The debate over American immigration policy reflects deep moral divides over the meaning of American identity and the scope of fundamental individual rights like due process and the freedom of movement. Although the modern American immigration system no longer includes facially racist laws such as the Chinese Exclusion Act or other ethnic quotas, racial animus and nativist views continue to color its rhetoric and enforcement. The American immigration regime is thus inextricable from issues of racial injustice. Even when the government is guided by animus and stereotypes, noncitizens, especially undocumented immigrants, often face a legalized “othering” due to the federal government’s broad discretionary power over immigration. In response to the federal immigration regime, jurisdictions have diverged on whether and how to participate in federal immigration enforcement. While some jurisdictions choose to assist federal immigration officials, others have emerged as “sanctuary” jurisdictions, opting to limit their participation in the current federal scheme of apprehension, detention, and removal of suspected violators of federal immigration laws.
The divide between the federal approach and those of sanctuary jurisdictions reflects a disconnect between how different jurisdictions view the undocumented individuals in their communities and the impacts they have. Under federal law, undocumented individuals are effectively treated as an out-group subject to the risk of removal at the government’s discretion. However, nationwide, undocumented immigrants make up a large contingent of the American population and workforce. By some estimates there are over eight million undocumented individuals in the American workforce contributing to the American tax base without reaping many of the benefits of taxpayer programs. One study estimated that in 2010, undocumented immigrants collectively provided over $12 billion more in payroll taxes than they received in benefits. With an undocumented population upwards of ten million individuals, nationwide attention to the issue of immigration is no surprise.
However, the country’s undocumented population comprises more than abstract nationwide statistics. Immigrants of all statuses are often intertwined with, and active members within, their communities. As a result, the debate over whether to adopt sanctuary laws is an incredibly local one. As one paper acknowledged, “[sanctuary] policies are often enacted in response to uniquely local concerns: trust between police and residents, the efficient allocation of scarce municipal resources, and the need to clearly define the roles and responsibilities of local officials.” Federal law determines which individuals may be targeted for deportation, whether a pathway to citizenship or permanent residency exists, and the extent to which individuals may seek access to employment and other benefits. Yet, many of the economic and human costs of its enforcement are felt at the state and local level by communities that do not subscribe to the views of the federal immigration regime.
Disagreement over the perception of undocumented immigrants between federal officials, who hope to enforce the federal immigration regime, and states and localities, which seek to protect their undocumented residents, drives the conflict between federal enforcement of immigration law and passive resistance through sanctuary jurisdiction policies.
Critics who make broad assertions that sanctuary policies are illegal or unconstitutional misunderstand the constitutional underpinning of these policies. While the Constitution leaves much of the power to regulate immigration to the federal government, the Tenth Amendment’s reservation of non-delegated authority to the states is meant to protect the exact types of decisions that sanctuary jurisdictions have made: the right not to participate in federal regulatory schemes. Federal immigration law contemplates a system of cooperation between states and the federal government. However, contrary to the views of those that challenge sanctuary policies, the Tenth Amendment also contemplates a system of “uncooperative federalism” where states’ non-participation acts as a practical limit on federal power. By choosing not to cooperate with federal immigration officials, sanctuary jurisdictions require the federal government to absorb the costs of its policies. The second Trump Administration’s renewed efforts to target sanctuary jurisdictions and coerce them into participating in federal immigration enforcement is contrary to the balance the Constitution creates between the powers of the federal government and the states.
At the forefront of the conflict over the legality of sanctuary policies is a provision within the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) that prohibits states from restricting state and local officers and agencies from sharing information regarding an individual’s immigration status with federal immigration authorities. The Act, codified at 8 U.S.C. § 1373, runs afoul of the Tenth Amendment’s anti-commandeering doctrine by dragging unwilling states into the federal government’s immigration enforcement scheme. The anti-commandeering doctrine stands for the principle that the federal government cannot compel states to legislate or enforce federal regulatory schemes. Section 1373 violates this rule by barring state and local governments from restricting their officers’ ability to share immigration information with Immigration & Customs Enforcement (ICE). This effectively grants officers unfettered discretion to use state and local resources on efforts to share immigration status information with ICE in order to aid in the enforcement of federal immigration law, regardless of state or local law that says otherwise. This creates many of the costs and harms that underlie the anti-commandeering doctrine; attempts by Congress and ICE to conscript states into federal immigration enforcement do not escape the doctrine’s limits on federal authority simply because that conscription requires only the sharing of information with the federal government.
This Comment proceeds in three Parts. Part I provides a description of the role that states and localities have in resisting or affirmatively participating in immigration enforcement and a basic taxonomy for how sanctuary policies operate, informed by open questions in the Tenth Amendment’s anti-commandeering doctrine. Part II describes both the origins and themes that have guided the Supreme Court’s anti-commandeering jurisprudence. It also explores the evolution of the contours of the anti-commandeering doctrine and the open question of whether the doctrine contains an “information-sharing exception.” This Part raises a new argument within the anti-commandeering debate. By looking to the goals the anti-commandeering doctrine is meant to serve—namely dual sovereignty, political accountability, and cost shifting—even if an exception for information sharing exists, the initial principle that states may not be compelled to administer or enforce federal regulatory regimes can act as a check on the exception.
Part III situates the current attacks on sanctuary jurisdictions within the anti-commandeering doctrine to assert a broad scope of constitutionally permissive sanctuary-jurisdiction policymaking. It does so, first, by describing the recent developments in the relationship between commandeering and preemption as it applies to § 1373. Then, by rejecting a per se rule as to the constitutionality of laws requiring information sharing, this Part applies this Comment’s new understanding of the anti-commandeering doctrine to assert that the uniquely federal role of immigration law and the use of information in immigration enforcement necessitate Tenth Amendment limits that allow states to withhold immigration information from the federal government.