“SB2710 does not prohibit the most common sanctuary city policies and in no way outlaws sanctuary cities.”
Last week, Mississippi Gov. Phil Bryant signed a bill that many have claimed will “outlaw sanctuary cities” in the state. However, a closer reading of the bill shows it does not.
Sen. Sean Tindell (R-Gulfport) sponsored Senate Bill 2710. As originally introduced, it would have banned so-called sanctuary policies on a local level and required all local governments in Mississippi to enforce federal immigration laws to the full extent permitted by federal law. Original provisions in the bill required state and local law enforcement officers to assist federal agencies in the enforcement of federal immigration law and to inform federal authorities when they took an undocumented immigrant into custody.
Those requirements were amended out in a Senate committee. As passed, SB2710 has a much narrower focus. While widely reported as prohibiting sanctuary cities, the new law does not address most sanctuary policies. SB2710 essentially mirrors federal statute 8 U.S.C. 1373, which bans state and local policies that prohibit the sharing of information with the federal government about the immigration status of an individual. Most sanctuary city policies don’t bar such communications. They generally do one of two things, or both,
- Ban law enforcement from asking a person about their immigration status.
- Prohibit keeping a person in jail beyond the time they’re required to be there upon receipt of a federal immigration detainer request.
As signed by Gov. Bryant, the new law would not bar implementation of local provisions prohibiting inquiries about a person’s immigration status. It also doesn’t prohibit local authorities from releasing undocumented immigrants from custody once they’ve posted bond, or served their time, even if ICE requests an immigration detainer. In short, SB2710 does not prohibit the most common sanctuary city policies and in no way outlaws sanctuary cities.
Currently, no Mississippi jurisdiction has actual sanctuary city policies in place, according to the first ICE report on the issue released March 20, as required by Pres. Trump’s executive order on immigration.
SB2710 initially passed the Senate by a 32-16 vote. It cleared the House with an amendment 76-41. The Senate gave final approval concurring with the House amendment by a 39-11 margin. With Gov. Bryant’s signature, the law went into immediate effect.
Some U.S. cities, and the state of California, have refused to participate in a narrow segment of federal immigration enforcement. In all of these situations, government and law enforcement agencies in these cities don’t actively stop ICE from enforcing immigration laws. However, in a narrow sense, they simply don’t provide any support or assistance to federal agents. These cities leave it to the federal government to enforce federal law.
Non-cooperation with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states or their political subdivisions to help implement or enforce any federal act or regulatory program.
It would appear that Pres. Trump recognizes this as well. In his Jan. 25 Executive Order on “sanctuary jurisdictions,” he acknowledges that his policy of having state and local agents act as interior federal immigration enforcement will be done “with the consent of State or local officials.”
State laws barring sanctuary policies provide a constitutional way to force cities to cooperate with immigration enforcement. The federal government cannot do it. But if a state decides it wants to spend its time, money and resources assisting the federal government, they can certainly make that choice.
This commentary was originally published at The Tenth Amendment Center.