Last week Florida Governor Ron DeSantis signed into law SB 168, considered one of the strictest measures in the nation to prohibit state and local government entities from becoming so-called “sanctuary” jurisdictions within the state. In short, the new measure compels state and local law-enforcement agencies to cooperate with federal immigration enforcement efforts. Cooperation means, among other things, providing information to the feds about non-citizens, and honoring so-called detainer requests by federal Immigration and Customs Enforcement (ICE) officials to hold immigrants—who are in local custody unrelated to immigration but who may be subject to federal deportation—so that federal agents can pick them up. Local officials who decline to cooperate with ICE (and to date no local entities in Florida have proclaimed sanctuary intentions, causing critics of the law to suggest it was a solution in search of a problem) could be removed or punished under the new enactment.
About 10 states now expressly prohibit local sanctuary jurisdictions within them, and about an equal number have mandated that local jurisdictions be sanctuaries (i.e., that local jurisdictions not assist federal immigration efforts.) The other 30 or so states presumably leave the matter up to local discretion.
There are news reports that various groups have already threatened to legally challenge Florida’s anti-sanctuary law; and converse-litigation efforts have been aggressively pursued by the federal government to block pro-sanctuary state laws in places like California. Notwithstanding these efforts to make a federal case out of the matter, the question of whether a state can require, forbid, or permit state and local governmental assistance to the feds in immigration enforcement is really up to each state and its own laws. In other words, as long as a state and its subdivisions are not affirmatively obstructing federal enforcement (nor violating any promises made in order to receive federal funding), the autonomy that state and local entities and officials may have to decide whether or not to cooperate with the feds would be defined only by state law. As far as the federal Constitution is concerned, states and localities can agree to cooperate, or they can also choose not to cooperate at all—on a statewide or localized basis—as provided for in state law.
The autonomy that states enjoy to decide for themselves whether they want their state-level and local entities to assist is grounded in the so-called anti-commandeering doctrine the Supreme Court has applied in three major cases over the past quarter century. The first was New York v. United States, where the Court in 1992 held that the federal government could not require a state to enact policies that the federal government preferred, under pain of monetary punishment. Five years later, in Printz v. United States (1997), the Court applied (and extended, in the eyes of many) New York’s teachings to hold that the feds could not require state or local executive officials to enforce or implement federal policies either. Then, just last year, in Murphy v. National Collegiate Athletic Association, a 7-2 majority emphatically reaffirmed New York, and presumably Printz as well. Since complying with federal information and detainer requests involves enforcement more than enactment of federally preferred policies, Printz remains the key case in this arena, and warrants more discussion.
In Printz, the Court struck down a federal requirement that state and local law enforcement officers conduct background checks on gun purchasers as part of the implementation of a federal law (the Brady gun control law). “The Federal Government,” the Court said, “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.” At first blush, informational and detainer commands by ICE to state and local officials would seem to fall under Printz’s definition of what the feds may not command.
Printz and New York were both controversial 5-4 rulings subject to much academic criticism, and three of the five justices in their majorities have left the Court. Before Murphy, there might have been some question about how many justices still embrace the anti-commandeering rule. But seven justices, including two more liberal justices—Breyer and Kagan—who might have been expected to dissent in New York and Printz themselves, signed on to a ringing defense of the anti-commandeering idea.
It is also noteworthy that the anti-commandeering doctrine was used to invalidate more progressive federal laws in New York and Printz, which involved, respectively, environmental protection and gun control. But in Murphy the principle was invoked to strike down a more conservative federal law, one that sought to rein in sports gambling. Murphy’s application against a more conservative federal policy suggests durability of the doctrine. And Murphy’s reiteration of a statement in New York that “’no Member of the Court ha[s] ever suggested’ that even ‘a particularly strong federal interest would enable Congress to command a state government’” in violation of the anti-commandeering principle makes it harder (though not impossible) for the Court to create an “immigration enforcement” exception to the principle today.
