Toni M. Massaro and Shefali Milczarek-Desai have posted Constitutional Cities:Sanctuary Jurisdictions, Local Voice, and Individual Liberty on the Columbia Human Rights Law Review website. Here is the abstract:
The United States is deeply divided on matters that range from immigration to religion to fracking. “Blue” states resist “red” federal policies, and intra-state disputes pit state legislatures against their local governments. One of these intergovernmental policy flare-ups involves so-called “sanctuary jurisdictions”—government actors that object to more aggressive immigration enforcement by slow walking their voluntary compliance or denying it altogether. In some cases, they have filed lawsuits to voice their dissent.
This Article analyzes the recent wave of sanctuary jurisdiction lawsuits in detail and identifies ways in which they undermine claims that local governments are “mere instrumentalities of the state” or otherwise powerless in the face of federal or state authority. Structural and civil liberty constitutional rights may protect local governments from some state and federal mandates. Local residents too may have resistance options in addition to the voting booth and the moving van.
This should matter to all sides of the immigration debate: those who support the federal government’s strict immigration policies, those who favor state-federal cooperation in enforcement, and those who believe local jurisdictions should be given room to resist on policy grounds. But local governments’ right to dissent goes beyond immigration law. The sanctuary jurisdiction controversy may guide local officials in many other areas, and help illuminate how and when they may assert local rights.
This Article outlines the contours of potential local rights and makes three descriptive claims. First, respect for local power is on the firmest ground when it fortifies constitutionally sound government, top to bottom. Second, these tools of local resistance are quite limited. They work only in cases where upper level government mandates are beyond the constitutional pale or debatably so, and where courts can and should play a role in calling the lines. Third, they are available to all local government actors, not merely to progressive urban actors. The Article also makes the following normative claim: preserving constitutional breathing room for local dissent is critical to a healthy interchange between and among federal, state, and local governments. Above all, it promotes fundamental liberty values.
This is not a “city power” manifesto; it is a “constitutional city” manifesto. This Article maintains that the articulation and enforcement of constitutional ground rules is particularly critical in the current moment of hyper-partisanship and centrifugal forces that undermine union and intergovernmental cooperation. A call to these basic principles may offer Americans the hope of a fair game, however intensely and politically the game is fought.