A Brief History of Sanctuary Cities

As everyone with a Twitter feed already knows, Donald J. Trump is no friend of immigrants. In a spate of hot-headed executive orders this week, he slammed the door shut on refugees, banned visitors from seven Muslim countries, and promised to build a “Great Wall” physically separating us from Mexico.

But his wrath extended past Mexican day laborers and Muslim asylum seekers to take aim at the traitors within. In an executive jeremiad, Trump torched “sanctuary jurisdictions” for “willfully” violating federal law and causing “immeasurable harm to the American people and to the very fabric of our Republic.” To such harmers of the Republican Fabric he threatens to withhold all federal funds, excepting those “as mandated by law.”[1]

Strong stuff. But before we all blow a collective gasket at boisterous threats from the White House or the defiant voices of Bill De Blasio and Rahm Emanuel in response, we ought to pause. After all, this is nothing new. The state and federal governments have always been at loggerheads, since virtually the first days of the Republic. This latest salvo is yet another chapter in the saga of American federalism and the structural ways that rights are defined and protected and—most importantly—contested.

el-salvador-refugees-1980s

The specific name “sanctuary cities” comes from 1980s protests against federal immigration policies that denied asylum to refugees from El Salvador and Guatemala. San Francisco led the way by passing a city ordinance in 1985 that specifically forbade city police or civil magistrates from assisting federal immigration officers. Other cities followed suit. So too did organizations not licensed by the state, like churches. One recalls the ferocity of Father Luis Olivares, pastor of La Placito in Los Angeles, who designated his church as a “sanctuary” for the poor, homeless, and the undocumented. More recently, sanctuary cities have pushed back against aggressive federal deportation under George W. Bush and Barack Obama. There are more than 300 jurisdictions (cities and counties) around the country that withhold cooperation from federal immigration officers today.

Trump’s executive order demands compliance from state governments. There is no hint of a carrot, although there is some queer language about it being Trump’s policy to “empower” local police (empower being a word I associate with snowflakes and leftists). The big stick is the withholding of federal funding, but the more surreal part is the manner in which this is done. The order allows the Secretary of Homeland Security to designate (at his discretion) a city or county as a “sanctuary jurisdiction” and the Attorney General has the power to deny such sanctuaries any federal moneys.[2] The big prizes should be obvious—New York, San Francisco, Chicago, Los Angeles; blue cities full of people Trump fears and loathes.

Sanctuary cities actually have a long history in America that has always been bound up—in a good way—in  the problem of American federalism. The sanctuary city was home to America’s first significant class of refugees—fugitive slaves. Petitions to the first meetings of Congress in the 1790s praised sanctuary cities and even sought federal protection for refugees. Slaveholders complained about it to no end, petitioning state and federal governments alike for stricter laws. The problem, claimed slaveholders, was that existing federal law (the Fugitive Slave Act of 1793) was insufficient to guarantee slaveholders their rights, protected explicitly by Article IV, Section 2 of the Constitution. Chief among slaveholders’ demands was that state officers (law enforcement, magistrates, and judges alike) be compelled to enforce the federal Fugitive Slave Act.

fugitiveslaveact

This was not an outrageous claim. The anemic federal government of the 1790s needed state help to enforce its laws. Congressional statutes assumed state cooperation, as did the Fugitive Slave Act of 1793. But by the 1810s and 20s, such cooperation began to look increasingly like coercion, especially to southerners who were making much of the sanctity of states’ rights. An attempt to revise the Fugitive Slave Act in 1818 led to failure, in part, because the proposed bill required state officers to enforce federal law. This violated contemporary understandings of dual sovereignty—the idea that federal and state governments were each sovereign in their sphere, and that the spheres were entirely separate. Congress might direct federal law enforcement officers and judges, but they could not direct state officers, and vice versa.

Increasingly, northern states began to provide instructions on how to handle refugees from slavery. States like Pennsylvania, New Jersey, and New York passed laws that attempted to balance legal protections for fugitive slaves with the constitutional claims of slaveholders. Slaveholders protested, claiming that the added burdens of legal process had the practical effect of delaying or denying them their constitutional right to their property.

And the Supreme Court agreed. In Prigg v. Pennsylvania (1842), the Court cemented the principle of dual sovereignty in constitutional law. Fugitive slaves (like immigrants and refugees today) were deemed a matter of federal, rather than state, interest. This meant that the states could pass no laws, whether ones protecting the legal rights of fugitive slaves or aiding in their removal. But on the same constitutional principle, the Court reaffirmed that Congress could not compel state officers to enforce federal law.

