By Ryan McMaken*
CBS reports that “California may prohibit local law enforcement from cooperating with federal immigration authorities, creating a border-to-border sanctuary in the nation’s largest state as legislative Democrats ramp up their efforts to battle President Donald Trump’s migration policies.”
In this context, of course, California — should the proposed legislation pass — would decline to participate in helping federal agents enforce federal immigration law.
In terms of American political and legal traditions, California is well within its rights, and by refusing to assist federal agents would simply be building on a past tradition in which state governments have refused to assist the federal government with a number of policies.
A Long History of Nullifying Federal Laws
Historically, the more famous of these cases include:
- Several Northern states refused to assist federal agents with capturing (i.e., kidnapping) fugitive slaves.
- Kentucky and Connecticut refused to provide military assistance to the federal government in the Civil War and the War of 1812, respectively.
- Colorado (and other states) currently refuse to assist the federal government in prosecuting and arresting marijuana users.
Other states have proposed additional forms of nullification in this regard including refusals to assist the federal government with enforcing Obamacare and federal gun laws. Such cases are not merely symbolic. In practice, the federal government possesses nowhere near the resources necessary to enforce federal law consistently without the assistance of state and local law enforcement. Moreover, this becomes all the more true if federal budgets are squeezed.
Not only are refusals to comply with federal laws well grounded in historical practice, but they also have Supreme Court decisions on their side. In the 1842 Supreme Court case Prigg v. Pennsylvania, justice Joseph Story — writing for the majority — noted that states cannot be compelled to enforce federal laws:
The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.
There is little doubt that many Trump supporters, and other advocates for powerful and centralized federal power, will complain that California must help the federal government in its immigration laws.
Not only is this claim generally untrue, it is especially ungrounded in Constitutional realities in the case of immigration. As Judge Napolitano has pointed out, “[T]he Constitution itself — from which all federal powers derive — does not delegate to the federal government power over immigration, only over naturalization.”
The two are not the same thing, and this distinction also partly explains how, in the nineteenth century, 22 American states and territories granted voting rights to non-citizens.
When we look at how limited the federal government should rightly be in these cases, we see that one of the few federal powers here is the power of federal spending. Should California wish to ignore federal laws, the federal government can and should withhold federal spending from California. The sooner states get used to making do with less federal money, the better. Indeed, federal spending is critical in expanding centralized federal power. If federal spending loses its importance as a source of funding for state governments, the US will become increasingly decentralized.
California is well aware of federal threats to cut funds, but given the immense amount of tax revenue produced by Californians, California has proposed limiting its own payments to the federal government.
Every State Should be a Sanctuary State
This sort of state independence cuts both ways, however. If California establishes — yet again — that states can ignore and even inhibit federal arrests and prosecutions in the states, then it becomes all the easier for other states to refuse to enforce federal gun laws, federal drug laws, Obamacare, or federal mandates that states provide welfare programs and “free” taxpayer-funded services to non-citizens.1
The only tool the federal government should have in these cases is to cut off funding. This is a very powerful tool, mind you, but it is also hardly a given that every state would face disaster if facing a cut in federal spending. Nor is this a one-way street. for political reasons, the federal government wants to spend money in the states just as much as the states want to receive it.
The down side to this, of course, is that many productive Americans will be left holding the bag of funding California’s many grandiose welfare schemes for immigrants and others. This, however, is preferable to all Americans being on the hook for the same. And, it’s hard to see why the California tail should wag the American dog. If California wishes to expand a welfare state on its own, or set its own immigration priorities, let Californians pay for it. It is true that for many Californians, the only escape will be to move across the border to Reno, Las Vegas, or Phoenix. But even this, as inconvenient and unjust as it is, is preferable to a nationwide policy from which there is no escape except to leave the US entirely and move perhaps thousands of miles away, across international boundaries.
The small amount of decentralization still permitted in the US today continues to be a benefit for many citizens. Even today, many states function as a sanctuary for emigrants from other states with high taxes and high regulations. Many citizens move from state to state seeking more favorable legal and economic climates. Just as it should be. But let’s not be content with what little decentralization exists. Let’s make sure all states can become sanctuaries from federal regulations as well.
About the author:
*Ryan McMaken is the editor of Mises Wire and The Austrian. Send him your article submissions, but read article guidelines first. (Contact: email; twitter.) Ryan has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014.
This article was published by the MISES Institute.
1. Federal courts have often held that states must adhere to federal mandates in regards to welfare spending.
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