CONTEXTUALIZING SANCTUARY POLICY DEVELOPMENT IN THE UNITED STATES: CONCEPTUAL AND CONSTITUTIONAL UNDERPINNINGS, 1979 TO 2018.

• Author: Colbern, Allan

Introduction 490 I. Approaches to Understanding Sanctuary 495 A. Typological-Legal Approach 496 B. Historical-Legal Approach 502 C. Historical-Moral Approach 507 D. Policy-Data Approach 509 II. Sanctuary Policy Development 511 A. Period 1:1979-1995 Sanctuary from Immigration Law 515 1. Church Sanctuary Movement 517 2. Moral Activism Evolves into Federalism Conflict 520 Over Policy 3. Shared Features of Sanctuary Policies 524 B. Period 2: 2001-2005: Sanctuary from the Patriot Act 528 1. Constitutional Issues Raised in Sanctuary Policies 530 2. Shared Features of Sanctuary Policies 532 C. Period 3:1996-2018 Sanctuary from Immigration Law 535 1. Immigrant Rights Origin of Sanctuary Policy 537 2. Sanctuary as More than Resistance-Only 543 III. A Holistic Framework for Understanding Sanctuary Policies 545 Conclusion 546 INTRODUCTION

Sanctuary policies are considered among the most contentious feature of today's immigration federalism debates, because they place federal and local policies in seeming opposition to one another. As a result, the term "sanctuary" is not only highly contested and nuanced in the academic setting (1) and political arena, (2) but it has also become increasingly obscured through competing narratives in the immigration debate. On January 25, 2017, President Trump attacked "sanctuary cities" by issuing an executive order that targeted jurisdictions for "willfully violat[ing] Federal law in an attempt to shield aliens from removal from the United States." (3) At the core of his anti-sanctuary order is the political narrative that "[sanctuary] jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic." (4) When a federal judge in San Francisco issued a nationwide injunction temporarily blocking the executive order, President Trump's administration responded: "[sanctuary] cities are engaged in the dangerous and unlawful nullification of Federal law in an attempt to erase our borders." (5)

Today, the term "sanctuary" in relation to sanctuary cities is "generally associated with the unlawful facilitation of the continued presence of unauthorized immigrants and their families in this country"--a narrative crafted by anti-immigrant groups like the Federation for American Immigration Reform (FAIR). (6) The scholarly consensus, however, points to sanctuary policies' many benefits, rather than their harms. (7) Framing sanctuary policies as constitutionally legitimate remains a challenge, in part because of the category of "illegal alien" and the complex history of immigration federalism. (8) President Trump's political narratives and legal threats to defund cities have been effective precisely because they situate sanctuary policies as a resistance to federal law without guiding principles. (9) State and local governments' special interest in protecting their residents and the constitutional rights of all persons, regardless of their immigration status, are notably absent in the narrative, when they should be front-and-center. Going beyond the Tenth Amendment's anti-commandeering principle, rights-based guiding principles and state and local government interests substantiate the legitimacy of sanctuary policies.

Shortly after President Trump took office and issued his anti-sanctuary executive order, Mayor Carlos Gimenez repealed Miami-Dade's 2013 county jail sanctuary policy. (10) This effectively allowed all new detainer requests issued by Immigration and Customs Enforcement (ICE) to be honored and for suspected undocumented immigrants to be held longer than forty-eight hours, thereby violating an individual's due process rights." As a result, 436 people in MiamiDade were turned over to ICE on detainer requests in 2017. (12) This local repeal was a response to increased federal pressure. On August 4, 2017, acting Attorney General Alan Hanson sent Miami-Dade, among other sanctuary jurisdictions, a memo "warning [that] they must prove compliance with federal policies or lose crime-fighting grant money." (13) At the core of the letter was a carefully crafted narrative linking sanctuary policies to increased crime, citing progressive states like California and large cities like Chicago and New York. Despite social science research showing that sanctuary policies are successful (14) and that immigrants are less frequently engaged in criminal activity (15) than citizens, when sanctuary policies are conservatively defined as unprincipled resistance to federal law, they become open to conflation with anti-immigrant frames and false notions of immigrant criminality.

