Why Kim Davis’s refusal to issue same-sex marriage licenses is legally different from a ‘sanctuary city’s’ refusal to cooperate with federal immigration law
Many commentators have sought to
draw an equivalence between Rowan County, Kentucky clerk Kim Davis’s refusal to issue same-sex marriage licenses, in defiance of a federal court order, and the decision of so-called “sanctuary cities” to refuse to enforce federal immigration laws. Yet as a legal matter, the questions presented by the two scenarios are quite distinct. Put directly, Kim Davis is acting in defiance of applicable federal law; sanctuary cities are not — and we can
again cite Justice Scalia to explain the difference.
So-called sanctuary cities are jurisdictions in which local officials have decided that they will not cooperate with federal immigration enforcement. Put another way, they are jurisdictions in which local officials are refusing to implement a federal program. The decision to become a sanctuary city may be regrettable, unwise, or worse, but it is perfectly legal and entirely consistent with our constitutional structure.
The Constitution establishes that federal law is supreme. But it is also well-established that the federal government may not “commandeer” state and local governments to implement federal law. What this means is that the federal government is free to enforce federal law, including immigration law, whether state or local officials like it or not. At the same time the federal government cannot dictate that state and local officials enforce that law on the federal government’s behalf.
One of the cases establishing this principle is
Printz v. United States, in which the Supreme Court held that state and local law enforcement officials are not obligated to perform federally mandated background checks before individuals could purchase guns. The federal government could impose such a requirement if it wished, the Court held, but it could not force state and local officials to do the dirty work. If the federal government wanted state and local law enforcement to implement such a federal law, it would have to make it worth their while, such as by providing financial inducements or some other incentive. As the
Printz opinion concluded:
The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. (Scalia)