Indiana Law Review Indiana Law Review Volume 42 2009 Number 1 NOTES Divided We Stand, United We Fall: A Public Policy Analysis of Sanctuary Cities' Role in THE "Illegal Immigration" Debate CORRIE BiLKE* Introduction "Give me your tired, your poor/Your huddled masses yearning to breathe free/The wretched refuse of your teeming shore/Send these, the homeless, tempest-tost to me . . . ."^ This inscription located on the Statue of Liberty^ is recognized as a symbol of freedom and hope for those immigrants arriving in the United States, the initial step taken to create a better life for themselves and their families in a nation recognized for its democratic freedom, personal liberties, and economic opportunities. However, once considered a nation of immigrants, America and the principles governing American society today are becoming increasingly anti-immigration in nature.^ National security concerns have dimmed the welcoming glow ofLady Liberty's torch, as policymakers take steps to erect a 700-mile wall along the U.S.-Mexico border and armed "vigilante-Uke Minutemen" stand guard to prevent individuals from crossing into the United States unlawfully."^ The power to regulate immigration is traditionally recognized as a power of the federal government.^ However, in the 9/1 1 Commission's report following * J.D. Candidate, 2009, Indiana University School of Law—Indianapolis; B.S. 2006, Indiana University Purdue University—Indianapolis. I would like to thank Professor Maria Pabon Lopez and Art Fisher for their editorial guidance and insight throughout the development of this Note. I would also like to thank my family and friends, who have always believed in me, for their love and encouragement. 1. Emma Lazarus, The New Colossus (1883), reprinted in Emma Lazarus: Selected Poems 58, 58 (John Hollander ed., 2005). 2. See The Stame ofLiberty-Ellis Island Foundation, http://www.statueofliberty.org/Stame_ of_Liberty.html (last visited Feb. 7, 2009). 3. See Bill Wolpin, Hide and Seek, AM. CiTY & COUNTY, Apr. 2007, at 6, 6. In 2006, 570 pieces of legislation were introduced in state legislatures that would limit undocumented migrants' "access to jobs, education or healthcare." Id. 4. Nancy Foner, Op-Ed, Immigrants at Home, N.Y. TIMES, Nov. 26, 2006, § 14, at 1 1. 5 . See Stephen H. Legomsky, Immigration and Refugee Law and Policy 1 03-06 (4th ed. 2005) (referencing several possible sources of federal immigration power, including the 166 INDIANA LAW REVIEW [Vol. 42: 165 the terrorist attacks of September 11, 2001, the federal government summoned state and local authorities to aid in the enforcement of federal immigration law.^ Many state and local governments willingly accepted this call7 Nonetheless, many other localities chose the opposite approach, adopting what are known as "sanctuary" or "non-cooperation" poHcies.^ Through local resolutions, departmental policies, executive orders, or city ordinances, these sanctuary cities generally "forbid local law enforcement personnel to ask about immigration status or report illegal aliens to federal authorities, except in the case of serious criminal offense."^ This polarization among cities in the United States only intensifies the national immigration debate. Rather than discussing whether state and local governments can (or cannot, in the case of sanctuary cities) enforce immigration law as a constitutional matter, ^^ this Note examines whether local governments should, from a public Commerce Clause, the Migration or Importation Clause, and the Naturalization Clause of the United States Constitution). 6. Nat'lComm'nonTerroristAttacksupontheU.S., THE9/1 1 Commission Report: Final Report ofthe National Commission on Terrorist Attacks Upon the United States 390 (2004). ("There is a growing role for state and local law enforcement agencies [for the enforcement of immigration law]. They need more training and work with federal agencies so that they can cooperate more effectively with those federal authorities in identifying terrorist suspects."). 7. Wolpin, supra note 3, at 6 (noting that in 2006, a total of "84 immigrant-related measures were signed into law in 27 states, twice the number passed one year earlier"). For a comprehensive database of state legislation related to immigration, see Migration Policy Institute, State Responses to Immigration: A Database of All State Legislation, http://www.migrationinformation.org/ datahub/statelaws_home.cfm (last visited Feb. 20, 2009). 8. Laurel R. Boatright, Note, "Clear Eye for the State Guy": Clarifying Authority and Trusting Federalism to Increase Nonfederal Assistance with Immigration Enforcement, 84 TEX. L. Rev. 1633, 1635(2006). 9. Amanda B. Carpenter, Sanctuary Cities Protect Illegals, Threaten National Security, Human Events, May 14, 2007, at 3. 1 0. For a constitutionally based discussion of sanctuary cities and the enforcement of federal inmiigration law by local and state government, see Boatright, supra note 8, at 1650-55; see generally Jorge L. Carro, Municipal and State Sanctuary Declarations: Innocuous Symbolism or Improper Dictates?, 16 Pepp. L. Rev. 297, 3 16-24 (1989) (discussing possible "legal ramifications of these official imprimaturs of the sanctuary movement" including federal preemption and First Amendment implications); Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 Alb. L. Rev. 179 (2006); Matthew Parlow, A Localist 's Casefor Decentralizing Immigration Policy, 84 Denv. U. L. Rev. 1 06 1 , 1 067- 69 (2007) (discussing an apparent circuit split that exists as to whether state and local governments have the authority to enforce federal immigration laws); Huyen Pham, The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power, 74 U. CiN. L. REV. 1373 (2006); Cecilia Renn, State and Local Enforcement ofthe Criminal Immigration Statutes and the Preemption Doctrine, 41 U. Ml\MIL. Rev. 999 (1987); Daniel Booth, Note, Federalism on ICE: State and Local Enforcement of Federal Immigration Law, 29 Harv. J.L. & PUB. Pol'Y 1063 (2006). 