AT FIRST BLUSH, Rev. Ken Heintzel-man and Pastor James Pennington don't look like they have much in common. Heintzelman is the straight and straight-laced head of the Shadow Rock United Church of Christ, located in a tony northern part of Phoenix. He presides over an elegant, contemporary stone structure with a slanted roof and floor-to-ceiling windows, wearing khakis and a crisply pressed dress shirt. His church is surrounded by a large manicured estate hemmed in by parched hills, all of which seems designed to reflect the taste of the church's well-heeled congregation.
Pennington is the gay pastor of the First Congregational United Church of Christ, located smack in the middle of downtown Phoenix. His silver earring, bead bracelet, and gelled hair give the impression he's about to dart off to jam with a garage band. His church's impressive white steeple rises sharply from its street, but the church itself is a modest structure. Inside it has the feel of a repurposed middle school, which seems fitting for the happy-go-lucky spirit of its ethnically diverse and mostly low-income congregation. If Shadow Rock is a country club, First Congregational is a summer camp.
But both are sanctuary churches. Each offers shelter to undocumented immigrants facing deportation.
Just as law enforcement officers in sanctuary cities refuse to obey Immigration and Customs Enforcement (ICE) orders commanding them to detain unauthorized aliens without a warrant, sanctuary churches refuse to heed anti-harboring laws that make it a criminal offense to knowingly shield or transport an "alien who has entered the United States in violation of the law."
There is a big difference between the two forms of sanctuary, though. Despite all the outrage, nothing prevents Uncle Sam from hauling immigrants--even legal ones--away from any city in America for deportation. Indeed, the term sanctuary city is a bit of a misnomer, given that the federal government has near-complete discretion over how and where to enforce immigration laws. The only issue is how much cooperation it can expect from the local authorities.
But when it comes to sanctuary churches, ICE's own internal administrative guidance, along with age-old custom, bars the government from engaging in confrontational enforcement activities on the premises of houses of worship. In the sanctuary church movement's seven-decade-long existence, authorities have never gone into a church to arrest undocumented aliens, even though churches are technically considered public spaces, which officers don't require a warrant to enter.
That internal policy gives churches some power to shield aliens from being snagged, something sanctuary cities can't and don't do. A few other "sensitive locations," including medical facilities, schools, and to a lesser extent courts, are also off-limits to intrusive policing--not just in America, but in virtually every culture and every country that hasn't collapsed into mayhem.
So how is the current presidential administration dealing with these obstacles to the kind of zealous "interior enforcement" it wants to use to cleanse the country of undocumented aliens? Regarding so-called sanctuary cities, the answer is well-known: Donald Trump has declared open season. He is going after state and local governments aggressively by threatening to cut off federal funding streams if they don't back down. He's also ordering more ICE raids.
But when it comes to sanctuary churches and other sensitive locations, Trump has quietly embraced a less open but no less troubling strategy that is eviscerating the longstanding norms preserving a sphere of independence for these institutions. If the administration continues on its draconian course, it will vastly expand the federal government's reach and radically shrink the space where American humanitarianism can find full expression: civil society.
THE FEDERAL HAMMER FALLS
EVERY TIME A foreigner is accused in a violent incident in a sanctuary city--for example, when an illegal immigrant in San Francisco allegedly killed a young woman named Kate Steinle (he was later acquitted of the murder charges), or when an Uzbek Muslim immigrant in Manhattan mowed down six pedestrians--Trump dials up the hysteria level and vows to cut the city's federal funding. One of the first things he did after assuming office was sign a sweeping executive order that would have slashed all Department of Homeland Security and Department of Justice grants to cities that flout demands from immigration enforcement.
A California federal court in November declared that the executive order was unconstitutional because it was "coercing" local authorities to do the feds' bidding, something five conservative (and two liberal) Supreme Court justices declared a no-no in 2012. That ruling came in National Federation of Independent Business v. Sebelius--i.e., the case challenging the Obama administration's efforts to cut off all Medicaid funding for states that refused to expand the program as required by the Affordable Care Act.
Citing the high court's decision in the Obamacare case, Judge William Orrick said that cities are not obligated to honor Washington's requests that they hold undocumented aliens without a warrant till ICE can whisk them away for deportation. Compliance, he pointed out, is "voluntary and local governments are not required to honor them." Furthermore, "federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves." In other words, at most the administration can cut off "germane" funds that actually have something to do with immigration enforcement.
Expecting the ruling, the Justice Department tried to...