illustration by Scotty Reifsnyder
The following article is about Professor Kevin Fandl and his research. Last year, Professor Fandl passed away from health complications. For eight years, he was a fixture within the Fox School and the Department of Legal Studies, offering his insight and considerable knowledge to anyone who showed up at his door. Learn more about his life and legacy.
Since 2014, the city of Philadelphia has acted as a “sanctuary city” for undocumented immigrants. The designation, which has no technical legal definition, is often used to refer to cities and states that limit their cooperation with federal immigration authorities, namely U.S. Immigration and Customs Enforcement (ICE).
Sanctuary cities and states across the country faced renewed scrutiny from former President Trump, who attempted to use executive power to retaliate against them, as a way to incentivize cooperation with federal immigration authorities.
In his paper, Not in My Backyard: How States and Localities Use Civil Resistance Tactics to Protect Immigrant Communities Kevin Fandl, associate professor of legal studies at the Fox School, argued that these attempts by the federal government to take punitive measures against states are likely unconstitutional. Additionally, he asserted that tactics of non-cooperation as a form of resistance are a legitimate exercise of state and local power.
“The goal here was to understand what could be done legally by the administration versus what rights a city or state has in protecting its residents from federal law enforcement,” said Fandl.
Having worked nearly a decade in federal service on immigration and trade matters, Fandl understood the importance of immigrants to the business community. “Immigrants are an essential facet of our economy, working in seasonal agriculture, manning factory supply lines, tending to patients as nurses, serving diners in the restaurant industry, innovating in firms and more,” said Fandl. “Our firms depend on them and they depend on us.”
The legality of civil resistance
The Supremacy Clause of the U.S. Constitution prohibits states from interfering with federal law in a manner that would cause a conflict. However, states can still affect immigration enforcement through non-cooperation policies, cutting off information-sharing relationships that could reveal information about local immigrant populations, and choosing not to inform immigration authorities of undocumented immigrants in detention for other crimes to prevent their transfer to federal authorities.
“Many states have information-sharing agreements with ICE so they know exactly where those immigrants are,” said Fandl. “Sanctuary cities choose not to share that information in order to protect their communities from federal incursions, which is a very effective civil resistance tactic.”
The 10th Amendment to the Constitution states, “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.” Fandl explained that under this amendment, and the Guarantee Clause of Article IV, states are well within their rights to decide how much if at all, they will cooperate with federal law enforcement.
“By denying access to information, states and cities are asserting their constitutional rights,” said Fandl.
Separation of powers at play
Since states are not required to do the job of federal law enforcement, the federal government can offer incentives, often monetary, to encourage assistance and cooperation. As Fandl explained, if those incentives were authorized by the legislature and not conditional upon any policy goals, the executive branch has no legal standing to threaten to terminate those incentives to advance a policy agenda.
“In the paper, I argued that the executive is the law enforcement authority within the government, whereas the legislature is responsible for enacting laws and creating any type of immigration law or reform,” said Fandl. “It’s not something that the executive branch can do.”
The executive branch can, however, work within the existing laws they have been given and apply their own lens in interpreting them. The Deferred Action for Childhood Arrivals (DACA) immigration policy of the Obama administration, which was not directly authorized by Congress but was crafted within existing immigration laws, is an example of that.
“Where the Trump administration changed tactics is that they used federal law enforcement to interpret enforcement power very broadly,” said Fandl.
Through Executive Order No. 13,768, the Trump administration required states and localities to cooperate with immigration law enforcement information requests or face the loss of certain federal funding. The central problem with this action, according to Fandl, is that it conflates the powers of the executive and legislative branches of the federal government by taking away congressionally authorized monies on the basis of executive policy.
“That’s where the judicial branch jumped in and said, through a number of cases, that they couldn’t threaten to take away funding for unrelated projects just because a state doesn’t want to hand over undocumented immigrants.”
A blueprint for future cases
Fandl predicted that the sanctuary city model is just the first of potentially many future efforts to reassert state power and push back against federal intrusion. He also saw the doctrines of federalism and separation of powers at the core of countless future cases.
The minimum wage, marijuana decriminalization and healthcare are just a few issues that Fandl anticipated as potential battlegrounds. “Article I of the Constitution establishes what the federal government has the power to do,” said Fandl. “These areas between where the federal government wants to regulate something and what the Constitution allows them to regulate, are typically where we see these battlegrounds.
“It’s this gray area in between what the federal government was created to do and what we expect it to do today that will create the next big cases.”