A legal and political fight is heating up, over those cities who claim to offer”sanctuary” to undocumented immigrants (or illegal aliens, if you prefer). Specifically, such cities refuse to cooperate with enforcement of the federal government’s policies on the matter, for example by refusing to let Feds into municipal jails to inquire about the immigration status of inmates, and declining to give the Fed’s two days of notice before the release of inmates in which said Feds have expressed an interest.

At law a municipality is a creature of the state, and by constitutional doctrine states cannot be “commandeered” into assisting with the enforcement of federal laws. Presumably their creatures cannot be commandeered either, so long as they have the support of the state authorities. So how far can states and cities go, in interposing themselves on behalf of undocumented residents, in the name of refusing to be commandeered?

The U.S. Supreme Court has agreed to hear a case this coming term that bears upon this point. It arises out of what would seem a completely different issue: sports betting. New Jersey wants to repeal its own laws against betting on sports. The federal government claims that the Professional and Amateur Sports Protection Act of 1992 bans states that have such laws on the books from removing them. New Jersey replies that if PASPA does that, PASPA is in violation of the U.S. Constitution.

So … can New Jersey make itself a sanctuary for sports bettors? And, if so, what does this tell us about the fate of the litigation over the undocumented?

Left Wing View

A professor at Ohio State University, Professor Peter Shane, has said, “There is nothing to the idea of state sovereignty if state and city officials are not entitled to direct how their subordinates exercise their lawful discretion to advance state and local interests.”

Historically, the left and right both use the split between state and federal authority opportunistically. The left associates federal authority with its historic victories on everything from civil rights to the preservation of wilderness land. But it is happy to have states use their sovereignty to foil the federal government’s immigration policy, or to stop construction of interstate gas or oil pipelines. The right is happy to assert federal authority (when it is in control) in its pursuit of the war on drugs that the feds (not necessarily the states) consider illegal. But it ends up defending the state’s authority to decide who each state will recognize as legally married.

Each side simply finds constitutional authority in the level of government which it trusts at the moment or on a particular issue.

As Jonah Goldberg put the point in the Chicago Tribune recently, during the Obama years, “virtually any talk of ‘secession’ was deemed the province of cranks and weirdos. But days after Trump’s victory, ‘Calexit’ – a movement for California to secede from the United States – took on new life.”  Secession is the extreme example of the more general point. We’re (virtually) all hypocrites here.

Right Wing View

On Wednesday, President Trump tweeted his view:

https://twitter.com/realDonaldTrump/status/898015350914138112

Twitter denizens like “Rock on Ohio” agree. Rock On tweets: “Sanctuary cities R a danger 2 us all … defund Sanctuary cities now!”

As the reference to “defunding” there indicates, there is in the right wing’s view of the subject of “sanctuary cities” an element of pay-the-piperism. That is: he who pays the piper calls the tune. The federal government is entitled, on this view, to withhold or to withdraw grant money to sanctuary cities and their law enforcement operations if they don’t cooperate. If the cities are unhappy about this, they can presumably learn to do without the grants.

On Friday, August 18, the National Review ran a piece on the sanctuary city question by Ilya Somin, an adjunct scholar at the Cato Institute, who explains the limits of this argument. As a matter of constitutional principle, “conditions on federal grants must be clearly stated in advance by Congress [not] imposed after the fact by the executive.”

For many on the right, though, even a city that never received a dime of such money would be in the wrong to offer sanctuary. It is for them a simple law-and-order matter. The Attorney General has said that such a city risks becoming “a trafficker, smuggler or predator’s best friend.” And the Washington Times has editorially added to that, “ouch – truth hurts.”