Republicans and Democrats Flip Usual Positions Over ‘Sanctuary Cities’

Will carrots or sticks convince reluctant cities to cooperate with federal immigration enforcement?

Francisco Sanchez (R) enters court for an arraignment with San Francisco public defender Jeff Adachi (L) July 7, 2015 in San Francisco, California.
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July 31, 2015, 1 a.m.

The erupt­ing de­bate over the role of “sanc­tu­ary cit­ies” in en­for­cing fed­er­al im­mig­ra­tion law has promp­ted the two parties to in­vert their usu­al po­s­i­tions in Wash­ing­ton.

Fran­cisco Sanc­hez (R) enters court for an ar­raign­ment with San Fran­cisco pub­lic de­fend­er Jeff Ada­chi (L) Ju­ly 7, 2015 in San Fran­cisco, Cali­for­nia.

Typ­ic­ally, con­gres­sion­al Re­pub­lic­ans de­fend loc­al flex­ib­il­ity and res­ist fed­er­al man­dates. Sen­ate Ma­jor­ity Lead­er Mitch Mc­Con­nell of Ken­tucky, for in­stance, re­cently wrote all 50 gov­ernors ur­ging them to ob­struct Pres­id­ent Obama’s im­pend­ing reg­u­la­tions re­quir­ing states to re­duce power-plant car­bon emis­sions. Re­pub­lic­ans like­wise cheered when the Su­preme Court ruled that Wash­ing­ton could not pres­sure states to ex­pand Medi­caid cov­er­age for the un­in­sured by with­hold­ing their ex­ist­ing Medi­caid fund­ing.

Con­versely, Demo­crats usu­ally cham­pi­on uni­fied na­tion­al ac­tion on is­sues like these. But the two parties switched sides when House Re­pub­lic­ans voted earli­er in Ju­ly, over nearly united Demo­crat­ic op­pos­i­tion, to deny law-en­force­ment grants to cit­ies that res­ist fed­er­al ef­forts to de­port un­doc­u­mented im­mig­rants.

These ideo­lo­gic­al gyr­a­tions have ob­scured the real is­sue in the emo­tion­al de­bate that was ig­nited when a re­peatedly de­por­ted un­doc­u­mented im­mig­rant ran­domly shot Kath­ryn Steinle in San Fran­cisco on Ju­ly 1. The best es­tim­ates are that a smal­ler share of un­doc­u­mented im­mig­rants com­mits ser­i­ous crimes than oth­er Amer­ic­ans. But all cit­ies would be­ne­fit if Wash­ing­ton and loc­al­it­ies co­oper­ated more ef­fect­ively to re­move those who are dan­ger­ous. The key ques­tion is wheth­er the best way to build that part­ner­ship is with sticks, which con­gres­sion­al Re­pub­lic­ans prefer, or car­rots, which Obama is of­fer­ing.

Some his­tory helps cla­ri­fy the choice. The term “sanc­tu­ary cit­ies” has no spe­cif­ic leg­al defin­i­tion; it traces back to policies some cit­ies ad­op­ted dur­ing the 1980s to sup­port loc­al churches that de­clared them­selves “sanc­tu­ar­ies” for refugees flee­ing the era’s Cent­ral Amer­ic­an civil wars. Later, the term en­com­passed cit­ies that barred po­lice and mu­ni­cip­al work­ers from ask­ing about the im­mig­ra­tion status of people they in­ter­ac­ted with, or those that pre­ven­ted po­lice from ar­rest­ing res­id­ents solely be­cause they were un­doc­u­mented. Even now, neither of those ideas kindles much con­tro­versy.

The sanc­tu­ary idea really took off as Obama im­ple­men­ted the “Se­cure Com­munit­ies” pro­gram that George W. Bush had launched shortly be­fore he left of­fice. Un­der Se­cure Com­munit­ies, the fin­ger­prints of al­most every­one ar­res­ted across Amer­ica were sent to Im­mig­ra­tion and Cus­toms En­force­ment to de­term­ine their im­mig­ra­tion status. If ICE de­term­ined that someone in cus­tody lacked leg­al status, it could is­sue a “de­tain­er” re­quest­ing that loc­al au­thor­it­ies hold the sub­ject for 48 hours after crim­in­al pro­ceed­ings so ICE could pur­sue de­port­a­tion.

