There is no official or agreed-upon definition of what constitutes a sanctuary jurisdiction, and there has been debate as to whether the term applies to particular states and localities. Moreover, state and local jurisdictions have varied reasons for opting not to cooperate with federal immigration enforcement efforts, including reasons not necessarily motivated by disagreement with federal policies, such as concern about potential civil liability or the costs associated with assisting federal efforts. But traditional sanctuary policies are often described as falling under one of three categories.
First, so-called don’t enforce policies generally bar state or local police from assisting federal immigration authorities. Second, don’t ask policies generally bar certain state or local officials from inquiring into a person’ s immigration status. Third, don’t tell policies typically restrict information sharing between state or local law enforcement and federal immigration authorities.
One legal question relevant to sanctuary policies is the extent to which states, as sovereign entities, may decline to assist in federal immigration enforcement, and the degree to which the federal government can stop state measures that undermine federal objectives. The Tenth Amendment preserves the states broad police powers, and states have frequently enacted measures that, directly or indirectly, address aliens residing in their communities. Under the doctrine of preemption—derived from the Supremacy Clause—Congress may displace many state or local laws pertaining to immigration. But not every state or local law touching on immigration matters is necessarily preempted; the measure must interfere with, or be contrary to, federal law to be rendered unenforceable.
Further, the anti-commandeering doctrine, rooted in the Constitution’s allocation of powers between the federal government and the states, prohibits Congress from forcing state entities to perform regulatory functions on the federal government’s behalf, including in the context of immigration. These dueling federal and state interests are front and center in numerous lawsuits challenging actions taken by the Trump Administration to curb states and localities from implementing sanctuary-type policies. Notably, Section 9(a) of Executive Order 13768 directs the Secretary of Homeland Security and the Attorney General to withhold federal grants from jurisdictions that willfully refuse to comply with 8 U.S.C. § 1373—a statute that bars states and localities from prohibiting their employees from sharing with federal immigration authorities certain immigration-related information. The executive order further directs the Attorney General to take appropriate enforcement action against jurisdictions that violate Section 1373 or have policies that prevent or hinder the enforcement of federal law.
To implement the executive order, the Department of Justice added new eligibility conditions to the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program and grants administered by the Justice Departments Office of Community Oriented Policing Services (COPS). These conditions tied eligibility to compliance with Section 1373 and other federal immigration priorities, like granting federal authorities access to state and local detention facilities housing aliens and giving immigration authorities notice before releasing from custody an alien wanted for removal. Several lawsuits were filed challenging the constitutionality of the executive order and new grant conditions. So far the courts that have reviewed these challenges—principally contending that the executive order and grant conditions violate the separation of powers and anti-commandeering principles—generally agree that the Trump Administration acted unconstitutionally.