2009] DIVIDED WE STAND, UNITED WE FALL 167 policy perspective, be involved in the enforcement of federal immigration law. Part I discusses the underlying issues that form the roots of the United States' struggles with immigration, including the overwhelming presence of undocumented migrants, the effect that this presence has on the budgets of state and local governments, and the broken state of current federal immigration policy. Part n briefly discusses the existing legal limitations to state and local governments' authority to choose what role they will play in the enforcement of federal immigration law. Part HI provides a profile of sanctuary cities in the United States, including their historical development. Part HI also provides an overview of the potential hazards of nonfederal enforcement of immigration law that sanctuary policies seek to avert, as well as recent programs adopted by these localities to acclimate the undocumented migrant population into the larger community. Next, Part IV discusses recent Congressional proposals in the area ofimmigration, particularly Indiana Representative Dan Burton' s "No Sanctuary for Illegals Act"* ^ and the "Clear Law Enforcement for Criminal Alien Removal Act."*^ This Note concludes by arguing that public policy dictates that the Houses of Congress must work together with state and local government, considering all interests involved, in order to improve the current state of immigration policy. I. Profile of Undocumented Migrants in 21st Century America AND THE Broken State of the Immigration System The Pew Hispanic Center recently published a report concluding that many U.S. citizens rank immigration as one of the most important problems currently facing the United States, falling immediately after the War in Iraq, energy and gas prices, and the general state of politics.*^ Even the term "illegal immigration" sparks debate among immigration lawyers, legal scholars, and lawmakers ahke.*^ The issue of immigration lies at the forefront of public policy concerns.*^ However, before an effective analysis of immigration policy may begin, it is important to start with a discussion of those issues that form the backdrop of the 11. H.R. 3549, 1 10th Cong. (2007). 12. H.R. 842, 1 10th Cong. (2007). 13. Pew Hispanic Ctr., The State of American Pubuc Opinion on Immigration in Spring 2006: A Review of Major Surveys 2 (May 17, 2006), available at http://pewhispanic. org/files/factsheets/ 18.pdf [hereinafter Pew Hispanic Ctr., The State of American Pubuc Opinion]. 14. See Legomsky, supra note 5, at 1192 (arguing that the "choice of terminology has [serious] social and political connotations"). This Note uses the term "undocumented migrant," as suggested by Professor Legomsky, when referring to "non-U.S. citizens who are present in the United States without valid documentation of lawful immigration status." Id. at 1 193. 15. See Pew Hispanic Ctr., The State ofAmerican Pubuc Opinion, supra note 13, at 2. For further discussion related to American opinion on immigration, see generally The Pew Hispanic Ctr. , America's Immigration Quandary: NoConsensus onImmigration Problem OR ProposedFixes (Mar. 30, 2006), available «r http://www.pewhispanic.org/files/reports/63.pdf 1 68 INDIANA LAW REVIEW [Vol. 42: 1 65 immigration debate, including the overwhelming presence of undocumented migrants, the effect that this presence has on the budgets of state and local governments, and the broken state of current federal enforcement efforts. A. The ''Undocumented" Presence Researchers estimate that there are currently more than thirty-six million foreign-bom individuals living in the United States, with as many as twelve million living here without valid immigration documentation.^^ Using this estimate, undocumented migrants make up nearly 4% of the entire U.S. population. ^^ Of these twelve million undocumented persons, researchers estimate that up to one-half were initially admitted lawfully, "but overstayed or otherwise violated the terms of their authorization."^^ Researchers face many obstacles in their efforts to gather information on the undocumented migrant community. Factors contributing to the difficult task of calculating an accurate estimate of the size and demographics of the undocumented population include: "[T]he extent to which that population is undercounted in the census; rates of emigration and mortality; and whether 16. Parlow, supra note 10, at 1062; Wolpin, supra note 3, at 6. An immigrant will be considered unlawfully present within the United States under one of five set of circumstances: (i) Present without inspection (PWI). Any alien who enters U.S. territory without presenting himself or herself to an immigration inspector at a designated point of entry is "PWI." (ii) Appearing for inspection at a point of entry without proper documents. Typically, this provision applies to persons who attempt to enter at U.S. land borders hoping that their documents will not be checked. (iii) Appearing for inspection and making a material misrepresentation that makes the alien excludable. The misrepresentation could be made with false documents, false statements to the inspector, or presentation of a valid visa that was obtained by fraud. (iv) Overstaying the time period authorized for a temporary period of stay after entering the country legally. (v) Entering the United States legally, but becoming deportable for other violations of the terms of admission. Common grounds for deportability include unauthorized employment and conviction of an aggravated felony or a crime of moral turpitude. Michael M. Hethmon, The Chimera and the Cop: Local Enforcement ofFederal Immigration Law, 8 UDC/DCSLL. Rev. 83, 98 (2004) (referencing various sections ofChapter 8 of the United States Code) (footnotes omitted). 17. Parlow, supra note 10, at 1062. 18. U.S. CongressionalBudget Ofhce, The Impact ofUnauthorized Immigrants on THE Budgets of State and Local Governments 4 (Dec. 2007), available at http://www.cbo. gov/ftpdocs/87xx/doc87 1 1/1 2-6-Immigration.pdf. 2009] DIVIDED WE STAND, UNITED WE FALL 169 immigrants who are in the United States in a quasi-legal capacity should be classified as unauthorized."^^ Recent studies provide a wealth of information about the undocumented migrant community living in the United States.^^ In 2005, the Pew Hispanic Center published a report outlining the size and demographics of the undocumented migrant population living in twenty-first century America.