Sanctuary. That exquisite word conjures images of sunlight through stained glass windows and feelings of calm, peace, quietude, and safety.
But sanctuary, in the context of sanctuary city, is a misnomer. Sanctuary cities do not actually offer undocumented immigrants sanctuary, but they still matter a lot.
Sanctuary has deep religious roots. In medieval England, a criminal could put himself beyond the reach of the law for 40 days by seeking refuge in a church. By the early 17th century, however, the church and the king of England had abolished the practice.
Although church-based sanctuary has never taken root in American law, the religious practice of sanctuary is embedded here. In the early 1980s, for example, the sanctuary movement involved over 500 congregations of all faiths. Places of worship, although not legally protected, nonetheless often provided a safe haven – with shelter, food, clothing and legal advice – for Central American refugees fleeing oppression and death squads. Today, in reaction to Trump, religious institutions once again are embracing sanctuary for immigrants.
The concept of sanctuary, to a degree, was incorporated into our system in a 2011 directive written by John Morton, former president Obama’s Director of Immigration Control and Enforcement (ICE). His “Sensitive Locations Memorandum” generally – there are exceptions – precludes ICE enforcement actions – arrests, interviews, searches, and surveillance – at schools, medical facilities and “churches, synagogues, mosques or other institutions of worship.”
A “sanctuary city” – in contrast to religious-based sanctuary – does not offer shelter or affirmative protection to undocumented immigrants. A sanctuary city (words without a precise legal definition) promises only that its police force will not arrest anyone based solely on their immigration status or jail any person based on a so-called ICE detainer. An ICE detainer is a request that local law enforcement, absent permission from a judge, without a warrant, and absent probable cause, should keep in custody a person who otherwise should be free while ICE figures out whether it wants to pick him up.
Local law enforcement becoming ICE’s handmaiden in this way undermines constitutional protections. It also contaminates police-community relations, interferes with our police doing their actual job, encourages racial profiling, and constitutes an unfunded mandate.
Donald Trump is dead-set on turning local police into ICE agents even against the will of local police chiefs. Indeed, the president has threatened to claw back federal money from municipalities that don’t acquiesce to this demand.
But Trump legally can’t get away with that. In the 2012 Affordable Care Act case, National Federation of Independent Business v. Sebelius, seven justices of the Supreme Court agreed that Congress acted unconstitutionally when it threatened states with the loss of Medicaid funding if they failed to comply with the ACA mandate to expand Medicaid. As Chief Justice John Roberts put it, “Congress may not simply conscript state agencies into the national bureaucratic army.”
Similarly in 1997, the Supreme Court, in Printz v. United States, struck down the part of the Brady Handgun Violence Prevention Act that required local police officers to help enforce federal gun-control laws by conducting background checks. Printz held that mandate unconstitutional, ruling that the federal government cannot commandeer local law enforcement and through monetary coercion force local cops to do federal agents’ work.
These precedents make Trump’s threat to withhold funds ring hollow. (The fact that the late Justice Antonin Scalia authored Printz is proof that even in these dark times, irony lives.)
In Massachusetts the legal battle already has been joined. Chelsea, which describes itself as a “sanctuary city,” and Lawrence, which calls itself a “Trust Act City,” have sued Trump in federal court over his threat to withhold funds.
And in early April, the Massachusetts Supreme Judicial Court will hear oral arguments in Lunn v. Commonwealth, where the issue is whether a state court can temporarily hold an individual on the basis of an ICE detainer. Lunn likely will provide guidance for police departments about the efficacy of an ICE request for detention.
Resistance to federalizing local police forces is taking shape in the Massachusetts Legislature as well. State Sen. James Eldridge and Rep. Juana Matias have filed a bill called The Safe Communities Act – a law that would prohibit the state from spending “funds, resources, facilities, property, equipment or personnel for immigration enforcement purposes.”
Nothing in these court cases, proposed legislation, or municipal directives will create any safe place in our commonwealth for immigrants without proper papers. Here, as everywhere in America, ICE will continue to surveil, question, stop, arrest, detain, and deport. The issue is whether we want our local police to be deployed to facilitate that effort.
We shouldn’t. Common sense and common decency should compel municipalities across Massachusetts to become sanctuary cities. It is the least we can do.
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