John Doar, the U.S. assistant attorney general for civil rights for much of the 1960s, “was the face of the Justice Department in the South”—so said President Barack Obama when he awarded Doar the Medal of Freedom in 2012, two years before his death. An unlikely face at that: Doar was a Republican from Wisconsin. But he fearlessly led the federal civil rights effort, in the streets as much as the courts.
“My name is John Doar: D-O-A-R,” he once shouted while standing between Mississippi police, their weapons drawn, and protestors armed with bricks and stones. “I’m from the Justice Department, and anybody here knows what I stand for is right.”
Doar is part of a long, if irregular, history of the federal government swooping in to protect embattled minorities against local repression, such as the Enforcement Acts protecting black Americans from the Ku Klux Klan during Reconstruction and President Teddy Roosevelt’s opposition to San Francisco’s attempted segregation of Japanese-American schoolchildren in 1906. From the civil rights era onward, there has been steady federal intervention on the side of African Americans, religious minorities, LGBT people and Hispanics.
Now, once again, there is a dispute between the federal government and local authorities over the rights of a besieged minority. Except this time, it’s the other way around.
There are an estimated 11 million undocumented immigrants in America, a population that includes immigrants who have been here for decades; the parents of native-born U.S. citizens; and teenagers and young adults brought to America as small children who know no other country. Donald Trump has pledged to deport all of them.
“We have at least 11 million people in this country that came in illegally,” he said in February of 2016. “They will go out. They will come back—some will come back, the best, through a process. They have to come back legally.”
Trump later seemed to reverse his position, saying in August that “the first thing we’re going to do if and when I win is we’re going to get rid of all of the ‘bad ones.’” That would have been closer to the policy of the Obama administration, which increased deportations with a focus on convicted felons (while also creating the Deferred Action for Childhood Arrivals program to ease the pressure on those brought to the U.S. as minors). But then Trump, as president, signed an executive order directing the Department of Homeland Security to apply “the immigration laws of the United States against all removable aliens” (emphasis mine). In early April, a spokesman for the Homeland Security Department declared that even undocumented immigrants who are victims of, or witness to, a crime aren’t immune from deportation.
As part of Trump’s crackdown, the Justice Department and Homeland Security have sought to enlist local jurisdictions to detain undocumented immigrants for the feds, even if a city, county, or state has no legal reason of its own to hold them. But some localities are resisting—namely big cities in the East, the embattled blue bastion of Austin in Texas, and three West Coast states that rejected Trump last year in landslides totaling five million votes: California, Washington, and Oregon.
In late March, these states’ resistance was apparent from ICE’s new bulletin, the weekly Declined Detainer Outcome Report, which intends to pressure local authorities by naming jurisdictions that are refusing to detain undocumented immigrants on the government’s behalf. The most recent edition of this new enemies list—which was suspended this month after complaints about its accuracy—included 35 counties in California, plus the state itself; 17 counties in Oregon; and 11 in Washington, including many rural counties that actually voted for Trump.
These counties have the support of state leaders. In January, the California legislature hired Obama’s attorney general, Eric Holder, for its legal battles with the Trump administration. Earlier this month, the California state Senate passed a bill banning local police agencies from enforcing immigration rules; a subsequent amendment allows agencies to contact ICE about violent felons. Washington Governor Jay Inslee issued an executive order that “makes clear that Washington will not be a willing participant in promoting or carrying out mean-spirited policies that break up families and compromise our national security and community safety.” Oregon Governor Kate Brown declared, “What the federal government can’t do under the U.S. Constitution is conscript state law enforcement officers to implement the policies of this Administration.” The Chief Justices of both the California and Oregon Supreme Courts have written Attorney General Jeff Sessions and Homeland Security Secretary John Kelly urging them to keep ICE agents out of local courthouses to avoid interfering with the state justice systems.
The Trump administration’s response has been sharp. In March, Sessions made a surprise appearance at a White House briefing to declare, “I strongly urge our nation’s states and cities and counties to consider carefully the harm they are doing to our citizens by refusing to enforce our immigration laws, and to rethink these policies… The president has rightly said disregard for law must end.” Sessions warned that the administration might cut off federal law enforcement funding to sanctuary jurisdictions, echoing a warning in the aforementioned executive order that directs the Attorney General and Homeland Security Secretary to “ensure that jurisdictions that willfully refuse to comply … are not eligible to receive Federal grants.” On April 3, Trump launched a campaign calling sanctuary cities “an assault on the rule of law,” complaining that “cities like Seattle and San Francisco have spent decades breaking our country’s immigration laws—and getting away with it.” The next week, Sessions ordered a greater Justice Department focus on immigration prosecutions, threatening not only felony charges against the undocumented but prosecutions against Americans who harbored them.
The city of Seattle responded to Sessions’s threat to cut off federal funds by filing suit, saying that since city employees never asked about immigration status, they had no basis to detain anyone. Oregon state law prevents local law enforcement agencies from enforcing federal immigration laws, and California state law does not require them to cooperate.
The feds have a structural advantage in this confrontation. They have the overwhelming resources of the U.S. government, and can even prevent local authorities from interfering. As the mayor of Portland recently noted, ICE “has the power to operate within our city, and does not have to inform us of their activities.” But it’s less clear that federal authorities can compel local agencies to assist them—in legal terms, to “commandeer” local resources—by obliging locals to detain any undocumented immigrants. “There is a whole body of case law that, among other things, establishes that the federal government can’t force or require states and localities to become appendages of the federal government’s own regulatory goal,” Cody Wofsy, a staff attorney with the American Civil Liberties Union’s Immigrants Rights Project in San Francisco, told The Hill.
Even Sessions himself once agreed. In a memorandum at the beginning of April on the subject of the Obama Justice Department’s efforts to combat police brutality, the Attorney General declared, “It is not the responsibility of the federal government to manage non-federal law enforcement agencies.”
A century and a half ago, northern states resisted the federal Fugitive Slave Act, which required local authorities to arrest and return escapees from the South. The Wisconsin Supreme Court ruled the act unconstitutional, and the Vermont legislature passed a law banning cooperation. Ultimately, though, the issue was not resolved through the legal system or legislatures, but from a change in popular attitudes, which were ultimately reflected in political decisions.
West Coast resistance on immigration is driven by its relatively more open society, its close trade connections with the rest of the world, and the importance of undocumented workers to the regional economy. But state and local officials can also claim to be defending large numbers of their own legal citizens who would suffer from the forcible removal of their parents and other relatives—putting burdens not only on the citizens, but also on local governments.
“We’re not protecting criminals,” argues John Herrera, director of immigrant legal services at Catholic Charities in Portland. “We’re protecting families from being separated.”
If officials on the West Coast and elsewhere resist a drive against millions of people who have become part of American society—and, as John Doar put it, to stand for what is right—local jurisdictions will not be helpless against a hostile federal policy. The defense of the vulnerable need not always come from Washington; it can also be built from the ground up.