^ ^ According to that report, migrants arriving from Mexico make up over half of the undocumented migrants currently living in the United States.^^ Between 1995 and 2005, the number of undocumented migrants increased by an average of 700,000-800,000 annually.^^ This growth rate is roughly synonymous with those lawfully-present migrants arriving in the country.^"^ However, some studies estimate that the number of undocumented migrants entering the United States over the past several years has declined.^^ Other estimates suggest that the rate of undocumented migration will continue to decrease in the future as well, not "because of civilian border patrols, laws being passed, [or] pronouncements by politicians," but rather, because ofthe expansion of the Mexican economy and the promise for new job opportunities in Mexico during the coming years.^^ Approximately 60% of the estimated twelve million undocumented migrants are located within six states: California, Texas, Florida, Illinois, New York and New Jersey.^^ Large metropolitan areas within these states, such as Los Angeles, 19. M at 3 (defining "quasi-legal immigrants" as "those individuals whose legal authorization has expired but for whom renewals of or adjustments to status have not yet been finalized"). 20. For a comprehensive discussion about the demographical patterns of the undocumented migrant population living in the United States, see generally KarinaFortunyetal., The Urban Inst., The Characteristics of Unauthorized Immigrants in Caufornia, Los Angeles County, and the United States (2007), available at http://www.urban.orgAJploadedPDF/4 11425_Characteristics_Immigrants.pdf; ROBERTO SURO, DIRECTOR, Pew HISPANIC Ctr., Attitudes About Immigration and Major Demographic Characteristics (Mar. 2, 2005), available at http://www.pewhispanic.org/files/reports/41.pdf. 2 1 . Jeffrey S . Passel, Pew Hispanic Ctr., Estimates ofthe Size and Characteristics OF THE Undocumented Population (Mar. 21, 2005), available at http://www.pewhispanic. org/files/reports/44.pdf [hereinafter Passel, ESTIMATES OF the Size]. 22. Id. at 2 (noting that in March 2004, Mexicans made up 57% of the undocumented migrant population; 24% originated from other Latin American countries; 9% were from Asia; 6% were from European nations and Canada; and 4% were from other miscellaneous countries). 23. Id. 24. Id. 25. See, e.g. , Maria Dickerson, U.S. Less Alluring to Illegal Migrants, L.A. TIMES, Dec. 26, 2007, at 1 (noting a 20% drop in the number of individuals arrested while attempting to cross the United States-Mexico border during fiscal year 2007). "A drop in apprehensions is often interpreted as a sign that fewer migrants are attempting the trip." Id. 26. Matthew Dowd, The Mexican Evolution, N.Y. TIMES, Aug. 1 , 2005, at A15. 27 . Passel, Estimates ofthe Size, supra note 2 1 , at 2 (noting the following concentration breakdown of undocumented migrant population in the United States using data compiled between 170 INDIANA LAW REVIEW [Vol. 42: 165 Houston, and New York City are currently recognized as sanctuary cities,^^ a factor likely contributing to the large undocumented presence within these states. However, this pattern is slowly changing as more undocumented migrants begin to settle in non-traditional areas, such as Arizona, North Carolina, and Tennessee.^^ The demographic data related to the undocumented migrant population is also worth noting. In 2004, men between the ages of eighteen and thirty-nine made up approximately43% ofthe undocumented migrant population.^^ Women within the same age group accounted for nearly 30% of the total undocumented migrant population.^ ^ A notable statistic is that children under the age of eighteen totaled 1.7 million, or approximately 17% of the total undocumented migrant population.^^ These "[d]emographic characteristics are key factors in estimating the [undocumented] population's fiscal impact on state and local governments."^^ B. The ''Cost" of the Undocumented Presence: The Impact of Undocumented Migrants on the Budgets ofState and Local Governments In December 2007, the Congressional Budget Office (CBO) published a paper discussing the impact of undocumented migrants on the budgets of state and local governments.^^ When considering the aggregate effect ofunauthorized inmiigration at the state and local level, the CBO paper indicated that many studies show the cost of providing public services to this population exceeds what undocumented migrants pay in state and local taxes.^^ However, the report also stated that when taking into consideration total revenues and spending at the federal, state, and local levels combined, "tax revenues of all types generated by immigrants—^both legal and unauthorized—exceed the cost of services they use."^^ Furthermore, the CBO paper concluded that state and local spending on services provided specifically to the undocumented migrant population "makes up a small percentage of those governments' total spending."^^ The CBO identified several factors that may influence the discrepancy between the cost of services provided and the undocumented migrant population's contribution in taxes. First, the extent to which undocumented 2002 and 2004: California (24%); Texas (14%); Florida (9%); New York (7%); Arizona (5%); Illinois (4%); New Jersey (4%); North Carolina (3%); and all other states (combined 32%)). 28. See infra note 125. 29. See Passel, ESTIMATES OF THE SiZE, supra note 2 1 , at 2. 30. /J. at 10 (Fig. 8). 31. Id. 32. Id. at 3, 10 (Fig. 8). 33. U.S. Congressional Budget Office, supra note 18, at 6. 34. Id. at 1. 35. Id. 36. Id. 37. Id. 2009] DIVIDED WE STAND, UNITED WE FALL 171 migrants use certain public resources is a factor contributing to the added costs incurred by state and local governments.^^ For example, in the area ofhealthcare, studies suggest that many undocumented migrants are uninsured.^^ In 2004, the Pew Hispanic Center estimated that over half of undocumented migrants under the age of eighteen and nearly 60% of adult undocumented migrants were uninsured.'^^ As such, these individuals tend to rely on public hospitals and emergency facilities when seeking medical treatment."