"Sanctuary Cities": Legal Issues

“Sanctuary Cities”: Legal Issues
Yule Kim and Michael John Garcia
Legislative Attorneys
American Law Division
Summary
Controversy has arisen over the existence of so-called “sanctuary cities.” The term
“sanctuary city” is not defined by federal law, but it is often used to refer to those
localities which, as a result of a state or local act, ordinance, policy, or fiscal constraints,
limit their assistance to federal immigration authorities seeking to apprehend and
remove unauthorized aliens. Supporters of such policies argue that many cities have
higher priorities, and that local efforts to deter the presence of unauthorized aliens would
undermine community relations, disrupt municipal services, interfere with local law
enforcement, or violate humanitarian principles. Opponents argue that sanctuary policies
encourage illegal immigration and undermine federal enforcement efforts. Pursuant to
§ 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA, P.L. 104-193) and § 642 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA, P.L. 104-208), states and localities may not limit
their governmental entities or officers from maintaining records regarding a person’s
immigration status, or bar the exchange of such information with any federal, state, or
local entity. Reportedly, some jurisdictions with sanctuary policies take a “don’t ask,
don’t tell” approach, where officials are barred from inquiring about a person’s
immigration status in certain circumstances. Though this method does not directly
conflict with federal requirements that states and localities permit the free exchange of
information regarding persons’ immigration status, it results in specified agencies or
officers not possessing information that they could potentially share with federal
immigration authorities. In the 110^th Congress, several bills have been introduced that
attempt to limit formal or informal sanctuary policies and induce greater sharing of
immigration information by state and local authorities. These bills include H.R. 1355,
H.R. 3494, H.R. 4192, H.R. 4065, S. 850, and S. 2294.
Over the past several years, the number of aliens who unlawfully reside in the United
States has grown significantly, from an estimated 3.2 million in 1986 to more than 11
million in 2005.¹ Although the federal government is responsible for regulating the entry

¹ See CRS Report RL33874, Unauthorized Aliens Residing in the United States: Estimates Since
(continued...)

and removal of aliens from the United States, the impact of unauthorized immigration has
arguably been felt most directly in the communities where aliens settle. The response of
states and localities to the influx of illegal immigrants has varied. On one end of the
spectrum, some jurisdictions have actively sought to deter the presence of illegal
immigrants within their territory. Some jurisdictions have assisted federal authorities in
apprehending and detaining unauthorized aliens, including pursuant to agreements (287(g)
agreements) with federal immigration authorities enabling respective state or local law
enforcement agencies to carry out various immigration enforcement functions.² More
controversially, some jurisdictions have sought to deter illegal immigration by imposing
their own restrictions upon unauthorized aliens’ access to housing, employment, or
municipal services.³ Moving toward the middle of the spectrum, some states and
localities communicate with federal immigration enforcement officers under limited
circumstances (e.g., after arresting an unauthorized alien for a criminal offense), but for
various reasons do not take a more active role in deterring illegal immigration.
At the other end of the spectrum, some jurisdictions have been unwilling to assist the
federal government in enforcing measures that distinguish between legal and non-legal
residents of the community. Some of these jurisdictions have adopted formal or informal
policies limiting cooperation with federal immigration authorities.⁴ This latter category
of jurisdictions is sometimes referred to as “sanctuary cities.” Although this term is not
defined by federal statute or regulation, it has been used by some in reference to
“jurisdictions that may have state laws, local ordinances, or departmental policies limiting
the role of local law enforcement agencies and officers in the enforcement of immigration
laws.”⁵
The very existence of “sanctuary cities” has been the subject of considerable
controversy. Supporters argue that immigration enforcement is the responsibility of the
federal government, and that local efforts to deter the presence of unauthorized aliens
would undermine community relations, disrupt municipal services, interfere with local

¹ (...continued)
1986, by Ruth Ellen Wasem. See also Jeffrey S. Passel, Pew Hispanic Center, The Size and
Characteristics of the Unauthorized Migrant Population in the U.S.: Estimates Based on the
March 2005 Current Population Survey, March 7, 2006.
² See the Immigration and Nationality Act (INA) § 287(g), 8 U.S.C. § 1357(g). For additional
background, see CRS Report RL32270, Enforcing Immigration Law: The Role of State and Local
Law Enforcement, by Blas Nuñez-Neto, Michael John Garcia, and Karma Ester.
³ Many recent local ordinances restricting unauthorized aliens’ access to housing and
employment have been subject to legal challenge. See, e.g., Lozano v. City of Hazleton, 496
F.Supp.2d 477 (M.D.Pa. 2007) (striking down an ordinance restricting the housing or
employment of unauthorized aliens on preemption and Fourteenth Amendment grounds).
⁴ See Jesse McKinley, Immigrant Protection Rules Draw Fire, NYT^IME^S, November 12, 2006.
⁵ U.S. Department of Justice, Office of the Inspector General, Audit Division, C^OOP^ERATI^{ON OF}
SCAAPR^E^C^IP^IE^N^T^S^IN^T^H^ER^EM^{OVAL OF}C^RI^M^I^NALA^LI^{ENS FROM}^THEU^NI^TEDS^TATES, January

