Demonstrators picket against the possible arrival of undocumented migrants who may be processed at the Murrieta Border Patrol Station in Murrieta, Calif., last month. (Sam Hodgson/Reuters)

Three weeks ago, the Republican-controlled House passed the “Enforce the Law for Sanctuary Cities Act” (H.R. 3009). The bill would deny federal funding to cities that refuse to report detained immigrants, also known as “sanctuary cities.” As I will explain below, the federal government cannot require cities to enforce federal law by detaining and handing over people in their jails, which is why the bill uses funding as an incentive for local partnerships. This bill was sparked by a conservative backlash over the tragic shooting death of Kathryn Steinle, a San Francisco native. Juan Francisco Lopez-Sanchez, a convicted felon and undocumented immigrant, was charged with murder in the shooting last month.

Lopez-Sanchez had been in the custody of San Francisco police for an outstanding warrant on a marijuana charge. Immigration and Customs Enforcement asked local police to hold Lopez-Sanchez by issuing an immigration detainer. But local police ignored that request and released Lopez-Sanchez from custody under San Francisco’s 2013 “Due Process for All” ordinance and 2015 sherriff’s policy. Those prevent city officials from cooperating with federal detainer requests, except for inmates convicted of a felony crime or when ICE has a court warrant.

These policies are part of San Francisco’s history as a “sanctuary city,” which its sanctuary ordinance first established in 1989. The House bill would punish cities like San Francisco for not partnering to enforce federal law.

[Opposition to immigration reform is a winning strategy for Republicans]

Fugitive slave laws and “sanctuary states”

Within our federalist system, there’s a long history of states and localities deciding to integrate and protect residents, regardless of their legal status under federal law.

To prevent slaves from escaping, the U.S. Constitution and a 1793 federal law granted slave owners the right of capturing and reclaiming their “property,” and made it a crime to harbor runaway slaves. In 1842, the Supreme Court ruled in Prigg v. Pennsylvania that Congress had exclusive power over fugitive slave laws. An 1850 federal law took those further by appointing a federal body to administer search and arrest warrants, certificates of removal, and fines for interference, and to form federal partnerships with states, localities and private citizens to enforce the law and return escaped slaves to their “owners.”

In response, northern states passed a range of “sanctuary” laws, as you can see in the table below. Pennsylvania and Massachusetts led this movement, uniformly protecting all blacks within the state regardless of their status under federal law. This included due process protection laws that granted all blacks the rights of: habeas corpus (ensuring that a judge investigated “recaption” claims — the legal term for reclaiming runaway slaves — in a full hearing); writs of repliven (ensured that all detained blacks were brought to court); trial by jury; and giving testimony in court. Other features included anti-kidnapping laws that made it a punishable crime to remove any black person from the state without court approval.

Although Prigg had recognized the federal government’s exclusive authority on fugitive slaves, the court also ruled that the federal government could not mandate states to enforce federal law. And so northern states passed a range of non-enforcement laws banning state and local officials from participating in recaption, and denying the federal government the right to use state and local courts to hear cases.


The feds cannot require cities and states to hold and hand over detainees, according to the Supreme Court

Today, undocumented immigrants similarly face restrictions on their movements. Federal laws make it a crime for unauthorized immigrants to be in the country and a crime for employers to knowingly hire unauthorized immigrants, and they require proof that someone is here lawfully before they can receive welfare benefits.  One way that the federal government enforces these laws is through partnerships with states and localities, including detainer requests to hold people. Much like removal certificates issued to remove runaway slaves, a detainer request today is a formal notice by ICE to federal, state or local law enforcement agencies that it intends to take custody of detainees that ICE believes to be unauthorized immigrants.

[The 5th Circuit’s immigration decision, or politics is a bar fight]

But the Supreme Court has consistently said that the federal government cannot require state or local cooperation in these efforts. It also cannot require their compliance with ICE’s directives or to use their own resources and personnel. The federal government can, however, offer incentives for state and local partnerships with these goals in mind. This rule was established under Prigg (1842), and was recently upheld on immigration detainers in Galarza v. Lehigh County (2014) and Miranda-Olivares v. Clackamas County (2014) under both Tenth Amendment and Fourth Amendment grounds.

New immigrants are less likely than natives to commit crimes, according to studies

While undocumented immigrants are in violation of federal law, they are not linked to increased crime. In fact, many studies have found the opposite. One study that looks at increased immigrant populations and its effect on homicide rates in cities from 1980-2010 found that immigrants were less likely than native born to commit crimes. Immigrants that very recently entered the country are also less likely to commit crimes and more likely to do well in school than immigrants that have been in the country for more than four years.

[Hillary Clinton’s views on immigration are entirely mainstream]

In fact, increased immigration is linked to an overall decrease in crime. Therefore, it is misguided to use the criminal record of Lopez-Sanchez to paint all undocumented immigrants as criminals.

Sanctuary policies may actually improve policing by giving all residents — including those whose immigration status may be in question — confidence that they can report crimes without risking deportation. In a recent joint statement, the U.S. Conference of Mayors and the National League of Cities opposed H.R. 3009 on the grounds that sanctuary policies “strengthen police-community relations and build trust.” Studies support this view, showing that in areas with large immigrant and undocumented communities, the enforcing immigration law creates a barrier between local police and the community, and that police relations are vital for serving immigrant communities’ unique needs. Moreover, studies show that local policies that enforce immigration law through partnerships lead to increased fear and distrust among immigrants.

Federalism gives states the right to exclude or integrate undocumented immigrants

In America’s early history, northern states granted runaway slaves a range of due process rights, access to employment and education, and protections from capture. Today, in an effort to increase integration, 11 states have granted driver’s licenses and 17 states have granted in-state tuition to undocumented immigrants. While only two states, California and Connecticut, currently have  Transparency and Responsibility Using State Tools (TRUST) Acts, which stipulates that officers can only enforce immigration detainers issued by the ICE for persons convicted of serious crimes, more than 100 localities have passed anti-detainer ordinances limiting their enforcement of federal immigration law.

To be sure, some states and cities are going in the opposite direction, with different beliefs about creating a safe community. Arizona has moved to exclude immigrants and strengthen immigration enforcement by restricting access to welfare benefits, state driver’s licenses and in-state tuition, and to prevent localities within the state from passing “sanctuary” ordinances.

Our federalist system allows states and localities to integrate and protect “illegals” as part of their decisions about the welfare of their own communities. California in particular appears to be leading a new approach by passing laws that grant undocumented immigrants access to state driver’s licenses, in-state tuition, financial aid, health care and professional licenses, and that shield undocumented immigrants by limiting state participation in the enforcement of federal immigration. My recent policy report with Karthick Ramakrishnan calls this new approach the “California Package,” one that creates a new type of citizenship at the state level that includes undocumented immigrants.

Allan Colbern (@allancolbern) is a PhD candidate in political science at the University of California, Riverside. He is completing his dissertation, “Today’s Runaway Slaves: Unauthorized Immigrants in a Federalist Framework.”