Prigg v. Pennsylvania proved a pyrrhic victory for slaveholders. States might not have been able to protect refugees from slavery, but they could, and did, withdraw state cooperation. This meant that city constables and county sheriffs were instructed not to arrest suspected fugitive slaves, that state jails were closed to federal marshals who had fugitives in their custody, and that state judges would refuse to issue warrants or certificates of removal. Into the breech stepped free blacks and their white abolitionist allies, who organized protective societies and became increasingly bold in their opposition to federal law enforcement. Sanctuary cities became like fortresses.

Congress responded in 1850 by passing a new Fugitive Slave Act that vastly increased the powers of federal marshals, judges, and commissioners specially appointed to handle fugitive slaves. The law was grossly proslavery and passed as part of a legislative package designed to paper over the fissures between North and South. It had the practical effect, however, of polarizing the country. Northerners set their teeth against the law. Citizens lent their homes and carriages to the protection of refugees. Vigilance societies outed slavecatchers, making it impossible for them to operate in secret. When a federal marshal nabbed fugitive slaves, hundreds (even thousands) of protesters turned out to the courthouses where they were held. Whole sections of Milwaukee, Chicago, New York City and Boston became no-go zones for slavecatchers. Federal attempts to enforce the law ran up against a simple numbers problem—they didn’t have enough boots on the ground to withstand massive popular resistance. Slaveholders simply said “I told you so.” They had always held that federal law was impotent without state support. They were right, and the southern states cited northern shielding of refugees from slavery in their declarations of the causes of secession in the winter of 1860-61.

It is deceptively easy to apply this bit of history analogically to our modern day sanctuary cities, to point out the connections between the slavecatchers of yore and Trump’s anti-immigrant minions today. After all, both hunted the weak and the vulnerable, both privileged law and order over individual liberty, and both laughed down humanitarian concerns. There are other similarities as well. Slaveholders and northern doughfaces condemned their opponents as bleeding hearts. They characterized fugitive slaves as dangerous criminals. And they generally reacted hysterically, exaggerating threats and otherwise ignoring reason.

But it is also grossly unfair to compare anyone in today’s politics to slaveholders. Such invidious comparisons can only be used to end conversations, not to engage in them. The real lesson, for today’s purposes, lies in the constitutional processes embedded in federalism. The use of state resources to frustrate federal power (and vice versa) is a perennial feature of our constitutional system. Southerners who resisted Brown v. Board of Education (1954) mobilized state institutions to oppose the federal government’s drive to secure equal access to educational institutions. Prolife activists have made a living out of commanding state resources to frustrate the enforcement of Roe v. Wade (1973). More recently, opponents of gay marriage have attempted to subvert Obergefell v. Hodges (2015) by unleashing the fury of Roy Moore and Kim Davis.

These are examples specifically cultivated to illustrate the political neutrality of “states’ rights” as doctrine. Its modern association with “massive resistance” to desegregation has tarnished it to liberal eyes. But sanctuary cities are cut from the same constitutional cloth—the very same that gave abolitionists the cover they needed to resist the Fugitive Slave Act. Sanctuary cities’ resistance to federal immigration law depends upon local popular support, legal and political assistance from the state, and a constitutional regime that respects the integrity of two sovereigns sharing the same space. And there is only so much that cities might do to oppose federal immigration law, such as instructing their police not to cooperate with ICE officers, tacitly ignoring immigration status of people they come across, and even actively disseminating information to undocumented populations about their legal rights.

At each point, resistance is bound by particular legal rules. Informing undocumented peoples of their legal rights is not quite counseling them to cause “immeasurable harm … to the very fabric of the Republic.” Tacitly ignoring the immigration status of people caught up in the justice system must work within the confines of congressional law and the Supreme Court’s prevailing interpretation of it. This is precisely what the northern states did in the 1850s to resist the Fugitive Slave Act. And it was conditioned further by northern judges, most of whom tenaciously enforced the law regardless of their personal beliefs about slavery. The same will be true when federal judges are asked to punish sanctuary cities on the dubious legality of an executive order that runs afoul of established constitutional law.