^^ Yet another relevant factor affecting immigration-related spending by state and local governments involves the circumstances giving rise to the amount of taxes the undocumented migrant population contributes to state and local governments."^^ The issue does not rest solely on the argument that these individuals fail to comply with state and local tax laws. The CBO report noted that many researchers estimate up to 75% of undocumented migrants comply with federal, state and local tax laws."^^ In fact, the United States Social Security Administration estimated that undocumented migrants "contribute $6-7 billion in Social Security funds that they will be unable to claim.'"^"^ Instead, the lack of tax contributions is directly related to the earning capacity of the undocumented migrant population."^^ The CBO cited to several studies conducted by the Pew Hispanic Center and the Urban Institute indicating that undocumented migrant workers tend to earn much less than their native-bom counterparts and, consequently, a smaller portion of that income is subject to state and local taxes."^^ In 2004, for example, the Pew Hispanic Center estimated that ''the average annual income for unauthorized families was $27,400, 38. Id. 39. Id. at 2. 40. Jeffrey S. Passel, Pew Hispanic Ctr., Unauthorized Migrants: Numbers and Characteristics 35 (June 14, 2005), av(3//<7Z?/e a/ http://www.pewhispanic.org/files/reports/46.pdf [hereinafter Passel, Unauthorized Migrants]. 41. U.S . Congressional Budget Office, supra note 1 8, at 1 -2. 42. Mat 2. 43. Id. at 6. 44. RandyCapps&MichaelFix, TheUrban Inst., UndocumentedImmigrants: Myths AND Realities 1 (Oct. 25, 2005), available at http://www.urban.org/UploadedPDF/900898_ undocumented_iminigrants.pdf. 45. U.S. Congressional Budget Ofhce, supra note 18, at 2 (noting that the average household income of the undocumented migrant is "significantly less than that of both legal [migrants] and native-bom citizens"). For further discussion related to the effect of immigration on the American workforce, see generally Rakesh Kochhar, Pew Hispanic Ctr. , Growthin the Foreign-Born Workforce and Employment ofthe Native Born (Aug. 10, 2006), available at http://www.pewhispanic.org/files/reports/69.pdf. For a discussion from the perspective of the immigrant community, see generally Rakesh Kohhar, Pew Hispanic Ctr., Survey ofMexican Migrants: The Economic Transition to America (Dec. 6, 2005), available at http://www. pewhispanic.org/files/reports/58.pdf (providing information obtained during survey of Mexican migrants arriving in the United States). 46. U.S. Congressional Budget Ofhce, supra note 18, at 2. 172 INDIANA LAW REVIEW [Vol. 42: 165 compared with $47,800 for legal immigrant families and $47,700 for native-bom families.'"^^ The CBO also noted that as a result of undocumented migrants' lower earning capacity, these individuals have "less disposable income to spend on purchases subject to sales or use taxes"; revenues of which "[s]tate and local governments typically rely more heavily on" than those revenues generated from taxes based on income."^^ The CBO report also discussed in detail the effect of undocumented migrants on state and local government spending in the three primary areas of public services: education, health care, and law enforcement."^^ 1. Education.—The CBO credited education costs as the "largest single expenditure in state and local budgets."^° Pursuant to the landmark case oiPlyler V. Doe,^^ "state and local governments bear the primary fiscal and administrative responsibility of providing schooling" for the nearly two million undocumented migrant children currently living in the United States.^^ Public efforts to educate these children, however, can be a costly endeavor. For example, the costs of educating those children who do not speak English fluently can be between 20% and 40% higher than that of educating native-bom, English-speaking children.^^ In 2000, 1 .5% of all children enrolled in kindergarten through the fifth grade, and 3% of children enrolled in the sixth through the twelfth grade, were undocumented.^'^ 2. Health Care.—Publicly funded healthcare facilities must provide medical assistance to all individuals, "regardless of their ability to pay for such medical services or their immigration status."^^ According to the CBO, "[t]he amount of uncompensated care provided by some state and local govemments is growing because an increasing number of [undocumented migrants] are using those services," many of whom fail to have proper health insurance.^^ For example, in areas along the U.S.-Mexico border, state and local govemments incurred nearly $190 million in healthcare costs in 2000 as a result of providing uncompensated medical care to undocumented migrants.^'' This multi-million dollar deficit is hardly a national trend, however, as these uncompensated healthcare costs represent only a small percentage of total spending for most state and local govemments away from the U.S.-Mexico border.^^ In Oklahoma, for example, 47. Id. (citing Passel, UNAUTHORIZED Migrants, supra note 40). 48. Id. 49. See id. at 1,7-12. 50. Id. at 1. 51. 457 U.S. 202 (1982) (holding that children could not be denied access to a public education as a result of their immigration status). 52. U.S. CongressionalBudget Ofhce, supra note 18, at 7 (citing Plyler, 457 U.S. 202). 53. Id. at 2. 54. Capps & Fix, supra note 44, at 1 . 55. U.S. Congressional Budget Ofhce, supra note 18, at 8. 56. Id. 57. Id. This figure represents nearly one quarter of the uncompensated healthcare costs incurred by these state and local govemments during this time. Id. 58. Id. 2009] DIVIDED WE STAND, UNITED WE FALL 1 73 "the services provided to [undocumented migrants] have accounted for less than [1%] of the total individuals served and cost less than [1%] of the total dollars spent for Medicaid services. "^^ 3. Law Enforcement.—Those undocumented migrants who are accused or convicted of violating state and local criminal codes are not subject to immediate deportation.^^ Instead, these individuals must pass "through the local criminal justice system in the same fashion that any other suspect would."