Does the precedent established by sanctuary cities and sanctuary states (and other precedents like legalized medicinal cannabis and gaming make all federal law and state law functionally "optional" as a practical matter?

Sanctuary cities appear to have the power to ignore state and federal immigration law. Sanctuary states appear to have the same power to ignore federal immigration law. There is also the precedent established by legalized marijuana and other localized jurisdictions where federal laws were not enforced. Take gaming in Nevada and Atlantic City as an example.

Do these precedents essentially make local enforcement of federal and state law functionally "optional" as a practical matter?

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    As the person who posted the Q that Fizz cites as a duplicate, I disagree that this Q is a duplicate. This Q appears to be asking ' Can local/state jurisdictions' (legally) pick and choose what federal laws they will enforce?' The question then goes on to offer an example of what appears to be selective enforcement of federal laws. The Q does not focus on immigration law (as did my question), but only used that as an example of "selective enforcement" -- so the question is not a duplicate.
    – BobE
    Feb 28 '20 at 15:35
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    I don't think this is a political question, this is a legal question and belongs on Law. Responsibility for enforcing federal laws is not one placed upon the states. Feb 28 '20 at 17:39
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    I don't think federal laws are being broken or even ignored by your examples. Sanctuary: ICE referral requirements are from a memo, not law. Legal weed is from removing state laws, not federal. Gambling isn't federally prohibited per-se. Got any apt examples?
    – dandavis
    Feb 28 '20 at 18:56
  • You mean nullification?
    – dan04
    Feb 29 '20 at 2:02
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    You do understand that sanctuary cities do not prohibit federal officers from enforcing federal law, don't you? They're just refusing to cooperate in certain ways. It's like the cool teacher who lets the students break some rule or other in her classroom: that doesn't mean the students won't get in trouble if the principal walks in. Similarly, ICE arrests people in sanctuary cities. There's no city where immigration violators are completely safe.
    – phoog
    Feb 29 '20 at 3:22


You are confusing whether or not state and local governments are required to enforce federal laws, with whether or not following those laws is optional. Regardless of what state and local law enforcement decides to do, people are still expected to follow federal laws and can still get in serious trouble for not following them.

Sanctuary cities appear to have the power to ignore state and federal immigration law. Sanctuary states appear to have the same power to ignore federal immigration law.

States and cities are not required to aid federal law enforcement in enforcing federal laws, thanks to our federal system of government. The responsibility of state law enforcement is to enforce state laws. Not enforcing laws that you are not responsible for enforcing is not the same as ignoring the law.

There's a very big difference between the mayor of your local sanctuary city deciding that the police will not indefinitely detain people on behalf of ICE, and that same mayor deciding to drive tractor trailers across the Mexican border with people hiding in the back. The former is not required by law, as border enforcement is an explicitly federal responsibility. The latter is treating the law as if it is optional. As a practical matter, Mr. Mayor would still be arrested by the federal authorities and face serious time in federal prison as a human trafficker regardless of whether he was caught in a sanctuary state or not.

There is also the precedent established by legalized marijuana and other localized jurisdictions where federal laws were not enforced.

Legalized marijuana operations still are expected to follow federal laws, regardless of whether or not federal agencies enforce those laws or not. In particular, legalized marijuana businesses typically do not use normal forms of banking, specifically because it would constitute violations of federal law that would be enforced.

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    I would also add that the reason states are getting away with doing so much towards legalizing marijuana is because the last two presidents have stated they are not going to actively enforce federal anti-marijuana laws. Much as states don't have to actively enforce federal law the president can choose not to actively enforce laws on the federal side. Marijuana is still illegal federally even when legalized in the sate. but if both state and federal government aren't actively working to prosecute people for it then people feel relatively safe utilizing it even if it is technically illegal.
    – dsollen
    Mar 2 '20 at 18:39
  • @dsollen "the president can choose not to actively enforce laws on the federal side": such a choice is potentially in conflict with the president's duty to "take Care that the Laws be faithfully executed," however.
    – phoog
    Mar 22 '20 at 17:38
  • @phoog in theory perhaps, in practice it's been done before and is actively happening right now. It's unlikely that the supreme court is going to suddenly rule on it in the near future either after ignoring the practice for many years. At this point I'd say it's a de-facto legal power of the president, at least until/unless they abuse it in some manner so terrible as to force the supreme court to get involved. After all the supreme court 'gained' the power to rule things unconstitutional by just doing it and no one bothering to fight, why shouldn't the president use the same approach? :P
    – dsollen
    Mar 25 '20 at 18:09
  • @dsollen prosecutorial discretion is certainly a well established power of the executive. It does not exist because of the courts' ignorance: they have recognized it explicitly for decades if not centuries. The question is where the line is drawn between that power and the constitutional duty. I agree that the courts are unlikely to get involved; the matter is only likely to come into question if Congress starts making noises about impeaching on such grounds. For marijuana that is unlikely to be any time soon.
    – phoog
    Mar 25 '20 at 19:36
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    The marijuana situation is not really analogous. It involves a certain level of more or less official tolerance of certain violations of federal law that are not violations of state law by the U.S. Justice Department and its U.S. attorneys for a particular districts in a exercise of prosecutorial discretion and under certain federal appropriations bills, as a matter of policy. In part, this policy flows from the fact that the feds don't have the resources to enforce marijuana laws on a primary basis and that juries in these states wouldn't convict.
    – ohwilleke
    Sep 21 '20 at 21:16

