Sanctions against sanctuary cities should not be sanctioned

Last updated on: May 10, 2017 at 7:38 pm by Fred Clark

Sanctions against sanctuary cities should not be sanctioned 2017-05-10T19:38:33-04:00 Fred Clark

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“Texas governor signs bill banning sanctuary cities” reads the headline on CNN, suggesting that Gov. Greg Abbott is unclear on the concept here.

This is a bit like passing a law prohibiting civil disobedience. It’s not simply redundant, but misleading, in that it imagines that restating the problem is the same thing as addressing it. That adds a layer of absurdity to laws whose legitimacy is already contested. This extra layer of absurdity doesn’t strengthen the original, disputed law, but rather serves to weaken it. And it can lead to the kind of Kafkaesque snake-swallowing-its-tail business we frequently see when police arrest someone solely on the charge of resisting arrest.

We recently discussed how “sanctuary” in its various, long-standing forms is distinct from civil disobedience. (See part one here and part two here.) Civil disobedience is a specific kind of response to specific unjust laws. Sanctuary is, instead, an assertion of some alternate jurisdiction — the claim that one law or set of laws is not the exclusive, final word, and that other legitimate duties, obligations, and considerations may apply. In the case of “sanctuary cities,” those other obligations involve the justice system’s duties to protect victims and witnesses. In the case of sanctuary churches, they involve the freedom of conscience and the authority of hospitality. (Not “hospitality” in the shallow modern sense of the hotel industry, but in the ancient sense which predates governments, written language, and probably even agriculture*.* Hospitality is a limb that civilization is sitting on and therefore cannot afford to saw off.)

In the second part of that earlier discussion, we talked about how sanctuary cannot be like civil disobedience in that it needs to be concerned with shielding would-be victims of the law from the consequences of disregarding those laws — it needs to be more like Harriet Tubman than like Rosa Parks. Where civil disobedience is primarily directed toward changing the law, that’s a secondary aim of sanctuary, which is primarily concerned with preventing the unjust consequences of the existing law as it stands.

That’s why the civil-disobedience framework inherited from the sanctuary church movement of the 1980s can be misleading. Sanctuary churches today, in what white-nationalist Attorney General Jefferson Beauregard Sessions III calls “the Trump Era,” can’t best protect the victims of unjust laws by acting on a civil-disobedience analogy. A better analogy, I think, may be the kinds of actions undertaken by the early labor movement (or by their heirs now conducting unsanctioned, unprotected wildcat actions in the fast-food and retail industries). Early miners and porters going on strike didn’t have a the protection of the NLRB or of a cabinet-level secretary. The law was not usually on their side, but legal status was not their primary concern. Their main concern had to do with wages and working conditions, with surviving in an unjust system. That put them in the right and it gave them the right to act, even if doing so put them in some way outside or ahead of the law.

So-called “sanctuary cities” are a different beast:

“Sanctuary city” is a broad term applied to jurisdictions with policies in place to limit cooperation or involvement with federal immigration actions. Many US cities, counties and some states have a myriad of informal policies and laws that qualify as “sanctuary” positions.

Being a sanctuary city doesn’t mean the municipal boundaries function like the walls of a medieval cathedral, but simply that legal officials there cannot, do not, and will not allow federal immigration documentation to interfere with their duty to protect citizens and uphold the law. There’s nothing illegal or extra-legal about that — it’s how the legal system works. Think of any detective investigating a homicide on any TV show: “I’m not here about your outstanding parking tickets, I’m trying to solve a murder.”

Police cannot prosecute crime if the victims of that crime are forced to hide due to their immigration status. They cannot build cases against criminals if witnesses cannot testify due to fear that they will themselves be prosecuted for a lack of government papers. This is why “sanctuary cities” have to be public about this. It’s not about their defying or resisting or picking a fight with federal immigration authorities, but about them ensuring that every resident knows that they can report a crime or offer testimony without needing to fear that it will result in their being turned over to the custody of ICE or handed over to the police-academy rejects at CBP.

Abbott’s show-me-your-papers bill in Texas won’t make police abandon good policing for his preferred task of acting as sub-contracted deputies of ICE, but it will prevent cities from being able to publicize that. The harsh penalties in Texas’ law — daily fines and the threat of removing elected officials from office — are directed at officials in sanctuary cities, but that’s not the main target of this law. It’s designed, rather, to intimidate undocumented residents into silence — to prevent them from believing that they can report crimes or provide testimony without fear of detention and deportation. That won’t make it any easier for Texas or the federal government to catch or prosecute dangerous criminals who are also violating immigration laws, but it will make it much, much harder for police throughout the state to catch and prosecute dangerous criminals whose victims can’t produce all the certified paperwork that immigration law requires.

So Gov. Abbott has basically just informed thieves and violent criminals in Texas that it is now open season on undocumented victims. Whether Abbott is bright enough to understand that this is what he’s done isn’t something I can say, so I do not know whether this makes him irresponsibly stupid or indefensibly cruel. Either way, he hasn’t reaffirmed “law and order” in Texas, he’s massively undermined it.

Cities and counties in Texas are lining up to take all of this to court, because maybe their actual duties shouldn’t have to take a back seat to the priorities of immigration bureaucrats and maybe the governor granting himself the authority to remove elected local officials from office isn’t a good idea or one that the Constitution allows.

But until the courts sort this out, things will get ugly in the Lone Star state, which is why the ACLU’s “travel advisory” for Texas isn’t just a joke. That warning doesn’t just focus on Gov. Abbott’s endorsement of crimes against undocumented residents, but also on his law’s encouragement/mandate that every interaction between residents and government now be conducted as an immigration-status hearing:

The alert comes amid the passing of a Texas law known as SB4. The law gives a green light to police officers in the state to investigate a person’s immigration status during a routine traffic stop, leading to widespread racial profiling, baseless scrutiny, and illegal arrests of citizens and non-citizens alike presumed to be “foreign” based on how they look or sound. The travel alert applies to all travelers to Texas, including U.S. travelers from other states and U.S. citizens. In addition, this alert applies to all encounters with federal, state, county law enforcement including local police and sheriffs.

“The ACLU’s goal is to protect all Texans and all people traveling through Texas — regardless of their immigration status — from illegal harassment by law enforcement,” said Lorella Praeli, ACLU director of immigration policy and campaigns. “Texas is a state with deep Mexican roots and home to immigrants from all walks of life. Many of us fit the racial profile that the police in Texas will use to enforce Trump’s draconian deportation force.”

It’s a bit odd to be writing about this — or about anything else, really — right after President Trump’s audaciously Nixonian firing of the FBI director, the third time this president has fired an official currently in charge of an investigation into the possible criminal activities of this president. But there’s a common thread here: White nationalist hegemony is incompatible with constitutional democracy. You can have one or the other, but not both. Those two ideologies, those two possibilities, are now at war and officials everywhere in America are being forced to take sides. We all are being forced to take sides.

Gov. Abbott is making the wrong choice. Don’t be like him.

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