The sanctuary cities ruling is a win for states' rights

The Trump administration's legal assault on so-called sanctuary cities took a hit last week when a court refused to order Chicago officials to cooperate with immigration officers in detaining noncitizens.

More precisely, the judge dismissed a federal lawsuit challenging provisions that, in the court's words, "prohibit state and local government support of civil immigration activities."

The timing proved to be a bit awkward for the administration, given that the decision was handed down just as the Justice Department was announcing, with great fanfare, a similar lawsuit against the city of New York.

Now, I don't know whether the ruling by District Court Judge Lindsay Jenkins will stand up on appeal, but my libertarian soul is heartened by the language of the 64-page opinion, words that whisper of a path toward a better democracy. Two cheers for dual sovereignty. And localism. Also states' rights.

Stuff like that, but more elegantly put.

"Sanctuary city," as courts and commentators have pointed out, is a poorly chosen term. It gathers under a single, wide roof a broad variety of policies that share one key feature: what advocates like to call the prioritization of local over national interests in the deployment of law-enforcement personnel.

In today's argot, of course, the reference is primarily to immigration policy - specifically, the extent to which local officials will assist in efforts to detain noncitizens who are the subjects of administrative warrants. (Most localities will cooperate in the service of criminal warrants.)

I confess to being a bit of an agnostic on the legality of sanctuary cities, but I am always fascinated by the steady rotation of history's wheel. And rotate it has. I'm old enough to remember when the fiery and divisive question was whether individual states - alleged to be overwhelmed as the feds did nothing to curb illegal immigration - could adopt their own restrictions on those who entered the country without permission. (Spoiler alert: No.) (Well, maybe a little bit - um, depending.)

Now the roles are reversed. In United States v. Illinois, the just-decided case, the federal government argued that the Immigration and Naturalization Act preempts Chicago's policies limiting the information that municipal and county employees may share with immigration authorities.

Judge Jenkins rejected this view.

Chicago's sanctuary rules, she wrote, "don't make ICE's job more difficult; they just don't make it easier." (Emphasis in the original.) More important, if the Immigration and Naturalization Act indeed does require local officials to assist federal agents in enforcement of civil immigration warrants, it runs afoul of the anti-commandeering doctrine.

This marvelously named rule restricts the ability of the federal government to require state and local officials to enforce federal law. As the US Supreme Court explained in 1997, the federalist system, dividing sovereignty between the state and federal governments, does not permit "impressing state police officers into federal service." At the time, critics derided the rule as just another hoary right-wing invention to stifle the administrative state. Goose, meet gander.

To be sure, Judge Jenkins' opinion is correct only if she has properly drawn the murky line between declining to cooperate with federal agents and actively interfering with their work. I'm not saying the outcome is wrong; I'm pointing out where the argument pivots. If the ruling in Chicago's favor ends up being reversed, the question of cooperation-versus-interference would seem the most promising ground.

But whether or not the decision is ultimately upheld - and regardless of one's position on any particular immigration issue - the judge's opinion reinforces a profound and oft-forgotten aspect of democracy, an aspect on which the anti-commandeering doctrine rests. The rule, she writes, is "a bulwark against abuse of government power."

The inability of the federal government to conscript state officials into enforcing federal law is in and of itself a check on unbridled federal authority. Perhaps more importantly, the doctrine "also promotes political accountability by enabling voters to distinguish which sovereign is responsible for a specific policy."

The implication is that the lawgivers should be close to the people.

Geographically close.

Many words have been spilled arguing over government size. But the crucial question in today's whirligig politics shouldn't be small versus large; it should be near versus far. In the 19th century, the people were often referred to collectively as "the democracy" - a plural. No one doubted that government should be close to "the democracy." Close enough that voters literally encountered the lawgivers in the street.

There were high-sounding rationales for this theory, many of them masks for terrible crimes. But there is also a practical political aspect to keeping as much government as possible close to the people. Were the rules made by people we see every day, perhaps we'd be less likely to develop the resentments and alienation that vulgarize our public life. And perhaps the lawgivers themselves would consider more thoughtfully what their constituents believe.

Yes, it's true, state and local governments have in their time enacted odious and oppressive laws. But that historical truth is no more an argument against localism than today's flood of often reckless and terrible executive orders is an argument against the presidency.

In short, whatever one's views on immigration policy generally or sanctuary cities in particular, the Trumpian tidal wave itself suggests the importance of lodging more sovereignty closer to the people.