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  • Writer's pictureJeff Utsch

Consistency Mandates ‘Hands-off’ The Sanctuary City Provided Policy Is Disinterest, Not Obstruction

It is tempting to condemn sanctuary cities because they seem to stand in opposition to the rule of law. Yet, ideology needs to be cast aside in 2018 in order to keep sacrosanct the federalist principle that allows this concept to exist.

The role of the sanctuary city is oft-misunderstood. Contrary to popular belief, a sanctuary city is not one that prohibits enforcement of federal law.

What it does mean — with nuances accompanying each case– is that city and state law-enforcement may or must refrain from assisting the federal government. That is, as long as illegals do not otherwise cross a criminal threshold in their conduct, they will not be detained.

Frustrating as this may be, this stance is entirely constitutional as long as the policy is one of “disinterest,” not “obstruction.” If a city’s sanctuary policy does morph into one of intentionally thwarting federal policy, there is a breach of the Constitution. Retribution should be swift and thorough.

We have been down this road in another area — firearms.

The Brady Bill, passed in 1993 during the Clinton administration, required local law enforcement to assist the federal government in implementing and enforcing the law. At the time, Richard Mack, then sheriff of Graham County, Arizona, and Jay Printz, sheriff and coroner of Ravalli County, Montana, sued the federal government arguing it could not coerce – deputize, in effect– local law enforcement.

The federal government, they insisted, could not command the states to enact federal regulations because they violated the Tenth Amendment.

The sheriffs prevailed in the Ninth Federal Circuit Court of Appeals and the U.S. Supreme Court. The philosophy underpinning their argument was articulated by Justice Antonin Scalia. “The Federal Government may not compel the States to enact or administer a federal regulatory program,” he wrote, citing yet another states’ right case involving New York.

“The Constitution protects us from our own best intentions,” Scalia said, articulating what George Washington had warned us about. Sometimes, Washington said, our eagerness to achieve a good outcome will bait us into exercising power outside those allowed by the Constitution. His advice: change the Constitution or forget about it as the danger is too great otherwise.

Acting without proper authority, both jurist and Founder agreed, would led to multiple abuses and the eventual downfall of the Republic. The ends would never justify the means.

A sound mind should disagree with California’s decision to become a sanctuary state but coercing local law enforcement to adhere to federal law would be unconstitutional and inconsistent with our Founders’ beliefs.

One of the great secrets — not so much a secret as a lesson-seldom-taught, perahps – addresses our separation from the Mother Country in 1776.

We, as Colonists, rejected the Declaratory Act, which, passed in 1765, held that Parliament was, “sovereign over the colonies in all cases whatsoever.” That affirmation did not sit well with many on this side of the Atlantic. While Parliament and the Crown may have sovereignty in some instances, the Colonists argued, most government would be local. The Colonists would not submit to a distant, centralized government.

Part of our claim to self-governance was, precisely, to maintain local law enforcement powers. When we became our own nation, these lessons in liberty and separation-of-powers were integral to creation of our own Constitution.

States and the federal government would each have their spheres of sovereignty (See Madison’s Federalist 39). Local law enforcement, with minimal control from a centralized power, is a cornerstone of that doctrine.

Yes, authority over immigration is an exclusively federal domain. That does not mean that feds have the power to deputize the locals to do their work for them. That also does not mean the locals can’t help with immigration laws. It means only that they should not be coerced to do so.

Allowing cities and states to make their own choices and suffer the consequences will help move the process along. As these consequences become clear, local public pressure may force policy changes. But, ample remedies exist to address the issue without overstepping Constitutional restraints.

Among them:– A dramatic increase in federal agents in regions that do not support immigration law.– Decreased federal funding in budget allocations that can legally be cut.– Highlighting costs associated with harboring criminal undocumented workers and demanding local government pay these costs.– Spotlighting egregious examples of the harmful effects on society caused by criminal illegals.– Touting positive examples of local and federal cooperation in enforcing immigration laws in other places that exemplify how the process ideally works and suggesting states would be best-served to work in concert with federal agents.

We need to all play by the rules established within the framework we have provided. Shortcuts are seductive but coercion is not the answer. We will analyze the results of policies pursued by sanctuary and non-sanctuary cities and that, alone, will be sufficient catalyst for change.

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