Let’s start with the Constitution’s Naturalization Clause (Art. I, Sec. 8, Cl. 4), which provides Congress with the “power … To establish an uniform Rule of Naturalization … throughout the United States.” Likewise, the Supreme Court has long recognized Congress’s plenary authority over immigration.
Congress has enacted a body of laws, which federal officers are charged with enforcing, addressing who should be admitted to or excluded from the country and who can be deported. These laws also impose obligations on private actors, such as employers, about measures they must take to avoid employing or harboring individuals who entered the country illegally or overstayed their welcome.
Until recently, state and local authorities cooperated with federal officials in enforcing our nation’s immigration laws, providing intelligence on the whereabouts of illegal aliens and honoring detainers placed on those suspected of being here illegally who were temporarily in state custody.
That has changed. Several states and localities, objecting to enforcement practices they think are overly zealous, have declared themselves “sanctuary jurisdictions,” refusing to cooperate with federal authorities and, in some cases, enacting laws prohibiting otherwise willing state and local officials from cooperating.
In response, the federal government is applying pressure, including naming and shaming uncooperative officials and filing lawsuits challenging this intransigence, trying to induce greater cooperation. But what does the Constitution provide, and what has the Supreme Court said on this subject?
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Let me be clear that I favor robust enforcement of our immigration laws, disapprove of sanctuary jurisdictions, and believe that every state and locality should voluntarily cooperate with federal immigration officials. The open-border policies of the last administration were a disaster, and we are paying a heavy price for that now. But compelling cooperation from state and local authorities impinges on their separate sovereignty and flies in the face of the anti-commandeering doctrine developed by the Supreme Court to protect that sovereignty.
The Tenth Amendment provides that powers not delegated to the federal government “are reserved to the States respectively, or to the people.” As Chief Justice Salmon P. Chase said in Texas v. White (1869), “the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.”
Through a series of cases, starting with New York v. United States (1992), the Supreme Court has developed what has come to be known as the anti-commandeering doctrine to give teeth to that amendment. Essentially, in the absence of explicit constitutional authority, neither Congress nor executive officials can commandeer (to wit, conscript) state officials to execute or administer federal regulatory initiatives, even really important ones, without their consent, and that includes enforcing our nation’s immigration laws.
This was most explicitly established in Printz v. United States (1997), in which the court, in an opinion by Justice Antonin Scalia, held that federal authorities could not compel state and local law enforcement officers to conduct background checks of individuals wishing to purchase firearms, stating that, “such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
This does not mean that Congress (which has only those limited and enumerated powers set forth in Article I) or the executive branch is completely powerless in the face of state and local intransigence. While state authorities cannot be compelled to cooperate with federal immigration authorities, they cannot obstruct them either, as was done recently, for instance, by (now former) Wisconsin circuit court judge Hannah Dugan, who helped a Mexican man evade Immigration and Customs Enforcement agents by ushering him out of her courtroom through a side door.
Federal immigration law also prohibits states from preventing state and local officials from exchanging information with federal authorities about the citizenship status of individuals. And states have no authority to dictate how federal agents carry out their duties, for example, by prohibiting them from wearing masks. Additionally, Congress can use its spending authority to, essentially, bribe states by offering them federal funds in return for their cooperation.
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But if a state decides to stick to its guns and declines the conditioned federal largesse, there is not much that can be done, at least until the voters in that state or locality get the chance to weigh in with their own views about the decisions that were made by their elected officials. Dual sovereignty serves, as the court has recognized, as a check on federal power, such that the federal government cannot expand its own power at the expense of the states by forcing their officials to do its bidding.
States get to decide for themselves, for good or for ill, how they wish to deploy their own resources and how much assistance they want to provide to federal immigration officials, so long as they are willing to pay the price.
John Malcolm is the vice president of the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom Foundation.