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8/18/08 10:24 Pm

8/18/08 10:24 Pm

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HUSTON.DOC8/18/08 10:24 PM
In recent years, post-9/11 fears have spurred legislators to tighten immigrationrestrictions and impose harsher penalties for those immigrants who arrived in the USillegally. This movement has also targeted sanctuary cities, whose relatively laxpolicies toward illegal immigrants have brought them under scrutiny for harboringthreats to the nation's security and economic well-being. Sanctuary cities provide aninteresting battleground for wider political and ethical concerns about just how amodern wealthy democracy should treat those that arrive against its wishes. From alegal perspective, however, sanctuary cities and the laws crafted to challenge thempresent an issue of federalism. They raise questions over the exact boundariesbetweenlocal and national power and probe the extent to which Congress can go to compelcompliance with its mandates. These questions can be answered by analyzing twocases, Printz v. United States and South Dakota v. Dole. While sanctuary cities havestrong constitutional standing, it is likely Congress will be able to pressure cities usingfunding conditions and other monetary incentives.
I. INTRODUCTION ..........................................................................................211II. PRINTZ
UNITED STATES ......................................................................212III. SOUTH DAKOTA
DOLE .......................................................................215IV. CONCLUSION ...........................................................................................216I. INTRODUCTIONIn recent years, post-9/11 fears have spurred legislators to tightenimmigration restrictions and impose harsher penalties for thoseimmigrantswho arrived in the US illegally. Among the legislators’ chief targets aresanctuary cities, whose relatively lax policies toward illegal immigrantshave brought them under scrutiny for harboring threats to the nation'ssecurity and economic well-being.
Sanctuary cities provide an interestingbattleground for wider political and ethical concerns about just how a
* Joseph Huston is a junior Economics major at Dartmouth College. A Texas native, Joseph is anexecutive editor with the Dartmouth Law Journal. Joseph plans on attending Law School aftergraduation. 
Alex Koppelman, Congress to New York (and Chicago and L.A.): Drop dead: PopularProposals to choke off federal support to immigrant-friendly “sanctuary cities” would also dryup anti-terror funding for the cities most at risk, Salon (October 4, 2004),http://www.salon.com/news/feature/2007/10/04/sanctuary/.211
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modern wealthy democracy should treat those that arrive against itswishes. From a legal perspective, however, sanctuary cities and the lawscrafted to challenge them present an essentially federalist issue. Theyraisequestions over the exact boundaries between local and national power andprobe the extent to which Congress can compel compliance with itsmandates.Practical or ethical questions posed by sanctuary cities - whether theyharm local economies, are necessary for law enforcement efforts, etc. - aresecondary to the more fundamental question of whether states actuallyhavethe right to establish sanctuary cities. That is, we can only ask whether asoft or hard stance on illegal immigration is a good policy after we haveestablished whether it is the right of the states or of the federalgovernmentto establish these cities. This problem concerns the application of theConstitution's 10th Amendment, which states, "The powers not delegatedto the United States by the Constitution, nor prohibited by it to the States,are reserved to the States respectively, or to the people."
 Thisamendment's interpretation is the product of a long history of adaptationand clarification by the Supreme Court. This article will focus on tworecent landmark cases: Printz v. United States
and South Dakota v. Dole.
 The first concerns an attempt by Congress to compel state action directly,while the second concerns Congress's use of the Spending Power Clause topressure states to enforce federal law.Just what exactly distinguishes a sanctuary city from any other city isnot always clear. The term "sanctuary city" is often used pejoratively toaccuse a city of having too lax a stance on illegal immigration. For thisreason, even the most immigrant friendly cities often try to evade thislabelthrough legal or semantic loopholes.
Nonetheless, for the purposes of thispaper, I will assume that sanctuary cities are cities that refuse to use localofficials to enforce Federal immigration law.II. PRINTZ
UNITED STATESIn 1993, Congress passed the Brady Handgun Violence PreventionAct. After he was shot in the head in the attempted assassination of President Reagan, then White House Press Secretary, James S. Brady,teamed up with his wife to advocate for gun control.
 The Brady Bill
U.S. Const. amend. X.Printz v. United States, 521 U.S. 898 (1997).South Dakota v. Dole, 483 U.S. 203 (1987).Koppelman, supra.Karen De Wtt, ForBradys, A Gamble on Gun Bill Pays off, New York Times (November
HUSTON.DOC8/18/08 10:24 PM
representing the legislative culmination of their efforts, required thatpotential handgun purchasers undergo background checks. Toward thisend, the bill sought to establish a national database to instantly checkpurchasers’ backgrounds. Until this system was functional, the bill enlistedthe help of local law enforcement officers to perform background checkson purchasers within their jurisdiction.
 Two sheriffs from Montana andArizona sued on the grounds that this provision violated precedentestablished through New York v. United States,
which placed some limitson Congress's ability to compel states to enforce its laws. On a five to fourdecision, the Supreme Court found the interim provision unconstitutional.The most obvious objection to the Brady Bill's interim provisionsquestions the power of Congress to "commandeer" local enforcementofficers.
Scalia, writing for the majority opinion, argues, "The power of the Federal Government would be augmented immeasurably if it were ableto impress into its service – and at no cost to itself – the police officers of the 50 States.”
 Through the Brady Bill's interim provisions, Congressoverstepped its bounds claiming power that rightly belongs to the States.In the case of sanctuary cities, the federalist case for ceding the choiceof whether to employ state or local officials to state-level decision-makingis particularly strong: local stances on immigration are arrived at throughmore intimate democratic processes, meaning those most directly affectedby the number of illegal immigrants and the extent of their rights have abigger say than they would in national laws.
Moreover, ceding thisdecision to local government allows for policy experimentation withincities, which can help test claims made by both sides of the immigrationdebate - what better way to see whether immigrants "take" the jobs of American citizens than letting cities choose not to enforce immigration lawand tracking the results?
Finally, permitting cities to decide forthemselves whether to enforce immigration law allows for specification inpolicy. It may be that neither lax immigration stances nor stringent onesare right for every locale. Rather, because of characteristics unique toeach
22, 1993), http://query.nytimes.com/gst/fullpage.html?res=9F0CE4DC173DF931A15752C1A965958260 
18 U.S.C. § 921-922. 
18 U.S.C. 922(s)(2) 
New York v. United States, 505 U.S. 144 (1992). 
Daniel Booth, Federalism on Ice: State and Local Enforcement of Federal ImmigrationLaw, 29 Harv. J.L. & Pub. Pol’y 1063 (2006). 
Printz v. United States, supra. 
Matthew Parlow, Denver University Law Review Symposium: Immigration: Both Sides of the Fence: A Localist’s Case for Decentralizing Immigration Policy, 84 Denv. U.L. Rev. 1061(2007). 

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