In its executive orders, the Trump administration announced plans to enforce immigration law more aggressively, and recruit state and local governments to help. The plans include punishing “sanctuary cities” by withholding federal funds. What does “sanctuary” mean? And what are the rights of state and local governments to resist a role in immigration enforcement?

Sanctuary is historically a church-based movement, rooted in faith, as an assertion of a first amendment right to act in accordance with one’s religious beliefs. This is different than labeling a city or state a place of sanctuary. While some municipalities call themselves sanctuary, others call it asserting their law enforcement goals and priorities.

Understanding the Rights of State and Local Governments

To understand the rights of state and local governments in immigration enforcement, we asked Cristina Rogríguez, Professor of Law, Yale Law School. Her expertise includes constitutional law and theory; immigration law and policy; and, administrative law and process. Ms. Rodriguez cites these important strategies for localities and states that don’t want to participate:

  • Don’t sign the “287(g)” agreement. This is a federal program to deputize local law enforcement to carry out immigration enforcement. Municipalities are not required to participate in the program.
  • Governments need not honor ICE holds or detainers at all, or they can choose to respond only to those involving a non-citizen who has committed an offense the jurisdiction deems serious. ICE can issue a detainer notice, asking a jail to hold someone until ICE picks them up. But the jail can release a person who is otherwise eligible for release under state law. In some jurisdictions, federal courts have found continued detention beyond the state law purpose violates the person’s 4th amendment rights. Though the law is developing on this issue, a local jurisdiction could be found liable for a Fourth Amendment violation if no probable cause or warrant exists for the non-citizen in question.
  • Invoke 10th amendment Constitutional rights. States successfully challenged federal power in Printz v. U.S. (1997). The Supreme Court reviewed provisions of a federal handgun control law, and found that requiring local law enforcement officials to enforce a federal regulatory program was “fundamentally incompatible with our constitutional system of dual sovereignty.” States can argue that requiring state and local enforcement of federal immigration law violates the state’s sovereignty.
  • Cite limits to the spending clause doctrine. Congress can offer funds to states, and set conditions for the funding. But there are Constitutional limits to what is permissible under the spending clause. In a recent Supreme Court decision, National Federation of Independent Business v. Sebelius (2012), States successfully challenged provisions of the Affordable Care Act that would have “punished” States by withholding all Medicaid funds if they failed to comply with the ACA’s expanded Medicaid coverage requirements. This and other Supreme Court precedent may help so-called “sanctuary cities” challenge a federal funding penalty for failure to enforce immigration law.

Cities, counties, and states have strong legal arguments against enforcing immigration law. They can choose to not enter into agreements with federal law enforcement, decline ICE detainer requests, and assert Constitutional rights. Advocates can support local and state policies that follow their own enforcement priorities, or seek to provide sanctuary and humane treatment to the people who live in their community.

We interviewed Cristina Rogríguez, Leighton Homer Surbeck Professor of Law at Yale Law School and faculty member for the Practising Law Institute’s Annual Supreme Court Review, for this blog. Cristina’s research interests include constitutional law and theory; immigration law and policy; administrative law and process; language rights and policy; and citizenship theory.