The History of Sanctuaries

“Sanctuary cities” are cloaked in religious language for a reason. To the extent that US municipalities look out for the undocumented, it’s largely because of an activist movement that grew out of churches and synagogues.

In the early 1980s, refugees from El Salvador and Guatemala were crossing the US border in droves, driven from their countries by civil war. The Reagan administration, viewing these conflicts as fronts in the Cold War, funded the countries’ oppressive right-wing governments and refused to grant the refugees asylum status. “If you had a weak claim from the Soviet Union, you would get asylum,” recalled Dan Kesselbrenner, the director of the National Immigration Project, who was litigating cases during that period. “But if you were persecuted within an inch of your life in El Salvador or Guatemala, you would be denied.”

So Quakers and Presbyterians in Tucson took it upon themselves to start smuggling refugees across the border. By the mid-1980s, more than 150 congregations across the country were resettling refugees.

Cities, partly in response to this influx, began revising their own policies. In Los Angeles, San Francisco, Chicago, and New York, many undocumented immigrants wouldn’t even go to the hospital or report crimes to the police for fear of being deported. So the cities drafted laws that provided basic security to those without papers. An executive order issued by New York mayor Ed Koch was representative: it forbid city employees like cops and welfare workers from reporting undocumented people to the feds, unless they were suspected of committing a crime.

In subsequent years, congressional Republicans tried to put the squeeze on sanctuary cities. After several abortive attempts, they finally succeeded in 1996 during negotiations over Bill Clinton’s welfare-reform bill, managing to work in a single sentence stating that cities couldn’t stop their employees from turning in undocumented immigrants. A second law passed that year authorized the federal government to immediately deport any undocumented immigrant who had committed a misdemeanor, like marijuana possession. (Before that, immigrants were only kicked out if they’d been convicted of a crime that involved at least a five-year jail sentence.)

While the Clinton administration was no friend of immigrants, the anti–sanctuary city legislation lay dormant until after 9/11, when the Bush administration seized on it and began training local cops to identify undocumented immigrants. Particularly in Republican-leaning states like Florida and Georgia, anyone who was booked into a county jail could be interrogated about their immigration history. These interviews became the main channel for deportations, says Muzaffar Chishti, an attorney with the Migration Policy Institute.

In 2008, the feds went a step farther: they started requiring law enforcement to send the fingerprints of every person arrested for any offense, anywhere, to the FBI and the Department of Homeland Security. Whenever someone “appeared” to be undocumented, Homeland Security could ask the local jail to hold the person for an extra forty-eight hours, excluding weekends — even if there was no warrant, even if their charges had been dismissed — so federal agents would have time to come pick them up.

And pick them up they did. Beginning in 2009, Obama tripled the budget for immigration enforcement, spending more on it than on all other federal law-enforcement agencies combined. With newfound cooperation from local jails, the number of deportations shot up: from 319,000 in 2007 to about 392,000 in 2009. Obama’s deportation machine kept breaking records, topping out at 438,000 in 2013. Well over half of the immigrants removed during his tenure did not have prior criminal records.

But the immigrant rights movement pushed back, both in the streets and in the courts. In 2014, a federal judge ruled that a county in Oregon had violated a woman’s rights by detaining her, at the federal government’s request, without probable cause. In the wake of the decision, hundreds of counties began spurning the federal government’s detention requests, in part to avoid being sued themselves.

They weren’t offering sanctuary, in the literal sense; they just refused to hold people without formal charges, or to give special notifications when the detainees were released. Their message to Homeland Security was essentially, “If you want to pick them up, just get a warrant.”

The Obama administration, faced with rising opposition, backed off the detainer requests and took a different tack, prioritizing the removal of violent criminals.

Trump, on the other hand, seems to be spoiling for a fight. But he can’t slash all federal funding to sanctuary cities without congressional authorization. (He could choose to revoke only Department of Justice funding instead of all federal funding, but this is unlikely given his “law-and-order” stance.)

A bill filed this past summer by Pennsylvania senator Patrick Toomey provides a glimpse of the kind of legislation we might see. The measure — which failed in the Senate but could be revived in some form — would significantly roll back federal funding to sanctuary cities.

