National Review, April 26, 2018
"I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach.” That was President Andrew Jackson’s response to South Carolina’s intention to prevent enforcement of a federal law within the state. Despite his admiration for Jackson, President Trump hasn’t yet threatened to start hanging California politicians. But that state’s “sanctuary” policies protecting illegal immigrants and obstructing enforcement of federal immigration law echo the long-ago fight over nullification and states’ rights.
The passage of three sanctuary bills last year by the state legislature in Sacramento is now the subject of a lawsuit brought by the U.S. Department of Justice. It was the culmination of a decades-long process, as mass immigration transformed California’s politics from reddish purple to deep blue.
The first measure that could be described as a sanctuary provision was the Los Angeles Police Department’s Special Order 40, enacted in 1979, which prohibited officers from arresting a person for the federal crime of illegal entry and, unless he was arrested for another crime, from even inquiring as to legal status. But that order merely instructed police to abstain from involving themselves in immigration enforcement. In the 1980s, a more proactive conception of illegal-alien sanctuary spread, as Central Americans fleeing war in their homelands snuck into the U.S. but did not qualify for asylum.
At first, only some pro-Sandinista churches postured as sanctuaries for these illegal aliens. But in late 1985, Mayor (now Senator) Dianne Feinstein signed a resolution declaring San Francisco a “city of refuge” for illegals. She ordered that “City Departments shall not discriminate against Salvadorans and Guatemalan refugees because of their immigration status, and shall not jeopardize the safety and welfare of law-abiding refugees by acting in a way that may cause their deportation.” The declaration was followed four years later by a city law formally prohibiting city employees from assisting federal immigration authorities.
Even measures such as this, which were adopted by other big cities over the years, were of largely local interest until a new system, developed at the end of the Bush administration and completed in 2013, went online. The fingerprints of every person booked by police throughout the country have long been sent to the FBI. But under the new system, dubbed Secure Communities, those fingerprints now also go to Immigration and Customs Enforcement (ICE). So while in the past the feds didn’t necessarily know whether cops in San Francisco arrested an illegal alien for, say, a drug offense, now they do. Every time.
There will still be some illegal aliens who elude detection if ICE has no record of them because they’ve never interacted with the immigration authorities. But if police arrest anyone who’s in the Department of Homeland Security database — who was deported previously, got turned down for asylum, was picked up by the Border Patrol, overstayed a visa, or appeared before an immigration judge — ICE learns about it.
There are only so many hours in the day, so not every arrested illegal alien can be taken into custody. But if ICE wants the alien because, for instance, he has previously been deported or is a fugitive from a deportation order, it notifies the local authorities to hold him, as they would for any other state or federal law-enforcement agency, up to 48 hours after they would otherwise have released him, so that agents can collect and deport him.
With this new fingerprint-matching system in place, instead of receiving the occasional hold notice, or “detainer,” cities and counties with large numbers of immigrants started hearing from ICE constantly. In some states where large-scale immigration was a recent development, the political culture had not yet shifted to the left to such a degree that this new level of cooperation with ICE met objections. But immigration, legal and illegal, has transformed California’s population and political culture so profoundly that the pushback there was inevitable.
Of California’s 40 million people, about 15 million are in immigrant households (immigrants and their children under 18), accounting for more than 37 percent of the state’s population. Not only is that by far the highest percentage in any state, but the increase in people in immigrant households in California from 1970 to today — just the increase — is nearly twice as large as today’s total population in immigrant households in Texas, the state in second place.
Survey after survey shows that immigrants are disproportionately big-government liberals. As one overview of the data concluded, “solid and persistent majorities of Hispanic and Asian immigrants and their children share the policy preferences of the modern American Left.” As a result, as University of Maryland political scientist James Gimpel has demonstrated, in the nation’s largest counties (which are where immigrants tend to settle), “Republicans have lost 0.58 percentage points in presidential elections for every one percentage-point increase in the size of the local immigrant population.”
The results in California are plain to see. There hasn’t been a Republican in statewide or federal office since Arnold Schwarzenegger (and he was only nominally Republican). Only 13 of 40 state senators and 25 of 80 state assemblymen are Republicans. This has enabled leftist maximalism on a wide range of issues, including immigration.
