Kevin Fandl (Temple University - Fox School of Business and Management) has posted Not in My Backyard: How States and Localities use Civil Resistance Tactics to Protect Immigrant Communities (Southern California Interdisciplinary Law Journal, 2019) on SSRN. Here is the abstract:
Chicago Mayor Rahm Emmanuel told federal authorities that his city “is and will remain a sanctuary city.” Denver Mayor Michael Hancock said, “Local law enforcement is not going to do the job of the federal immigration agency.” A federal judge upheld two California laws that set out to restrict cooperation with federal immigration authorities. A different federal judge struck down an Arizona law mandating state and local cooperation with a federal law.
The United States is a federal republic and follows republican principles in its governance. This necessarily means that there is a clear line between federal and state authorities. The Guarantee Clause of Article IV of the U.S. Constitution highlights the independence of states in making most governance decisions. Likewise, the Tenth Amendment to the Constitution reiterates the point that most powers of governance are managed by the states and not the federal government. And of course, the balance is struck with the Supremacy Clause found in Article VI, which ensures that federal authority is given relevant enforcement power by preempting any state laws that interfere with lawful federal legislation.
The balance of power between states and the federal government — federalism — has created its fair share of controversies over the years. Yet recently, a substantial portion of these controversies involve immigration law and, more specifically, immigration law enforcement. The growing body of law and controversies surrounding immigration federalism has begun to highlight the limits of republican governance. Whereas little doubt remains about the lawfulness of federal immigration enforcement, states have pushed back in highly visible ways against federal intrusion into their communities to enforce federal immigration laws.
In this paper, I will provide a brief explanation of federal immigration law enforcement and how those enforcement authorities work with (or without) the states to carry out their duties. I will then contextualize state efforts to ward off federal incursion into their affairs by providing historic examples ranging from civil rights to marijuana laws. Finally, I will draw attention to recent state efforts to hinder, and in a minority of cases to enhance, federal immigration enforcement efforts. I conclude with policy prescriptions for states and local jurisdictions looking for legal cover to support their efforts.