^^ During this time, state and local governments incur the costs of this process, including the investigation, detention, prosecution, and incarceration of those individuals accused of criminal activity.^^ The CBO concluded that immigrants, taken as a whole, are less likely to be subject to incarceration than native-bom citizens.^^ Researchers have yet to pinpoint the exact reason for this phenomenon.^"^ However, areas along the U.S.- Mexico border appear to incur greater costs related to law enforcement activities involving undocumented migrants.^^ In 1999, for example, local governments in California, Arizona, New Mexico, and Texas that are on the U.S.-Mexico border incurred more than $108 million in total law enforcement expenditures.^^ In its calculations, the CBO report failed to consider the added costs that state and local governments would incur if responsible for immigration enforcement within their communities. The necessary funds associated with additional personnel and training programs would presumably create further financial burden on the already strained budgets of state and local governments. 4. Federal Assistance.—The CBO identified several federal programs established to "assist state and local governments in funding the additional costs associated with providing services to [undocumented migrants]."^^ "Those 59. Id. at 9. 60. Id. Unless such crimes are "immigration related" offenses. Id. 61. Id. For a summary of the number of undocumented migrants entering the criminal justice system during the mid- 1 990' s, and the types of offenses for which they were convicted, see generally REBECCA L. CLARK & ScoTT A. ANDERSON, The Urban Inst., Illegal ALffiNS in Federal, State and Local Criminal Justice Systems (2000), available at http://www.urban. org/UploadedPDF/4 10366_alienjustice_sum.pdf. 62. U.S. CongressionalBudgetOfhce, supra note 1 8, at 9 ("The federal government may take custody of those who are convicted after they have completed their sentences and then begin the deportation process, but until that point, state and local governments bear the cost . . . ."). 63. Id. 64. For further discussion on incarceration rates of immigrants versus native-bom citizens, see generally Kristin F. Butcher & Anne Morrison Piehl, WhyAre Immigrants ' Incarceration Rates So Low? Evidence on Selective Immigration, Deterrence, andDeportation (Fed. Res. Bank ofChi., Working Paper No. 2005-19, 2005), available at www.chicagofed.org/publications/workingpapers/ wp2005_19.pdf. 65. U.S. Congressional Budget Ofhce, supra note 18, at 9. 66. Id. 67. Id. at 10 (discussing the No Child Left Behind Act of 2001, Medicaid, and the Immigration Reform and Control Act of 1986). 174 INDIANA LAW REVIEW [Vol. 42: 165 programs, however, do not offset the full costs of providing those services" related to education, healthcare, and law enforcement incurred by state and local governments.^^ Consequently, state and local governments are left to bear much of the weight that is created as a result of the United States' broken federal immigration policy. C. The Broken State of the Immigration System Immigration lawyers, scholars, and lawmakers alike would likely agree that the current state of immigration law and policy in the United States is broken. Aside from the large number of individuals evading inrniigration enforcement efforts and entering or remaining in this country without proper immigration documentation,^^ additional concerns exist related to the lack of federal enforcement resources. As the debate surrounding federal immigration policy continues, it remains clear that '*the muddled status quo cannot hold."^° 1. Excessive Number Disparity Faced by Federal Law Enforcement.—The power to regulate immigration is traditionally recognized as being vested in the federal govemment.^^ The U.S. Bureau of Immigration and Customs Enforcement (ICE) is the agency formally responsible for enforcing the United States' federal immigration laws, which includes the responsibility for the removal of those individuals unlawfully present.^^ Effective enforcement over these twelve million undocumented migrants faces a huge number disparity, however, as there are currently only two-thousand ICE employees working solely as enforcement officers.^^ Recent studies estimate that the current number of individuals living unlawfully in the United States '"outweighs the number of federal agents whose job it is to find them within our borders by 5,000 to l.'"^"^ 2. Lack ofResources During Subsequent Legal Proceedings.—Defects in the current federal immigration system result not only from a lack of personnel resources during the detection and apprehension phase of immigration enforcement, but also from a lack of appropriate resources during the subsequent legal proceedings. There is a lengthy delay in the Department of Homeland Security's deportation proceedings as courts continue to be hindered with huge 68. Id. 69. See supra text accompanying note 16. 70. Boatright, supra note 8, at 1674. 7 1 . Legomsky, supra note 5, at 103-06 (referencing possible sources of federal immigration power, including the Commerce Clause, the Migration or Importation Clause, and the Naturalization Clause of the United States Constitution). 72. See 6 U.S.C. § 252(a)(1) (2006) (establishing the "Bureau of Border Security"). Homeland Security, pursuant to 6 U.S.C. §§ 452, 542(b)&(c), later changed this Bureau to ICE. See 3 C.J.S. Aliens § 199 (2003); see also U.S. Immigration and Customs Enforcement, http://www.ice.gov/ about/index.htm (last visited Feb. 3, 2009). 73. Parlow, supra note 10, at 1062-63 (noting that also ICE currently has more than 17,000 total employees). 74. Booth, supra note 10, at 1066 (quoting 151 CONG. Rec. S7853 (daily ed. June 30, 2005)). 2009] DIVIDED WE STAND, UNITED WE FALL 1 75 caseloads7^ According to the U.S. Immigration and Customs Enforcement Annual Report for Fiscal Year 2006, "[i]n immigration courtrooms, ICE attorneys prepare about 1 ,430 cases, create 683 new case records, create 562 new document records and obtain 528 final removal orders" on a daily basis7^ Likewise, the Department of Homeland Security lacks appropriate funding and personnel to properly detain those individuals deemed deportable or removable/^ Researchers estimate that the Department ofHomeland Security has only 20,000 detention "beds" available for its detainees, while the number of undocumented migrants runs into the millions^^ As a result of this shortage, federal authorities historically have declined to take custody of undocumented migrants arrested by local officials.