Such de­tain­ers even­tu­ally ac­coun­ted for about three-fourths of de­port­a­tions not con­duc­ted at the bor­der, the non­par­tis­an Mi­gra­tion Policy In­sti­tute noted in a re­cent re­port. But more and more cit­ies balked at co­oper­at­ing. They com­plained ICE was de­port­ing not only ser­i­ous crim­in­als but oth­er­wise law-abid­ing un­doc­u­mented im­mig­rants caught for minor of­fenses — and con­cluded that co­oper­at­ing in that drag­net un­der­mined po­lice re­la­tions with im­mig­rant com­munit­ies. MPI cal­cu­lated that 350 counties and cit­ies (plus three states) that col­lect­ively housed more than half of all un­doc­u­mented im­mig­rants have re­fused to hon­or at least some ICE de­tain­ers. The list ex­tends bey­ond lib­er­al en­claves like New York and San Fran­cisco to heart­land loc­ales like Wichita and Omaha. “It’s def­in­itely lots of small towns, middle Amer­ica, red states,” says Marc Rosen­blum, au­thor of the MPI re­port. Fed­er­al court rul­ings that defined the de­tain­ers as re­quests, not re­quire­ments, fur­ther dis­cour­aged par­ti­cip­a­tion.

Fa­cing such wide­spread res­ist­ance, Obama last Novem­ber re­placed Se­cure Com­munit­ies with the Pri­or­ity En­force­ment Pro­gram. Un­der that ini­ti­at­ive, ICE still checks the fin­ger­prints of every­one who is ar­res­ted. But now it asks to be no­ti­fied only be­fore loc­al of­fi­cials re­lease un­doc­u­mented im­mig­rants who have been con­victed of ser­i­ous crimes, or those whom ICE con­siders a na­tion­al se­cur­ity threat. ICE seeks ex­tra de­ten­tion only for those it be­lieves it has prob­able cause to de­port.

Some evid­ence sug­gests the new pro­gram is at­tract­ing more co­oper­a­tion. Home­land Se­cur­ity Sec­ret­ary Jeh John­son re­cently test­i­fied that about 35 large com­munit­ies have joined PEP, while five have re­fused. John­son won’t identi­fy the cit­ies co­oper­at­ing, but Los Angeles County, which had re­jec­ted Se­cure Com­munit­ies, re­cently voted to join the new ef­fort.

Mar­i­elena Hin­cap­ié, ex­ec­ut­ive dir­ect­or of the Na­tion­al Im­mig­rant Law Cen­ter, cor­rectly notes that the best way to re­build fed­er­al-loc­al en­force­ment co­oper­a­tion is to pass com­pre­hens­ive im­mig­ra­tion re­form that re­as­sures cit­ies that the un­doc­u­mented without crim­in­al re­cords won’t be up­rooted. Re­ject­ing such re­form, con­gres­sion­al Re­pub­lic­ans (very few of whom rep­res­ent urb­an cen­ters) want to co­erce cit­ies in­to co­oper­at­ing with fund­ing threats. But as Rosen­blum notes, that lever prob­ably isn’t strong enough to per­suade many du­bi­ous cit­ies.

Obama’s re­vised course is more prom­ising. Look­ing to reach com­mon ground with mostly blue cit­ies on im­mig­ra­tion en­force­ment, he’s of­fer­ing flex­ible agree­ments tailored to loc­al con­cerns (just as he’s now do­ing with red states on car­bon re­duc­tions and Medi­caid ex­pan­sion). But that bal­anced ap­proach will work only if lib­er­al cit­ies re­cog­nize that re­fus­ing to help re­move even dan­ger­ous felons is an un­ten­able po­s­i­tion, as the jus­ti­fi­able out­rage over Steinle’s death demon­strated. If “sanc­tu­ary cit­ies” re­ject Obama’s car­rot, they may even­tu­ally find them­selves fa­cing the Re­pub­lic­ans’ stick.

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