The ghost of John C. Calhoun still stalks the land. Calhoun, of course, was the leading architect of nullification—and secession. Almost everyone believes the issues of nullification (the doctrine that federal law can be negated by state laws) and secession were resolved by the North's victory in the Civil War and the passage of the Reconstruction Amendments. But nullification has once again reared its hoary head, this time in the guise of "sanctuary cities."
Across the nation cities from New York to Houston to San Diego forbid city officials—including police—from inquiring into anyone's immigration status or cooperating with immigration officials. The police may not stop or detain persons solely due to their immigration status or even inquire into their status while making routine traffic stops or misdemeanor arrests. These policies have, in effect, created safe havens for illegal immigrants, including criminal aliens.
Cities began adopting sanctuary laws in the 1980s, supposedly to foster trust between illegal immigrants and police. Proponents argued that crimes would not be reported, witnesses to crime would not come forth and immigrants wouldn't cooperate with police if they feared deportation. Yet the policies adopted reflect the power of
immigration advocacy groups more than concerns about crime prevention. Politicians in large cities with significant immigrant populations simply surrendered to the demands of immigrant rights groups that sought to minimize—if not extinguish—the distinction between legal immigrants and illegal aliens. Nor is it only immigrants' rights groups that promote sanctuary cities. Business interests want a steady source of cheap, compliant and exploitable labor; the minions of the welfare state want to magnify their power by extending the largess of the administrative state to those who will, in all likelihood, take their place in the so-called "underclass."
The resulting policies not only tolerate crime—after all, illegal immigrants are lawbreakers—but actively abet and protect criminal activity by handcuffing the powers of the police.
Currently over 400,000 illegal immigrants within our borders have received final deportation orders from a federal judge but have failed to show up for deportation. Nearly a quarter of these absconders are convicted criminals. In sanctuary cities police may not inquire into the deportation status of these aliens or apprehend them until they have committed another crime.
Fox News reports that illegal aliens account for nearly 25 percent of California's prison population, far in excess of their numbers in the general population. When these aliens finish their sentences they are subject to deportation.Yet it has been estimated that fewer than 50 percent of these criminals are actually deported.
If criminal aliens are released in sanctuary cities they are not reported to immigration authorities who might begin deportation proceedings. Thus sanctuary cities harbor deportable criminal aliens, placing them beyond the reach of immigration laws until they commit further crimes—and even then they might not come to the attention of immigration officers, depending on the severity of the crime.
An example: a notorious and brutal rape was committed in New York in 2002. Four of the perpetrators were illegal aliens who had been in police custody before the crime but were released without notification to immigration officials who might have taken them into custody pending deportation proceedings. Instead the City's sanctuary policy prohibited any officials from making the notification. The public outrage over this incident momentarily brought the policy into question. Ultimately Mayor Bloomberg repealed it by executive order—only to see it return, slightly modified, shortly thereafter in response to pressure from immigrant advocacy groups.
Even criminal aliens who are actually deported later receive sanctuary in these cities upon their return to the United States. Even if, for example, a Los Angeles police officer knows from personal experience that an alien has returned and is thus committing a felony simply by his presence, the officer may not arrest him until he commits another crime. Such returnees naturally look to sanctuary cities as safe havens.
SANCTUARY POLICIES AND CRIMINAL GANGS
State Representative Russell Pearce recently introduced a bill in the Arizona legislature that would allow police to enforce federal immigration laws. "We have an invasion going on," Pearce says. As violent gangs flock to the United States, he argues, sanctuary cities make it easier for them to operate. In Phoenix, Arizona's largest city, sanctuary policies limit the ability of the police "to enforce the law," he says. Similarly, Department of
Homeland Security officials routinely say that criminal alien gangs have become a dangerous epidemic abetted by sanctuary cities.
Los Angeles' sanctuary policy, known as "Special Order 40," prevents police from arresting anyone based solely on their immigration status, or from notifying immigration officials about an illegal immigrant. In January 2004 Manhattan Institute scholar. Heather Mac Donald wrote that "dozens of gang members from Mara Salvatrucha, a ruthless Salvadoran gang, have sneaked back into town after having been deported for such crimes as murder, assault with a deadly weapon and drug trafficking. Police officers know who they are and know that their mere presence in the country after deportation is a felony. Yet if an LAPD officer arrests an illegal gang-banger for felonious reentry, it is the officer who will be treated as a criminal for violating an LAPD rule."
According to the National Drug Intelligence Center, an agency of the Justice Department, there may be as many as 10,000 members of Mara Salvatrucha spread across the country. The gang, also known as MS-13, engages in cross-border drug and weapons smuggling, illegal immigrant smuggling, purveying false documents, robbery and murder. In California the gang has allied itself with the Mexican Mafia to control the notorious gang culture that dominates the state prison system. Central American authorities blame MS-13 for a wave of murders in the region, including the killing of 28 women and children during a Honduras bus hijacking. Officials speculate that the gang perpetrated this mass murder simply to intimidate authorities with its brazenness and ruthlessness. There is even speculation that MS-13 may be cooperating with al-Qaeda in smuggling operations across the border.
