So, what do they mean by defiance? Several answers are possible, but they fit in two main categories -- resistance by government and resistance by private individuals.
Sanctuary policies by state and local government
The usual answer we get is that the feds have to crack down because of blue state and city sanctuary policies. Invariably, such statements are rather vague about what "sanctuary policies" mean. Sanctuary policies can mean many different things:
- policies restricting the ability of state and local police to make arrests for federal civil immigration violations, or to detain individuals on civil immigration warrants;
- policies prohibiting “287(g)” agreements through which Immigration and Customs Enforcement (ICE) deputizes local law enforcement officers to enforce federal immigration law;
- policies that prevent local governments from entering into a contract with the federal government to hold immigrants in detention;
- policies preventing immigration detention centers;
- policies restricting the police or other city workers from asking about immigration status;
- policies restricting the sharing of certain information on immigrants with the federal government;
- policies restricting local police responses to federal immigration detainers; and
- policies refusing to allow ICE into local jails without a judicial warrant.
Hence someone denouncing "sanctuary policies" can be making very different demands on state and local governments. Do they mean that state and local governments should hold any inmate ICE asks to have held for deportation? That state and local governments should automatically turn over the names of everyone who is arrested so ICE can check their immigration status? That police and other state and local officials should ask people's immigration status and provide ICE with the information if asked? That local police should actively take part in immigration enforcement? Most people denouncing "sanctuary policies" are rather vague on that point.
But in any event, the law is clear. State and local governments may not actively obstruct or seek to exclude federal officials enforcing federal laws and, in fact, "sanctuary jurisdictions" are well aware of this restriction and are not actively obstructing federal officials. But the anti-commandeering doctrine says that state and local jurisdictions may not be compelled to enforce federal law. Any city or state that wishes to passively step aside and leave immigration entirely up to the feds is within its rights to do so.
There have been accusations (can't find link) that government officials may be actively participating in warning immigrants of the presence of immigration officials. That is more of a legal gray area.
Individual Resistance and the "Mob Veto"
The other, related argument, is that government should not back down and allow laws to go unenforced because of resistance by private citizens. There can be no doubt, wherever La Migra goes it runs into resistance by private citizens. The resistance in Minneapolis is particularly intense because the surge there is particularly intense, but the difference is one of degree, not of kind. Individual resistance can also take legal, semi-legal, and illegal forms.
Assaulting federal officials and damaging federal property are crimes, of course, and should be treated as such. Creating loud disturbances at night in hotels where federal agents are staying may violate some sort of noise ordinance or misdemeanor offense of disturbing the peace. Seeking to block La Migra from leaving their facility or interfering with an arrest really is criminal obstruction, though some might defend it as civil disobedience.
And then there are people who scan Migra signals, trace Migra vehicles, text out warnings among networks, and follow La Migra honking horns and blowing whistles to warn people away. There are people who chase La Migra away, yelling and cursing and shouting "Shame!" I will admit to not knowing enough about obstruction law to know whether or at what point these might be considered criminal obstruction.
So, is it essential for the feds not to back down, even from legal opposition of this type so as not to allow a mob veto? One obvious response is that it is not unheard-of for government to back off enforcing laws or to change them in the face of overwhelming public opposition. That is what the Civil Rights Movement was all about, after all. Or, to take a more recent and less emotionally charged example, the federal government has tacitly allowed is anti-marijuana laws to go unenforced, while many states authorize the most flagrant violations of federal marijuana law. If the federal government suddenly changed its mind and decided that marijuana laws must be enforced with all rigor, it seems safe to assume that there would be strong resistance at many levels. Would this resistance be reason to decide that marijuana laws are outdated and should be left alone, or grounds for an all-out crackdown to show that federal authority could not be defied? Reasonable minds might differ.
Resistance to federal lawlessness
In any event, there is an obvious problem with all of these rather dry and abstract discussions. They ignore what La Migra is actually doing on the ground. Its actions go well beyond anything that could possibly be defended as necessary to enforce immigration law and stand up against "sanctuary policies" or a "mob veto."
La Migra is not enforcing the law. It is being grossly lawless. It is stopping and harassing anyone who looks too brown. Meeting a wholly unrealistic arrest quota by random arrests of anyone who isn't white enough. Entering houses without a judicial warrant. Leaving abandoned cars across the road, windows broken, seatbelts cut, occupants arrested. Harassing Somalis, 90% of whom are citizens. Arresting people who have been granted asylum and shipping them from Minnesota to Texas for groundless "status review." That is what the good people of Minneapolis, and the people of Los Angeles and Chicago before, have been resisting. Even if you believe that the feds must continue enforcing immigration law just to show that they won't allow a "mob veto," it does not logically follow that the feds must continue to "enforce the law" in the blatantly lawless manner they have been using. It is possible to step up immigration enforcement without behaving like complete thugs.
What other enforcement options are there?
I have made various suggestions about measures that might reign in La Migra. Do I have any suggestions as to how deportations hawks might step up the pace without resorting to all-out lawlessness? After all, Trump ran as a deportation hawk and won. He can reasonably say that he has a mandate from the people to step up deportations.
I can think of several such measures.
In terms of state and local sanctuary laws, the feds can sue the challenge them. Trump can issue executive orders requiring cooperation from local jurisdictions, or seek anti-sanctuary legislation or withhold funds from sanctuary jurisdictions. Just to be clear, these measures with all probably fail as unconstitutional "commandeering." More likely to pass constitutional muster is some sort of measure for offering police assistance to local jurisdictions but making it contingent on cooperating in immigration.
Or, circumvent the refusal to report immigration status of arrestees or honor immigration detainers by trawling through arrest records for immigration status and getting a judicial warrant. Or show up in courtrooms (public places) when someone with a deportation order is being arraigned. Or keep a steady court presence just in case.
In terms of general enforcement, vastly expand the number of immigration judges and deportation lawyers to speed up asylum and deportation proceedings. Remember, it is swiftness of consequences, not severity, that is the most effective deterrent. Do more employer audits. Go through outstanding deportation orders, find the individuals, and get a judicial warrant.
No doubt at this point deportation hawks would ask, would these measures be acceptable to our side. And the honest answer is probably no. Then what is the point? Simple. All policies have opponents. No matter what the policy, you will doubtless find many people who do not consider it acceptable. Normal, healthy politics is all about policy disputes. But it would reduce the issue of immigration enforcement to an ordinary, mundane policy dispute. Right now, immigration enforcement is truly a secondary issue. The primary issue is complete, all-out government lawlessness.
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