Take New York City: federal dollars makes up less than 9 percent of the total budget, but departments like Housing and Preservation and Children’s Services would lose nearly half their funding. That kind of quick drawdown would deal a considerable blow — both to direct beneficiaries of government programs and the local economy.

Trump is betting that in the face of such threats, local officials will fold.

Roadblocks for Trump

But Trump’s desire to steamroll sanctuary cities will come up against a couple potential roadblocks.

The first is judicial. In 1987, the US Supreme Court ruled that the federal government could withhold a small fraction of annual highway funding from states that refused to raise their drinking age to twenty-one. (Twice since then, for helmet laws and lower speed limits, Congress has invoked the same right.)

But in 2012, while upholding parts of the Affordable Care Act, the ultra-conservative Roberts Court ruled that the federal government couldn’t withhold money from states that declined to expand their Medicaid programs.

While it would be more than foolhardy to count on the Supreme Court to rein in Trump, sanctuary cities’ legal challenges will at the very least frustrate Trump’s dream of taking them down in one fell swoop.

And for now, elected officials in sanctuary cities don’t seem to be wavering.

Many have declared, either via a statement from the mayor or a vote by the city council, that they will stick to their current immigration policies even if it means jeopardizing federal cash. At least five additional cities (four of them in Vermont, the fifth in California) have decided to adopt new sanctuary policies for the first time.

And last week, the leaders of thirty-one local governments, including the mayors of New York, Chicago, and Los Angeles, sent an open letter to Obama, insisting that he take last-minute measures to curb Trump’s deportation plans. Specifically, they asked him to protect the personal information of people in the Deferred Action for Childhood Arrivals program, and to extend eligibility for Temporary Protected Status, which allows migrants to remain in the US if their homelands are declared unsafe by the US attorney general.

Trump’s election has sparked a flurry of action on immigration at the local level. Seattle’s mayor has urged that $250,000 be spent to support undocumented students in the city’s public schools; Los Angeles has started advising its undocumented residents not to fill out any new applications for city programs (lest the records be seized); and Oakland’s city council has called on California’s governor to institute sanctuary policies statewide.

Meanwhile, San Francisco’s city council is considering a proposal to allocate $5 million for lawyers who could represent the undocumented in deportation proceedings, and the city attorney says he’s already preparing to sue if a bill like Toomey’s is passed.

In New York, undocumented immigrants will benefit from a program implemented in 2014 that guarantees legal defense to those without immigration papers — similar to the measure San Francisco is considering. And New York City mayor Bill de Blasio has pledged to destroy the applications for city-issued ID cards if it’s necessary to keep them from the feds (though a Republican group has filed a lawsuit to stop him).

Other laws that aren’t explicitly connected to immigration policy could prove to be a boon for the undocumented as well. Earlier this year, New York City approved a measure directing police to stop arresting people for low-level offenses like public urination or littering, and to issue citations instead. As law professors Daniel Altschuler and Peter Markowitz have argued, such measures limit people’s contact with the carceral state, and thus reduce the chances they’ll be deported.

Staying Trump’s Deportation Hand

With Trump vowing to slash funding to sanctuary cities within his first one hundred days, the showdown could set the tone for anti-Trump resistance over the next four years.

Many urban mayors have little to gain politically from working with Trump — even Rahm Emanuel, Chicago’s neoliberal mayor, has rebuffed the president-elect — and refusals to comply at the local and state level will place enormous burdens on Trump’s deportation plans. Standing together, sanctuary cities could marshal significant resources for their legal defense, while at the same time drain Trump’s political capital. Phil Torrey, an attorney with the Harvard Immigration Project, says it’s likely that each uncooperative city’s sanctuary laws would have to be dealt with individually — so the more cities push back, the greater the headaches for Trump.

Activist groups will be absolutely central to this effort.

Indeed, what’s most likely to stay Trump’s deportation hand is the grassroots organizing of the immigrant rights movement and the power of disruptive action. Immigrant rights groups forced President Obama to pull back from a deportation-only immigration policy. In the wake of Trump’s Electoral College victory, thousands streamed into the streets and blocked highways across the country.

Mayors tempted to cave or compromise on sanctuary city status will have to deal with the same specter of mass shutdowns.