Legal Showdown Over Sanctuary Laws Tests Federal vs. State Power Again

President Donald Trump has made no secret of his disdain for sanctuary laws, but the first time he was president, his administration repeatedly ended up on the losing side of legal cases over whether states, cities and counties can be forced to participate in immigration enforcement.

In 2017, courts of appeals sided with San Francisco and Santa Clara counties, as well as the city of Chicago, in two cases challenging Trump’s attempts to withhold federal law enforcement funds from sanctuary jurisdictions. An appeals court also ruled that California’s statewide sanctuary law was legal in a suit brought by the Trump administration. 

However, none of the cases went to the U.S. Supreme Court. Eight years later, the legal battle is being reprised. San Francisco and Santa Clara counties, along with 14 other jurisdictions, are suing again over Trump’s expanded order to strip sanctuary jurisdictions of all federal funding, not just law enforcement grants. The Trump administration has filed two lawsuits — one against the state of Illinois and one against the state of New York — over laws limiting cooperation with federal immigration enforcement officials.

Trump and the Department of Justice are also threatening to investigate and prosecute state and local officials who impede or interfere with the enforcement of federal immigration laws. Defenders of sanctuary laws argue that they do not obstruct immigration enforcement but simply prevent local police from carrying out the federal government’s responsibilities.

“This is the federal government coercing local officials to bend to their will or face defunding or prosecution and that is illegal,” San Francisco City Attorney David Chiu said as he introduced the latest San Francisco lawsuit last month. “Last I checked, we still live in a democracy under the rule of law.”

At issue are decades-old policies that supporters say encourage immigrant communities to cooperate with police, as well as fundamental disagreements over the separation of powers between federal and state governments.

Backers of sanctuary laws say they exist to enhance public safety and they point to studies showing no negative effects on crime rates. 

“We are striving to create a culture of trust and security within our communities so that our residents know that they can come to the county when they are in need,” Santa Clara County Counsel Tony LoPresti said. “That includes feeling safe, coming to local law enforcement to report crimes or to participate in investigations without fearing that they or their loved ones face deportation.”

LoPresti and other local officials argue that immigration enforcement is the purview of the federal government and that state and local officials cannot be forced or coerced into doing that job. Chiu said the purpose of sanctuary laws is not to interfere with Immigration and Customs Enforcement, or ICE.

“ICE agents can come to all of our cities and states and enforce immigration law lawfully,” Chiu said. “What we are saying is under the Constitution, under the law, immigration enforcement is squarely a responsibility of the federal government, not a responsibility of state and local government … and we have a right to use our scarce law enforcement resources to actually solve crimes and promote public safety, not to be forced to have our law enforcement officers commandeered as ICE agents.”

Critics maintain sanctuary laws make people less safe.

“The main objection that I have to sanctuary policies is that they undermine public safety because they inevitably result in criminal aliens that ICE is trying to take custody of for removal being released back into the community,” said Jessica Vaughan, director of policy studies at the Center for Immigration Studies, which advocates for less immigration into the U.S.

Vaughan was referring to the limits sanctuary policies place on prison and jail officials’ ability to communicate with ICE about people in their custody. While federal officials are automatically notified about every inmate booked into a jail or prison and sent their fingerprints, many sanctuary policies prohibit local and state officials from cooperating further, such as by providing a release date or holding someone in custody beyond that release date for ICE.

“ICE isn’t asking [local officials] to enforce immigration laws,” Vaughan said. “They’re asking them to give the kind of cooperation that these local agencies would give to any other — and every other — law enforcement agency.” 

Vaughan rejects the argument that immigration communities will be scared to come forward and report crimes in the absence of sanctuary policies, saying federal surveys of victims show immigrants are actually more likely than citizens to report crimes. 

However, the legal cases do not focus on public safety; they largely center on how much power the federal government has to compel state and local governments to act — or to punish them for refusing to comply.

Liberal and conservative scholars agree that the Tenth Amendment of the Constitution, which divides power between the federal and state governments, offers sanctuary jurisdictions some legal protection.

 “The federal government can’t force the states to enforce immigration law,” said Josh Blackman, a constitutional law professor at the South Texas College of Law Houston. “That’s called commandeering.”

Blackman, an adjunct scholar at the conservative Cato Institute, said that the constitutional principle — that the federal government cannot force state and local governments to use their resources for federal purposes — was the basis of court rulings in favor of sanctuary jurisdictions during Trump’s first term.

Trump’s first administration tried to cut off law enforcement grant funding, but the courts found that cooperation with immigration enforcement was not a condition Congress had placed on the grants. Trump’s recent executive order goes even further, threatening to cut off all federal funding to sanctuary jurisdictions. 

The broadness of the executive order is giving some sanctuary supporters hope that they will prevail again. 

Fred Tsao, senior policy counsel with the Illinois Coalition for Immigrants and Refugee Rights, said even if Congress were to pass a law similar to the executive order, “they’re still going to run afoul of the 10th Amendment issue.”

Tsao noted that the current Supreme Court precedent on federal overreach was established through a lawsuit brought by Republican-led states challenging the Affordable Care Act’s requirement to expand Medicaid or risk losing funding. The court ruled in favor of the states.

Tsao helped write the Illinois and Chicago sanctuary laws, which the Trump administration is suing to overturn. He said the suit relies on another constitutional principle: the Supremacy Clause, which establishes that federal law takes precedence over state law if the two conflict. 

But UCLA School of Law professor Hiroshi Motomura said it’s not clear that sanctuary laws actually conflict with federal immigration laws because they’ve been narrowly crafted to specify only what local officials cannot do.

Motomura, a scholar of immigration and citizenship, argued that the Trump administration’s goal in pursuing litigation likely goes beyond just winning the legal case: The suits are forcing sanctuary cities, counties and states to use their resources to mount costly legal battles.

UC Berkeley’s Caitlin Patler agreed, noting that the lawsuits send a message to other local and state officials who may be considering enacting their own sanctuary laws. 

“I think there is some element of the federal government right now trying to put pressure on local governments,” said Patler, an associate professor at the Goldman School of Public Policy. “Litigation is costly. Litigation is time-consuming. Litigation can be politically detrimental for, say, an elected sheriff. And so, it could have a chilling effect on other jurisdictions.

“It’s bullying.”

Vaughan said litigation and funding threats may be the only tools at the federal government’s disposal to push local officials to change policies she believes “cross a line and undermine public safety.”

“We didn’t get any real (legal) impact on the sanctuary cities in the last administration,” Blackman said. “I think to the extent you have a different story now, it might actually be political more than legal.”

There have been several unsuccessful attempts in Chicago to repeal that city’s sanctuary laws. And in California, Republican lawmakers recently introduced legislation to weaken the state’s sanctuary law. 

The bill has not yet received a hearing.