Scholarship@WashULaw

Document Type

Article

Publication Date

2015

Publication Title

St. Louis University Public Law Review

Abstract

Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check against federal overreach. Hand wringing by legal scholars over the Court’s reasoning in Printz and the rigid rules against commandeering attached to this reasoning have obscured the fact that the case now stands as a bulwark against the expansion of federal authority over state, county, and local police. Given the holding in Printz, ICE cannot require the active participation of subnational police in immigration enforcement and must instead—despite its previous assertions to the contrary—solicit this support through state and local governments who may, in turn, participate in immigration enforcement of their own volition.

How does an elective rather than legally mandated system of cooperative security governance impact domestic security? Opponents of the Court’ s decision in Printz contend that the rule against federal commandeering of state and local police hamstrings the federal government in times of national emergency, compromising the security of the citizenry. Supporters argue in response that Printz would likely galvanize public debate about the very conception of domestic and national security, as it gives state and local governments clear legal authority to establish formal bureaucratic opposition to the federal ambition to expand security infrastructure through the incorporation of subnational police.

The case of immigrant sanctuary will not resolve the debate among the justices in Printz or among the legal scholars concerned with the impact of the decision on the contours of federalism in contemporary American society. It can, however, offer empirical evidence helpful in investigating a few of the primary, yet speculative, claims made by advocates on either side of the commandeering debate. In the empirical portion of this article, I present the case of immigrant sanctuary as a platform from which to consider the promise and peril of anti-commandeering jurisprudence in the Homeland Security era. My empirical analysis of immigrant sanctuary is based on an original dataset I created, made up of coded data from seventy-five immigrant sanctuary laws and policies and basic demographic information from the associated jurisdictions.

Keywords

Department of Homeland Security, Printz v. United States, Immigration and Customs Enforcement Agency, Domestic Security, Federalism, Commandeering, Police Governance

Publication Citation

Trevor George Gardner, The Promise and Peril of the Anti-Commandeering Rule in the Homeland Security Era: Immigrant Sanctuary as an Illustrative Case, 34 St. Louis U. Pub. L. Rev. 313 (2015)

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