When Attorney General Jeff Sessions announced Wednesday that his Department of Justice was suing the state of California over three laws limiting cooperation with federal immigration agents, he made it seem simple: “We are not asking California, Oakland, or anyone else to enforce immigration laws. […] We are simply asking California and other sanctuary jurisdictions to stop actively obstructing federal law enforcement.”
That idea — that places run by Democratic governments, including cities around the country and some blue states like California, are “actively obstructing” the federal government to protect “illegal immigrants” — is at the heart of the debate over “sanctuary” jurisdictions. (Usually, people refer to “sanctuary cities,” but in this case the Trump administration has picked a fight with a “sanctuary state.”)
Sanctuary cities have become one of the favorite targets of the Trump administration. Sessions spent most of his first year as attorney general trying to find ways to block sanctuary cities from getting federal grant money and is now moving on to using the courts to get the policies themselves struck down.
In the imaginations of the most heated immigration hawks, “sanctuary” cities and states are places where the rule of law simply doesn’t apply — where Democratic-controlled governments have allied with “open borders radicals” (as Sessions put it Wednesday) to prevent Immigration and Customs Enforcement (ICE) agents from arresting unauthorized immigrants even when they’ve been convicted of crimes.
In the imaginations of some progressives, it’s kind of a mirror image of the same idea: “Sanctuary” policies have become a way for Democratic-governed parts of the US to demonstrate that they reject the Trump administration’s immigration agenda and the idea of America it projects, and want to protect everyone who lives within their jurisdiction regardless of legal status.
The wonky truth is that neither of these is exactly right.
The federal government has spent the past 20 years using local government (especially law enforcement) as a force multiplier to help it find, arrest, and deport immigrants more efficiently — and for almost as long, progressives have been trying to reassert local autonomy. At this point, the line between “obstructing” federal law enforcement and simply deciding not to help isn’t as clear as one might expect.
In the courtroom, the fight over sanctuary cities is narrow and technical. Outside the courtroom, it’s a culture war.
What is a sanctuary city?
“Sanctuary city” is not an official government term. It has no legal meaning.
Lots of people use the unofficial term “sanctuary city” to refer to local jurisdictions (not just cities but counties and sometimes states) that don’t fully cooperate with federal efforts to find and deport unauthorized immigrants. If that sounds vague, that’s because it is, and it gets at the tension between federal policy and local law enforcement generally used to carry out those laws.
The federal government relies heavily on local law enforcement to identify and detain immigrants. This relationship is a big reason deportations went up exponentially during the Bush and Obama administrations: from 189,000 a year when Bush arrived in office to 400,000 a year in the late 2000s and early 2010s.
Here’s one way to think about the impact of the local “force multiplier.” In 1996 (the year a law was passed creating new opportunities for local-federal immigration collaboration), 70,000 immigrants were removed from the US. That includes immigrants caught at the US border and those deported from communities within the country.
Each year, from 2011 to 2014 — the peak of local-federal immigration cooperation — a single local-federal program, Secure Communities (which checked immigrants booked into local jails against federal databases), resulted in the deportation of more than 70,000 immigrants. Secure Communities got more immigrants deported during those years than the entire federal government had in 1996.
But that cooperation hasn’t always been smooth. Local resistance — often due to pressure by immigrant activist groups — can cause problems for the federal government.
Local police departments aren’t required to help the federal government do whatever it wants, and since immigration law is federal law, it makes sense that catching unauthorized immigrants might not be a local law enforcement priority. After all, local police don’t go out of their way to enforce federal tax law either.
And a lot of police chiefs think it’s a net negative for local cops to enforce immigration law — it makes immigrant communities afraid of police and less likely to report crimes or cooperate with investigations in, say, murder cases.
So exactly how much assistance local governments should provide in immigration enforcement is an ongoing fight. At heart, it’s been a policy fight over what local governments should do. But under the Trump administration, in particular, it’s taken on the color of law: the idea that cities are refusing to do something they’re obligated to do.
Where’s the line between refusing to help ICE and acting to hinder it?
The Trump administration’s biggest frustration is with jurisdictions that don’t comply (or that only comply in limited circumstances) with ICE requests to get custody of an immigrant who’s being held in a local jail, or requests that local officials hold immigrants for 48 hours longer than they’d otherwise be detained to allow federal agents to come pick them up.