The federal government and its agencies have exclusive authority to pass and enforce immigration laws, but federal capacity to enforce its laws has always been limited. (16) As a result, the federal government has formed partnerships with states and localities in order to expand its own capacity to identify and apprehend individuals for removal. (17) Referring to President Trump's campaign promise to deport two to three million immigrants, Anna Law explains, "to find, apprehend, legally process, incarcerate and return that many people to their home countries would require the cooperation of local law enforcement." (18) This is why the executive order not only targets sanctuary policies, but also makes interior enforcement partnerships a top priority and reinstitutes the Secure Communities ("S-Comm") program. (19) State and local governments that refuse to cooperate present a major obstacle to Trump's antiimmigrant agenda.

Sanctuary policies form resistance to federal law that are built on deep constitutional grounds. This Article contributes to the literature on sanctuary by proposing a new framework for organizing and characterizing the motivations behind, and goals of, sanctuary policies over time. Part I explores and considers how four current approaches to understanding sanctuary--typological-legal, historical-legal, historical-moral and policy-data--are employed in areas of scholarship that are currently unbridged. We argue that each of these approaches have led to similar arguments in defense of sanctuary, as a constitutionally legitimate function of state and local governance. Part II proposes a new framework for organizing and analyzing the motivations behind, and goals of, sanctuary policies over three distinctive periods of development between 1979 and 2018. Part III explains why this Article's framework is able to ground a synthesis of the four separate approaches to show that sanctuary is much more than a resistance movement. Our framework adds greater precision to understanding how social movements have evolved and restructured sanctuary policies to better resist the federal government and uphold constitutional rights. It also focuses on how immigrant rights are being shaped by actors who engage in state and local policymaking with constitutional constraints in mind.

This Article argues that the narrative of sanctuary policies as violating federal law and challenging core American values, ignores their critical place in American history. Since their origin in the 1980s, sanctuary policies became less connected to the specific struggles of Central American refugees and assumed broader goals related to civil rights and immigrant rights that span the basic functions of state and local governance. Sanctuary today provides a moral and constitutionally legitimate form of integration and protection with regard to undocumented residents.

1. APPROACHES TO UNDERSTANDING SANCTUARY

   This Part briefly identifies and reviews four approaches that have been employed to understand sanctuary policies: typological-legal, historical-legal, historical-moral and policy-data. The first approach focuses almost exclusively on unpacking the constitutional underpinnings and specific functions of sanctuary policies. The second approach, by contrast, focuses on broader constitutional dynamics that shape federal preemption and state and local policymaking in relation to immigration law. The third and fourth approaches shift the focus away from the U.S. Constitution and towards a political understanding of how social movements shape sanctuary and how sanctuary policies, once they are passed, are linked to crime and economic outcomes.

   Each of the four approaches provides a unique understanding of sanctuary, but scholars have yet to bridge the gap and see the connection between these approaches. This gap has prevented the development of a comprehensive understanding, forged from joining constitutional analysis, social movement analysis, and policy analysis in the context of federalism. While the four approaches have emerged separately from one another, they are connected through their shared understanding of sanctuary policies as substantively justified local prerogatives grounded in constitutional principles, moral values, and good policy. This Article posits that a more holistic understanding of sanctuary policies emerges where the four approaches complement one another. By analyzing policy trends over time, this Article integrates key features from all four approaches to explain the motivations behind, and goals of, sanctuary policies.

   1. Typological-Legal Approach

      Grounding sanctuary policies in a set of guiding constitutional principles, the typological-legal approach provides an important corrective to the framing of sanctuary policies as unlawful. (20) Christopher Lasch's typology shows how sanctuary policies, rather than breaking the rule-of-law, serve as critical constitutional instruments often used to sever the connection between criminal law and immigration law. (21) Referred to by scholars as "crimmigration," the intersection between criminal law mechanisms (such as the use of local law enforcement and detention) and federal immigration law enforcement problematically casts a wider interior enforcement net for immigration violations that are civil and not criminal. Immigrants in deportation...