In this week’s It’s Debatable article, Rick Rosen and Charles Moster debate whether Congress can and should ban sanctuary states and cities. Rosen retired as a professor from the Texas Tech University School of Law and is a retired U.S. Army colonel. Moster is the Founder of the Moster Law Firm based in Lubbock with offices in Austin, Dallas, Houston, and Midland. He is also a technologist, software developer, and author of numerous published books in the areas of AI, futurism, and the law. He has contributed legal articles and seminars on whether the coming conscious computers should be granted full legal rights by the Supreme Court.
Rosen makes a case against sanctuary cities
• In March, Jose Medina, a Venezuelan migrant unlawfully in the country, is accused of randomly killing Loyola Chicago freshman Sheridan Gorman. Medina had previously been arrested in Chicago for larceny but released because of the city’s sanctuary law. A week later, the Chicago mayor unveiled an “Abolish ICE (Immigration and Customs Enforcement)” snowplow—the very agency that could have saved Sheridan but for the city’s sanctuary law.
• In March, Richard Williams, an 83-year old Air Force veteran, died from injuries suffered when pushed off a New York City subway platform, allegedly by Bairon Posada-Hernandez, a Honduran migrant unlawfully in the country who had 15 previous criminal charges and whom ICE urged state authorities not to release.
• In January, Alfonso Inestroza and Gerzon Chirinos-Munguia, both unlawfully in the country, are accused of killing Kembery Chirinos Flores, the mother of a 5-year old. Alfonso was twice deported and wanted for a homicide in New Jersey; Gerzon had arrests for domestic violence. The police refused to release the men to ICE before the murder because of California’s sanctuary law.
The Biden Administration released into the country over fourteen million unauthorized aliens, including thousands of criminals. As promised during his campaign, President Trump directed ICE—the federal agency that enforces the nation’s immigration laws—to deport persons unlawfully in the country, focusing on those with criminal records. Frustrating these efforts, cities and states employ so-called sanctuary laws forbidding local law enforcement from aiding ICE in the detention and deportation of illegal criminals aliens. The consequence of such laws is illustrated by the examples above.
To the extent sanctuary laws actually impede or obstruct federal immigration enforcement, the federal government can and must abolished them. The Constitution’s Tenth Amendment, however, prohibits the federal government from commandeering states to enforce federal immigration law or to cooperate with ICE. On the other hand, Congress may condition federal grants on the elimination of sanctuary laws or to require cooperation with ICE, provided the conditions bear some relationship to the purpose of the spending. Thus, for example, Congress could condition federal grants to state and local law enforcement agencies to achieve these objectives. If states and cities refuse the conditions, they cannot receive the grants, and the millions saved could be redirected to ICE.
Under the Obama Administration millions of unlawful aliens were deported without much fanfare. The difference today is the disdain for Trump held by many officials in sanctuary jurisdictions. And by impeding the federal government’s efforts to remove dangerous criminals, officials in states like Illinois, New York, and California unmistakably demonstrate that they hate Trump more than they care about protecting their own citizens.
Moster makes states-rights argument on sanctuary cities
Rick’s arguments are fundamentally flawed and threaten the very concept of “federalism” which underpins the exercise of state authority. For the record, I support efforts to arrest and expel illegal immigrants who engage in criminal activities, but not at the price of destroying bedrock democratic principles.
Rick cites three horrific examples where illegal aliens committed the most heinous crimes. I have long maintained that the death penalty be renewed across the country and that right of appeal be limited or abolished in these very circumstances. That said, the recitation of these examples does not advance the argument that Congress can and should ban sanctuary cities.
Rick sets forth the operative question but fails to provide a cogent answer to support his proposition: “To the extent sanctuary laws actually impede or obstruct federal enforcement, the federal government can and must abolish them”. He presents no evidence whatsoever that sanctuary laws have impeded federal enforcement. The states have not and cannot constitutionally strip ICE of its enforcement power to administer immigration laws in any state or city designated as having sanctuary status. ICE has full power to make arrests, conduct investigations, and issue warrants. In fact, over 375,000 arrests were made in Trump’s first year in office – a 75% increase. That is powerful evidence that the very existence of sanctuary cities has not impeded federal enforcement efforts.
Moreover, the debate question poses whether Congress can ban sanctuary cities, and the answer is plainly no.
Rick admits that the 10th Amendment serves as a bulwark of state rights.
The Supreme Court has made this constitutional boundary unmistakably clear. In Printz v. United States and Murphy v. NCAA, the Court reaffirmed that the federal government may not “commandeer” state and local officials to enforce federal law. And while Congress may attach conditions to federal funding, that power is limited. Under South Dakota v. Dole and NFIB v. Sebelius, such conditions must be related and not coercive—meaning Washington cannot threaten to strip critical funding simply to force states into carrying out federal immigration policy.
The very premise of Rick’s argument is antithetical to our republican form of government which recognizes the constitutionally protected rights of the states to function as sovereign governing bodies. Congress lacks the legal authority to abolish sanctuary states or cities and cannot coerce obedience by withholding funding.