Politics and law are substitutes for violence, and we sometimes forget that this is their primary, everyday purpose. This is what makes American federalism such a frustrating, brilliant endeavor. The availability of multiple venues to protect or assert rights channels aggressive tendencies. People on the political left and right bemoan the grinding legal order as troublesome, wishing instead that their own vision of justice might be more easily imposed upon society. Fair enough. But whether you are advocating passionately for the rights of refugees or those of the unborn, there are people who oppose you and they have their rights too. American federalism has always been a conservative means for reducing both the propensity for tyranny—by allowing people to appeal to more than one power source to protect rights—and the potential for violence. After all, if there is no legal avenue to take, why not just blow stuff up?

Granted, American federalism has often been a vehicle for hegemony and the oppression of those who disagree. Examples abound. Southern states violently imposed Jim Crow segregation in the southern states in the 1890s in plain violation of the Fourteenth Amendment, yet the federal government demurred. The federal government interned American citizens of Japanese descent during World War II without so much as a squawk from the states. But the measure of success for establishing liberty in any constitutional system cannot be a demand for perfection. We should instead look for real structural ways in which law and politics can work to protect constitutional rights at the same time that politicians advance their policies.

We see that same principle at work right now. Trump’s executive order menacing sanctuary cities gave voice to a significant number of Americans who believe that strict enforcement of immigration law is vital to national security. Fine. For those who disagree, there are plenty of avenues open to them for muscular constitutional resistance. And this is not causing “immeasurable harm … to the very fabric of our Republic.” It is the fabric of our American Republic.

H. Robert Baker is an associate professor of History at Georgia State University and the author of The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (Ohio University Press, 2007) and Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution (University Press of Kansas, 2012).  His current research explores the influence of historical consciousness on constitutional thinking, as well as the nature of constitutional change over time.

References

[1] Executive Order: “Enhancing Public Safety in the Interior of the United States,” January 25, 2017. White House, Office of the Press Secretary. Sec. 1 (preamble) and Sec. 2c. https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united

[2] “Enhancing Public Safety in the Interior,” Section 9a.

Author: H. Robert Baker

Robert Baker teaches at Georgia State University, in Atlanta, Georgia. He lives in East Point, Georgia. He is not originally from Georgia.

46 thoughts

  1. When Obama announced the same cities in 2012 did you complain? Muslims come here to spread their religion. That is why the Muslim countries in the Middle East don’t take them.

    1. So true. They can’t get it through their liberal brains it is the illegal immigrants that areally being bad. The ones that come here to do us harm. Illegal = criminals. But they have their own agenda and no longer hear the truth. Being vetted is necessary.

    1. His executive order that attempted to bar immigrants from seven Muslim countries was not aimed at illegal immigrants. His anti-refugee stance is not aimed at illegal immigrants. I stand by my observation.

      1. My father tried to immigrate here from Ukraine in 1914. He couldn’t get in, so he went to Canada and finally was able to immigrate to U.S. after getting a job with General Motors after living in Canada for five years! He went to night school, learned our language and history of our country before becoming a naturalized United States citizen! He assimilated, which so many of immigrants are not willing to do! Never would take welfare even during the Great Depression! He bought an old truck drove to west side of Michigan, bought fruit and my five sisters and brothers had to go door to door selling it! That’s the kind of immigrant we need to allow into our country! In other words, they need to be vetted!

      2. Question – do you know anything, i.e. absolutely anything, about how the US immigration system works today? It sounds like you do not.

    2. Response to Larry says; I agree fully with Larry. President Trump is trying to avoid more illegal immigrants from entering the U.S.

    3. They know they are talking BS and cannot back up there crap, So leaving that word out is a ploy against the president. Liberals want to make there own rules and make up lies as they go along to fulfill there agenda, guess again fools.

      1. The rules are important. Like the rule that the president cannot unilaterally withhold funding from any U.S. state/city without the support of law. Like the rule that the federal government is one of enumerated powers and not omnipotent. Like the rule that state governments are also of a limited sovereignty and can direct their officers as they choose, without being coerced by the federal government. Is that the BS to which you refer, Richard? Are those just rules for liberals? Last I checked, conservatives were all for states’ rights against the overreaching Obama administration. What’s good for the goose, as they say…

      2. And Richard, for the record, the travel ban and the anti-refugee stance of the president is not about illegal immigrants. It is about restricting legal immigration and averting a human rights crisis that we had a hand in creating. These are empirical facts. Lumping all of these people into the category of “illegal” is BS.

  2. This isn’t true. President Trump isn’t an enemy to immigrants! We want our laws obeyed! If we have to obey the laws of our land so do immigrants and illegal immigrants are breaking the law once they place a toe into our country. If you break the law to come here, you have no respect for our country or our laws and will continue to break our laws.

