Can Granville be a “sanctuary city” legally?
Yes. Oh, funny story. It already is.
Can Granville be a sanctuary city without breaking the law?
I’ll summarize: Yes.
Granville has been a “sanctuary city” — that is, not enforcing federal immigration laws — since its founding in 1805. So is nearly every municipality in Ohio and the other 49 states.
Cincinnati, Columbus and the other 400 places nationwide that have declared themselves (or been called) “sanctuary cities” are merely exercising naming rights for a routine policy practiced by nearly one of the nation’s 36,000 towns and cities. They aren’t at legal risk because all cities and states have unambiguous constitutional authority to become sanctuary cities.
In this article, I’ll explain why.
The “anti-commandeering doctrine” is the only significant constitutional tradition that flows from the Tenth Amendment. (Don’t remember the Tenth Amendment? Shame on you! Click the footnote.)
The Tenth Amendment is perpetually overshadowed by its famous constitutional cousin, the Supremacy Clause, which says federal law trumps state law when there’s a conflict.
But the Tenth Amendment’s anti-commandeering doctrine — not the Supremacy Clause — is the issue in sanctuary city cases. And it makes Attorney General Jeff Sessions’ threat to pull federal funds from Cincinnati as punishment for sanctuary city policies mostly hot air.
Refusing to enforce federal law — for immigration, slavery or any reasons — is a well-established, 228-year-old constitutional right for states and local governments. The constitutional principle –called the “anti-commandeering doctrine” — has played a key role in making America great throughout our history. It’s allowed states to undercut slavery, give women the right to vote and advance other admirable policies when the federal government refused to.
If you doubt this, ask yourself: Why hasn’t the federal government ever challenged a sanctuary city in court? In the 38 years since Los Angeles became the first “sanctuary city” in 1979, no administration — neither Republican nor Democratic – has dared contest this supposedly lawless behavior.
The federal government avoids “commandeering” cases for one reason: it would lose. The federal government has assiduously dodged anti-commandeering cases for 228 years — even withdrawing cases that the U.S. Supreme Court had already accepted on the issue.
President Trump would be a fool to take this to court. If you’re the feds, when it comes to limits on federal power, some things are best left unsaid and ambiguous!
“You can’t make me do that”
The constitutional concept of “commandeering” is simple: the federal government cannot make states and local governments enforce federal laws. Or vice versa.
The U.S. Constitution created a “dual sovereignty” system. The feds have some powers. States have others. Many are shared.
The federal government must enforce its own laws solo — unless another sovereign voluntarily agrees to enforcement them. States can never be compelled to enforce federal law. Not my words. U.S. Supreme Court words.
The anti-commandeering doctrine works as it sounds. The feds cannot “commandeer” states and cities to enforce federal law. Commandeer means to seize or take control of. The feds can’t seize or take control of other sovereigns to enforce federal law.
Put another way, sanctuary cities can refuse to enforce federal immigration law because it is their Tenth Amendment right, just as writing this is my First Amendment right.
“Dual sovereignty” works in the other direction, too. The federal government can enforce federal law in any state or city — regardless of what cities or local governments think.
When Alabama Gov. George Wallace stood in a local schoolhouse door and declared, “Segregation now, segregation tomorrow, segregation forever,” he had a legal problem: a federal agent could push him aside and open the schoolhouse door. That’s the Supremacy Clause at work.
Brought home, the feds can enforce federal immigration law in Granville. The Village can’t legally prevent that. What the feds can’t do is require Granville (or Cincinnati or California) to apply, enforce or follow federal immigration law..or federal slavery law…or federal marijuana law …or a federal law of any kind.
Limits on federal power: From slavery to Obamacare
The anti-commandeering doctrine was born in the Federalist papers, articulated by the U.S. Supreme Court in an important Fugitive Slave Act case in 1842 and most recently enforced and expanded when the Supreme Court voided Obamacare’s effort to get states to expand Medicaid.
