There’s a lot of debate about the practical impact of sanctuary city policies, but the constitutional legality of these local policies are much more clear.

Sanctuary cities are cities in which local authorities limit their cooperation with the federal government’s efforts to enforce immigration laws.

They are based on the idea that if the threat of deportation is reduced, illegal immigrants will be more ready to interact with local government, report crimes, use health and social services, and enroll their children in school.

A Sanctuary City is not the direct product of a law, and therefore does not have a precise legal definition, but approximately 300 U.S. jurisdictions, including cities, counties, and states, have adopted some type of “sanctuary policies.”


The Tenth Amendment stipulates that: ‘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.’ This essentially means that it is the right of the people of the states to rule themselves and to exercise power in the areas not delegated to the federal government. Legally speaking states, cannot prevent the federal government from enforcing federal law, but the Tenth Amendment offers jurisdictions (states and cities) the right not to enforce federal statutes. This “anti-commandeering doctrine” has been affirmed by the Supreme Court in several cases dating back to 1842.

The most illustrative example of the Tenth in action can be drawn from the Fugitive Slave Act enforced as part of an attempt  1850s, which authorized federal authorities to capture escaped slaves and return them to bondage. Whilst this was a federal law, the federal government could not compel free states such as Massachusetts to enforce it or even cooperate with federal authorities. The Supreme Court first established the anti-commandeering doctrine in the fugitive slave case Prigg v. Pennsylvania.


Fast forward to the modern era. 1996 Republican presidential candidate Bob Dole’s quirky love affair with the Tenth Amendment now seems less quirky to the right after the very same amendment has become an instrument with which people on the left can impede federal immigration law.

In November 2017 Federal District Judge William H. Orrick III, appointed by President Obama to sit on the bench at San Francisco, cited the Tenth as part of the basis for his decision to strike down Trump’s Executive Order 13768. In short, Orrick argued that the executive order, which required the federal government to withhold certain federal funds from Sanctuary Cities that protected undocumented immigrants from federal prosecution, was unconstitutional as it violated the Tenth Amendment, on the grounds that he was attempting to usurp powers that belong to local authorities.

So, how did we get to the point where an almost forgotten Constitutional Amendment extolling the merits of federalism is hitting the headlines?


Sanctuary Cities are nothing new – San Francisco has worn the term as a badge of honor since 1989 – but they became an electoral issue during the 2008 election, which witnessed anti-illegal immigration candidates attacking Sanctuary Cities. In 2009 Georgia banned them outright. Last year, Texas adopted a law requiring law enforcement and local government to cooperate with the enforcement of federal immigration law. In contrast, California’s legislature passed a bill that would largely prohibit local law enforcement from using their money, equipment or personnel to aid federal action against undocumented immigrants.

The shooting of Kathryn Steinle in San Francisco on July 1, 2015, by Jose Inez Garcia Zarate, brought Sanctuary Cities into the national spotlight. Zarate, a Mexican national unlawfully residing in the U.S., was potentially protected from a federal investigation due to San Francisco’s Sanctuary City status.

The ensuing debate focussed on whether Sanctuary Cities were serving to “encourage” crime through their tolerance for illegal immigrants. Attorney General Jeff Sessions told law enforcement officers that “sanctuary cities with these policies have higher rates of violent crime,” and some claim that it is the “culture” of these cities which is to blame. This is plausible, given that many of these cities have strict gun control laws, where anything more powerful than an air rifle is banned outright.

For many people, sanctuary cities support a culture of permissiveness, and whether true or not, they are at least seen as a symbolic safe haven for illegal immigrants who have broken the law. It is entirely possible, therefore, that Sanctuary Cities contribute to a culture in which the line is blurred between what is viewed as illegal activity, one example being whether entering the country illegally or overstaying a visa constitutes a crime.

Though the idea of sanctuary cities is controversial, there is clear precedent that local governments are able to set their own immigration policy. That isn’t what Trump voters will want to hear, but the Tenth Amendment to the Constitution demands that a true conservative must accept the authority of state and local governments to manage their own personnel and resources, even when they don’t like the policy.

Sam Bocetta

The 10th Amendment

“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.”



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