Comment by:
Hannah Michalove

40 Campbell L. Rev. 237 (2018)


On February 27, 2003, the House of Representatives Subcommittee on Immigration, Border Security, and Claims began its first session of the 108th Congress with a “difficult, confused, and a very emotionally charged issue”: sanctuary cities.1  The hearing was held in response to a brutal rape and robbery that occurred on December 19, 2002 at Flushing Meadows Park in Queens.2  The victim and several of her assailants were undocumented immigrants.3  Concerned that New York City’s (the City’s) sanctuary policy may have enabled the attack, the House members engaged a panel of local law enforcement officers, federal immigration officers, and immigrant advocates to discuss the nationwide effect of sanctuary policies on federal immigration enforcement efforts.4

The City’s controversial sanctuary policy originated in 1989.  Mayor Edward Koch issued an executive order prohibiting local law enforcement officers from sharing identification information about undocumented immigrants with federal immigration authorities.5  This order of noncompliance with federal immigration authorities deemed the City a sanctuary jurisdiction.6  The City’s sanctuary policy reflected a commitment to “community-based policing,” wherein law enforcement agents encouraged crime reporting to ultimately reduce crime by developing trust with immigrant communities.7  Consistent with the goal of crime reduction, the order contained an exception for immigrants suspected of engaging in criminal activity.8  Koch’s successors, Mayors Dinkins and Giuliani, reissued the order,9 and it endured until Congress passed section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).10

Congress enacted IIRIRA in a series of border security and welfare reform measures that were passed in response to the surge in U.S. immigration during the 1990s.11 Section 642 was eventually codified as 8 U.S.C. § 1373.12  Section 1373, entitled “Communication between government agencies and the Immigration and Naturalization Service,” prohibits state and local governments from restricting the sending, receiving, maintaining, and exchanging of information regarding the immigration status of any individual with federal immigration authorities.13

After its passage, Mayor Giuliani filed a lawsuit against the United States challenging the constitutionality of § 1373.14  Giuliani relied on Printz v. United States15 to argue that § 1373 violated Tenth Amendment principles of federalism and improperly trammeled state sovereignty.16  The district court dismissed Giuliani’s claim,17and, on appeal, the Second Circuit upheld § 1373 as constitutional.18  Thus, when the Subcommittee on Immigration, Border Security, and Claims held its hearing in 2003, it understood § 1373 to be a constitutional preemption of the City’s sanctuary policy.19

The members of the Subcommittee sought to confirm that in the wake of the Second Circuit’s decision and the Flushing Meadows tragedy, the City had terminated its sanctuary policy to comply with § 1373.20  New York City Criminal Justice Coordinator, John Feinblatt, assured the Subcommittee that the City was in compliance with §1373 but defended its sanctuary policy: “[The policy] was based upon the concern that the public’s health, welfare, and safety could be harmed if, out of fear of being reported to the [Immigration and Naturalization Service], immigrants were reluctant to make use of city services.”21  Feinblatt’s statement echoes a perspective frequently overlooked in the sanctuary city debate; it is also the very argument Mayor Giuliani made in City of New York seven years prior—that § 1373 violates a locality’s constitutionally protected police power to implement sanctuary policies.22

The remainder of the Subcommittee hearing reflects a debate peppered with ideological clashes regarding the role of local law enforcement agencies in federal immigration regulatory schemes.23  While some participants commended § 1373 and cautioned against the “dangerous message of ambivalence” that sanctuary policies portray,24 others highlighted that sanctuary policies are “widely recognized as an effective tool for keeping kids off drugs, combating gang violence, and reducing crime rates in neighborhoods around the country.”25  Similarly, one Subcommittee member contended that without sanctuary policies, the victim of the Flushing Meadow tragedy may not have sought legal and medical recourse, and the attack “should not be used to paint the lives of all immigrants.”26  A solution to this dichotomy evaded the 108th Congress.27  Notwithstanding  purported preemption by § 1373, Mayor Bloomberg issued two executive orders instituting sanctuary policies within seven months of the 2003 Subcommittee hearing.28  The 108th Congress did not again take up the issue.29

New York City is only one example of a jurisdiction that has maintained sanctuary policies despite the Second Circuit’s upholding of § 1373 in City of New York II.30  Sanctuary cities in states across the country have continued to coexist with § 1373,31 and though they have collided with § 1373 in lawsuits since City of New York II,32 the controversies have done little to definitively settle the relationship between the policies and § 1373.  Similarly, federal lawmakers have failed to pass proposed anti-sanctuary city measures despite a range of attempts within the last nine years.33  Nonetheless, federal lawmakers have not ceded the command of § 1373 in the sanctuary city debate.

On June 22, 2017, federal legislators introduced H.R. 3003, the “No Sanctuary for Criminals Act,” in the House of Representatives as a bill to amend § 1373.34  H.R. 3003 expands the scope of § 1373 by barring state and local governments from commanding its officials to limit or restrict “compl[iance] with the immigration laws . . . or from assisting or cooperating with Federal law enforcement entities, officials, or other personnel regarding the enforcement of [immigration] laws.”35  The scope of H.R. 3003 is broader than § 1373.  Whereas § 1373 prohibits local policies that interfere with the flow of information to federal immigration authorities, H.R. 3003 prohibits local policies that constitute any form of noncompliance with federal immigration authorities.  For example, noncompliance with federal immigration authorities under H.R. 3003 encompasses not only restrictions on information sharing, but also restrictions on inquiring into immigration status.36 H.R. 3003 therefore shortens the slack § 1373 left for the working relationship between immigrants and local police, adding a new wrinkle to the web of ideologies that have complicated the sanctuary city debate since City of New York II.

The anomalous yet enduring coexistence of sanctuary cities and § 1373 illustrates two opposing constitutional philosophies.  One embraces sanctuary policies as an exercise of state police power guaranteed by the Tenth Amendment, while the other deems sanctuary policies preempted by § 1373 under the Supremacy Clause.37  The proper place of sanctuary cities thus involves a boundary dispute between the dueling sovereigns that must be resolved by constitutional principles of federalism.  In upholding § 1373 as constitutional, City of New York II represents a critical juncture in the development of the sanctuary city discourse.  City of New York II enabled § 1373 to cloud potential compatibility between sanctuary cities and federal immigration law.  Likewise, since City of New York II did not draw a definitive line between § 1373 and sanctuary cities,38 solutions to what has become an ongoing national controversy are often encumbered by partisan immigration politics to prevent a just, final resolution.

This Comment addresses the barrier to the mutual sovereignty of local law enforcement agencies and federal immigration law that § 1373 has created since City of New York II.  Part I of this Comment explores the philosophy of sanctuary cities to illustrate their relationship to public safety and community policing.  Part II analyzes City of New York II to conclude that the Second Circuit provided an incomplete analysis of § 1373 and likely would have held § 1373 unconstitutional with a proper interpretation of sanctuary policies, the Tenth Amendment, and the Supremacy Clause.  Part III proposes two solutions that would resolve the boundary dispute between federal immigration law enforcement and sanctuary cities without compromising the respective powers of either.      


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