If Federal Law is Supreme Law, How Did Chicago Become a "Sanctuary City?"


If Arizona is not allowed to have its own "immigration policy," as the Obama Department of Justice insists, then why is Chicago and other local or state governments allowed to have their own immigration policies by creating sanctuaries for illegal immigrants?

Chicago, Evanston, Cicero and scores, if not hundreds, of other state and local governments have established themselves as "sanctuary cities" in which they have prescribed their own rules prohibiting the reporting by their law enforcement officers of illegal immigrants to federal authorities.

It is a clear violation of federal law and court decisions, but the Obama administration sits on its hands while Chicago and other cities spit in the eye of federal law. It also spotlights the hypocrisy of outfits like the Illinois Coalition for Immigrant and Refugee Rights when they argue that the Arizona law must be tossed because no state can set its own immigration policy, while supporting sanctuary cities.

Specifically, Section 642 of the 1996 immigration reform act and Section 424 of the 1996 welfare reform act forbid a state or local government from prohibiting its employees from sharing information about illegal immigrants with federal immigration authorities.

The 1996 immigration reform law, officially known as the Illegal Immigration Reform and Immigrant Responsibility Act, also authorizes state and local governments to require proof of eligibility, such as a passport, drivers' license or resident alien card, from applicants for government benefits.

Furthermore, federal law makes it a felony to conceal an illegal immigrant. Since Chicago and other sanctuary cities intentionally shelter illegal immigrants, they are plainly violating federal law. For such violators, Section 274 of the Immigration and Nationality Act provides for criminal penalties for encouraging illegal immigrants from residing in America--something that "sanctuary" doubtless provides.

These laws have been variously challenged in the courts, and upheld.

The principle of federal law trumping state and local laws is supported whole-heartedly by Fred Tao, policy director, Illinois Coalition for Immigrant and Refugee Rights. In his response to my Tribune column reflecting on the federal-state questions involved, he wrote:

As [Byrne] spotlights the 10th Amendment to the Constitution, [he] forgets Article VI, the Supremacy Clause: "The Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land." The Constitution makes immigration a matter of federal law, so federal immigration laws trump attempts by states or localities to pass their own immigration laws. The federal government must act to fix our nation's broken immigration system. But in the meantime, laws that conflict with federal law -- like Arizona's -- cannot stand.

Yet, there's no mention in his response about sanctuary cities. Yes, he pointed out that localities and states that are identifying illegal immigrants to federal authority are not doing it on their own. He's right. I indicated the same thing in my column. I quoted the feds, saying the programs I mentioned are among several "under (an) umbrella of services and programs offered for assistance to local law enforcement officers."

But, here is the point that Tao misses:

The federal law welcomes state and local help dealing with illegal immigrants. But it also says that no state or locality may make any rule, regulation or policy that conflicts with Federal immigration policy.

The Arizona law does not conflict with federal law; it supports and is nearly identical with federal law. Actually, it reinforces federal law by banning racial profiling. Sanctuary city laws not just conflict with federal law, they violate the law. If the Obama administration weren't so hypocritical, it also would moving against sanctuary cities.

I have no idea how the Obama administration's lawsuit against Arizona will come out. The first of several court decisions is at hand, with the law scheduled to go into effect on Thursday. The case, which could make it to the Supreme Court, involves very complex and historic issues that have bedeviled our federal republic from its inception. The complexities fueled everything from the Federalist Papers, one of the nation's brilliant founding documents, to the Civil War. What we have here isn't only an argument about the enforcement of the nation's immigration laws, but also the approach of another milestone in the centuries-old debate about the foundation of our national governance.

This column originally appeared in the Chicago Daily Observer, where comments are being taken.


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  • The answer to this one is simple. The Supreme Court has held that it is up to federal authorities to enforce federal laws.

  • And so, the federal government has decided to "enforce the law" when it comes to Arizona, but not Chicago and the other "sanctuary cities." That still doesn't explain why there is selective enforcement. Does "politics" ring a bell?

  • In reply to DennisByrne1:

    Well, if you want to get into that, I suggested to someone on the Blago Blog who said to indict Michelle over her Spain trip and Bill over Chelsea's expensive wedding to read Professor Kenneth Culp Davis's writings on police discretion. The prosecutors in that trial implied as much in objecting to Adam's argument on why JJJr. wasn't indicted.

    Of course, politics is always the answer. But that question didn't need a longwinded explanation involving labor law enforcement (locals have no jurisdiction with regard to that either, except for state and local government employees) to get to that answer.

    By the same token, there was the debate a couple of years ago whether the State could impose a less restrictive smoking law than home rule units had already imposed. This just sounds like the same--the feds made a political decision, probably so not to p.o. the Mexican President, to establish what level of immigration enforcement it would have. That is undoubtedly why this suit was first announced by Hillary Clinton, the Secretary of State, before the Attorney General, who I thought was in charge of litigation on behalf of the federal government, confirmed it.

  • In reply to DennisByrne1:

    There may also be a disagreement in that when I referred to "it is up to federal authorities to enforce federal laws" in my first post, I meant that it was up to CIS to enforce the Immigration and Nationality Act, at least ultimately. Similarly, it is up to the U.S. Department of Labor to enforce federal labor laws. It appears that your enforcement point was on whether the feds were selective in deciding what state laws were to be challenged as preempted.

  • In reply to jack:

    Also, sorry, ICE (Immigration and Customs Enforcement), not CIS.

  • In reply to jack:

    In an update, the LA Times article in the Tribune says that one of the parts preliminarily enjoined was "a new crime of failing to possess immigration documents." That clearly imposes a state penalty with regard to a federal law, and seems clearly unconstitutional. Illinois doesn't have the right to fine you if you don't pay your federal Income Tax.

    I suppose that the requirement that the police determine the immigration status of a person stopped is a closer issue.

    Of course, only Fox News provides a direct link to the actual decision. Here, you can have it, too. Among other things, the Justice Department did not request, and the judge did not enjoin:


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