Tuesday, March 14, 2017

"The Rest Is History"


Image from the Fugitive Slave Act
Hello Everyone:

Today we are going back to the subject of sanctuary cities.  This time, we going to look at the historic context of these jurisdictions.  The best place to understand them is to step back in time to the Civil War-era.  Just as contemporary American cities are opting out of enforcing immigration laws, prior to the Civil War, Northern states chose not to enforce the Fugitive Slave Act, a legal move supported by the United States Supreme Court.

Tanvi Misra's CityLab article, "Lessons From the 'Sanctuary Cities' of the Slavery Era," offers an illuminating look how Northern cities defied law and gave refuge to Slaves, fleeing the Southern states, and what we can learn from this moment in history.

Fugitive Slave warning
On January 25, 2017, President Donald Trump issued his "Executive Order: Enhancing Public Safety in the Interior of the United States."  Section 1 of the order states,

Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from remove United States.  these jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic... (http://www.whitehouse.gov; date accessed Mar. 14, 2017)

The city of San Francisco has challenged the administration, arguing that it violates the tenth amendment to the Constitution, a challenge supported by some legal experts.  The Tenth Amendment to the Constitution states,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, to the people. (http://www.law.cornell.edu; date accessed Mar. 14, 2017)

Tanvi Misra writes, "In doing so, it launched the first counterstrike in what might a long, tumultuous battle between the local and federal governments on immigration."

"Practical Illustration Of The Fugitive Slave Law"
For historian and writer H. Robert Baker, this conflict is all too familiar.  His February 2, 2017 blog post , "A Brief History of Sanctuary Cities," Prof. Baker provides a short summary of a similar moment from the Antebellum period, that may provide clues as to how this battle might play out.

Ms. Misra writes, "Baker writes that a version of sanctuary cities existed in the late 18th century, in the form of Northern jurisdictions that refused to capture and return fugitive slave-'America's first significant class of refugees.'"  The  Fugitive Slave Act of 1793 guaranteed slaveholders the right to retrieve escaped slaves.  However, without the cooperation of the individual states, it was difficult to enforce.  Ironically, demanding tighter compliance contradicted the Southern states cherished belief in States's Rights.  Prof. Baker explained,

"Practical Illustration Of The Fugitive Slave Law"
...Congressional statutes assumed state cooperation, as did the Fugitive Slave Act of the 1793.  But by the 1810s and 20s, such cooperation began to look increasingly like coercion, especially to southerners who were making much of the sanctity of states' rights.  An attempt to revise the Fugitive Slave Act in 1818 led to failure, in part, because the proposed bill required state officers to enforce federal law.  This violated contemporary understandings of dual sovereignty-the idea that federal and state governments were each sovereign in their sphere, and that the spheres were entirely separate.  Congress might direct federal law enforcement officers and judges, but they could not direct state officers, and vice versa... (http://tropicsofmeta.wordpress.com; date accessed Mar. 14, 2017)

Antebellum cartoon

Tanvi Misra reports, "In 1842, the Supreme Court backed up the ideas of dual sovereignty.  The ruling in Prigg v. Pennsylvania said that the issue if fugitive slaves  was indeed a federal matter, just like immigration is today."  In essence, the states, could not enact laws that interfered with federal "but they also had the right to opt out of enforcing it."  Once again Prof. Baker explains:

 ..This meant that city constables and sheriffs were instructed not arrest suspected fugitive slaves, that state jails were closed to federal marshals who had fugitives in their custody, and that state judges would refuse to issues warrants or certificates of removal.  Into the breech stepped free blacks and their white abolitionist allies, who organized protective societies and became increasing bold in their opposition to federal law enforcement.  Sanctuary cities became like fortresses.  (Ibid)

Cartoon supporting the Fugitive Slave Act of 1850
E.W. Clay

Are you beginning to understand the precedent in the challenge to President Trump's ill-conceived executive order?  Constitutional law and Supreme Court ruling appear to be on the side of cities like San Francisco.  Little more history.

During the pre-Civil War-era jurisdictions that opted out of assisting federal law enforcement were not called sanctuary cities.  The phrase comes from the sanctuary movement of the 1980s, when houses of worship provided shelter for refugees from Central America who were denied asylum.  The sanctuary movement was a response to the Reagan-era restrictive asylum police, which supporters of the movement viewed as immoral.

"Solidarity in 1980s Sanctuary Movement"
By the eighties, Los Angeles already ordered police officers not to check immigration status during routine stops.  Surprisingly former Los Angeles Police Department Chief Darryl Gates, who was known for not being easy on minorities, believed that this move allowed undocumented immigrants to report crimes without fear of deportation.  San Francisco enacted a 1989 ordinance forbidding the use of municipal funds for federal immigration enforcement.

Other cities followed suit since 2008, when Immigration and Customs Enforcement began asking local law to detain alleged undocumented immigrants for additional time, even if they were not charged for a crime.  Ms. Misra writes, "The constitutionality and legality of ICE's 'detainer' requests, which sometimes even target American citizens, have since been challenged in court."  Regardless what the name implies, the current 300-plus sanctuary cities are not making an effort to prevent federal authorities from deporting criminals rather, they are just establishing their own priorities reminiscent of what the Northern states in the Antebellum era.

Sanctuary Austin
In the current grand scheme of power, states trump cities.  Be that as it may, this period in American history provides some fuel to the sanctuary cities legal battle against the federal government.  Prof. H. Robert Baker writes,

[States' rights] modern association with "massive resistance" to desegregation has tarnished it to liberal eyes.  but sanctuary cities are cut from the same constitutional cloth-the very same that gave abolitionists the cover they needed to resist the Fugitive Slave Act.  Sanctuary cities' resistance to federal immigration law depends upon local popular support, legal and political assistance from the state, and a constitutional regime that respects the integrity of two sovereigns sharing the same space.  (Ibid)

The point of this history lesson is "...resolving the local-versus-federal fight may not necessarily end the political divide that caused it in the first place."  The decision in Prigg v. Pennsylvania allowed Congress to expand the federal mechanism to enforce the Fugitive Slave Act, fueling more resistance among Northern communities that federal authorities did not have the resources to put down.  Citizens rioted, shamed slave catchers, and held mass protests outside places where slave were detained.  In 1860, the Southern states seceded.  As they say, "the rest is history."

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