To be sure, in Printz the Court expressly reserved whether its holding should extend to federal laws “which require only the provision of information to the Federal Government.” Perhaps information demands from ICE fall outside the anti-commandeering prohibition, even if states are free to refuse ICE’s detainer demands. Maybe, but even as to information demands, consider that in Murphy the Court made clear, in the middle of its justifications for the prohibition on commandeering that “the anticommandeering rule promotes political accountability,” preventing states from being improperly blamed for unpopular policies that in reality are dictated by the federal government. Whether or not accountability is a good basis on which to ground the anti-commandeering doctrine (and I have my doubts), if accountability remains the (or even a) touchstone, as the Court suggests, this has implications for the sanctuary jurisdiction debates. Although some kinds of federal information demands might not implicate accountability concerns, information demands by ICE do. In responding to law-and-order criticisms, sanctuary jurisdictions often explain their decisions to become sanctuaries by arguing that all residents are safer and healthier if undocumented residents feel free to report crimes to police and to avail themselves of other public resources (e.g., health clinics and schools) without fear that local authorities are actively working in concert with the federal deportation efforts. If local officials are not able to publicly and credibly proclaim and publicize that they will not provide information (or other support) to the feds, undocumented persons may clam up or fail to seek health and education services (whether or not the undocumented persons know the details of any support the locals provide). The electorate may blame the resulting possible increases in unsolved crime and public health problems on local officials (because they are generally the most visible level of government as to these matters) rather than the federal officials making demands on state officials. This corruption of accountability concern is at least as plausible as it was in New York and Printz.
There is another argument in defense of federal demands for state and local cooperation in immigration that was effectively accepted recently by a district court in Chicago and that bears discussion. This defense comes from a United States Court of Appeals for the Second Circuit case (also, confusingly enough, named City of New York v. United States) decided shortly after (and inspired by) Printz, in which that court rejected an anti-commandeering challenge to a federal statute that prohibited state laws precluding local governments from giving feds immigration information. In upholding federal power here, the Second Circuit reasoned that although the federal government may not compel states and localities to carry out federal programs, it may prohibit them from restricting state and local officials from “voluntarily” exchanging information with federal authorities. Otherwise, the Second Circuit reasoned, states and localities could hold federal authorities hostage, and frustrate federal programs, by reducing “voluntary” cooperation.
The Second Circuit’s logic here is deeply flawed. The Second Circuit believed that state and municipal officials ought not to be constrained by state law from “voluntarily” cooperating with the feds. But state and municipal officials in this setting are not operating as private citizens who voluntarily decide how to spend their time and resources. Instead, they are operating as state government actors, whose discretion to voluntarily act while on the job is heavily circumscribed by state and local laws. The “voluntary” decision whether to devote state and local resources to federal enforcement is (or ought to be) located at the level of state or local government, not at the level of the individual state or local employees. State resources—including the time and information of state employees—are owned by the state, and not by individual employees. Thus, I find it hard to know what “voluntary” means in this setting (something neither the Second Circuit nor the Chicago district court that embraced its reasoning explained.)
To see this point, imagine a variant on the facts of the Printz case. As noted above, Printz itself involved a provision in the Brady Handgun Violence Protection Act that required local law enforcement officials to conduct background checks on people seeking to buy firearms during an interim period when the federal government was in the process of setting up its own background-checking system. This was the provision the Court struck down as impermissibly interfering with local enforcement decisions and impermissibly compromising political accountability. But suppose that the Brady Act provision had said instead:
No state or local government can enforce any law or policy that prevents any local law enforcement official from using public resources—including employee time and equipment—to conduct background checks to assist the federal government’s gun control efforts, if the local official chooses to expend state and local resources for this purpose, even if such assistance to the federal government violates state law by diverting enforcement resources from other areas prioritized by state law.
Could anyone believe that such a law would have been allowed by the Printz majority? I think not. And yet such an implausible premise is precisely what undergirds the Second Circuit’s reasoning. And Murphy may help people see this more clearly. The issue of intra-state control was not the focal point of the dispute in Murphy. But Justice Alito’s majority opinion there did helpfully observe (albeit subtly) that problematic commandeering by the federal government can take the form of federal interference with a state’s decision about how much autonomy to give its local actors. That key insight may help lower courts better understand that laws like Florida’s—and California’s—are really governed by state constitutions and state policy preferences.