States’ Rights: Sanctuary Cities

For the many millions who came to the shores of the New World (and still come) the call of America is not first heard as a bell of liberty, or the cha-ching of material riches. The call of America is actually in some sense a silence - a lacking of the expected overbearance, it is a blank sheet of music; it’s the call of exoneration. America was built on this reprieve, and its construction continues.

This exceptional amnesty is not a harbor for villains and miscreants; it is a sanctuary for the dreamers, and those who do not dare to dream as well. The great cities like New York didn’t solely serve as the port of entry for the immigrants who helped to seed the nation, they were the first and most resounding silence to caress weary and desperate ears. As E. B. White said of New Yorkers in his essay Here Is New York, they “are to a large extent strangers who have pulled up stakes somewhere and come to town, seeking sanctuary or fulfillment or some greater or lesser grail.”

The American sanctuary is now however, that which it was born to oppose - a point of conflict and assumption. The ignorantly pejorative term ‘Sanctuary Cities’ has been introduced to the public lexicon, and the Trump Administration intends to drown out that exceptional American amnesty with the fumbling racket of false nationalism.

What are ‘Sanctuary Cities’?

 Sanctuary cities are not legally defined entities. Rather, the term ‘sanctuary city’ is an informal label that describes a jurisdiction - be it a country, city or state; that does not require law enforcement officials to ask people about their immigration status. This term is so informal in fact, that it is applied based on perception. Over 200 cities and jurisdictions in the United States are deemed ‘sanctuaries’.

The ambiguity of the term ‘sanctuary city’ was enough to warrant a meeting between Attorney General Jeff Sessions and prominent mayors to define the term. Sessions defined the term as a jurisdiction that violates a section of law known as 1373. U.S. Code 1373. A law that prohibits any Federal, State, or local government entity or official from in any way restricting the communication of information to or from the Immigration and Naturalization Service, regarding the citizenship or immigration status, lawful or unlawful, of any individual. Sessions narrowly defined a sanctuary city as a jurisdiction that violates 1373. 

Trump Administration:

President Trump and his Department of Justice (DOJ) Attorney General Sessions have both reiterated their intentions to withdraw federal grants to sanctuary cities if they do not comply. The cutting of funding to the so called ‘sanctuary cities’ was part of Trump’s campaign promises to deport illegal immigrants. Trump signed an executive order in January on immigration to this end.

The DOJ sent nine of these jurisdictions threatening letters listing the grants to law enforcement that the federal government may cut if their apparent violation of 1373 was not rectified. These jurisdictions, which include the state of California, and cities such as Chicago and New York, were told: “Failure to comply with this condition could result in the withholding of grant funds” or “suspension or termination of the grant.”

Sanctuary Defense:

 The mayors or governors of these ‘sanctuary cities’ argue that they’re not co-opting federal funds in a concerted effort to allay federal immigration laws, but rather they don’t require their law enforcement officers to ask such overtly discriminatory and intimidating tactics because they would discourage undocumented immigrants from reporting crimes, cooperating in investigations, enrolling in schools, or seeking healthcare.

Many ‘sanctuary city’ leaders around the nation have spoken out against the Trump Administration’s divisive action. New York’s mayor Bill de Blasio stated outright that “We are not going to sacrifice a half-million people who live amongst us, who are part of our communities, whose family members and loved ones happen to be people in many cases who are either permanent residents or citizens – we’re not going to tear families apart.”

State of Affairs:

However, the bark of the Trump Administration, as is its MO, is seemingly worse than their bite. Firstly, a TIME examination of the grants mentioned by the DOJ find them to be relatively small. Additionally, many of the grants cited in the DOJ letters relate directly to law enforcement services, and in Trump’s executive order, grants that are “necessary for law enforcement purposes” are to be spared.

Moreover, numerous legal scholars argue that the action is unconstitutional anyway. In fact, according to constitutional law scholar Noah Feldman, it is Chief Justice John Roberts’ opinion in NFIB v. Sebelius which established that Congress is unable to “create a funding condition that is unrelated to the original funding purpose and is so coercive that it amounts to a ‘gun to the head’ of the states.” In other words, the Federal Government can’t cut grants to departments other than law enforcement either. So after the Trump Administration shot itself in the foot with its January executive order, they appear now to have pointed the gun at their own heads as well.

A federal judge in California has already blocked Trump’s executive order in two Northern California communities. U.S. District Judge William Orrick said the executive order likely violates the 5th and 10th amendments. “The Constitution vests the spending powers in Congress, not the president, so the order cannot constitutionally place new conditions on federal funds,” wrote Orrick. However, the preliminary injunction that Judge Orrick passed doesn’t block the Trump Administration from enforcing existing conditions of grants or forming new regulations.

Judge Orrick’s ruling is a sign of relief for Santa Clara County, the city of San Francisco, and several other Californian districts. Indeed, Orrick ruled that even if the federal threat was empty - the very implication of it “caused budget uncertainty.” The ruling is, however, only a preliminary action, and does not find the executive order unconstitutional, but it has set the stage for a broader constitutional challenge in other courts.

The fight is not yet over of course, but it is not looking good for Trump. After all, these ‘sanctuary cities’ are some of the most powerful jurisdictions in the nation. Their power comes from the plurality fostered in their diverse citizenry as a result of the blank sheet they offered to the world’s brightest and most ambitious. It is what drew a young writer like myself from a far corner of the world. It is why E. B. White described New York as being “to the nation what the white church spire is to the village – the visible symbol of aspiration and faith, the white plume saying the way is up.”