Cities are once again center stage in our national debate over immigration. A decade ago, the focus was on whether cities can participate in federal immigration enforcement. Now the fight is over whether they can refuse. Given the political vitriol over “sanctuary cities” — a loaded label that remains ill-defined — one might assume that the success of our nation’s immigration system turns entirely on policies enacted at the local level.
This shouldn’t really be surprising. We tell ourselves that immigration is a national issue and a federal responsibility. But the issue of immigration has long been framed through a local lens. Agitation against the Chinese in cities along the west coast set the stage for the Chinese Exclusion Act in the late nineteenth century. Alarm about immigrant political power, and immigrants’ association with urban machine politics, led reformers to embrace the national origin quota act in the early twentieth century. A similar political dynamic is taking shape today, as cities across the country swell with foreign-born residents and another generation of immigrants claims a voice in our decentralized democracy.
So why do so many continue to deny that immigration might also be a matter of local concern? Indeed, if there is any agreement in today’s immigration battles, it is that cities should stay out of immigration. Critics of sanctuary policies insist on local participation in federal enforcement, but deny that local leaders have any role in defining the scope and terms of their involvement. Proponents of sanctuary celebrate the substance of these noncooperation policies, but do so largely on the ground that cities should not be involved in immigration at all.
But perhaps now is the time to take local involvement in immigration seriously. Maybe the moment has come to reconsider our rigid adherence to immigration as a national issue. The current debate over local policies on immigration is not unique; it is tied to a broader conversation about the role of cities in a host of policy issues, from the minimum wage and LGBT rights to gun control and climate change. And given the extent to which cities are taking the lead on these complicated and controversial policy disputes, they too might serve as a valuable forum for negotiating the future of our nation’s immigration system, especially in an era of partisan gridlock and congressional paralysis.
Moreover, a local reorientation may provide precisely the kinds of fresh perspectives that our country so sorely needs when it comes to immigration. What if instead of assuming that a single national interest can be identified with respect to immigration, we recognize the diversity of local interests involved? What if instead of looking at the prospects of immigrant assimilation through the lens of race, religion, or nationality — categories that so often leads us to imagine a “clash of civilizations” — we ask ourselves whether we have the kinds of cities that foster the social interactions and economic opportunities that make true integration possible? What if instead of as administrative arms to carry out federal mandates, we see cities as valued partners that may have something to contribute to how immigration policies are designed and what kind of enforcement is effective? What if instead of a convenient site where national battles over immigration are sometimes waged, we recognize that cities and local communities are at the core of what our immigration debates have always been about?
No doubt some might fear this kind of reorientation would erode the fundamental distinction we have historically drawn between national and local in our federal system. But the fact is this distinction has long broken down when it comes to immigration. And the reason is not that cities have overstepped their bounds, but rather because the scope of immigration has steadily been expanding into areas of local jurisdiction. Reforms in 1986 inserted immigration into the heart of our system of labor and employment regulations. Reforms over the last several decades have entangled federal immigration regulations with our local criminal justice system. Growing emphasis on “soft controls” has turned all matters of domestic concern — housing, education, social services, land use, family law — into means by which our nation regulates immigration through incentives and disincentives. And if local cooperation is now at the center of national debates over immigration enforcement, it is because the federal government has become so dependent on local law enforcement over the past decade. The federal government’s power over immigration may be plenary and exclusive. But to what extent must local authority give way when the scope of immigration law continues to expand outwards from its historic bounds?
Others might feel that a local reorientation does little to advance local interests when it comes to litigation. But perhaps the legal doctrines that shape local litigation strategies should be reexamined as well. To be sure, cities have successfully invoked existing legal doctrines to open up space for local policymaking. Arizona cities joined with the federal government to strike down much of SB 1070 — Arizona’s controversial immigration enforcement mandate — on federal preemption grounds. Cities like Chicago and New York are raising commandeering concerns to push back against renewed federal efforts to mandate local compliance with immigration detainers. These tools, however, are limited. Moreover, they reinforce the perception that immigration is not a local issue, and they render irrelevant the interests that underly local policies on immigration. Preemption doesn’t help when the federal government ramps up immigration raids in American cities. Anti-commandeering offers no protection when it is states, rather than the federal government, mandating local cooperation with federal authorities. All the while, the doctrinal boxes that exist leave little room for cities to make an affirmative case for why local policies have any place in our nation’s response to immigration.
How might we begin to take local involvement in immigration seriously?
We can start by dismantling the legal distinctions that deny cities a policymaking role in immigration. This may involve narrowing the scope of federal preemption when immigration laws intersect with areas of local concern, or limiting the extent to which the federal government can displace local policies concerning their involvement in immigration enforcement. We might also give cities a formal seat at the table when deciding how immigration will be enforced in their communities. Even if not legally required, we should recognize that local leaders can be valuable partners and meaningful voices in how our immigration system is designed and how its enforcement is carried out.
We might also begin to approach the issue of immigration with an eye toward the legal structure that defines the democratic capacity of our local governments and shapes the social and physical landscape of our local communities. We should ensure that cities are open to all voices, including those of immigrants which have historically found a place in city hall long before they reach the chambers of Congress. Efforts to break down the local boundaries that trap so many immigrants in high-poverty neighborhoods and segregated schools should be taken just as seriously as those aimed at securing our nation’s borders. As the alienation of many immigrant communities in France reveals, national commitments to “Liberté, égalité, fraternité” mean very little when society at the local level is physically divided between city and suburb, native and immigrant.
Let us be clear: there is no guarantee that cities will make the “right” decisions when it comes to immigration. Nor do I think we should return to the early nineteenth century when immigration regulations were handled almost entirely at the state and local level. But if cities continue to be the focal point of our immigration debates — as they have been proven to be time and time again — we could do better than denying them a role in how immigration policies are set or enforced. Yes, immigration raises uniquely national interests. But like a host of other issues, it is also a matter of local concern. The law and politics of immigration need to come to terms with this reality.