“In January, Ventura County declined a request from ICE to hold an alien Ventura had arrested for continuous sexual abuse of a child,” Sessions told the California Peace Officers Association, a law enforcement union, in his speech announcing the lawsuit. “Instead of being removed from this country, he was released back into the community and now our federal law enforcement will need to find him and arrest him wherever he may be.”
That’s the most common type of policy that governments have passed to declare themselves “sanctuaries.” But it’s not the heart of the legal challenges the Trump administration has posed to “sanctuary” policies.
Federal law does say one thing unequivocally about federal-local immigration cooperation: Section 1373 of Chapter 8 of the US Code bars any state or local government from passing a policy that prevents government employees from sharing “information pertaining to the immigration status, legal or illegal, of an individual” with federal authorities.
The Trump administration alleges that local ordinances or state laws that bar the sharing of information about immigrants — like California’s SB 54, which prevents jail officials from telling ICE when a prisoner will be released (in many cases) unless ICE has a warrant signed by a judge — violate the federal law. Cities and states that have passed such policies, however, argue that sharing information about when someone will be released from jail or prison is different from sharing information about their immigration status, so it’s legal for the state to put restrictions on the former. (That argument has been upheld by a federal judge — ironically, in a case brought against San Francisco by the parents of Kate Steinle, whose death in 2015 made her a cause célèbre for immigration hawks including President Trump.)
Even beyond the specific text of federal law, though, the Trump administration thinks it’s “obstruction” for state and local laws to tell individuals — whether they’re police officers or employers facing ICE audits — what they can and can’t do when ICE comes around. And they argue that because the federal government fundamentally has power over immigration law, that sort of obstruction is tantamount to ignoring the separation of powers itself.
Legally, this is murky territory that gets pretty complicated pretty quickly — though the Trump administration’s 2017 efforts to defund “sanctuary” jurisdictions were smacked down hard by federal judges. But the Trump administration’s war on sanctuary cities doesn’t rest entirely on this lawsuit — after all, the Trump administration’s suit against California doesn’t even challenge the provision Sessions was alluding to in his Ventura County anecdote. The lawsuit is simply one manifestation of the political fight that Trump and Sessions are picking on behalf of a segment of the conservative base.
Two separate fights about federalism: sanctuary cities (and states) versus Trump, and Democratic cities versus Republican states
The sanctuary fight has only recently become a consistent partisan matter, with Republican-governed jurisdictions (like the federal government and red states) on one side and blue states (and most cities) on the other. Under President Obama, the political calculus was more complicated for (progressive) local governments looking to fight back against the federal immigration apparatus.
When Trump was elected, the mayors of many American major cities joined the anti-Trump “resistance” by proudly declaring themselves sanctuary cities — as a way to reassure immigrant residents that while they might not feel welcome in America writ large, they would always be welcome in New York or Chicago or any number of cities. And Republicans, even though they now control the federal government, have been able to keep tapping into fears about criminal immigrants by fobbing off blame on cities, the one level of government that Democrats still tend to control.
At the same time, the sanctuary fight has seeped into a more enduring political dynamic: the domination of state legislatures by Republicans, who are increasingly interested in legislating what cities within those states (often governed by Democrats) can and can’t do. Even states that don’t even have any sanctuary cities, like Virginia, have considered bills to preemptively stop any cities from trying. Politicians who vote against such bills run the risk of getting hit with attack ads in their next campaign, as famously happened to Ralph Northam when he ran for governor of Virginia against Ed Gillespie in 2017.
But the ads don’t appear to have worked. Northam won, and there’s some evidence that Gillespie’s attacks on sanctuary jurisdictions were part of the reason. That gets to the key dynamic that makes sanctuary cities so much more prominent in the national debate than the legal battles might deserve: It’s a fight that both sides are enthusiastic about having.
The idea that parts of America are essentially ungoverned by the US is a potent one
When the Trump administration has been criticized for its aggressive immigration tactics, like arresting immigrants in courthouses or in their driveways, it has blamed sanctuary cities for forcing it to.
But the Trump administration has also made a point to hype enforcement in sanctuary jurisdictions as a way to send a message that immigrants are not safe there. So even as the Justice Department sues California for making it too hard to enforce immigration law, ICE is as visible in the state as ever.