^^ In addition, the physical removal of individuals deemed "deportable" can turn into a costly endeavor for federal immigration authorities.^° Michael Hethmon, a staff attorney for the Federation for American Immigration Reform (FAIR), noted that most aliens are unable to afford transportation back to their home country once the courts deem them deportable.^ ^ As such, the government is forced to cover the expenses of purchasing a one-way airline ticket back to the alien's home country.^^ Furthermore, many airline companies refuse to board deported individuals, unless they are escorted by at least one federal immigration officer; thereby increasing any transportation and lodging costs associated with the seemingly simple act of physically removing the alien from the United States.^^ n. Legal Limitations to State and Local Governments' Ability to Choose Their Role in Immigration Enforcement A. 8 U.S.C. §§ 1373 and 1644 The emphasis toward state and local assistance in immigration enforcement began years before the September 1 1, 2001, terrorist attacks. In 1996, Congress passed into law two statutes that limit state and local governments' ability to 75. Honorable Rachel L. Brand, Assistant Attorney General for Legal Policy, U.S. Dep't of Justice, Panel Discussion at the George Mason University Civil Rights Law Journal Symposium: Immigration—Practice and Policy Fall 2006 (Oct. 18, 2006), in 17 GEO. MASON U. Civ. Rts. L.J. 545, 550 (2007). 76. U.S. Immigration and Customs Enforcement, ICE Fiscal Year 2006 Annual Report, at ix (2007), available at http://www.ice.gov/doclib/about/ICE-06AR.pdf [hereinafter U.S . Immigration and Customs Enforcement, ICE]. 77. See Hethmon, supra note 16, at 132. 78. See id. 79. See Boatright, supra note 8, at 1635. 80. See Hethmon, supra note 16, at 134. 81. Id. 82. Id. 83. Id. 176 INDIANA LAW REVIEW [Vol. 42: 165 freely choose what role they will play in the enforcement of federal immigration law. The first statute, 8 U.S.C. § 1373, states in pertinent part: Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. ^"^ Similarly, 8 U.S.C. § 1644 states: Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigrant status, lawful or unlawful, of an alien in the United Stales. ^^ These statutes specifically prohibit government agencies at any level from preventing their employees from voluntarily conveying information regarding another individual's immigration status to federal authorities.^^ Interestingly, sanctuary policies appear to run afoul of these federal statutes, yet continue to exist today virtually unchallenged.^^ So long as government agencies do not retaliate against or punish employees who communicate with federal immigration authorities, no violation of the above-mentioned statutes appears to exist by the mere preserve of a written sanctuary policy. The debate regarding these sanctuary policies, however, rests on the argument that these policies are violations of federal law that are just not enforced. In City of New York v. United States,^^ New York City, a self-identified sanctuary since 1989,^^ challenged the constitutionality of 8 U.S.C. § 1373 and 8 U.S.C. § 1644.^^ The City argued, among other things, that these sections of the U.S. Code violated the Tenth Amendment ofthe Constitution^^ ''because they directly forbid state and local government entities from controlling the use of information regarding the immigration status of individuals obtained in the 84. 8 U.S.C. § 1373(a) (2006). 85. Id. § 1644. 86. See Maria Pabon Lopez, The Phoenix Risesfrom El Cenizo: A Community Creates and Affirms a Latino/A Border Cultural Citizenship Through its Language and Safe Haven Ordinances, 78 Denv. U. L. Rev. 1017, 1039 (2001). 87. See, e.g., id. at 1039-40 (discussing the Safe Haven Ordinance). 88. 179F.3d29(2dCir. 1999). 89. See id. at 31 (noting that New York City's sanctuary policy was issued in the form of Executive Order No. 124 in August 1989 by then mayor, Edward Koch). 90. Id. at 33. 91. U.S. Const, amend. X ("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."). 2009] DIVIDED WE STAND, UNITED WE FALL 177 course of their official [duties]."^^ Upon review of the district court's dismissal of the complaint,^^ the U.S. Court of Appeals for the Second Circuit upheld the constitutionality of §§ 1373 and 1644 because "Congress ha[d] not compelled state and local governments to enact or administer any federal regulatory program."^"^ Despite its loss in this constitutional challenge, New York City is still formally recognized as a sanctuary city.^^ More recently, the Department of Justice (DOJ) implemented a new policy that would further restrict state and local governments' chosen role in federal immigration enforcement.^^ Beginning in 2001, the DOJ began to include immigration warrants in a national database traditionally reserved for wanted felons.^^ Police officers customarily query this national database during any routine stop.^^ Departmental policy requires that officers arrest individuals if the query shows that there is a warrant out for the individual' s arrest.^^ Through this policy, police officers are inadvertently enforcing federal immigration law through the course of their day-to-day duties. Concerns arise, however, from studies suggesting that the information contained in this database is inaccurate. ^^ According to the Migration Policy Institute, information entered into this national database between 2002 and 2004 contained an error rate of A2%}^^ Furthermore, additional issues exist "when addressing state and local law enforcement's access to immigration databases" such as this.'^^ For example, "how can the quality of the database be improved to avoid potential problems such as 'false positives' and individuals with similar names." ^°^ 92. City ofNew York, 179 F.3d at 33. 93. City of New York v. United States, 971 F. Supp. 789, 799 (S.D.N.Y. 1997), ajf'd, 179 F.3d 29 (2d Cir. 1999). 