    1. Well, he has backed off of his campaign pledge to deport the Dreamers, so there is that. But the article is about sanctuary cities and their place in the American federalist order. Perhaps read past the first line? The essay is not too long, and comments about its substance would be most welcome.

    2. I see your point and understand where your thought are coning from. But this is the self proclaimed greatest country in the world. and with that comes some unnamed responsibilities. I also try and empathize and see why and what makes up the other side of a issue. I can only imagine as I have been very fortunate. What is it these ” immigrants and illegal immigrants ” are going thru to the point of “breaking the law once they place a toe into our country.” Is their home, country, or living conditions so bad and future so bleak that they will pack up all of their possessions and simply leave their home and country behind in hopes of a better one. As for your statement, “you have no respect for our country or our laws and will continue to break our laws.” I don’t believe this is a very truthful or even marginally correct view. If we the people in this vast “greatest country” in the world can’t express any empathy towards immigrants more or less help and provide them with the resources to assimilate and be successful like you and me, when the only greatness I see is with how self centered, selfish and unsympathetic we have become. It it shows when you simply glance at how society interacts with one another today. I’m really surprised why anyone would want to come live in this “western society.” So what I ask you is “What really are you preventing others from having that you deem so valuable?” Let me guess, your piece of the pie? Money? Your Nike shoes?

  3. H. Robert Baker, your article is so untrue I cannot believe you are allowed to write. I am an immigrant, a LEGAL one. Trump, myself and many like me are not against immigrants. We are against ILLEGAL immigration as well as it is in my native country where you are immediately jailed and deported and never given ANY benefits at all as an illegal immigrant. That’s the way it must be. Your liberal agenda is totally baseless.

    1. Will you PLEASE read past the first sentence? I would encourage a serious discussion and disagreement over the substance of this article, but so far all the critics have proved to be tiresome and unlettered.

    2. Isabella, I apologize. I was the one who wrote to President Trump to get permission for Rob to write the article. My bad.

  4. So now illegal immigrants are the same as runaway slaves? How is preventing criminals from entering our country anything like the disgusting practice of slavery?

    1. The point is not that illegal immigrants are the same as runaway slaves, it is that that the legal and constitutional means by which cities and states protected vulnerable populations is largely governed by the same mechanisms then and now. But now that you mention it, there are many parallels. Start with the fact that the vast majority of illegal immigrants are not criminals, but are made criminals by the application of an arbitrary law. So were runaway slaves. And in fact, your logic (“preventing criminals from entering our country”) precisely tracks proslavery arguments in antebellum America that runaways were a “dangerous class” of people. Second, many illegal immigrants have made homes in communities are woven into the social fabric–they work, raise children, and pay taxes. So did communities of runaways in northern states. Finally, both illegal immigrants and runaway slaves lived in constant dread over their uncertain futures, and both because of the failure of their governments. So, yes, you have convinced me. Illegal immigrants are very much like runaway slaves. And perhaps picking on that vulnerable population–blaming illegal immigrants for crime, for poverty, for income inequality–is very much like the disgusting defense of the practice of slavery in the nineteenth century.

  5. “Donald J. Trump is no friend of immigrants”?
    Are you frigging kidding me?? His wife is an immigrant!
    What a completely ridiculous and ignorant statement!
    He’s not anti-immigrant, he’s anti-illegal alien and anti-terrorism.
    Maybe instead of listening to what the mainstream media tells you, actually do some vetting and research and listen to his unaltered statements. You’ll be surprised to find out that what he actually said is VASTLY different than what you are being told is being said.

    1. He is completely anti-immigrant. Again, he has imposed unilateral restrictions on legal immigrants through executive order, he has ended the refugee program, he has now tweetstormed his anti-immigration position. That last one, Kristen, was entirely unfiltered by the mainstream media. Right from the horse’s mouth, so to speak.

    2. The author is a History professor with a PhD, who knows vastly more about this than you do — not just “what the mainstream media tells us.” If your brain-damaged self could contemplate listening, learning, reading, doing actual research (as you so nobly suggest), maybe you would understand what Professor Baker is saying. But obviously you have no interest in that. Thanks for playing!

  6. Thank you for these insights. A reminder that there is no “perfect” system that works flawlessly in all situations, hence the checks and balances. H. Robert Baker, would you address a comparison between this administration wanting to withhold funding to sanctuary cities and the Reagan administration withholding federal support for highways in order to raise the drinking age?

