Are Sanctuary Cities Constitutional?

It's not clear and that’s the point.

Photo by Preston Goff on Unsplash

Are sanctuary cities constitutional? Everyone I hear from seems to think the answer is obvious. Depending on who's asking, sanctuary cities are either a brave stand for human rights or a flagrant violation of federal law. Both sides seem absolutely confident. And I think both sides are asking the wrong question. The framing itself is the problem. It forces a genuinely complex constitutional question into exactly the kind of one-dimensional binary that gives us simple answers that don't match reality. The founders didn't give us a clear answer about the balance between federal and state power. And they didn't give us a clear answer on purpose.

I’ll say upfront: I’m not a constitutional lawyer. I’m a political theorist who has taught American political thought and American development for a couple of decades. And honestly, for the question I want to explore here, I don’t think constitutional law is the most useful lens. What we need is the much broader political theory of what the relationship between the federal government and state governments was supposed to look like and why the founders deliberately left that relationship unsettled.

The Theory of the Constitution

We can start with the basics. The initial Articles of Confederation put the vast majority of the power with the states. The federal government was really sort of a shell, and this was one of the reasons the founders realized that reform was necessary. If the federal government can’t enforce taxation, it can’t pay its armies. It can’t even pay the soldiers who fought the Revolutionary War. So centralization of some powers was clearly needed.

But the Constitution did not create a national government with unlimited authority. The theory of the Constitution is not that the federal government has unlimited power and is supreme. The theory is that the federal government has limited power, but it’s supreme within the scope of those very narrow powers. Federal law trumps state law in areas where the federal government has clear jurisdiction: treaties with other nations, foreign policy, monetary policy. You can’t have fifty different currencies (though that may be debatable these days). These are areas where centralization was obviously necessary for the system to function.

Beyond that narrow field, the states retained enormous power over the vast majority of things that most citizens actually cared about. The Tenth Amendment makes this explicit: “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.”

Even more critically, the states are not creatures of a national government. The federal government was originally a creature, at least in part, of the state governments themselves. We see this in the current Electoral College and in the original way U.S. Senators were elected, by state legislators rather than by popular vote.

Immigration in particular was never understood at the founding as a federal concern. States handled their own immigration internally until relatively recently in American history. The federal government’s current dominance over immigration policy grew over time, much as federal power generally expanded through creative interpretation of the commerce clause in the early 1900s. It turned out that the commerce clause, not the supremacy clause, did most of the damage when it came to expanding federal reach far beyond what the founders envisioned.

It’s certainly not clear to me that there’s a single right way in which the federal government and the states should interact with each other. That was never the case at the founding. That was never the case in terms of the political theory of the founding. Everyone agreed that the federal government was clearly dangerous in certain critical ways, but they also agreed that certain tasks required centralization in order to work effectively. Foreign policy and money being the crucial ones. Everything else existed in a gray area that was meant to be contested.

Madison, Jefferson, and the Art of Productive Friction

To understand why I think the sanctuary cities debate is actually a beautiful example of the constitutional system working as intended, all we need to do is look at James Madison’s concept of interposition.

In 1798, the Adams administration passed the Alien and Sedition Acts. These laws used federal power to suppress political dissent and to target immigrants. Madison was furious. In the Virginia Resolutions of 1798, he laid out a theory of what he called “interposition.” The concept is simple: it literally just means to step between two things, to put yourself between two objects or two people.

When the federal government is engaged in unconstitutional activity, Madison argued, it is the duty of the state to interpose itself between the federal government and its people.

Notice: people. Not citizens. Madison used that word in part because the people being targeted by the Alien Act were not citizens. The whole point of the Alien Act was to try to use federal immigration policy to get rid of dissent. The parallel to the current moment is hard to miss.

Now, contrast Madison’s approach with Thomas Jefferson’s. Jefferson, in the paralell Kentucky Resolutions, went further and argued for nullification: the idea that states could declare federal laws unconstitutional and simply refuse to enforce them. Nullification, of course, set things up for secession and all the horrors that followed.

Madison pulled back. And his caution reveals something profound about his understanding of the constitutional system.

Madison refused to draw a firm line. He refused to firmly demarcate where federal power ends and state power begins in these contested gray areas. And this wasn’t because he was indecisive. It was because the whole point of the constitutional setup is that this is supposed to be a power struggle.

The critical issue that many don’t understand is that if when you’re trying to secure limited government, you don’t always know where the danger is going to come from. You don’t know whether the danger is going to come from the federal government or the state government. Or even the executive of Congress. So you don’t want a single rule that says the federal government is always supreme in all situations. And you also don’t want to allow state governments to unilaterally decide what acts of the federal government are constitutional or not.

By leaving it open to contestation in the moment, Madison left space for the people themselves to weigh in. If neither side has clear constitutional authority in this gray area, you create what Madison called “ambition counteracting ambition.” You have state officials, state attorneys general, layers upon layers of different kinds of legal and political resistance. The friction is the point. The power struggle is the feature, not the bug.

Interposition in Action

This is why I don’t find the argument that sanctuary cities are unconstitutional convincing at all. The constitutionality of sanctuary cities is exactly the kind of argument that should be had in the public sphere.

And here’s the critical distinction: sanctuary cities are not engaging in nullification. They’re engaging in interposition. They’re not saying ICE agents can’t be there. They’re saying: we’re not going let you use our state-funded jail cells and our municipal jails to lock up immigrants when we need those for other things, like actual criminals. They’re not rejecting federal law. They’re refusing to volunteer their own resources to enforce federal priorities they disagree with.