It is still too early to say how the issue of sanctuary cities will resolve, but there's no precedent so broad as the question implies. Legalization of marijuana is a very different situation, as states which have gone this far have financial motive in terms of tax revenue. It seems possible that the financial impact of declaring state and local sanctuary may be quite negative, and there is virtually no question that immigration enforcement authority by federal agencies remains.

While some court rulings had been encouraging to jurisdictions choosing to declare themselves as immigration sanctuaries, it was too early to consider them precedent, the fight is hardly over, and the language of the legislation involved in such cases has changed in ways that have not yet been tested in court. In the end, millions of dollars in federal law-enforcement grants may be powerful incentive to cooperate with the DOJ.

With a recent decision in the US 2nd Circuit Court of Appeals, the DOJ may be on it's way to establish a carrot and stick mechanism (by restricting federal law-enforcement grants) that could be use to effectively change the behavior of states and localities that currently are not cooperating with the DOJ. This sort of mechanism was successfully used in the 1970s to establish a national speed limit.

The 2nd Circuit's 77 page written opinion reversed a partial grant of summary judgement in New York District Court case, but may have broader impact because the attorneys general of seven states joined forces in arguing the federal government should be required to release grant funds to them. Thus it appears this opinion impacts the states of Washington, New York, Connecticut, New Jersey, Massachusetts, Virginia and Rhode Island. Disagreement remains between the New York appeals court decisions those in Chicago and Los Angeles.

The appeals court opinion relied on Supreme Court precedents stating that in the area of immigration law, the federal government has broad and preeminent power, but in the end did not really set any substantial new precedent, instead rejected the lower court's stated opinion there was a constitutional separation of powers issue. Less controversially, the appeals court said its decision was a plain text interpretation the provisions of [34 U.S.C. § 10153] as authorizing the US Attorney General to establish new guidelines and withhold grant funds from states under that program.

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    "states which have gone this far have financial motive in terms of tax revenue": there's a financial incentive to having immigration violators in your city, too, since they contribute to your economy. One town in New Jersey passed an anti-illegal-immigrant ordinance and had to repeal it after all the illegal immigrants left town and the economy tanked.
    – phoog
    Feb 29 '20 at 3:27

This is a question of the balance of power between various branches and institutions of governance. The constitution lays out certain specific powers that inhere in the Executive and Judicial branches, and the Houses of Congress, and no state can usurp those powers. The power to establish immigration law is clearly granted to the federal government, so states cannot legally develop their own immigration laws or policies. However, the Constitution also specifies that (tenth amendment):

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This means that any power not explicitly granted to the Federal government by the constitution or by subsequent Federal law automatically devolves to the various states. Creating a sanctuary city does not create new immigration law; it merely prohibits state and local agencies from assisting federal agencies in their pursuit of immigration policies. That is well within the power granted to states by default, and will remain that way until and unless Congress passes legislation which specifically prohibits it. However, such legislation is extremely unlikely, because to be effective it would have to dramatically change the balance of power between state and federal governments; such legislation would be challenged by almost every state on state's rights grounds.

To complicate this matter, the United States Congress has not passed any meaningful immigration law since 1986. Immigration policy in the last 30 years has primarily been dictated by the various presidential administrations through executive orders or policy directives, neither of which carries the force of law. Our entire immigration system is currently a matter of smoke and mirrors, resting on laws that may date as far back as the second world war. Individual states — particularly those on the southern border with Mexico, or with high immigrant influxes due to other factors — have taken it on themselves to create immigration policy by fiat, using state laws or local ordinances to fill in the void of absent Congressional legislation, and Congress has not seen fit to clarify the situation, so this piecemeal situation has continued without challenge. The current administration dislikes sanctuary cities in much the same way that the previous administration disliked a county sheriff in Arizona (Joe Arpaio) rounding up border crossers and holding them in makeshift internment camps. But both administrations were limited in what they could accomplish without Congressional action.

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