    1. Thank you for your question. In the case of the drinking age, Ronald Reagan signed a congressional law that tied highway funds to the drinking age. States had a clear choice–give up money on infrastructure spending or raise the drinking age to 21. So the president and Congress moved together to use its soft power (federal money) to encourage the states. Trump’s executive order did not come with any congressional action. There are some funds that the feds could withhold from sanctuary states under current law, but it is a tiny fraction of law enforcement budgets.

      So there’s three differences. One is constitutional (Reagan sought and achieved congressional support for a national policy of a drinking age of 21 whereas Trump did not), one is practical (highway money is more important and larger than fed. law enforcement grants), and one is political (Reagan used the power of his office to achieve something, Trump has just bloviated on this and made it more difficult to achieve any actual policy gains).

      That’s not a very nuanced reading of the two situations, but I think the differences are pretty stark. Now, if Congress goes hard right with the next election and passes laws ordering the full defunding of sanctuary jurisdictions, then we have a whole different situation. But I wouldn’t put any money on that horse.

      1. Thank you for the insight into the differences. There are so many cards to be played in these political games. Very interesting to see which strategies are used in different climates, and the effectiveness of each.

  7. I totally disagree and reject the parallel connection you make about “slaves” who were forced to come here by no fault of there own and when escaping were hunted down like animals to the illegal immigrants that come here to escape their countries because of various reasons many with criminal intent many others just wanting a better life for themselves. I think its disingenuous and frankly an insult to the perils of slavery that slaves had to endure to make a comparison to a people who freely flow through our streets mostly well taken care and treated fairly under the law. This is the greatest country in existence but we have limited resources and simply can’t afford to let everyone who wants to come here in, hence the laws and the requirement to properly vet those we want to come here. This is not uniquely a concept of the USA all sovereign countries have immigration laws. Many countries like Mexico will jail you, fine you, and deport you if you are not legally in their country as it should be and you don’t want to end up in a Mexican jail. Everyone who wants to come here needs to do this legally like my parents did in the 50s. For decades the enforcement of our immigration laws have been too relaxed and a border too porous where millions have come illegally not to mention where narcotics and human trafficking have caused great harm to our country and its citizens. However through our flawed system millions have been allowed to stay through changes within the laws and executive orders both from Republican and Democrat Presidents. As a reminder lets us not forget that Obama deported more illegals in 1 term than George W Bush did in 2 terms, so who is more anti-immigrant you decide. Bottom line is the American people will decide what is good for this country as long as it remains a democracy and right now the people want the borders secured, illegal immigration stopped or minimized, known terrorists arrested or killed, and sanctuary cities to comply with federal laws to do their part in keeping us safe. Whether you think this its discriminatory or not its about the safety and sovereignty of this country and its laws as a whole and not about feelings of whether its right or wrong. If you want it your way with virtually open borders get the laws changed until then its illegal to cross our borders and if you get caught you will be prosecuted and deported!

    1. The point of the analogy was to compare two instances of resistance to federal law separated by time, not to compare the plight of undocumented aliens to fugitive slaves, so your comment rather misses the point of the article, which is really about the limits of federal coercive authority.

      But never mind. If you want to reject the comparison of undocumented workers to fugitive slaves, then go ahead. I disagree. To take an obvious weakness in your argument, the children of undocumented aliens certainly did not choose to come to the United States. They were born into being undocumented, vulnerable to having their liberty snatched away by the naked authority of an ICE agent for doing something as simple as going to school. They have committed no crime, the vast majority are no threat. No amount of Trumpian-style demogoguery will change this. The desire to unleash ICE agents on the most vulnerable, to enforce a policy that is by its definition unenforceable (no one, NO ONE, pretends that Congress has allotted enough money to immigration enforcement to remove all undocumented workers in this country), and to whip up popular animosity against this vulnerable population, is craven, stupid, and immoral.

      And yes, Obama did deport lots of people. He also tried to rationalize policy enforcement, to make a distinction between criminals and innocents and to apply the resources of law enforcement to removing the former while protecting the latter. And yes, Obama’s policy and executive orders resorted in a huge crackdown and massive deportations–more so than George W. Bush. He took a lot of heat from the left for that. And now the right paints him as having been “soft” on immigration. Riddle me that.

    2. At ToM, we’re really proud that our content reaches people without the capacity for abstract thought. This was the target demographic we were going for

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