The recent ruling of a federal judge issuing a temporary injunction against President Donald Trump’s executive order denying further appropriations of federal revenues to cities that have deemed themselves to be “sanctuary cities” created another internal battle among Conservatives. Former U.S. prosecutor and National Review contributor Andrew McCarthy voiced concern that the judge’s ruling does not actually find fault in the executive order or the statute upon which the order was based, but rather, the judge concocted controversies in order to conjure up a ruling against Trump. McCarthy states that the executive order, in effect, did nothing other than demonstrate President Trump’s desire to enforce existing immigration law.
Another National Review paragon, David French, echoed much the same in his blog post for National Review’s “The Corner.” “The executive order was not changing the law. It did not strip federal funds from sanctuary cities. It directed federal officials to enforce existing law and then larded up that directive with meaningless legalese that made the order look far more dramatic to the untrained eye.” French’s sentiment regarding this executive order is much the same as McCarthy’s, at least in as much as it did nothing than exclaim a desire to enforce existing law. The existing law is 8 U.S.C. § 1337 which, according to the executive order, a sanctuary city must comply with or risk losing out on federal grants.
Viewed through this perspective, the federal government is attempting to use the carrot of funding for local initiatives in exchange for those local municipalities from operating as a sanctuary city, but how are sanctuary cities not complying with federal law? In yet another National Review contributor’s words, Charles Krauthammer, sanctuary cities are “defying the federal government” in that they act in opposition to the federal government’s enforcement of immigration law. This seems to mean that Krauthammer thinks that sanctuary cities are creating an atmosphere where federal law does not apply and that illegal aliens can seek refuge in these cities. Krauthammer has even employed the tactic of comparing such cities to segregationists and Confederates in what Krauthammer views is the flouting of federal law.
Krauthammer’s sentiments are not only over the top, but they display his ignorance of how our federal system works, or is supposed to work, as does the executive order itself. Krauthammer claims that these cities are engaging in “nullification and interposition” by operating as a sanctuary city. Krauthammer is either ignorant of, or believes his audience is ignorant of, what nullification and interposition is because sanctuary cities are not operating in anyway reminiscent of South Carolina in 1832.
For starters, sanctuary cities are not ignoring federal law, let alone federal law these cities believe to be unconstitutional or violations of their rights to self-government, as South Carolina framed justification for their nullifying the Tariff Act of 1828. Sanctuary cities are merely saying that they will not allow law enforcement entities under the jurisdiction and control of these local governments to do the job of federal law enforcement as it pertains to immigration law. Kari Hong, a law professor at Boston College who specializes in immigration law, explains that “activists believe that immigration laws will no longer apply or be enforced in a sanctuary city. That is not true. It’s just that the federal government has to do the enforcement and not the local police. And the federal government is always allowed to do that enforcement, even in sanctuary cities.”
The officials who have declared their jurisdictions sanctuary cities are acting within their right to do so since what they are really declaring is that local resources will not be spent to enforce federal law. This authority comes from no other than Justice Joseph Story in an 1842 ruling that dealt with the apprehension and return of fugitive slaves in free states to the states in which they were in a permanent state of servitude. The case arose out of a Maryland slave owner seeking the return of a slave who had become free and a resident of Pennsylvania. The slave owner relied on the Fugitive Slave Act of 1793 to supersede a Pennsylvania state law that sought to free slaves within Pennsylvania territory. The case is Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539 (1842) and the pertinent portion of the ruling is where Story writes “’The president shall commission all officers.’ Now, if no man can be an officer of this government, without bearing the commission of the president, certainly, no ‘magistrate of a county, city or town corporate’ can be a judicial officer of the general government, and so cannot take authority under the act.”
What Story is saying here is that, since local officials are not empowered by the federal government to act in their local capacity, then how could they be expected to act within a federal one. In this instance Story was discussing the use of local officials to apprehend slaves and turn over to slave owners those slaves determined to fit the claims of the slave owner by a local court in accordance with the Fugitive Slave Act of 1793. Story’s ruling spelled out that the slave owner is within his rights to claim his property under the act, but that the act did now spell out how said property was to be apprehended and that a state could refuse to act in furtherance of the slave owner’s claim. To enforce the Fugitive Slave Act of 1793, Story reasoned, officials of the federal government were the only ones required by law to act. Krauthammer would do well to educate himself on Story’s ruling, and on nullification for that matter, since Story was no proponent of what might be called Calhounism.
Immigration law is a federal concern and, as such, officers of the federal government are the only ones required to enforce it. States and local municipalities may assist federal officials in enforcing such laws, but there is no justification for saying that states or municipalities are in violation of the law when they do not. As Krauthammer might say, and indeed he did, “we live in a federal system.” Well sanctuary cities, whether you agree with them ideologically or not, are acting in accordance to federalist principles. Maybe it might be time that the general government begin to do the same.