Arguing About Sanctuary

Abstract

“Sanctuary” has come to mean many things. This article suggests a way of understanding the arguments for and against sanctuary. I start by suggesting a working definition of the term. It includes not only the more obvious dimension of insulation from enforcement but also the related dimension of promoting immigrant integration. In turn, these dimensions suggest further nuances. I then identify and analyze five categories of arguments for sanctuary measures and the responses that they may prompt. The five categories are as follows. The first invokes structural limits on federal authority, based largely on the Tenth Amendment and the Spending Clause of the U.S. Constitution. The second invokes constitutional protection of state and local decisionmaking prerogatives. This category, like the first, relies on the Tenth Amendment, but it has a different rhetorical and political resonance. The third category relies on substantive limits on arrests and detention, such as the Fourth Amendment. The fourth category cites the need for state and local governments to restore fairness, equity, and proportionality to the immigration law system that federal legislation over the past several decades has eliminated. Arguments in the fifth category emphasize the need to safeguard the rule of law by assuring transparency and non-discrimination in immigration enforcement. I devote extra attention to this fifth category, which has persuasive power that often goes underappreciated or neglected altogether, in spite of its deep roots in U.S. history. I do not suggest that any one category of argument or combination of arguments is consistently more persuasive for all settings or audiences. My goal is more general — to help readers become informed more fully about these categories of arguments, and to understand their implications not just in courts but in the making of immigration policy. Some arguments may be successful in litigation but counterproductive in many political arenas. Other arguments may have political traction but be less persuasive in the courts. Choices among arguments also have important implications for emphasizing (or ignoring) the connections between sanctuary measures and other immigration law issues, including DACA and federal preemption of state and local immigration enforcement measures, as well as the connections between sanctuary and other law enforcement topics. These connections are not obvious, but they have important implications for litigation strategy, political alliances, and ultimately for emerging law.

Keywords: immigration law, immigration enforcement, sanctuary, prosecutorial discretion, Tenth Amendment, Spending Clause, Fourth Amendment, separation of powers, rule of law, immigrants' rights, undocumented immigration