Securing the nation’s borders and protecting the nation’s sovereignty against those who would violate it is, perhaps above anything else, the singular most important function of the federal government. After all, in the 2012 Supreme Court case of Arizona v. United States, Justice Antonin Scalia powerfully described “the power to exclude from the sovereign’s territory people who have no right to be there” as “the defining characteristic of sovereignty.” Illegal immigration, furthermore, manifests itself across countless issues affecting the body politic: National security, crime, drugs, public health, cultural assimilation, and the health of the public fisc.
But what happens when the federal government’s unwillingness to defend its sovereignty is coupled with the federal government’s unwillingness to defend the Supremacy Clause of Article VI of the U.S. Constitution — that the “Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land?”
Every single day across America, sundry sanctuary jurisdictions harbor illegal aliens — often violent criminal ones — and fail to honor detainer requests from U.S. Immigration and Customs Enforcement (ICE). As ICE explains on its website, detainers “provide notice of [ICE’s] intent to assume custody of an individual detained in federal, state, or local custody” and are typically “placed on aliens arrested on criminal charges for whom ICE possesses probable cause to believe … are removable from the United States.” The results of local law enforcement agencies failing to honor ICE detainers, from a public safety and sovereignty protection perspective, are often predictably disastrous. But what seems to be an under-covered aspect of the sanctuary cities phenomenon is how blatantly illegal the practice is under existing federal statute.
As Daniel Horowitz helpfully points out at Conservative Review, it is imperative to consider the text of 8 U.S.C. § 1373(a):
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the [Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
It is true that the U.S. Supreme Court’s so-called “anti-commandeering doctrine,” most famously articulated in the 1992 case of New York v. United States and the 1997 case of Printz v. United States, stands for the proposition that the federal government cannot forcibly “commandeer” state governments to help the federal government enforce federal law. As Justice Scalia wrote in Printz, “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”
But a plain reading of 8 U.S.C. § 1373(a) does not seem to countenance a violation of the anti-commandeering doctrine. Under § 1373(a), state and local officials are not coerced into “enforc[ing] a federal regulatory program.” Rather, under the text of the statute, all state and local officials are prohibited from doing is issuing a “restrict[ion] [upon the] sending to, or receiving from, the [Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Put simply, the issue at hand in § 1373(a) is not federal commandeering of state actors to enforce a federal program; rather, the issue is the prevention of state and local officials from openly defying and subverting federal law. And the Constitution’s Supremacy Clause plainly forbids the states from openly defying and subverting federal law. The Constitution’s Supremacy Clause, as applied to § 1373(a), therefore prohibits state and local governments from shielding a removable illegal alien from ICE when ICE issues a detainer request on the alien.
The Trump administration, despite a mixed (at best) record on actually effectuating the president’s signature campaign item and building the wall, is now doubling down and campaigning hard on the immigration issue in advance of the president’s 2020 re-election campaign. As both a political and a policy matter, wouldn’t it then make sense for the administration to actually try to enforce federal law that is already on the books against the pervasive problem of sanctuary city malfeasance?