Over at the NY Times, Peter L. Markowitz takes a stab at defending sanctuary jurisdiction policies, and ends up pointing out something else
Trump Can’t Stop the Sanctuary Movement
(discussion of DOJ lawsuit against California sanctuary policies)
To understand why, one needs to understand exactly what sanctuary laws do. They draw their name from the sanctuary movement of the 1980s. During that period, Central American refugees were routinely denied asylum because the United States government supported the regimes from which they had fled. In the face of this injustice, some religious leaders took steps to actively prevent federal immigration officers from arresting and deporting these vulnerable immigrants. It was, at times, a form of civil disobedience.
Today’s sanctuary laws, while bearing the same name, are markedly different. California and the hundreds of other places across the country with such laws and policies have done nothing whatsoever to actively interfere with federal immigration enforcement efforts. Rather, the defining characteristic of these laws is their passivity. They do not direct state officers to take any steps to interfere with federal enforcement efforts. Instead, they dictate that the local police and state officers simply do not assist in the federal government’s deportation agenda — that they do nothing.
Except, the policies of places like the state of California and many of its cities are actually aimed to thwart federal officers in the course of enforcing federal immigration law. Even when the wanted illegal is a murderer, arsonist, and/or a sexual assaulter of women and children. It’s not a passive resistance, especially when it so often means simply placing a phone call or sending an email in response to an ICE detainer.
Here’s where it gets interesting, and the argument implodes
It is fair to ask whether states should have the power to abstain from federal law enforcement programs that they view as immoral or adverse to their local interests. It is not, however, a new question.
In fact, the question was decisively answered by the Supreme Court in 1997 in a case called Printz v. United States. That case involved a challenge to the federal Brady Act, which required local sheriffs to conduct background checks for gun purchasers. Some sheriffs resisted because they objected to the federal regulation of firearms. The Supreme Court, in a decision written by Justice Antonin Scalia, made clear that the sheriffs, and states generally, have a right to abstain from federal law enforcement schemes with which they disagreed.
It is this principle that distinguishes California’s decision to opt out of deportation efforts from Arizona’s decision to opt in.
The Justice Department is correct that the regulation of immigration is a federal matter. That’s why the Supreme Court made clear in the Arizona case that states may not insert themselves into immigration enforcement by directing its officers to arrest people on immigration charges. California, far from inserting itself, has extracted itself from federal immigration enforcement efforts in precisely the same way that the sheriffs in Printz extracted themselves from the federal effort to regulate the purchase of firearms.
So, by the reckoning of Mr. Markowitz and the NY Times, not only should state, county, and local officials opt out from being involved in enforcing federal gun laws, but they should actively abstain from passing any themselves, since firearms are the domain of the federal government, being mentioned in the Bill Of Rights.
In fact, since California is one of the few states which fails to mention firearms within its state constitution, then all their laws should be null and void.
Of course, when it comes to immigration, they can decline if they disagree, however, there are actually federal laws on the books which make non-cooperation, and, really what California and so many jurisdictions are doing is actively blocking, a federal crime. Sheltering. Laws such as 8 US Code 1324 (1)(a)(iii)
knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation
That’s just one of many. But, hey, states and jurisdictions should be stopped from passing their own gun laws. The NY Times says so.
Read: NY Times: Cities And States Shouldn’t Be Passing Gun Laws »
The problem with the legislation, experts say, is that it only works if federal agencies, the military, states, courts and local law enforcement do a better job of sharing information with the background check system — and they have a poor track record in doing so. Some of the nation’s most horrific mass shootings have revealed major holes in the database reporting system, including massacres at Virginia Tech in 2007 and at a Texas church last year.
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