Before the Civil War, Northern states opted out of enforcing the Fugitive Slave Act—and the Supreme Court backed them up.
In one of his recent executive orders, President Donald Trump threatened to defund so-called sanctuary cities if they didn’t start helping federal authorities enforce immigration law:
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
San Francisco has challenged the administration on this order, saying that it violates the 10th amendment to the Constitution. (Some legal experts have supported that argument.) In doing so, it launched the first counterstrike in what might be a long, tumultuous battle between the local and federal governments on immigration.
This conflict sounded awfully familiar to author and historian H. Robert Baker. In a new blog post, he provides a recap of a similar chapter from the slavery era, one that might provide some clues as to how this tug of war might play out.
Baker writes that a version of sanctuary cities existed in the late 18th century, in the form of Northern jurisdictions that refused to capture and return fugitive slaves—“America’s first significant class of refugees.” The Fugitive Slave Act of 1793 gave slaveholders the constitutional right to retrieve escaped slaves. But without state cooperation, it was hard to enforce. At the same time, however, demanding stricter compliance contradicted beliefs that slaveholding states held dear. Baker explains:
Congressional statutes assumed state cooperation, as did the Fugitive Slave Act of 1793. But by the 1810s and 20s, such cooperation began to look increasingly like coercion, especially to southerners who were making much of the sanctity of states’ rights. An attempt to revise the Fugitive Slave Act in 1818 led to failure, in part, because the proposed bill required state officers to enforce federal law. This violated contemporary understandings of dual sovereignty—the idea that federal and state governments were each sovereign in their sphere, and that the spheres were entirely separate. Congress might direct federal law enforcement officers and judges, but they could not direct state officers, and vice versa.
In 1842, the Supreme Court backed up the idea of dual sovereignty. The ruling in Prigg v. Pennsylvania said that the issue of fugitive slaves was indeed a federal matter, just like immigration is today. States couldn’t pass laws interfering with that federal law, but they also had the right to opt out of enforcing it. Here’s Baker again:
This meant that city constables and county sheriffs were instructed not to arrest suspected fugitive slaves, that state jails were closed to federal marshals who had fugitives in their custody, and that state judges would refuse to issue warrants or certificates of removal. Into the breech stepped free blacks and their white abolitionist allies, who organized protective societies and became increasingly bold in their opposition to federal law enforcement. Sanctuary cities became like fortresses.
Back then, these jurisdictions weren’t called sanctuary cities. That term comes from sanctuary movement of the 1980s, when churches and synagogues sheltered refugees from Central America who had been denied asylum. The movement was a reaction to the restrictive federal asylum policies at the time, which the movement’s supporters saw as immoral.
But by 1980, L.A. had already had ordered its police officers to stop checking immigration status in the field. Even LAPD chief Daryl Gates, who was not well-known for going easy on minority populations, felt this move allowed undocumented immigrants to report crime without fear. In 1989, San Francisco enacted an ordinance prohibiting the use of municipal funds for federal immigration enforcement.
More cities have followed since 2008, when Immigration and Customs Enforcement (ICE) started asking local police to detain suspected undocumented immigrants for extra time, even if they weren’t charged for a crime. (The constitutionality and legality of ICE’s “detainer” requests, which sometimes even target American citizens, have since been challenged in courts.) Despite what the name suggests, today’s 300-plus sanctuary jurisdictions aren’t stopping federal authorities from deporting criminals, they’re just setting their own local priorities—just like the Northern states in the slave era.
Of course, on the current spectrum of power, states trump cities. Nevertheless, this chapter in U.S. history provides some ammunition to sanctuary cities in their battle against the government. Writes Baker:
[States’ rights’] modern association with “massive resistance” to desegregation has tarnished it to liberal eyes. But sanctuary cities are cut from the same constitutional cloth—the very same that gave abolitionists the cover they needed to resist the Fugitive Slave Act. Sanctuary cities’ resistance to federal immigration law depends upon local popular support, legal and political assistance from the state, and a constitutional regime that respects the integrity of two sovereigns sharing the same space.
Baker’s history lesson contains one more important point: resolving the local-versus-federal fight may not necessarily end the political divide that caused it in the first place. Following the Supreme Court decision in 1842, Congress expanded the federal apparatus to better enforce the Fugitive Slave Act, fueling a popular resistance among Northern communities that federal authorities didn’t have the resources to stamp out. Citizens rioted, ostracized slave catchers, and held mass protests outside courtrooms where fugitive slaves were detained. In 1860, the Southern states attempted to secede. And the rest is history.