2007 (redacted public version) [hereinafter “2007 OIG Report”], at 44 (defining “sanctuary”

policies).

enforcement, or violate humanitarian principles.⁶ Opponents of sanctuary policies argue
that they encourage illegal immigration and undermine federal enforcement efforts.⁷
Applicable Law
The primary federal restrictions on state and local sanctuary policies are § 434 of the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA,
P.L. 104-193)⁸ and § 642 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA, P.L. 104-208).⁹ PRWORA § 434 proscribes any
prohibition or restriction placed on state or local governments to send or receive
information regarding immigration status of an individual to or from federal immigration
authorities.¹⁰ IIRIRA § 642 is broader in scope, barring any prohibition on a federal,
state, or local governmental entity or official’s ability to send or receive information
regarding immigration or citizenship status to or from federal immigration authorities.¹¹
Furthermore, the statute states that no person or agency may prohibit a federal, state, or
local government entity from (1) sending information regarding immigration status to,
or requesting information from, federal immigration authorities; (2) maintaining
information regarding immigration status; or (3) exchanging such information with any
other federal, state, or local government entity.¹²
The constitutionality of the foregoing provisions was challenged by the City of New
York. The mayor of the City of New York had issued an Executive Order prohibiting any
city officer or employee, in most circumstances, from transmitting information regarding
immigration status to federal immigration authorities.¹³ This Executive Order was in
direct conflict with both PRWORA § 434 and IIRIRA § 642.¹⁴
The United States Court of Appeals for the Second Circuit held in New York v.
United States (City of New York) that PRWORA § 434 and IIRIRA § 642, on their face,

⁶ The modern sanctuary movement has roots in efforts by American churches in the 1980s to
provide refuge to unauthorized Central American aliens fleeing civil unrest. Several states and
municipalities subsequently issued declarations in support of the churches’ actions and offered
to provide sanctuary to these aliens. See generally Jorge L. Carro, Municipal and State Sanctuary
Declarations: Innocuous Symbolism or Improper Dictates?, 16 P^EP^P.L.R^EV. 297 (1989).
⁷ See Federation for American Immigration Reform, Non-Cooperation Policies: “Sanctuary” for
Illegal Immigration, at [http://www.fairus.org/site/PageServer?pagename=iic_immigrationissue
centers0173].
⁸ 8 U.S.C. § 1644.
⁹ Id. § 1373.
¹⁰ Id. § 1644.
¹¹ Id. § 1373(a).
¹² Id. § 1373(b).
¹³ City of New York, 179 F.3d at 31.
¹⁴ Id.

do not violate the anti-commandeering doctrine under the Tenth Amendment.¹⁵ The anti-
commandeering doctrine prohibits the federal government from commandeering either
a state’s legislature (e.g., by requiring that a state enact particular regulatory standards¹⁶)
or its executive officers (e.g., by requiring that state officers directly participate in
enforcing federal law¹⁷) to achieve federal goals. While this might mean that Congress
cannot directly compel states to collect and share information regarding immigration
status with federal immigration authorities, merely prohibiting states and localities from
sharing with the federal government information already in their possession may be
permissible, according to the Second Circuit, absent specific proof of greater interference
with state and local functions.¹⁸
State and Local Compliance with Federal Law
Although several localities reportedly have adopted formal or informal policies
limiting cooperation with federal immigration authorities, the precise number is unclear.¹⁹
In 2006, Congress required the Office of the Inspector General (OIG) for the Department
of Justice to study and report on whether states and localities receiving federal
compensation for incarcerating criminal aliens were cooperating with federal immigration
enforcement efforts. Among other things, the OIG was required to determine whether
any states or localities receiving compensation were in violation of the information-
sharing requirements of IIRIRA § 642. In a January 2007 report, the OIG stated that
auditors were
able to locate an official “sanctuary” policy for only two jurisdictions that received
at least $1 million in SCAAP [State Criminal Alien Assistance Program] funding, the
State of Oregon, which received $3.4 million, and the City and County of San
Francisco, which received $1.1 million and has designated itself as a “City and
County of Refuge.” We also located an Executive Order issued by the Mayor of the
City of New York limiting the activities of local law enforcement agencies and
officers in the enforcement of immigration law. However, in each instance the local
policy either did not preclude cooperation with ICE [Immigration and Customs
Enforcement] or else included a statement to the effect that those agencies and²⁰

officers will assist ICE or share information with ICE as required by federal law.
¹⁵ 179 F.3d 29 (2d Cir. 1999).
¹⁶ New York v. United States (State of New York), 505 U.S. 144 (1992).
¹⁷ Printz v. United States, 521 U.S. 898 (1997).
¹⁸ City of New York, F.3d at 35-36. It should also be noted that Congress is constrained by
constitutional limitations when attempting to induce information sharing between state and
federal authorities. The Constitution limits Congress to either adding financial incentives or
conditioning federal funding on compliance with information sharing mandates. See State of New
York, 505 U.S. at 167.
¹⁹ One difficulty is estimating the precise number of jurisdictions is conflicting interpretations
as to what constitutes a sanctuary policy. See 2007 OIG Report, supra note 4, at viii (noting
conflicting views found in survey of federal immigration authorities and local jurisdictions as to
whether localities were “fully cooperating” with federal efforts to remove undocumented criminal
aliens).
²⁰ Id., at viii.

