After three hours of parsing American case law, for once I share Donald Trump’s exasperation. See, many a naif, including yours truly three hours ago, would have thought the Democrats’ ‘sanctuary cities’ unconstitutional. A sanctuary city instructs its local police force to cease all co-operation with federal immigration agents. The constitution’s supremacy clause dictates that federal law overrules local law, just as rock crushes scissors in the hand game. For sub-jurisdictions to offer refuge from big meanie federal Immigration and Customs Enforcement (the aptly cold-hearted sounding ICE) should not, legally, be possible.

It’s possible. The work-around is the 10th Amendment’s ‘anti-commandeering doctrine’, which prevents the feds from directly telling local and state law enforcement what to do. While state and local police may not actively interfere with ICE, they can spanner operations through sheer passivity; after all, when you simply watch someone drown, you haven’t really done anything. Asked to turn over foreign criminals for deportation, a police officer may constitutionally respond, like Herman Melville’s Bartleby the Scrivener: ‘I would prefer not to.’

State and local police can spanner deportations through sheer passivity

Yet local law enforcement refusing to cooperate with ICE isn’t in the interest of a polity’s own citizens. Deporting criminal aliens makes residents safer. Releasing prisoners into the general population makes tracking them down more dangerous for ICE agents, who are then more likely to nab ‘collateral damage’ immigrants swept up in the operation........

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