Legal Scholars Dissect S.F. Sanctuary Policy

The New York Times
October 21, 2009, 6:22 pm
By Gerry Shih

San Francisco Mayor Gavin Newsom says the Board of Supervisors’ recent change to the city’s sanctuary laws is a violation of federal law and he will ignore it.

The Board of Supervisors voted 8-to-2 yesterday to overturn a policy enacted last summer by Mayor Gavin Newsom that rolled back the city’s sanctuary policy as it relates to contacting immigration authorities when a juvenile is arrested on felony charges. The new rule would require the city to contact immigration authorities only after a juvenile has been convicted of a felony. In City Hall, it’s been cast as a bit of political drama — count this the latest win for the supes in what has been an icy relationship between the board and Mr. Newsom’s office.

But at the heart of issue is a legitimate, lively and long-standing debate on whether local governments have the statutory authority to affect immigration laws. San Francisco adopted its sanctuary policy in 1989. When the mayor asked City Attorney Dennis Herrera to evaluate the bill approved by the board yesterday, Mr. Herrera’s staff responded with a memo detailing a number of legal problems the city might face, including challenges to other aspects of its existing sanctuary policy. The memo, which was leaked by the mayor’s office weeks ago to the San Francisco Chronicle, is also attached below.

We wanted to take a step back and examine the legal questions with immigration and constitutional law experts.

Prof. Pratheepan Gulasekaram of Santa Clara Law School argues that the city’s sanctuary policy is defensible, and Prof. Rose Cuison Villazor of Hofstra Law School presents the case that immigration law should be the sole province of the federal government.


Prof. Gulasekaram of Santa Clara Law writes:

Both Mayor Gavin Newsom’s and the Board of Supervisor’s sanctuary policies on when to report undocumented juveniles to federal authorities (the Mayor would report when those juveniles were arrested for a felony, whereas the Supervisor’s would report only after conviction) operate under the assumption that cities may exercise some authority and discretion over the treatment of undocumented persons within their jurisdiction. This is a contested proposition, as many scholars and government officials believe that cities and states do not have constitutional or statutory authority to enact immigrant-related policies.

On the merits of the intra-city debate, I believe that the public safety rationales related to community cooperation with law enforcement, along with a desire to see families kept together, and all people treated humanely, argue in favor of the Supervisor’s bold policy. In addition, it does not stop federal authorities from enforcing federal mandates.

The city has ample legal ground to defend its sanctuary policy – either the Mayor’s or the Supervisor’s versions – as consistent with the Constitution and federal law. The larger concern that the remainder of the sanctuary ordinance may also be at risk if the Supervisor’s plan is passed appears overstated. While such a possibly should not be discounted, those laws in San Francisco have been in effect since 1989, and are part of the municipal codes of several major cities. Thus far, as long as they provide appropriate exceptions for compliance with federal law, they have not been found unconstitutional or otherwise invalid.

And Prof. Villazor of Hofstra Law:

At the outset, in addressing the question of whether San Francisco is violating the law, it is important to recognize a fundamental principle – that Congress has plenary power over immigration law. The U.S. Supreme Court has held for well over a century that Congress has the sole authority to regulate immigration law. According to the Court, this power is not only grounded in the U.S. Constitution but also inherent in the authority of the country as a sovereign nation. As it explained in 1889, federal supremacy over immigration law is necessary for maintaining the independence and security of the country. Immigration law and sovereignty are thus intertwined. Recognizing Congress’s plenary power over immigration law facilitates the federal government’s ability to “declare war, make treaties . . . regulate foreign commerce . . . and admit subjects of other nations to citizenship.â€