The OIG report identified two jurisdictions receiving at least $1 million in SCAAP
funding that had official sanctuary policies, but it concluded that neither violated federal
law. The OIG estimate of jurisdictions with policies in direct violation of IIRIRA § 642,
however, is not comprehensive. While the OIG report indicated that few, if any,
jurisdictions that received at least $1 million in SCAAP funding during FY2005 had
formal policies violating IIRIRA § 642, the report did not identify, for example, whether
any jurisdictions receiving less the $1 million were in violation of federal law.²¹
Although IIRIRA § 642 prohibits states and localities from barring the transfer or
maintenance of information regarding immigration status, it does not require entities to
collect such information in the first place. Reportedly, some states and localities seeking
to limit assistance to federal immigration authorities have barred agencies or officers
from inquiring about persons’ immigration status, a practice sometimes described as a
“don’t ask, don’t tell” approach.²² Though this method does not directly conflict with
federal requirements that states and localities permit the free exchange of information
regarding persons’ immigration status, it results in specified agencies or officers not
possessing any information about persons’ immigration status that they could share with
federal authorities.²³
Pending Legislation
In the 110^th Congress, legislation has been introduced to enforce the requirements
of IIRIRA § 642 and induce states and localities to provide information regarding
persons’ immigration status to federal immigration authorities. S. 850 and H.R. 1355,
both entitled the Scott Gardner Act, mandate that the directors of state and local
enforcement agencies collect and report to the Secretary of Homeland Security
immigration and DWI information as is collected in the course of the directors’ normal
duties. State and local compliance is a condition to ensure continued funding under the
State Criminal Alien Assistance Program (SCAAP). The bills also include a mandate for
a state or local law enforcement officer, who arrests an alien who has been flagged for a

²¹ The OIG Report includes a description of the methodology used to identify jurisdictions with
sanctuary policies:
We were guided initially in our research by listings of sanctuary cities posted on the
websites of several organizations. Later, we focused our search on jurisdictions that
received SCAAP funding of at least $1 million from the FY 2005 appropriation. We
searched the websites for those jurisdictions in an effort to locate policy statements
affecting how local law enforcement agencies interact with ICE in the effort to
remove criminal aliens from the United States.
Id., at 41. According to the OIG, attempts to identify local policies limiting enforcing of
immigration legislation “revealed much anecdotal information, but little in the way of formal
policies.” Id.
²² Lisa Anderson, “Sanctuary Cities” Draw Fire, No Light, C^HI.T^RI^B., December 12, 2007, at

²³ Some jurisdictions fear that active collection of immigration data would impair the delivery
of services to the community-at-large.

DWI or an immigration offense in the National Criminal Information Center database,
to detain the alien until he may be transferred to federal custody.
H.R. 3494, the Charlie Norwood CLEAR Act, contains a provision mandating that
state and local officers provide information to the Secretary of Homeland Security
concerning apprehended aliens who are believed to have committed a violation of U.S.
immigration laws. Moreover, the bill would also provide grants to state and local law
enforcement agencies that have written policies to assist in the enforcement of the
immigration laws of the United States.
H.R. 4192, the OVERDUE Immigration Reform Act of 2007, and S. 2294, the
Immigration Enforcement and Border Security Act of 2007, would make compliance with
IIRIRA § 642 a requisite for a state or locality to enter a contractual relationship with the
federal government to reimburse the costs for incarcerating or transporting undocumented
criminal aliens. H.R. 4065, the Border Enforcement, Employment Verification, and
Illegal Immigration Control Act, would amend IIRIRA § 642 by adding a provision
making states and localities that are in violation of § 642 ineligible to receive any law
enforcement grant administered by the Department of Justice.
There were several appropriations bills pending in the first session of the 110^th
Congress that made federal funding contingent on compliance with IIRIRA § 642. The
House-passed version of H.R. 3093, the Commerce, Justice, Science, and Related
Agencies Appropriations Act, FY2008, would have barred any funds made available by
the act from being used in contravention of IIRIRA § 642. House-passed H.R. 2638, the
Department of Homeland Security Appropriations Act, FY2008, would have prohibited
funds made available from being used in violation of IIRIRA § 642. However, these
appropriations, as enacted in P.L. 110-161 (the Consolidated Appropriations Act, 2008),
no longer have mandates requiring compliance with IIRIRA § 642.