94. City of New York, 179 F.3d at 35 (noting also that "[t]hese Sections do not directly compel states or localities to require or prohibit anything. Rather, they prohibit state and local governmental entities or officials only from directly restricting the voluntary exchange of immigration information with the [federal authorities].")- 95. See infra note 125 and accompanying text. 96. See Ben Amoldy, "Sanctuary" Cities for Illegals Draw Ire, CHRISTIAN Sci. MONITOR, Sept. 25, 2007, at 3. 97. Id. 98. Id. 99. Id. 100. Id. (discussing the Migration Policy Institute's Study). 101. Id. 102. Cong. Research Serv., EnforcingImmigrationLaw: TheRole ofStateandLocal Law Enforcement 32 (Aug. 14, 2006), available at http://www.ilw.com/immigdaily/news/ 2006,09 12-crs.pdf. 103. Id. 178 INDIANA LAW REVIEW [Vol. 42: 165 B. Recent Legal Action Related to Sanctuary Policies In City ofNew York v. United States, New York City's sanctuary policy was not the basis of the legal challenge; rather, New York City challenged provisions of the United States Code that limited the City's ability to choose its role in federal immigration enforcement efforts. ^^"^ To date, no party has brought a constitutional challenge regarding the validity of any specific sanctuary ordinance or order. Most recently. Judicial Watch, a public interest group that advocates the investigation and prosecution ofgovernment corruption, ^^^ brought open records lawsuits against police departments in Washington, D.C.; Chicago, fllinois; and Los Angeles, California. *°^ Judicial Watch also conducted investigations into similar policies of police departments in Houston, Texas, and Westchester, New York.^^^ In its most recent litigation, the organization sought judicial orders to compel local police departments to proffer documents related to their sanctuary policies, many of which remained undisclosed to the public. ^^^ What exactly Judicial Watch is looking to gain from the production of these documents is unclear. The organization believes that access to these documents advances one of its core missions: "[T]o promote transparency, integrity, and accountability in government and fidelity to the rule of law."^°^ Information provided on Judicial Watch's website indicates that these lawsuits are still ongoing. ^^^ To date, neither Congress nor the Court has clearly explained the precise role states are to play in the enforcement of federal immigration law.^^* As a result, state and local governments are ultimately left to choose their own individual immigration policy. The reality is that "[c]ity councils can[not] change the federal government's failed immigration policies, but they can choose whether to offset or intensify the damage."^ ^^ This lack ofconsistency in the enforcement of federal immigration law among state and local governments creates a 104. City of New York v. United States, 179 F.Sd 29, 33 (2d Cir. 1999). 105. Judicial Watch, About Us, https://www.judicialwatch.org/about.shtml (last visited Feb. 5, 2009). 106. See Judicial Watch, Judicial Watch Files Open Records Lawsuit Against Washington, D.C. Police Department over Illegal Immigration Policies, Mar. 12, 2007, http://www. judicialwatch,org/6205 . shtml . 107. Id. 108. Id. 109. Judicial Watch, Litigation, http://www.judicialwatch.org/litigation (last visited Feb. 5, 2009). 110. Id. (noting that immigration enforcement is "currently [being] litigated"). 111. The City ofNew York filed a petition for certiorari following its loss in City ofNew York V. United States; however, the U.S. Supreme Court subsequently rejected such petition. City of New York v. United States, 528 U.S. 1115 (2000). No party has brought a similar challenge since that time. 112. Miche\QWuckeT,Op-Ed.,A Safe Haven in New Haven,N.Y.TmES, Apr. 15,2007, § 14, at 15. 2009] DIVIDED WE STAND, UNITED WE FALL 179 patchwork "quilt of local immigration policies,"* ^^ and only fans the fires of the existing immigration debate. In order to extinguish these concerns, it is important that Congress issue precise guidelines as to the proper role of state and local governments in the enforcement of federal immigration law.**"^ The issue of state and local involvement is ultimately left in the hands of Congress to decide and outline. As the raging debate surrounding immigration continues, Congress should finally define in clear and unequivocal terms the proper role, if any, of state and local governments in the enforcement of federal immigration law. in. Profile of Sanctuary Cities in the United States A. Historical Development: Past and Present In the United States, the concept of "sanctuary" is hardly a recent development. During the 1980s, religious organizations across the country provided sanctuary for undocumented Central American refugees fleeing the political turmoil occurring in their home countries.**^ This initial sanctuary movement was a response to the federal Immigration and Naturalization Service's denial of the majority of refugee applications filed during this time despite the passage of the Refugee Act of 1980.**^ During the mid-1980s, the sanctuary movement crossed into the public sector, as the cities of Berkeley, California; St. Paul, Minnesota; Madison, Wisconsin; and Cambridge, Massachusetts, among others, passed local resolutions to serve as sanctuaries for Central American refugees.**^ It is from these historical roots that the modem sanctuary movement has evolved, expanding its protection from Central American refugees to all foreign-bom 113. Kevin Johnson, Reportfor Local Police Explains Immigration Issues, USATODAY, July 25, 2007, at 5A. 114. See Linda Reyna Yanez & Alfonso Soto, Local Police Involvement in the Enforcement ofImmigration Law, 1 HiSP. L.J. 9, 50 (1994) ("If the states are to be preempted, Congress needs to indicate this stance in clear and unequivocal tenns. If state participation is to be encouraged, Congress should issue clear and authoritative guidelines to promote uniform application . . . .")