Even in this environment, the effects of Secure Communities in identifying deportable aliens were blunted for a time by the Obama administration’s lax policies. Despite the anti-borders Left and its kabuki protests that Obama was the deporter in chief, his administration effectively exempted most of the resident illegal population from immigration law. Even though ICE continued to be notified of arrested illegals, administration policy was to ignore all but the worst cases. In the words of John Sandweg, who headed ICE during part of Obama’s term, “If you are a run-of-the-mill immigrant here illegally, your odds of getting deported are close to zero — it’s just highly unlikely to happen.”
Then came Donald Trump.
It wasn’t just that Trump pledged tough immigration enforcement in his raw and often coarse manner. It wasn’t just that Hillary Clinton, who said publicly that she would not deport anyone who hadn’t first been convicted of a violent felony, won California by 30 points. It was the whiplash from Obama to Trump that supercharged the sanctuary push in the state legislature. Democratic politicians, their activist allies, and illegal aliens themselves had gotten used to Obama’s arrangements and had come to think that was the way things were going to be from now on. Trump’s reversal of Obama’s laxity fell on them like a bucket of ice water.
The state took a variety of steps in response to the return of immigration enforcement. Lawmakers appropriated $45 million for a fund to help illegals fight deportation. And the state senate appointed an illegal alien to a state education commission.
But most consequential were three laws designed to limit the federal government’s ability to enforce immigration law. The best known is Senate Bill 54, the California Values Act, the most sweeping measure of its kind in the nation, making the entire state a sanctuary for illegal aliens. It prohibits state and local law enforcement from complying with ICE detainers in most cases. It prohibits notification to ICE about an alien unless in the past 15 years he’s been convicted of one of a list of the most serious crimes. It prohibits state and local authorities from allowing ICE to use space in their jails and from providing ICE any non-public information on suspects. It restricts state and local participation in any multi-agency task force that includes ICE.
The second of the three measures attempts to impose state oversight on any facility ICE uses to detain deportable aliens. And the final law seeks to shield illegal-alien workers from detection by, among other things, prohibiting private employers from voluntarily allowing ICE agents into any non-public area of their business.
The Trump administration has pushed back. The first step was to threaten to cut off certain Justice Department grants to sanctuary jurisdictions nationwide; longstanding doctrine limiting the withholding of federal funds to coerce states makes a broader cutoff unlikely. A few jurisdictions outside California have changed their sanctuary policies in response to the funding threat, but the administration’s initiative is tied up in litigation and, in any case, is unlikely to hurt sufficiently to persuade hard cases such as California to mend their ways.
That’s why in March the Justice Department filed suit against California to strike down all or parts of the three sanctuary laws, claiming that they were preempted by federal law and that they violate the supremacy clause of the Constitution. (Interestingly, the complaint cites, among other things, the Supreme Court ruling overturning parts of Arizona’s SB 1070, which was intended to assist in enforcement of federal immigration laws, on the same grounds of federal preemption.) But it will be a long time before the case reaches the Supreme Court; the defendants no doubt hope to drag things out long enough that President Maxine Waters or Dennis Kucinich can reverse the policy.
But change may come sooner than that. The legislature’s overreach has sparked a rebellion of communities seeking sanctuary from the sanctuary law. The small Orange County city of Los Alamitos got things rolling by voting to opt out of SB 54 and join the federal lawsuit. A growing list of other cities has joined the suit as well, as have Orange and San Diego counties. More cities and counties are likely to join them.
In an attempt to harness this political energy, two people whose children were killed by illegal aliens have launched a ballot initiative to repeal the sanctuary laws. Don Rosenberg, one of the parents, told the Washington Times, “This will be David versus Goliath. We’re clearly David on this side. But there are millions of Davids here.”
While the steady stream of preventable crimes by illegal immigrants protected by sanctuary policies keeps the issue before the public, the very extremism of the Left may supply the five smooth stones this army of Davids will need to slay the sanctuary Goliath. In February, for example, Oakland mayor Libby Schaaf warned illegals that an ICE raid was planned for the Bay Area. Such brazen acts delegitimize sanctuary policies in the eyes even of moderate voters.
South Carolina eventually repealed its Ordinance of Nullification. The state’s subsequent acts of resistance against legitimate federal authority also failed. It’s too early to tell whether California will succeed where South Carolina did not.