Recently MS-13 leaders boldly threatened to retaliate against the Minuteman project, a group of civilian volunteers who sought to reduce illegal immigration by staking out portions of our southern border. In some states the gang has issued "green lights" to kill police officers. In recent months, federal authorities have become more aggressive in arresting MS-13 gang members. Among those arrested so far more than half had prior arrests or convictions for drug possession, murder, assault, arson or weapons violations.
In sanctuary cities the power of the police to deal with such violent gangs has been severely limited. At most they can keep these repeat felons under surveillance until they commit another crime. Clearly Special Order 40 endangers public safety, especially among the immigrant population itself. Mac Donald rightly notes that "the biggest myth about sanctuary laws is that they are immigrant-friendly. To the contrary: they leave lawabiding immigrants vulnerable to violence."
MEXICO AS A SANCTUARY
At the same time that the U.S. provides sanctuary cities for illegal aliens, Mexico has become a sanctuary for criminals fleeing the United States. More than 60 murderers, including cop killers, have fled to Mexico from Los Angeles County alone. In another recent case an illegal immigrant killed Officer David March in Los Angeles before fleeing to Mexico.
The whereabouts of these killers is known to Mexican authorities—in one case a notorious copkiller is living openly and could be arrested at any time. Mexican officials, however, refuse to extradite these killers because they might face either the death penalty or life in prison without parole. (Mexico's human rights sensitivities are such that it will not allow extraditions where murderers might face those penalties.) As many as two-thirds of all fugitive felony warrants in Los Angeles were for illegal immigrants, many of whom have presumably fled to Mexico.
President Bush has frequently advocated policies of "compassion to our neighbors to the South." Calls for compassion, however, have only provoked contempt from Mexico.This was entirely predictable since compassion as the basis for foreign policy is not only unrealistic but is sure to be perceived as weakness. Instead of compassion, the U.S. should demand simple justice—the return of these violent criminals who have received sanctuary in Mexico.
SANCTUARY CITIES ARE ILLEGAL
What is most remarkable about sanctuary cities is that they are illegal. In 1996 Congress passed two laws dealing with the subject: the Personal Responsibility and Work Opportunity Reconciliation Act and the Illegal Immigration Reform and Immigrant Responsibility Act. Under both statutes state and local governments could no longer prohibit employees from inquiring about immigration status or tipping off immigration authorities. The Court of Appeals upheld both provisions in New York v. U.S. (1999).
The Appeals Court remarked that "the City's sovereignty argument asks us to turn the Tenth Amendment's shield against the federal government's using state and local governments to enact and administer federal programs into a sword allowing states and localities to engage in passive resistance that frustrates federal programs." The court concluded that where the federal government has undoubted power to act, as in the case of immigration, the Supremacy Clause "bars states from taking actions that frustrate federal laws and regulatory schemes. We therefore hold that states do not retain under the Tenth Amendment an untrammeled right to forbid all voluntary cooperation by state or local officials with particular programs."
REEVALUATING SANCTUARY POLICIES
Some California jurisdictions have announced that they will reevaluate their sanctuary policies. Orange County Sheriff Mike Carona is proposing the most significant change: he plans to train hundreds of officers to enforce immigration laws. A recent LA Times editorial calls this plan "overly broad, dangerously so." The editorial, however, characterizes as "understandable" the Los Angeles County Sheriff 's plan "to ascertain the immigration status of convicted felons in county jails." It almost defies understanding that this was not already standard procedure.
The biggest political imbroglio has been occasioned by the LAPD's announcement that that it would issue a "clarification" of Special Order 40. This plan, however, has come to naught due to pressure from Latino activists. In a meeting with Latino groups, who expressed fears that any modification of the Special Order would lead to racial profiling, Police Chief William Bratton gave assurances that "we are not proposing to change a single word of Special Order 40." Rather, under the guise of "clarification" police officers will be allowed to inquire about immigration status in three well-defined situations: when a police officer recognizes a suspect who has been deported as the result of a prior conviction; if police intelligence identifies a person as a returned deportee; and if officers learn that someone already under arrest has been deported and subsequently returned illegally.
Returning to the U.S. after deportation is a federal felony that carries a penalty of 10 to 20 years in prison. LAPD arrests about 200 returned felons every month.These "clarifications" are surely improvements—but only of a rather cosmetic kind. They touch only on the most glaring and egregious defects of Special Order 40. Sanctuary should be removed for all law-breakers—including illegal immigrants—not just those criminals who are deported and return. The safety of the community should command more respect than just "clarifications" to a bankrupt and illegal policy.