement’s concerns. In fact, having a policy of regularly inquiring into ­immigration law status frequently deters immigrants, and those in mixed-status families, from reporting crimes. Domestic violence ­advocates, for example, point out that abusers ­frequently use the threat of reporting a spouse to immigration in order to continue the abuse.

Cities with so-called “sanctuary” ­policies, in fact, are simply upholding an important principle in our federal system: states and localities may have different enforcement priorities than the federal government. During Prohibition, for example, the state of Maryland never enacted a law making possession or manufacture of intoxicating liquors ­illegal. Likewise today, many states have de-criminalized the possession of small amounts of marijuana, even though such possession continues to violate the federal Controlled Substances Act.

Congress has tried, on several occasions, to force states into providing resources for federal efforts. The Supreme Court, however, has generally not allowed Congress to “commandeer” the resources of the states for federal purposes. In 1992, for example, the Supreme Court issued its ­decision in New York v. United States, in which it held that Congress could not compel states to enact waste ­disposal regulations in pursuit of a broader federal environmental goal. The Supreme Court has not allowed Congress to commandeer even relatively trivial resources from states. In 1997, the court struck down a federal requirement that state and local police provide background checks on gun purchasers in Printz v. United States.

The Printz ­decision is important for understanding why mandatory cooperation with federal ­immigration enforcement implicates Tenth Amendment commandeering concerns. In a typical situation, law enforcement takes custody of an individual pursuant to a criminal arrest or warrant. During that custody, a determination is made as to whether the criminal ­process requires the custody to be prolonged, or if the arrestee is to be released. It is at the point of release that an immigration “detainer” becomes relevant: such detainers are requests from federal immigration authorities that the local police prolong the detention of the arrestee beyond what is needed for local law enforcement purposes. In Printz, state and local officials only needed to run a background check. With an ­immigration detainer, the state or local authority must go far beyond a background check, using jail space and personnel for up to 48 hours while awaiting U.S. Immigration and Customs Enforcement.

The next question arises as to whether states and localities can be coerced, through threats of cuts to federal funding, into ­assisting with immigration enforcement. Here again the Supreme Court held that Congress could not coerce states through threatening existing funding streams. In NFIB v. Sebelius, the 2012 case holding the Affordable Care Act’s Medicaid expansion unconstitutional, U.S. Supreme Court Justice John Roberts wrote, “Congress may use its spending power to create incentives for states to act in accordance with federal policies. But when pressure turns into compulsion, the legislation runs contrary to our system of federalism.”

The president-elect has made ­increasing immigration enforcement a particular campaign promise, and cities and states that disagree with this policy priority have stated that they will not cooperate with such efforts. In the coming months, we will no doubt see extensive efforts both in Washington and Harrisburg to enact bills restricting funds to cities labeled “sanctuaries” and to force state and local efforts in federal immigration law ­enforcement. States and cities will be able to push back, however, using federalism arguments first deployed against expansion of ­federal ­environmental and gun control regulation. In doing so, they will be making a ­statement not only about their own ­immigration policy priorities, but also the continued viability of state sovereignty in our federal system.

Reprinted with permission from the December 22, 2016 edition of the The Legal Intelligencer© 2016 ALM Media Properties, LLC. All rights reserved.

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