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It’s ‘Philadelphia’s constitutional right to refuse to enforce federal immigration law’

Independence Hall. March 28, 2017 Category: FeaturedLongPurpose


This is a guest post by lawyer Matthew Fontana.
Immigration is our national common dominator — the thread that binds a diverse nation.

Unless your family has Native American roots or endured the horrors of forced migration on slave ships, you have an immigration story. For some of us, our immigration story is about fleeing persecution — religious, ethnic, racial, or political. For the millions of Irish and Southern and Eastern Europeans who immigrated during the 19th and early 20th century, it was a search for food, work and dignity. And for the millions more who arrive every year from across the globe, it is a search for opportunity.

My immigration story, like many of yours, begins with need. My great-grandparents were from poor rural towns in Italy and Serbia. With little education and no job prospects, they needed opportunity — and it came in the form of a recruiter for the J&L Steel Company in Aliquippa, Pennsylvania. The recruiter promised a good wage, plenty of work hours and a home. With no documentation, no English language skills and no plan B, they set off for what they hoped would be a better life. Their bet paid off.


Many of us — including me — feel that the Trump administration’s anti-immigrant rhetoric and policy is a betrayal of our personal immigration stories and our national values. Thankfully, our nation’s values are imbedded in our laws, and not our leaders. As John Adams quipped, “We are a nation of laws, not men,” and the supreme law of our land, the Constitution, provides key protections for activists and legislators alike to uphold our values.

An important example of our Constitution at work is Philadelphia’s constitutional right to refuse to enforce federal immigration law, including compliance with federal detainer requests absent a warrant.

Our nation’s values are imbedded in our laws, and not our leaders.

A federal detainer request is a request from the Immigration and Customs Enforcement (“ICE”) to hold someone in custody — when they are otherwise free to go — while federal immigration officials determine whether to begin the deportation process. Philadelphia will comply with this request if the individual was convicted of a violent first or second-degree felony and the federal government presents a warrant.

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Philadelphia rightfully points out that every individual, regardless of whether they have potentially committed a crime (including illegal immigration), who reside within the jurisdiction of the United States are entitled to the protections of due process — including the right to be free from “seizure” without a warrant. Philadelphia is not wholly refusing to assist the federal government but setting the terms for its assistance and anchoring that assistance in the Fourth Amendment’s warrant requirement.


This right to refuse to assist federal authorities in the enforcement of federal law is rooted in the Constitution’s basic building block — federalism. The guardian of federalism is the Tenth Amendment, which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth Amendment ensures the federal government remains a government of “few and defined” powers and that it does not compel state or local officials to cooperate in enforcement or implementation of federal law.

President Trump and some in Congress, including Pennsylvania Sen. Pat Toomey, are trying to coerce Philadelphia to abandon its constitutionally protected policy decision by threatening substantial funding cuts. Toomey’s “Stop Dangerous Sanctuary Cities Act” (“SDSCA”) would prohibit sanctuary cities, including Philadelphia, from receiving grants under certain Economic Development Assistance Programs and the Community Development Block Grant Program.

The problem with the SDSCA’s approach is it violates the Tenth Amendment, specifically the “anti-commandeering doctrine.” The anti-commandeering doctrine has its roots in the fight against slavery. The Fugitive Slave Act of 1793 guaranteed a slaveholder’s right to recover an escaped slave, even if that slave escaped to a jurisdiction that prohibited slavery. Numerous jurisdictions, including Pennsylvania, refused to comply with the act because it contradicted state or local anti-slavery law. In Prigg v. Pennsylvania, 41 U.S. 539 (1842), Justice Joseph Story explained that the federal government could not force state officials to implement or carry out the act because it was a federal law, and the federal government ultimately had to enforce it.

The guardian of federalism is the Tenth Amendment.

More recently, Justice Antonin Scalia vindicated the doctrine. The Brady Handgun Violence Prevention Act required county law enforcement officials to administer part of the law’s background check program. In Printz v. United States, Justice Scalia, writing for the majority, found that provision unconstitutional because “[t]he Federal Government may [not] command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program … such commands are fundamentally incompatible with our constitutional system of dual sovereignty” 521 U.S. 898 (1997).

Just like in Prigg and Printz, the SDSCA and any similar legislation has the effect of commanding state officials to honor federal immigration detainer requests by punishing local and state officials who do not cooperate — in violation of Philadelphia’s Tenth Amendment rights.


In “Federalist No. 46,” James Madison reminded those skeptical of our new Constitution that state and local governments were sovereigns in their own rights and possessed the authority to push back against the federal government.

Madison wrote, “On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States … [t]he disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices … would form very serious impediments.”

Philadelphia’s limited cooperation with federal detainer requests is a lawful response to its belief that such requests are “an unwarrantable measure of the federal government.”  Those who disagree with Philadelphia’s stance should not seek to upset our constitutional balance by resorting to the coercive power of the federal government to compel Philadelphia to succumb.

Or perhaps, they should reflect on their own immigration stories and ask whether they are acting in concert with our national and constitutional values. After all, isn’t the Golden Rule to do onto others as you would have done unto you?

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