American Democracy in Context. Joseph A. Pika
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whose protection is “contrary to the national interest.”1
What, exactly, are sanctuary cities? In fact, they are not necessarily cities but rather jurisdictional areas (which may extend to counties or even, in some instances, states) that have adopted policies designed to resist federal directives that local law enforcement aid federal officials in finding, arresting, and deporting undocumented immigrants. There are even “sanctuary schools” (both at the K–12 and college/university level) that have refused to share information with federal officials about students who may be undocumented.2
Supporters of sanctuary cities—relying on a fundamental tenet of states’ rights—argue that the Tenth Amendment of the Constitution shields state and local governments from being compelled by the national government to use (or “commandeer”) their resources—such as local jails and police officers—to enforce federal immigration laws.3 For example, jurisdictions may decline to detain individuals suspected of being undocumented in local jails. Federal Immigration and Customs Enforcement (ICE) can only request that local authorities detain such individuals; it does not have the authority to compel such detainment. Some states and cities object to ICE policy that allows such individuals to be detained without a court warrant and so refuse to comply.
President Trump’s executive order, however, was not explicitly directed at the refusal of sanctuary cities to detain individuals (even though Trump’s rhetoric sometimes made it sound as though it was) but rather at a jurisdiction’s refusal to convey certain information to ICE. For example, California policy prohibited local jail officials from sharing information about the immigration status of their inmates without a warrant signed by a judge. In issuing the Executive Order, the president pointed to federal law (8 USC 1373, Section B), which prohibits states or localities from implementing policies to prevent the sharing of such information.
Questions nonetheless remained about the constitutionality of the president’s executive order. The Ninth Circuit Court of Appeals (which covers California) declared the executive order unconstitutional in August 2018 on separation of powers grounds, arguing that only Congress has the power to control spending under the Constitution. Thus, the majority concluded, the president could not unilaterally withhold funding, as threatened in the executive order. The Seventh Circuit Court of Appeals issued a similar ruling in response to Chicago’s challenge to the executive order, although the Ninth Circuit Court of Appeals ruled in favor of the administration’s policy in July 2019,4 with the issue likely to be resolved by the Supreme Court. As of April 2019, there were nine sanctuary states and over 150 sanctuary cities and counties within a total of 27 states.5
Supporters of sanctuary cities argue that the federal government is inappropriately infringing on states’ rights by requiring them to share information with immigration authorities.
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The tension reflected in the debate between sanctuary cities and the Trump administration is a direct result of our system of federalism, where power is divided between the national government and the states. Germany, one of the few countries in Europe with a federal system, has also seen some local resistance to national immigration policy. For example, in 2017, some German states refused to deport individuals to Afghanistan whose asylum claims had been denied by the German national government. They did so using their legal right to issue a temporary moratorium on deportations.6
But what about the United Kingdom or the majority of European countries, which have unitary systems, where political power is concentrated at the national level? “Sanctuary cities” have sprung up there, too, but with a quite different meaning than the term has in the U.S. Sometimes called refuge cities, cities of asylum, and cities of welcome, these are municipalities that are committed to welcoming refugees and asylum seekers.7 Such hospitality ranges from building a refugee reception center in Grande-Synthe, France, to efforts in Thessaloniki, Greece, to integrate refugees into the community rather than isolating them in a camp.8
While sanctuary cities in unitary systems may take charge of integrating migrants because of a perception that the national government is not living up to its responsibilities, they do not typically resist national directives in the way that U.S. sanctuary cities do. Italy is an exception. There, a group of mayors in several cities refused in 2019 to obey the Security Decree issued by Italy’s populist interior minister that did away with humanitarian protections for asylum seekers, claiming the decree to be unconstitutional. But even in Italy, the question was not about the division of power between the national government and cities (as it is in the U.S.), but rather a disagreement about the constitutionality of a particular federal action.9
Understanding how different approaches to dividing governmental power leads to different conceptions of things such as sanctuary cities is what this chapter is all about.
Understanding Federalism
Issues involving federalism affect you daily, whether you realize it or not. They have provoked heated debate on a wide array of issues that range from sanctuary cities to education policy, health care reform, and same-sex marriage.
Except for a few tiny nations, all countries have more than one layer of government; they have not only a central, national government but also regional governments (called such things as states, provinces, regions, or cantons, depending on the country). Federalism—a defining characteristic of the U.S. Constitution—requires that power be divided between these two layers of government. In the United States, the duty of interpreting how the Constitution delineates these powers falls to the Supreme Court. Whether its members are cooperative federalists or dual federalists makes a huge difference. Cooperative federalists read constitutional clauses broadly to expand the power of Congress. Dual federalists, on the other hand, see such expansion as an invasion of states’ rights. Congress’s ability to enact Social Security, minimum wage laws, gun control legislation, child labor laws, and an individual mandate that requires everyone to purchase health care insurance are only some of the issues that hang in the balance of this debate. So, too, is the ability of states to pass more stringent environmental standards than the federal government, to allow the use of either medical or recreational marijuana, and to determine minimum drinking ages. To understand these debates, we must first explore the roots and functions of the U.S. federal system.
The Federal System
Unlike most other democracies in the world, the United States formally divides power between the national and state governments to form a federal system of government. The Constitution gives Congress the authority to legislate in certain specific areas while reserving other legislative powers to the states. Power is divided, with the national government having authority over some issues and states having authority over others. As such, two layers of government control the same geographic area and group of people, but each layer is responsible for different political issues. However, the delineation between these two layers is not always clear. The resulting gray areas, where reasonable people disagree about whether the national government or the states have authority to act, can make federalism somewhat difficult to understand. In addition to dividing certain powers, our federal system ensures that some powers are shared. For example, both states and the national government have the power to tax.
The first American attempt at self-governance, the Articles of Confederation, employed a very different governing structure: a confederal system. In a confederal system, ultimate authority rests primarily with regional entities (such as states) that have banded together to form a league of independent governments. A central government may exist, as it did under the Articles of Confederation, but it is created by the regional governments and has only limited powers, usually associated with defense and foreign affairs. No individual country today has a true confederal system, but the European Union (EU), which includes most of the countries of Europe, is a modern example of a confederation. The power ceded