City leaders will confront tough choices with complicated legal, ethical, and economic implications.

Karen G. Mills and Jan W. Rivkin

Perhaps no issue animated Donald Trump’s presidential campaign more than his controversial and shifting positions on immigration.  Two stances were especially provocative.  First, Candidate Trump pledged to round up and deport 11 million undocumented immigrants.  He subsequently softened his position, focusing instead on the deportation of undocumented immigrants with criminal records.  Second, Trump promised to block immigration of Muslims or individuals from certain countries, a position whose constitutionality was widely doubted.  Toward the end of his campaign, Trump shifted to proposing that would-be immigrants from certain parts of the world be subject to “extreme vetting.”

President Trump started to convert his statements in action a mere week after his inauguration.  His January 27 executive order banned all visitors from seven predominantly Muslim nations (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen) for 90 days, suspended all refugee resettlement into America for 120 days, and prohibited Syrian refugees from entering the U.S. indefinitely.  The order prompted vocal protests in multiple cities and airports, swift legal challenges, and condemnations from individuals who can be seen as America’s business, technology, and academic elite.  Yet a poll taken soon afterwards found that 49% of Americans approved of the order while 41% disapproved.[1]  (Full disclosure: Jan was among thousands of professors who petitioned against the order.)

President Trump’s longer-term plans on immigration will be revealed when he decides whether to overturn or modify two of President Obama’s key executive orders.  The first policy, the Deferred Action for Childhood Arrivals, allows undocumented immigrants who were brought to America as children to avoid deportation and to obtain a work permit.  The second policy, set in 2010 and revised in 2014, defines the enforcement priorities of immigration authorities: undocumented immigrants who threaten public safety or have criminal records are prioritized, and by implication, others are less likely to be deported.  In addition, the Trump Administration could soon alter the permanent rules that Department of Homeland Sceurity agencies use to vet refugees who hope to enter the United States.

City leaders have crucial decisions to make regarding President Trump’s immigration policies.  An important initial question—one we consider fraught both legally and ethically—is whether to have local police enforce national immigration policies or assist federal agencies in doing so.  So-called “sanctuary cities” ban police officers and city officials from asking a resident about his or her immigration status, even when an individual is being arrested for a non-violent offense.  After the election, mayors in cities such as New York, Los Angeles, and Chicago announced their intentions to continue to protect undocumented immigrants in this way, and they strongly reiterated their intent after the January 27 executive order.  Legalities are tricky in this area: local police cannot obstruct federal authorities in enforcing federal laws, nor can they be required to enforce federal laws themselves.  The line between “not enforcing” and “obstructing” is blurry.  Beyond legalities, we personally have ethical concerns about local officials not enforcing federal laws.[2]  Moreover, standoffs between local and federal officials violate the collaborative and innovative spirit we see in the most successful cities.

President Trump has threatened to withhold federal funding from any sanctuary city, a move that might cost cities billions of dollars.  It is unclear how credible and large Trump’s threat is.  In the past, judges have allowed federal authorities to cut off funding when a locality doesn’t enforce a federal law, but only funding related to that law.  For instance, a state that doesn’t abide by a federal speed limit could lose federal highway funding.  Cities might stand to lose only federal funding related to immigration, a relatively modest sum.  All in all, we recommend that city leaders start to have cross-sector, soul-searching conversations about the posture they will take toward new federal actions on immigration.  It would be wise to include attorneys in the discussions.

Longer term, city leaders must decide how vigorously to embrace immigrants, undocumented and documented, and how to integrate immigrants into a city’s life.  For instance, will a city reject or encourage immigration of refugees from war-torn countries?  Data are messy and causality is always hard to isolate, but the best studies we’ve seen indicate that greater immigration boosts the economic vitality and entrepreneurial activity of a city and reduces its violent crime rate.[3]  If national policies turn against immigrants, we would not be surprised to see a “race to the top” among individual cities that vie to attract high-skilled immigrants and the associated economic benefits.  Ultimately, though, city-level stances toward immigration are likely to hinge on a community’s values rather than economic considerations alone.

YALP participants, how do you see this complicated and sensitive topic?  How do your views and interpretations differ from ours?

 

[1] Chris Kahn, “Exclusive: A third of Americans think Trump’s travel ban will make them safer,” Reuters, February 1, 2017.

[2] Jan and Karen differ a bit on this point.  Jan is more comfortable with local officials not enforcing federal laws when those laws are unethical…though he readily admits that it is a slippery slope to allow individuals to judge which laws are unethical!

[3] For instance, see Benjamin Gonzalez-O’Brien, Loren Collingwood, and Stephen Omar El-Khatib, “The politics of refuge: Sanctuary cities, crime, and undocumented immigration,” University of California, Riverside manuscript, 2016; Sari Pekkala Kerr and William R. Kerr, “Immigrants play a disproportionate role in American entrepreneurship,” HBR Online, October 3, 2016; Robert Sampson, “Immigration and America’s urban revival,” American Prospect, July 7, 2015; Jacob I. Stowell, Steven F. Messner, Kelly F. McGeever, and Lawrence E. Raffalovich, “Immigration and the recent violent crime drop in the United States: A pooled, cross-sectional time-series analysis of metropolitan areas,” Criminology, 2009.

 

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1 thought on “Immigration

  1. I disagree with Karen on the ethical question here.

    From a legal perspective, there is no constitutional duty for local enforcement officials to enforce federal law, which is known as the “anti-commandeering” principle. Slippery slope or not, this is a product of the dual sovereignty enshrined in constitutional jurisprudence (see, e.g, New York v. United States, and Printz v. United States).

    Obviously the ethical and the legal are not the same thing and I do not mean to conflate them. But surely the legal status of an action affects the ethical obligations of those who are charged with enforcement, right? If local officials would be acting well within their constitutional rights to pass their own judgment as to whether they would like to enforce federal laws, it is unclear to me why it would be unethical for state/local officials to instead enforce the laws they are charged with enforcing, rather than the federal ones. Why would it be more ethical for them to let federal policy supplant state policy?

    It should also be noted, though, that the federal government would also be within its rights to withhold SOME funding as a form of retaliation. That being said, its ability to do so has been narrowed significantly, through cases that establish the “anti-coercion” doctrine (e.g., in South Dakota v. Dole, the feds could withhold 5% of highway funds to a state for failure to adopt a minimum drinking age of 21, because the funds we related and the order of magnitude wasn’t coercive. But in NFIB v Sebelius (the Affordable Care Act case), the court said withholding 100% of Medicaid funds from states that refused to expand Medicaid under the ACA was an unacceptable “gun to the head.”).

    Reno v Condon (Congress can request information) may give the government an opening for some sort of commandeering, though, but I think this is an unlikely result. (See this LA times article for the argument in favor of that position. http://www.latimes.com/opinion/op-ed/la-oe-rivkin-foley-sanctuary-city-20161207-story.html)

    For a better articulation of these matters, see Noah Feldman (superstar Harvard Law School professor)

    https://www.bloomberg.com/view/articles/2016-11-29/sanctuary-cities-are-safe-thanks-to-conservatives

    Ron

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