Immigration issues have dominated the headlines for the past three weeks, if not longer. While the treatment of children seized at the border has garnered the most interest, the tortuous paths of the various Republican legislative proposals for a more comprehensive immigration reform in the House of Representatives deserve attention as well. As of this writing, both a “hard-line” bill and a so-called “compromise” bill (that is, a bill that sought compromise among the Republicans) seem to have gone down to resounding defeat because of political differences within the party. But in addition to politics and policy, the various versions of the bills also implicate complex questions of constitutional law. In the space below, I analyze one feature that has been included in some versions of the proposed legislation that suggests that many members of the congressional majority simply don’t understand federalism limitations, or perhaps are willing to vote for legislative proposals that violate such limitations merely for rhetorical effect.
Pressuring So-Called Sanctuary Jurisdictions
I speak here about a proposed provision that surfaced last week that seeks to ramp up legal pressure on so-called sanctuary jurisdictions—states and their political subdivisions that refuse to affirmatively assist federal authorities in the enforcement of federal immigration law. In particular, sanctuary jurisdictions have in recent months often adopted laws or policies that prohibit: (1) giving information possessed by the state concerning individuals’ immigration status to the federal government; or (2) honoring so-called detainer requests/demands by the feds—edicts from the federal government to state and local entities who currently are holding individuals (usually for violations of state-law crimes) whom the feds believe may be in the US illegally, directing such entities to continue detaining these individuals for a period of days (regardless of when the individuals otherwise would be scheduled for release) and to provide the feds information about the timing of release, so as to facilitate the feds’ ability to take custody of such persons.
The battle over information-sharing and the honoring of detainer edicts has generated a fair amount of litigation, the details of which I have discussed in several earlier columns (including here and here). Although the legal issues are complicated, so far, the lower courts (rightly, I think) have ruled that while states cannot actively interfere with federal immigration enforcement (by, say, harboring undocumented persons, lying to the feds, impeding the movements of federal agents, etc.), neither can the feds simply command the states to actively assist by providing information or prolonging state detentions. Drawing on and quoting from the seminal case of Printz v. United States in particular, these lower courts have reminded federal authorities that “[t]he 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.”
Printz involved a federal law that by its terms mandated local police officials, upon learning of a proposed sale of certain firearms, to “make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of [federal] law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General.” A majority of the Supreme Court held that such “commandeering” of local law enforcement personnel—telling local personnel what they what they must affirmatively do without giving states and localities any choice about whether to assist—violates the Tenth Amendment and the principles of state autonomy that it represents.
That brings us to the part of recent immigration reform proposals that seeks to address sanctuary jurisdictions. The proposed approach is this: if a state or political subdivision thereof has a law or policy or declining to provide immigration information to the feds or declining to honor federal detainer requests, then any person who is victimized by a murder, rape or sexual abuse of a minor committed by an alien covered by a detainer or information request can sue the responsible state/locality for money damages in federal or state court for any harm suffered.
On the one hand, this kind of “make them own the consequences of their decisions” approach seems intuitively fair and plausible; if individuals and entities choose to pursue courses of action that tend to cause harms for other people, the tort system often allows compensatory recovery. The problem with this reasoning, however, is that government generally has no legal duty (as opposed to legal authority) to protect people. Discretionary decisions by state and local governments concerning law enforcement policy often result in the release of potentially dangerous private individuals, and thus can often be said to be a “cause” (in a but-for causation sense) of any harm that such individuals later inflict on other private persons. But, as the Supreme Court has observed, states are generally not liable—at least under the Fourteenth Amendment’s Due Process clause, perhaps the most likely constitutional basis for liability — for damages in such situations, because the conduct that directly inflicts harm on crime victims is engaged in by private actors, not government agents. A contrary rule would open government up to seemingly limitless litigation and great liability from multiple directions, and would make it hard for government officials to make the judgment calls we count on them to make.
As the Court elaborated in the case of DeShaney v. Winnebago County, where it rejected a constitutional lawsuit brought by a young child abuse victim whom the state had placed in the custody of a violent father, “[l]ike its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to . . . protect the people from the State, not to ensure that the State protected them from each other. . . . Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.”
The Court recognized that things are different when “the State takes a person into its custody and holds him there against his will. . . .” Under those circumstances, “the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing.” This makes sense insofar as a person in state custody cannot easily protect himself from or flee private perpetrators of violence. (And there is a strong argument that the child in the DeShaney case should have benefitted from this reasoning, since the state effectively required him against his will to be subject to his abusive father’s terror by enforcing the father’s custody rights in court.) But in the sanctuary jurisdiction setting, the victims of any crimes committed by aliens are not people the state has taken into custody and thus prevented from taking care of themselves. So the Constitution itself would likely provide no basis for holding sanctuary jurisdictions responsible for the crimes of undocumented persons.
But would the federal government’s imposition of liability (even if the Constitution does not by itself impose liability) on states constitute the kind of compulsion that is the stuff of commandeering? After all, the Court in Deshaney did observe:
The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court’s expansion of the Due Process Clause of the Fourteenth Amendment.
So one might argue that the Republican proposal seeking to impose liability on state and local government to compensate crime victims is simply an unproblematic creation of tort law along the lines suggested by the Court in DeShaney. But I would find such an argument unpersuasive. Notice that the DeShaney Court said that the people of Wisconsin could choose to impose liability on their own government, but that doesn’t mean that the feds can impose such liability on states. In this regard, New York v. United States, the seminal case on which the Printz anti-commandeering ruling is itself based, is extremely instructive. In the New York case, the Court struck down a congressional law that instructed states to regulate nuclear waste generated within their borders according to certain federal objectives or else “take title” to the waste. As I tell my students when I teach these doctrines, taking title is often a good thing (as when one gets a pink slip to a car or a deed to home.) But taking title to nuclear waste isn’t desirable, because owning nuclear waste means owning the liability for harm that such waste might cause, and little else. And the federal law in New York imposed liability on the state not because the state had done anything to create the waste, but because the state chose not to do something: regulate persons within its borders according to federal preferences.
The Republican immigration proposal for sanctuary jurisdictions seems very similar to the “take title” provision struck down in the New York case. Just as in New York the federal government was manipulating property law to force states to exercise government authority according to federal wishes, so too here the federal government is messing with tort law to, in effect, require states to “take title” to the criminal actions of undocumented persons it has released or as to whom it has rejected federal requests for immigration information, simply because the state has chosen to refrain from acting in the way the feds want.
None of this is to deny that there may be arguments that the New York and Printz cases do not apply to information compulsion and detainers in the immigration setting. As I have written before, I do think the most prominent rationale advanced in support of New York and Printz (keeping the lines of accountability clear) applies in the immigration setting, at least as sensibly as it applied in the nuclear waste and gun control settings. But it is possible the Supreme Court will cut back on Printz, or decline to apply it to the immigration setting because of foreign affairs/national security considerations. (This week’s ruling upholding President Trump’s so-called travel ban reminds us of that possibility, even though I think federal detainers and information requests are less connected to national security than the temporary entry restrictions upheld on Tuesday could be said to be.) But if the New York/Printz anti-commandeering principle doesn’t apply to the sanctuary jurisdiction dispute, then the US can directly enforce federal obligations to assist (as it has sought to do in the United States v. California case which I discussed a few weeks ago), and there is no real need for the additional sanction of state governmental tort liability to crime victims (which is not very likely to be effective in keeping states in line than direct federal enforcement in any event). And if New York and Printz do apply to the sanctuary setting, then this tort liability gimmick doesn’t eliminate the federalism problem.