Sanctuary city policies may not be wise, and they almost certainly undermine respect for the rule of law. But they stand on solid legal ground in refusing to lend state or local resources to enforce federal immigration laws. That legal ground is federalism. If our institutions would only embrace it with integrity, it is the same ground that would support states that choose to bolster enforcement of immigration laws.
Federalism is that innovative, foundational principle of American government that divides power between two separate government systems: federal and state. Our Constitution vests a centralized, national government with specific, enumerated powers to be executed for the benefit of the states as a whole, but reserves all other powers to the states or the people. This is true by virtue of the structure of the national government, outlined in the Constitution, but is also explicitly affirmed in the Tenth Amendment.
The states thus retain broad, plenary power to protect the health, safety and welfare of their residents and to direct and control the use of their own resources. The states were never intended to become what they often appear to be today: serfs of a bigger, more powerful national government that decides what is best for everyone. Rather, the states retained sovereignty in every jurisdictional area that the Constitution did not hand over to the federal government.
This is why, in the landmark 1997 ruling in Printz v. United States, the Supreme Court struck down provisions of the federal Brady gun bill that essentially commandeered state officials to execute the federal law. The court properly found that such a scheme offended the “principle of separate state sovereignty.”
Fast-forward to 2012. Arizona, faced with 460,000 undocumented aliens and a federal government sitting on its hands, passed the Support Our Law Enforcement and Safe Neighborhoods Act, drawing upon the state’s own power and resources to address the crisis. In a 5-3 decision (Justice Elena Kagan did not take part), the Supreme Court struck down portions of the Arizona law, ruling that the federal immigration law, whether enforced, and even if it did not conflict with Arizona law, pre-empted the state from protecting its own citizens from the harms of illegal immigration. The late Justice Antonin Scalia dissented, observing that under our Constitution, the states retain their traditional, sovereign power to protect their own borders, and that Arizona’s effort to do so harmonized with federal law.
The court’s invalidating Arizona law denied of the same principle of “dual sovereignty” that the Court vindicated in Printz. States are not mere pawns of the federal government, and they should not be expected to behave as such, whether the specific policy issue is at hand involves gun control or immigration.
While federalism has long been a rallying point for conservatives, it is actually a nonpartisan ally to anyone who disdains tyranny. Because federalism isn’t about specific policies, but about a division and separation of power that works to prevent its over-centralization in the hands of any single ruling class.
In preserving state sovereignty from usurpation by a power-hungry national government, federalism preserves ordinary citizens’ ability to affect policies that govern them. It is far easier for us to influence decisions made closer to home, by those who live in our neighborhoods and shop in our grocery stores, than to influence decisions made in Congress.
The fruit of federalism, when applied with integrity, is the potential for a stunning policy diversity among the states. Because the states retain sovereign prerogatives to experiment with public policies supported by their own residents, prevailing public policies may look vastly different among states. One might foster “sanctuary” designations, while another might zealously assist federal immigration enforcement. When the states are laboratories of democracy, we learn from the test results.
Policy diversity is something freedom-loving Americans should celebrate. It is a hallmark of the uniquely American system of self-governance. And it is the reason conservatives must argue just as strenuously for a state’s sovereignty over its law enforcement resources as we do for a state’s sovereignty over education policy. Then we must demand that the left, too, appreciate the nonpartisan virtue of American federalism and support it with integrity, regardless of the policy or politics at hand.