I’ll give a brief history shortly of the four most important Supreme Court anti-commandeering cases. But, overall, the Tenth Amendment doesn’t get frequent exercise because states and local governments voluntarily follow most federal laws and regulations routinely as a matter of convenience and practicality.
For example, Ohio’s income tax law mimics federal tax law. Line 1 of Ohio’s Income Tax Form 1040 asks for “federal adjusted gross income.” Ohio doesn’t have to do this. It’s Ohio’s choice. Ditto for sharing fingerprints, making road signs look the same and so on.
As a (silent) sanctuary city, Granville is not making immigration law. It cannot make immigration law. That’s exclusively a federal function. But Granville does decline to enforce almost every federal law on the books — federal securities law, federal farm insurance violations, etc. And vice versa. The feds don’t enforce Granville’s laws or those of the states.
The principle is simple: States and local governments can voluntarily enforce or help the feds, but it is their choice.
Let’s hear from SCOTUS
The Supreme Court has defined the anti-commandeering doctrine in four important cases decided in 1842 (slavery), 1992 (environmental regulation), 1997 (gun control) and 2012 (Obamacare). Let’s learn about those exciting cases!
Prigg v. Pennsylvania. The U.S. Supreme Court ruled in 1842 that states couldn’t prosecute federal agents in state courts under state laws against capturing runaway slaves under the federal Fugitive Slave Act of 1793. The slaves states and the pro-slavery federal government won the case — to their enormous detriment.
In what turned out to be a serious blow to slavery, the flip side of the decision turned out to be most important: states didn’t have to enforce the federal Fugitive Slave Act or other slave laws that free states opposed. In fact, taking a hint from the abolitionist justice from Massachusetts who wrote the Prigg decision, Pennsylvania passed a series of laws prohibiting state and local officials from participating in the return of slaves.
Pennsylvania became, quite literally, a “sanctuary state” for runaway slaves. Other free states did the same, illustrating the brilliance of dual sovereignty as a mechanism to handle political and regional discord.
New York vs. U.S. (1992) Federal law told states to follow federal environmental regulations on disposing radioactive waste. Not allowed. “The Federal Government may not compel the States to enact or administer a federal regulatory program,” wrote Justice Sandra Day O’Connor.
Printz v. U.S. (1997) The Supreme Court expanded the anti-commandeering doctrine to cover local governments, ruling local police couldn’t be required to do background checks of gun purchasers under the federal Brady Act.
Justice Antonin Scalia wrote: “The Federal Government 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.”
Independent Business vs. Sebelius (2012). This case is best known for upholding Obamacare, but Obama lost the anti-commandeering part of the case. The Court rejected Congress’ using financial incentives to entice states to expand Medicaid.
Chief Justice John Roberts wrote the incentives were so strong as to be “coercive.”  The decision expanded the Tenth Amendment protection in a way they protects Cincinnati and other sanctuary cities from losing federal funds. Although the court hasn’t defined how far is too far and “coercive,” the Trump administration will have a hard time withholding federal grants not directly related to immigration. The school district, for example, should not fear losing federal money.
What about the Supremacy Clause!?
The Supremacy Clause is the cool kid of constitutional law. The anti-commandeering doctrine is more Debbie Downer, ignored and avoided at the constitutional reunion.
The Supremacy Clause says this: federal law “shall be the Supreme law of the Land…(the) Laws of any State to the Contrary notwithstanding.”
This means Granville cannot pass a law that conflicts with federal law. This is doubly true for immigration. In 2012, the Supreme Court reaffirmed that immigration was exclusively a federal function, not a state one. The Court rejected Arizona’s attempt to use state power to create state laws getting tough on immigrants — making it a crime, for example, to be in Arizona without legal papers.
The Supremacy Clause and the anti-commandeering doctrine are separate constitutional concepts that don’t conflict, although it may seem that way at first.
The Supremacy Clause says federal law overrides state law when there is a conflict on an issue that is exclusively federal (such as immigration) or shared (such as criminal law, taxation). The anti-commandeering doctrine says the federal government is on its own when enforcing “Supreme” federal law — unless it can persuade states to voluntarily do its work.
