4 ms·

While "encouraging to reside in the United States" definitely seems like over-broad wording that's ripe for a 1st amendment takedown, I would hardly classify "s

by deogeo 7y ago

While "encouraging to reside in the United States" definitely seems like over-broad wording that's ripe for a 1st amendment takedown, I would hardly classify "sanctuary city officials who refuse to cooperate with immigration enforcement" as speech. "Abdication of duty" is a more apt description. They don't get to decide immigration policy for the entire US - but by refusing to enforce federal law in that area, that's exactly what they're doing.

zepto 7y ago
Indeed - if that is just ‘speech’, then surely trump can argue that his Ukraine call was just ‘speech’ that the 1st amendment protects. To be clear I think that would be absurd, and it seems equally absurd for the Slate to be making this argument.
wahern 7y ago
> "Abdication of duty" is a more apt description. The legality of sanctuary cities has nothing to do with free speech. It has to do with separation of powers and the 10th Amendment. Long-standing constitutional jurisprudence is that the Federal government cannot "commandeer" states to enact Federal policies. See, e.g., https://en.wikipedia.org/wiki/Printz_v._United_States https://en.wikipedia.org/wiki/Printz_v._United_States Rather, the Federal government can only, effectively, bribe them, but even then there are limitations--limitations added by many of the same conservative justices currently sitting. Indeed, one of the major conservative arguments against the ACA was that Medicare funding conditions were unconstitutional for this very reason. Free speech is implicated only because the DoJ has apparently threatened to use this "encouragement" prohibition against state officials. That would be a curious end-run around federalism jurisprudence and I seriously doubt it would work regardless of the free speech angle. There's one very practical reason for refusing to cooperate with ICE: if an ICE hold request turns out to be illegal (i.e. not backed by sufficient evidence, which is not uncommon considering the false positive rate for name+DoB matching), guess who's liable for potentially millions in a civil rights law suit? It's the municipality, not ICE. That's why some municipalities even in the South have an unstated policy of using their own best judgment wrt hold requests. The people in charge won't admit this in public, of course, because the partisan discourse has ensured voters lack any capacity for understanding the issues. Instead what happens is that whenever they get an ICE request they release the person and then claim it was accidental or that they were released before the request was processed.

by deogeo 7y ago

zepto 7y ago

Indeed - if that is just ‘speech’, then surely trump can argue that his Ukraine call was just ‘speech’ that the 1st amendment protects. To be clear I think that would be absurd, and it seems equally absurd for the Slate to be making this argument.

wahern 7y ago

> "Abdication of duty" is a more apt description. The legality of sanctuary cities has nothing to do with free speech. It has to do with separation of powers and the 10th Amendment. Long-standing constitutional jurisprudence is that the Federal government cannot "commandeer" states to enact Federal policies. See, e.g., https://en.wikipedia.org/wiki/Printz_v._United_States https://en.wikipedia.org/wiki/Printz_v._United_States Rather, the Federal government can only, effectively, bribe them, but even then there are limitations--limitations added by many of the same conservative justices currently sitting. Indeed, one of the major conservative arguments against the ACA was that Medicare funding conditions were unconstitutional for this very reason. Free speech is implicated only because the DoJ has apparently threatened to use this "encouragement" prohibition against state officials. That would be a curious end-run around federalism jurisprudence and I seriously doubt it would work regardless of the free speech angle. There's one very practical reason for refusing to cooperate with ICE: if an ICE hold request turns out to be illegal (i.e. not backed by sufficient evidence, which is not uncommon considering the false positive rate for name+DoB matching), guess who's liable for potentially millions in a civil rights law suit? It's the municipality, not ICE. That's why some municipalities even in the South have an unstated policy of using their own best judgment wrt hold requests. The people in charge won't admit this in public, of course, because the partisan discourse has ensured voters lack any capacity for understanding the issues. Instead what happens is that whenever they get an ICE request they release the person and then claim it was accidental or that they were released before the request was processed.