The workplace raids law the DOJ is suing over didn’t stop ICE from raiding several 7-Eleven franchises in California in January, armed with notices to inspect their I-9 forms. Nor did California’s laws stop ICE from arresting more than 150 immigrants in a massive “sweep” in Northern California in February, including some who say they were approached at random in public by an ICE agent and asked for their papers (something ICE generally denies it does).
Logically, the fact that ICE is arresting immigrants in sanctuary cities ought to complicate the myth that these cities are blocking all enforcement of federal immigration law.
But it doesn’t. Because the people who are most invested in the false stereotype of sanctuary don’t have any opportunity to learn about the reality — and because the idea that Democrats and “illegal immigrants” would ally to thwart law enforcement plays into existing stereotypes.
In a way, sanctuary cities are a homegrown equivalent of the myth of “no-go zones” in Europe: neighborhoods dominated by Muslim immigrants in which it’s unsafe for anyone of white European descent to even set foot.
There aren’t any no-go zones in Europe, but that hasn’t stopped conservative outlets like Fox News from talking about them. Some conservatives appear to believe that America has no-go zones of its own. But what’s more potent, in the American context, is the idea that Democratic local officials are attempting to undermine “real” America by sheltering masses of unauthorized immigrants and allowing them to terrorize Americans.
It would be much harder for such a fear to take root if conservative culture warriors didn’t already consider cities culturally suspect. For half a decade, since the beginning of white flight, cities have been seen as centers of crime; Americans tend to believe crime is going up throughout the country, even as they acknowledge it’s gone down in their own neighborhoods.
As white flight has guaranteed Democratic Party dominance of urban governance, conservatives have started to believe that Democrats are allowing cities to fail — or deliberately keeping them down to preserve their own political power. And as cities have grown and revitalized over the past two decades thanks to millennial gentrification — and become accordingly tolerant of LGBTQ Americans — it’s only strengthened the perception that cities are a place where “traditional values” don’t matter anymore.
Deep-blue states — especially California — get painted with the same brush. The idea that California is basically a “third world country” isn’t unpopular in conservative circles — and the justification is often that it’s been overrun with immigrants and refuses to throw out the criminals among them. Some conservatives, like Fox host Tucker Carlson, are even more forthright: “The majority in the past 30 years — where do the majority of those people come from?” Carlson asked a guest in March. “Do they come from the Midwest? No, they came from a third world country. Do you think that might have something to do with it?”
The Democratic base wants to see their leaders stand up for immigrants and against Trump
On the other side of the culture war, of course, progressives hear such invocations of traditional American values as nostalgia for a time when white supremacy was unquestioned and midcentury sexual mores kept LGBTQ people from homemaking and kept women from doing anything else. They hear an attack not just on marginalized groups but on pluralism and diversity — things many progressives defend as “American values.”
The Democratic Party has long been wary of defending diversity in its own right — especially when it comes to racial justice. Democratic politicians tended to understand that some whites felt threatened by demographic change, and tried to chart a course by which they could praise diversity while reassuring its skeptics that it sympathized with their concerns. This was another key reason why fights over sanctuary cities never seemed as heated under Obama as they are today — local politicians were ambivalent about picking a fight that could make it look like they were favoring one group of people (unauthorized immigrants) over the well-being of everyone.
But the culture war has intensified in the past couple of years, and fewer and fewer progressives are worried about being accused of practicing “identity politics.” That’s led even once-hawkish politicians like Rahm Emanuel to proudly declare their cities “sanctuaries.”
They’re not always as concerned with explaining what exactly that means. New York City Mayor Bill de Blasio had to admit to the New York Times in February that he couldn’t prevent ICE from entering New York City by calling it an immigrant “sanctuary.” But the point is to send a message that unauthorized immigrants are just as welcome as everyone else.
The official position of the Trump administration is that any unauthorized immigrant in the US should be “looking over [her] shoulder” and worried that ICE will come after her at any time. The biggest change to policy under Trump hasn’t been the scope of deportations or even of arrests — it’s been the aggressive messaging that anyone could be next.
Local and state officials who see unauthorized immigrants as part of their own communities, and who are concerned about the effects that targeting unauthorized immigrants will have on their legal immigrant neighbors and US citizen children, are trying to combat that fear.
Laws that force ICE to put more effort into arresting and detaining immigrants are one way to do that. Simply sending the message that some politicians are looking out for immigrants and fighting for them is another — probably not as effective, but something nonetheless.