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Sanctuary Lost? Exposing the Reality of the 'Sanctuary-City' Debate & Liberal States-Rights' Litigation

72 Pages Posted: 10 Sep 2017  

Cara Cunningham Warren

University of Detroit Mercy School of Law

Date Written: August 31, 2017

Abstract

Through inflammatory yet powerful rhetoric, Executive Order 13,768, and Department of Justice directives, the Trump Administration seeks to withhold federal funding from “sanctuary cities.” The administration also has returned to the Bush-era Secure Communities Program, which has led to a 150% arrest-rate increase of the non-criminal, undocumented migrants who would otherwise be integrated into “sanctuary” jurisdictions.

Many liberal voices have responded in legal and academic terms, but no unified liberal counter-narrative has been asserted. This rhetorical mismatch has obscured fundamental aspects of the “sanctuary” debate. For example, integrationist jurisdictions are sovereign. Pursuant to basic immigration federalism and states-rights’ principles, they voluntarily participate in federal immigration enforcement, but their participation cannot be compelled or coerced. In addition, integrationist jurisdictions do not shield criminals. Instead, their approach is rooted in proven and effective policing philosophies that encourage community residents to participate in and support law enforcement efforts.

In addition to the rhetorical vacuum, the liberals’ use of states-rights’ litigation to protect federal funding is incomplete and may endanger liberal integrationist policies. In short, the aspect of Executive Order 13,768 that is garnering the most attention (i.e., funding) can be rebuffed via the states-rights’ principles noted above, yet the aspect that poses a grave threat to integrationists (i.e., returning to the Secure Communities Program) is not being addressed.

This paper urges liberals to continue to preserve funding via states-rights’ litigation, as necessary, but to consider it only one of three specific tactics designed to prompt a return to immigration enforcement priorities. Specifically, liberals also should assert an integrationist counter-narrative and use litigation as a form of non-cooperation designed to prompt discourse.

Keywords: sanctuary cities, states' rights, immigration, federalism, Executive Order 13,768, integrationist, restrictionist

Suggested Citation

Cunningham Warren, Cara, Sanctuary Lost? Exposing the Reality of the 'Sanctuary-City' Debate & Liberal States-Rights' Litigation (August 31, 2017). Wayne Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3030426

Cara Cunningham Warren (Contact Author)

University of Detroit Mercy School of Law ( email )

651 E. Jefferson
Detroit, MI 48226
United States

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