The Tenth Amendment to the U.S. Constitution was written in 1791 as part of the Bill of Rights. It says: 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.” We want to make you think about the Tenth Amendment as it relates to the issue of sanctuary cities, but first we’ll give you a little background information.
Segregationists used the Tenth Amendment during the civil rights movement to justify their racist beliefs. The Tenth Amendment has been very good for conservatives and has been used successfully during the 20th century in court cases to prove that the federal government cannot:
- restrict child labor laws.
- mandate minimum wages and maximum work hours.
- determine punishments for possessing and using guns near schools.
- order background searches on potential gun buyers.
- hear court cases in which domestic violence victims sue their attackers.
You can find more information about the specific cases on the Annenberg Classroom’s Tenth Amendment Timeline.
Most of what has been written about the Tenth Amendment in the 21st century refers to its potential to destroy such progressive policies as Medicare, Medicaid, Social Security, and the Affordable Care Act. As Walter Russell Mead wrote in 2011, “The Second Amendment was a constitutional landmine for the left; the Tenth is a nuclear bomb.” Texas Sen. Ted Cruz is a big fan of the Tenth Amendment. “States’ rights” is not usually a battle cry that is popular with progressives.
To find a progressive use of the Tenth Amendment, we had to go back to the Fugitive Slave Act of 1850, which, Mike Maharrey writes, “was meant to protect the ‘property’ of slave holders, but many free blacks found themselves accused of escaping slavery and faced the prospect of living out their life on a plantation.” Northern abolitionists resisted the Fugitive Slave Act and Northern states used the Tenth Amendment to nullify it. According to Maharrey, “Nearly every northern state passed some type of personal liberty law. Provisions varied from state to state, but included denying slave catchers the use of state facilities such as jails, guaranteeing jury trials for accused fugitives, and imposing punitive actions on state or local officials aiding in fugitive slave rendition.”
The Tenth Amendment Center proclaims on its website, “When states and local communities take the lead on policy, the people are that much closer to the policymakers, and policymakers are that much more accountable to the people. Few Americans have spoken with their president; many have spoken with their mayor.” When the people believe the federal government is overstepping its boundaries, the Tenth Amendment gives the power to the people. It provides a way for people who have never spoken with their president, and probably never will, to say to him or her, “Hey, wait a minute. This doesn’t seem right to me. I think I should have more to say about this.”
Now let’s talk about sanctuary cities.
Less than a week after his inauguration, President Donald Trump issued an executive order that denies federal funds to sanctuary cities. The order states, “Interior enforcement of our Nation’s immigration laws is critically important to the national security and public safety of the United States,” and “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.” But here is how Ted Wheeler, the mayor of the sanctuary city of Portland, Oregon, explains what being a sanctuary city means: “”We are not harboring criminals. If somebody commits a crime … they’ll still be prosecuted here for those crimes … The sanctuary status simply means that if you’re being held in one of our local facilities and … all of the charges are dropped, we’re not going to expend local resources simply for the purpose of enforcing federal immigration status. If the federal government wants to expend those resources, they still can.” Are you picking up on the “states’ rights” vibe yet?
The full list of sanctuary cities is long. Notable among them are New York, New Haven, Los Angeles, Chicago, Syracuse, and Austin, which have all vowed to remain sanctuary cities despite the executive order. Lawsuits against the Trump administration have recently been filed in some other sanctuary cities — San Francisco, the Boston suburbs of Lawrence and Chelsea, and Santa Clara County in California – which all say the executive order violates the Tenth Amendment.
If you live in a sanctuary city, know that the Tenth Amendment is your friend, and if you do not live in a sanctuary city, meet another friend: our Model Ordinance to Protect Against Discriminatory Profiling and Limit Surveillance, Intelligence Collection, and Immigration Enforcement Activities. You can use it to start a campaign to get a sanctuary city-type ordinance passed in your hometown. Get to know the Tenth Amendment. It’s not just for segregationists and Tea Party members anymore.