Finally, the flawed logic employed by this administration as amplified by Rick is dangerous. The typical syllogism is to set forth a critical goal that is almost universally approved by most people on both sides of the aisle and then suggest a solution right out of the totalitarian playbook. Who would disagree that the illegal aliens identified in Rick’s three example are monsters who should never have been permitted to enter the U.S.? However, the solution is not to create an authoritarian police state but to buttress border defenses which Trump has masterfully accomplished. You cannot default immediately to the most restrictive option in achieving the desired result. This Trumpian mindset is not only illogical but dangerous.
I am all for prosecuting and eliminating illegal aliens who have committed heinous acts but not at the price of states’ rights and our personal liberties.
Rosen responds
First, I am puzzled by Charles’ argument that asking states to notify ICE before they release criminal illegal aliens from custody is somehow antithetical to federalism. Most states already do so, including Texas. I fail to see how Texas’ ability to govern itself has been diminished by cooperating with ICE.
Second, to suggest that Congress may not condition receipt of federal funds for state and local law enforcement on cooperation with ICE patently incorrect. Congress has exclusive and plenary authority over appropriations, and it may condition the receipt of federal grants even where it could not otherwise constitutionally compel states to act.
The conditions must, of course, be relevant to the federal government’s overall objectives—in this case, enforcement of the nation’s immigration laws. Conditioning law-enforcement grants on state and local cooperation with ICE clearly implicates federal interests. By releasing criminal illegal aliens back into the community without notifying ICE forces the federal government to expend considerable resources tracking these individuals for the deportation mandated by federal statute. Sanctuary state and local governments should bear such costs—not federal taxpayers.
Moreover, many state and local governments purposely undermine ICE from accomplishing its statutory mission. Some attempt to limit where ICE can exercise its authority, such as barring it from state or local property. ICE’s enforcement of immigration laws has been further hampered by violent protests, often encouraged by state and local officials. And some state and local officials unlawfully threaten to arrest and prosecute federal law-enforcement officials performing their federal duties. Simply put, Congress need not fund such nonsense.
Third, I am baffled by state and local governments that, rather than cooperate with ICE, permit criminal aliens back into their communities to prey upon their citizens. For example, this year (to date), 75% of murders in Fairfax County, Virginia—a suburb of Washington, D.C, where I lived on and off for 11 years—were committed by criminal aliens, some released from custody after committing other crimes. A simple telephone call to ICE before releasing these men could prevent such heinous crimes, but Virginia’s governor forbids such cooperation. Based on Charles’ analysis, the survivors of those killed can take solace in the fact that their loved ones’ deaths furthered the cause of “states-rights.”
Fourth, I categorically reject Charles’ contention that enforcement of immigration laws is a “Trumpian mindset.” Every preceding President (except Biden) vigorously enforced the nation’s immigration laws, including Presidents Clinton and Obama. The only mindset at play is the abject stupidity of those permitting dangerous criminals onto our streets simply because Trump was elected to execute these laws.
Moster has last say
I am puzzled as to why Rick is puzzled by my argument. The topic is whether Congress “can” and “should” ban sanctuary cities. My concerns about the attack on federalism relates to the ability of Congress to strip states of their right to declare the very existence of a sanctuary city. They have an absolute right to do so under the 10th Amendment, and there is nothing puzzling in my opposition to such unfettered federal action.
Critically, Rick conflates the important distinction of voluntary vs. compulsory compliance.
Yes, states such as Texas can certainly voluntarily cooperate with federal authorities as to the release of violent criminals. Although I believe that such actions are in the public interest, the question is whether Congress can compel cities and states to do so. That is where I draw the line. The subjugation of state and local law enforcement by the federal government is patently unconstitutional in these circumstances and plainly antithetical to the doctrine of federalism.
Fundamentally, Rick has provided no evidence whatsoever that sanctuary laws are obstructing ICE. Rick cites to three tragic examples and the frequency of crime in Northern Virginia. Unquestionably, such murders are horrific, however, they have no bearing on the efficacy of ICE which has increased its arrest record by 75% in just the first year of the Trump administration. Obviously, sanctuary cities have not adversely affected immigration law enforcement at the federal level.
Finally, I never made the argument that the enforcement of immigration laws is a “Trumpian mindset” as Rick erroneously maintains. My concern is that the federal government has continually stripped the states of their constitutional protections to achieve public policy objectives – for example – apprehending violent illegal immigrants. There is no question that ICE is accomplishing these goals without the need to compel obedience at the state and local level.
We all agree on the obvious necessity of arresting, expelling, or eliminating violent illegal immigrants – but not at the price of abrogating our civil liberties.
This article originally appeared on Lubbock Avalanche-Journal: It’s Debatable asks if Congress can, should ban sanctuary cities
Reporting by By Charles Moster and Rick Rosen / Lubbock Avalanche-Journal
USA TODAY Network via Reuters Connect
