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Chicago Mayor Rahm Emanuel (Image: Jim Young / Reuters / Landov)
For better or for worse: The ‘Guarantee Clause’ vs. Sanctuary Cities
The Denver Post reported last Tuesday that Denver Mayor Michael Hancock was preparing to sign an executive order making Denver a ‘sanctuary city’, prohibiting officers from enforcing federal immigration law, and creating a legal defense fund to assist illegal immigrants with cost of fighting federal deportation efforts.
In the wake of this report, many residents of the ‘Mile High City’ were understandably outraged. Many wonder why the U.S. federal government does not arrest local leaders like Mayor Hancock for openly defying the federal government.
Article 4 of the U.S. Constitution prevents interference with local authorities
The answer to the question of why local authorities are not arrested for defying the federal government can be found in Article 4 of the U.S. Constitution.
While not as well known as other constitutional articles, Article 4 is arguably one of the most important clauses protecting American independence. In short, Article Four outlines the relationship between each state and its fellow states, and between the collective states and the federal government.
Article 4 is the reason why a marriage performed in North Dakota is considered legal in New Jersey. It is the reason why a person with an Arizona driver’s license may legally drive on Nevada roads. Article 4 obligates each state to give “full faith and credit” to state-issued documents issued by other states:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
Article 4 is also the reason why a citizen of Utah may not be arrested in Utah by Idaho authorities without a formal extradition process. In effect, citizens are protected against unlawful or arbitrary seizure by officers of another state.
There are other protections and restrictions within Article 4, such as prohibiting one state from splitting into two new states without congressional approval. Some sections within Article 4 have even been rendered moot over the years, such as the requirement that one state return runaway slaves to their owners in another state.
Article 4, Clause 1: A “Republican Form of Government”
The reason why federal authorities do not arrest local mayors and governors for their defiance of federal immigration law has to do with Clause 1 of Article 4 of the U.S. Constitution, known as the “Guarantee Clause”.
“The United States shall guarantee to every State in this Union a Republican Form of Government” – Article 4, Clause 1 of the U.S. Constitution
Article 4, Clause 1 states, “The United States shall guarantee to every State in this Union a Republican Form of Government”. In effect, this clause guarantees a ‘republican’, or representative, form of government in every state.
In a ‘democracy’, the majority rules, and can impose its will on a weaker minority. In a ‘republic’, however, the people are represented by elected leaders, who are empowered to pass laws for the benefit of all of their constituents.
The United States is a republic, and follows a republican, or representative form of government. This tenant is exemplified within the Pledge of Allegiance’s phrase, “and to the republic for which it stands.”
If the federal government could enter a state, for example, and nullify a governor’s budget proposal or a city’s zoning ordinance, that would interfere with the representative government in those states. Similarly, the federal government is disinclined to intervene even when a mayor decides to make their city a ‘sanctuary’ for illegal immigrants.
Essentially, under the constitution, cities and states must deal with their own elected officials who defy federal laws. Under a republican system of government, citizens can remedy such defiance by electing a new mayor or a new governor who respects U.S. immigration laws.
History will ultimately judge the “sanctuary city” concept
There have been times when the federal government has forcefully intervened against a local state authority, in apparent contradiction to the the Constitution’s 4th Article “Guarantee Clause”.
In 1957 nine black students were being prevented from entering a segregated school by Orval Faubus, the Governor of Arkansas. The U.S. Supreme Court had previously issued its historic Brown v. Board of Education decision, declaring all laws establishing segregated schools to be unconstitutional. When Governor Faubus refused to permit the students to enter the school, the federal government intervened, ultimately dispatching troops from the 101st Airborne division to escort the students into the school.
Opponents of local ‘sanctuary’ jurisdictions may be frustrated with what they believe to be blatant defiance of federal laws by local authorities. They may wonder why the federal government does not dispatch troops to arrest those leaders in the same way the 101st Airborne was dispatched to Little Rock in 1957.
However, it is important to remember that the troops dispatched in 1957 did not arrest Governor Faubus. They merely ensured that the constitutional rights of the black students were protected. In response to concerns expressed by Faubus himself about his possible arrest, President Eisenhower sent a telegram to Faubus on September 5, 1957 in which he wrote, “The only assurance I can give you is that the Federal Constitution will be upheld by me by every legal means at my command.” This letter illustrates the focus of the federal government; enforcing the constitution. Ultimately, the situation was resolved without Faubus’ arrest and the Arkansas schools were de-segregated.
History has shown that Governor Faubus’ defiance of the desegregation laws in 1959 was NOT moral or just, and in that instance, history has vindicated the federal government for its role in interfering with local authorities, even though that interference was seen by many as running afoul of the Constitution’s 4th Article “Guarantee Clause”.
History is unlikely to remember the ‘sanctuary city’ concept as anything but an immoral and irresponsible attempt at political correctness, taken to a ridiculous extreme, that caused damage and injury to the republic and its citizens.
There have been other times when history has vindicated the other side of the coin, and sided with local authorities who defied the federal government. The legislatures of Maine, Massachusetts, Connecticut, Rhode Island, Michigan, and Wisconsin defied the Fugitive Slave Act during the Civil War era by passing opposing “personal liberty laws”. History has made its judgement on the morality of that defiance and has vindicated those states. Slavery was and is an immoral and unjust institution, and those state’s defiance of that federal law is now seen as a noble, moral act of defiance.
History will ultimately render its judgement on the ‘sanctuary city’ concept
History will ultimately render its judgement on the ‘sanctuary city’ concept as well. However, given the fact that the ‘sanctuary’ idea, by its very nature, provides sanctuary not to law-abiding people, but to individuals who have demonstrated contempt for U.S. law, who refuse to become citizens of the United States, and who refuse to become voting members of their community, history is unlikely to remember the ‘sanctuary city’ concept as anything but an immoral and irresponsible attempt at political correctness, taken to a ridiculous extreme, that caused damage and injury to the republic and its citizens.
The federal government may still intervene to arrest local sanctuary city authorities, but it is unlikely to do so, as such actions would run afoul of the 4th Article’s “Guarantee Clause”. However, those who may be depending on such federal restraint would do well to remember the Little Rock Crisis of 1959. When a local authority’s actions become so outrageous as to threaten the constitutional rights and safety of their own citizens, the federal government swiftly intervened.
Unless they reconsider their misguided motives and return to the rule of law, local authorities who promote ‘sanctuary’ policies may well find themselves like Governor Faubus, facing a disgusted country and federal troops knocking at their door.
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Keywords: federal immigration law, Guarantee Clause, Orval Faubus, Republican Form of Government, sanctuary city.