As parents know, kids have considerable power when they say, “You can’t make make do it!” You can scream, “This is my house, and I make the rules!” Well, consider yourself just another victim of the anti-commandeering doctrine.
The Tenth Amendment is quite a beautiful innovation. It holds these united states together when differences threaten to tear us apart. The Tentht Amendment lets divisive issues be worked out simultaneously at a national and local level.
It let Ohio could “do the right thing” on slavery even when Southern states dominated the federal government. States are a “laboratory of democracy” for a reason. Social change can spread incrementally by region even while waiting for the South to catch up. (It was ever thus.)
Over time, the Tenth Amendment has been assailed variously as “conservative” or “liberal.” It’s neither. It’s a damn good idea, a sovereign property line straight out of the Federalist papers.
If you think about it, you can’t have our constitution without an anti-commandeering clause. If it didn’t exist, Congress could pass Supreme Laws and order the states to do it and pay for it – a federal politician’s dream! The Founders feared something different, though — that Congress would bypass the president and tell states to enforce its wishes.
What does this mean for Granville?
Granville can do what the hell it wants. The Village already is a sanctuary city. It’s never enforced immigration laws. If conservatives want to turn Granville into Trumpland, the burden is on them to change policy to be anti-immigrant.
Granville’s current choice is:
- Stay a sanctuary city – but don’t say it.
- Be a sanctuary city – and say it.
I like Option B.
Let’s say what we are, what we always have been: a kind, thoughtful, welcoming community.
I understand some radical big government conservative activists don’t believe in tradition and want to use our small sovereignty in an authoritarian way to kick immigrant ass. They should run for Village Council on this platform. I predict they might get up to 25% of the vote.
Being a “sanctuary city” is a political question for municipalities, our tiny sovereign included. Conservatives profess to love the law and the Constitution. But, here, the law and constitution is against them.
Sanctuary city advocates are fully protected by the First and Tenth Amendments.
Is this a great country or what?
 “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
 Why do you think the National Guard was called in to break segregation? President Johnson could not order the state or local police to open the schoolhouse doors. In the 1800s, the federal government was pro-slavery – and northern states refused to go along. One hundred years later, the federal government was anti-segregation – and Southern states refused to comply. In both cases, the federal government had only one option: enforce its own laws itself.
 For example, the federal government doesn’t have to enforce state laws, such as product safety regulations when a good moves through customs, even when the port is in that state.
 State and local police cannot detain undocumented immigrants because that is a federal power. However, local police can be trained and certified to do so voluntarily – effectively being deputized as federal agents – under the 287(g) program.
 The “sanctuary city” laws of their time.
 Federal agent Edward Prigg had been convicted of kidnapping under state law for the crime of “having with force and violence, taken and carried away from that county to the state of Maryland, a certain negro woman, named Margaret Morgan, with a design and intention of selling and disposing of, and keeping her as a slave or servant for life, contrary to a statute of Pennsylvania, passed on the 26th of March, 1826.”
Supreme Court Justice Joseph Story, a slavery opponent from Massachusetts, ruled for slave states, writing that Pennsylvania could not prosecute the slave catcher (an attorney married to a free black woman!). As federal power grew, the flip side of the equation turned out to be more important: the federal government could not force states to execute a federal laws.
“The states cannot, therefore, be compelled to enforce them (slave laws); and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution,” Story wrote.
 The Supreme Court had taken another environmental case in the 1970s, but the federal government dropped the case before a decision could be made because the feds feared a loss that would further limit federal power.
 Roberts’ decision articulates the issue plainly: “The case is easy and straightforward…What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.”
 When it comes to withholding money, “how far is too far” is unsettled. In 1987, the Court allowed Congress to use federal highway money to punish states who didn’t raise the minimum drinking age. In South Dakota v. Dole, the Court said the Commerce Clause allowed it without impinging on the Tenth Amendment.
 Article VI, Clause 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”