• 115. See John M. Gannon, Note, Sanctuary: Constitutional Arguments for Protecting Undocumented Refugees, 20 SUFFOLK U. L. REV. 949, 954-56 (1986) (noting that many sanctuary advocates were prosecuted during this time for harboring and transporting these undocumented refugees). For additional legal analysis of this initial sanctuary movement made in light of the arrival ofCentral American refugees, see Paul Wickham Schmidt, Refuge in the United States: The Sanctuary Movement Should Use the Legal System, 15 HOFSTRA L. REV. 79 (1986). 116. See Ignatius Bau, Cities ofRefuge: No Federal Preemption of Ordinances Restricting Local Government Cooperation with the INS, 1 LaRazaL.J. 50, 50-51(1 994) (noting that between 1983 and 1991, the INS denied 97% of Salvadoran and 98% of Guatemalan applications for asylum). 117. See id. at 51-52. Many of these areas continue to be recognized as immigration sanctuaries to this day. See infra note 125 and accompanying text. 180 INDIANA LAW REVIEW [Vol. 42: 165 individuals. Through local resolutions, departmental policies, executive orders, or city ordinances, these sanctuary policies generally "forbid local law enforcement personnel to ask about immigration status or report illegal aliens to federal authorities, except in the cases of serious criminal offense."^ *^ The substantive provisions of sanctuary policies are categorized as: "[(1)] no discrimination based on [immigration] status; [(2)] no enforcement of [federal] immigration laws; [(3)] no enforcement of civil [federal] immigration laws; [(4)] no inquiry about [immigration] status; and [(5)] no notif[ication of] federal immigration authorities."^ ^^ Confusion still exists, however, as to the extent of protection these local governments offer to undocumented migrants. ^^° These local governments appear to merely take a passive approach to federal immigration enforcement with the "don't ask, don't tell" policies that they implement. ^^* There are no reported instances oflocal law enforcement personnel physically interfering with the efforts of federal immigration enforcement officers. ^^^ However, those who oppose these sanctuary policies argue that this passivity is just as dangerous as proactive resistance, which is where the heart of the debate lies.^^^ In 2007, researchers identified as many as seventy cities, counties and state governments that have sanctuary-like policies in place. ^^"^ In 2006, however, the Congressional Research Service (CRS) reported only thirty-two different cities, and counties that are formally recognized as immigration "sanctuaries."'^^ The 118. Carpenter, supra note 9, at 3. 1 19. Pham, supra note 10, at 1389. 1 20. See, e.g. , Amoldy, supra note 96, at 2 (referencing a comment made by Michael Chertoff, Former Secretary ofHomeland Security, who said, "People use the term 'sanctuary city' in different ways, so I'm never quite sure what people mean."). 121. Id. 122. Id. 1 23. See Hethmon, supra note 16, at 85 ("To turn an official blind eye to violations of federal immigration law in such circumstances is not an exercise of state sovereignty, but rather impermissible passive resistance to federal law."). 124. See Amoldy, supra note 96, at 2 (discussing the court by the National Immigration Law Center). 125. Cong. Research Serv., supra note 102, at 26 n.85. The cities enumerated in the report include: Anchorage, Alaska; Fairbanks, Alaska; Chandler, Arizona; Fresno, California; Los Angeles, California; San Diego, California; San Francisco, California; Sonoma County, California; Evanston, Illinois; Cicero, Illinois; Cambridge, Massachusetts; Orleans, Massachusetts; Portland, Maine; Baltimore, Maryland; Takoma Park, Maryland; Ann Arbor, Michigan; Detroit, Michigan; Minneapolis, Minnesota; Durham, North Carolina; Albuquerque, New Mexico; Aztec, New Mexico; Rio Arriba County, New Mexico; Santa Fe, New Mexico; New York, New York; Ashland, Oregon; Gaston, Oregon; Marion County, Oregon; Austin, Texas; Houston, Texas; Katy, Texas; Seattle, Washington; and Madison, Wisconsin. Id. FIRM provides a number of examples of local pro-inmiigration resolutions on its website. FIRM, http://www.fairimmigration.org/leam/ immigration-reform-and-immigrants (last visited Feb. 5, 2009). 2009] DIVIDED WE STAND, UNITED WE FALL 181 most notable locality not listed within the CRS report that is currently recognized as a self-identified immigration sanctuary is Washington, D.C/^^ Police departments in San Diego, California; Chandler, Arizona; and Philadelphia, Pennsylvania, adopted similar non-cooperation policies in regards to federal immigration law.^^^ David Cohen, spokesperson for the San Diego Police Department (SDPD), argued in support of SDPD's policy: '"We've spent decades establishing trust . . . with our very diverse immigrant conmiunities. If there is an immigration emergency tied to criminal activity, ofcourse we'll assist. But if it is simply an immigration violation ... we will not be involved. '"^^^ The Chandler, Arizona, Police Department's non-cooperation policy similarly prohibits the Department's Officers from arresting an individual whose only violation is immigration-related.^^^ Additionally, the Chandler policy "prohibits [the] police from notifying the [federal authorities] of undocumented persons when those persons are material witnesses of crime, are seeking medical treatment, or are involved in family disturbances, minor traffic offenses, or minor misdemeanors." '^° The passage of sanctuary policies is a growing trend in the United States. ^^^ The sanctuary policies discussed thus far were all at the department, city, and county level. ^^^ Worth noting, however, is the fact that both Alaska and Oregon have adopted statewide sanctuary policies forbidding state agencies from using government resources to aid in the enforcement of federal immigration law.^^^ 126. See Carpenter, supra note 9, at 3. In 2007, the Washington, D.C., PoHce Department pubHshed a pubhc memorandum in which Pohce Chief Charles H. Ramsey stated, MPD [Metropolitan Police Department] officers are strictly prohibited from making inquiries into citizenship or residency status for the purpose of determining whether an individual has violated the civil immigration laws or for the purpose of enforcing those laws . . . the MPD is not in the business of inquiring about the residency status of the people we serve and is not in the business of enforcing civil immigration laws. Id. 127. See Rebecca Smith et al., L