Trevor George Gardner, The Promise and Peril of the Anti-Commandeering Rule in the Homeland Security Era: Immigrant Sanctuary as an Illustrative Case, 34 St. Louis U. Pub. L. Rev. 313 (2015), https://digitalcommons.law.uw.edu/faculty-articles/62
Saint Louis University Public Law Review
This brief narrative captures the second wave of “immigrant sanctuary”—a term used to describe the state and local government practice of restricting police departments from participation in immigration enforcement. The immigrant sanctuaries of the Homeland Security era are of unique significance given the ongoing dialogue among legal scholars regarding the significance of local law enforcement participation in national and domestic security administration after 2001, as well as the legal framework structuring cooperative security governance.
Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check against federal overreach. Hand wringing by legal scholars over the Court’s reasoning in Printz and the rigid rules against commandeering attached to this reasoning have obscured the fact that the case now stands as a bulwark against the expansion of federal authority over state, county, and local police. Given the holding in Printz, ICE cannot require the active participation of subnational police in immigration enforcement and must instead—despite its previous assertions to the contrary—solicit this support through state and local governments who may, in turn, participate in immigration enforcement of their own volition.
In the empirical portion of this article, I present the case of immigrant sanctuary as a platform from which to consider the promise and peril of anti-commandeering jurisprudence in the Homeland Security era. My empirical analysis of immigrant sanctuary is based on an original dataset I created, made up of coded data from seventy-five immigrant sanctuary laws and policies and basic demographic information from the associated jurisdictions.
I build a backdrop upon which to consider the data analysis in Part I, by explicating the anti-commandeering rule and outlining the legal debate over its costs, benefits, and constitutionality in the Homeland Security era. In Part II, I provide an overview of the sanctuary policies enacted between 2001 and 2008, followed by data analysis that allows for an evaluation of some of the core claims made by opponents and proponents of the Printz decision.
I complete the analytical portion of the paper in Part III by drawing the legal theory of expressive state action to the immigrant sanctuary case and the commandeering debate. The expressive theory of state action is especially salient in the context of bilateral security governance, where federal conceptions and theories of security tend to take shape unilaterally (i.e., by federal “say-so”) and outside of the public eye and public discourse. I conclude with a few thoughts about the importance of combative federalism to the fields of crime and security governance.