It’s the state saying, in part: I’m going to slow things down a little bit. I’m going to put a little bit of distance between the bodies of our residents and the federal government.

That distinction between interposition and nullification matters enormously. And right now, interposition is doing exactly what Madison predicted it would do. It’s awakening the jealousy of the citizens of the several states. We’re seeing this in Minnesota. We’re seeing state attorneys general filing lawsuits. We’re seeing layers of legal and political resistance, with different levels of government fighting back through courts, through public opinion, and through elections.

This is federalism doing exactly what federalism is supposed to do.

The Irony of Selective Federalism

And here’s where I want to speak directly to my conservative readers, because the irony here deserves serious attention.

The people who are pushing back hardest against sanctuary cities are the very people who would push back against federal law when it comes to gun legislation. The whole point of federalism is to make these issues contested. The whole point of federalism, or at least one of the main points, is to create questions about the legitimate scope of power. You don’t get to champion states’ rights on firearms and then declare that states have no right to resist federal immigration enforcement. The principle of federalism is not a buffet. Or, insofar as it’s a buffet, you actually have to use arguments to explain why one is justified and the other isn’t. And those arguments can play out in the courts, sure, but also in public opinion and electoral results.

If you’re an original intent kind of person, what’s happening in Minneapolis and other states like it are beautiful examples of federalism in action. The Anti-Federalists and the Federalists had heated debates over what the safe extent of federal power should be. And the fact that the Federalists won does not mean that we chose a supreme national government. It means we chose an ongoing, productive, sometimes messy power struggle, where the different levels of government were intended to challenge each other, all the time.

This is no more evident than in that Virginia Resolution, when the Father of the Constitution, James Madison, writes within a couple of years of ratification that, no, in fact, federal power is not a decided question. We actually need to have this conversation over and over and over again, because the nature of federal and state power and their relationship to each other is fundamentally unstable. He of course had clear opinions on the constitutionality of the Alien and Sedition Acts. Adams obviously had different opinions. Madison took the question to the states, underscoring how critical these disagreements over power would be.

When Federal Power Goes Too Far

When it comes to ICE, I think it is absolutely clear that the federal government is exceeding its scope of authority and behaving recklessly when it sends thousands of poorly trained agents into cities where the majority of people are distrustful and angry. Again, the parallels to the Alien and Sedition Acts are obvious. But the state and local responses have been heartening. They’re practicing interposition, just as they should.

And notice, interposition does not mean the states get the final word. Interposition instead creates is a space for contestation. It doesn’t solve the ultimate question. That’s up to the people themselves. In some situations, the federal government may win and in others the states come out on top. But by creating friction in the gears and slowing down federal authority, interposition opens the spaces for us to have precisely these conversations. It creates space for democratic deliberation. For resistance. For contestation. And for decisions.

In contrast to Jefferson’s much more final nullification, interposition allows for open contestation between the federal government and the state governments. It allows that contestation to occur in the public sphere, in the legal sphere, and in the electoral sphere. Because at the end of the day, Americans are going to have to vote on the actions of the federal government. They’re going to make a decision about whether these actions are appropriate.

The Supreme Court will almost definitely weigh in on the actions of ICE at some point, but I want to make clear that the Supreme Court isn’t the final answer either. The whole point of the Supreme Court is to provide some kind of conclusive decision on a particular case. But that decision does not rewrite the words of the Constitution. And there might be other cases that are similar, but not similar enough, that that precedent does not apply in the future.

And that’s why I don’t think constitutional law is that helpful. We need to understand the political theory of the Constitution itself, the critical questions that animated its structure at the time, and the unresolved conflicts, like those between the Federalists and Anti-Federalists over federal and state power, to understand how to think about the constitutionality of sanctuary city laws, gun laws, and an array of other policies that exist in that gray area.

Embracing the Instability

This kind of constitutional uncertainty is uncomfortable. We live in a political moment that craves clear answers: this is constitutional, that is not. This side is right, that side is wrong. But the American constitutional system was not built for certainty. It was built for contestation. It was built on the recognition that we can never fully predict where the next threat to liberty will come from, and that the only reliable safeguard is to keep power distributed across enough levels and branches that no single actor can consolidate control.

The sanctuary cities debate is a feature of this system, not a malfunction. The fact that we’re fighting about it, in courts, in legislatures, in the public sphere, is what the founders intended.

So are sanctuary cities constitutional? I feel pretty sure they are, but I don’t need you to agree. What I know for sure is that the argument itself is constitutional in the deepest sense. It is the American system doing what the American system was designed to do.

And for anyone who cares about federalism as a principle, about original intent, about the constitutional compact, this should be an exciting time. We are watching interposition in action. We are watching the states and the federal government engage in exactly the kind of productive friction that the founders understood as essential to the preservation of liberty.

It’s of course also a dangerous moment. When power collides, people - human beings - get hurt. We are seeing that tragic side of it firsthand too.

But ultimately, contestation over government power broadly is the most American thing we can do as citizens. It’s written in our founding documents. It’s a duty in our Declaration of Independence. And it’s what will keep our democracy safe and maybe even sane in the days ahead.

Your Turn

Contest with me! What do you think? I would love to hear your thoughts in the comments. I’ve been thinking about this a lot, and I obviously think I’m right. But I would love to hear other perspectives too. (That’s kind of the whole point.) And of course, if you like what you read, please share and subscribe. Reader shares are the primary way people find me and my work.