The start of autumn is a particularly painful time to destroy the hopes of undocumented immigrants who were brought to the U.S. as children, dubbed Dreamers. As excited children return to school, a large group of young people are wondering if they can even attend school anymore, or live in the place they recognize and love as home. The plight of the Dreamers is likely to move more cities and counties to proclaim sanctuary for undocumented immigrants—and deepen the meaning of sanctuary to include protecting access to education, health care, food, shelter, and other fundamental needs.
Great hope has turned to painful fear, as President Donald Trump announced the phased-in halt to the Deferred Action for Childhood Arrivals (DACA) program that allowed Dreamers to emerge from the shadows. Trump kicked the problem to Congress to craft a legislative solution. But Congress has a dismal record on passing comprehensive immigration reform. Proposals failed in 2005, 2006, 2007, 2010, and 2013. If Congress and the president refuse to act, states, cities, and localities have a particularly crucial role in addressing the humanitarian challenge.
What constitutes a sanctuary city or county is a fluid and evolving concept. Currently, it is often more an act of omission rather than commission. At a minimum, sanctuary cities and counties generally refuse to collaborate in hunting for and deporting immigrants in their communities. For example, law enforcement officers in sanctuary cities refuse to report the immigration status of community members to Immigration and Customs Enforcement (ICE). A common policy goal is to build community trust in local law enforcement so people are not afraid to call the police for help.
The full meaning of sanctuary is richer than refusing to act or the provision of law enforcement. Rather, it can include protecting the means to flourish. States and localities can protect the undisrupted access to the benefits they provide. Communities can vigorously protect the right of all children to a free quality public education and resist any efforts to conduct sweeps or immigration status checks on their students. While undocumented students are not eligible for federal financial aid, universities can provide state- or college-provided financial aid for students in need, regardless of immigration status. States and localities can endeavor to ensure undisrupted provision of food, health care, and housing benefits to people in need.
The protection of the most vulnerable requires courage, fortitude, and the willingness to litigate if necessary. The Trump administration has repeatedly moved to withhold vital federal grants to communities it deems resistant to cooperating in immigration law enforcement. For example, the Los Angeles Unified School District joined a lawsuit challenging Trump’s executive order denying federal funds to sanctuary jurisdictions.
It is a fundamental principle of our national structure that the federal government cannot conscript the states and localities into enforcing federal law. A common strategy to elicit cooperation is to use the power of the federal purse. But there are limits to using this power as a heavy bludgeon to induce states and localities to cooperate, as a federal district judge recognized earlier this year.
Immigration reform is up to the federal government. But protecting community well-being is an important state and local duty. The upside of this time of turmoil is that more communities will be moved to protect their most vulnerable more fully, deepening what it means to offer sanctuary to people living in great fear for their future and families.
Mary Fan is the Henry M. Jackson professor of law at the University of Washington. She also served as the faculty director of the school’s Immigrant Family Advocacy Project, which provides legal aid to undocumented immigrant survivors of violent crime, from 2012 to 2015.