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Tsou, Christina 9/28/2015 For Educational Use Only

State and Local Officials Frequently Defy National Laws, 2015 WLNR 28045551

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September 18, 2015

Section: The Report

State and Local Officials Frequently Defy National Laws

Susan Milligan

Kentucky clerk Kim Davis refused to issue marriage licenses to same-sex couples and got thrown in jail for it. But when a bunch of local sheriffs declared in a 2013 letter to the White House that they would not enforce any federal gun laws they personally believed to be unconstitutional, there was no blowback from the government or the courts.

A court struck down Arizona’s law requiring people to carry papers proving legal status and the state’s law forbidding people from applying for work without proper documentation. But immigrant-friendly New Haven, Connecticut can continue to be a “sanctuary city” in which immigrants without legal status can interact with police without fear of being targeted for deportation.

READ: [ Kim Davis Is Just a Lonely Gay Marriage Warrior ]

Local officials and governments often find themselves faced with enforcing or otherwise participating in federal laws and policies the locals don’t like. And the ongoing battles over gay marriage and immigration have only added to the tension, leaving the courts to decide when locals have gone too far in inserting themselves into policies traditionally reserved for Washington, D.C. But when will defying the federal government result in an exasperated shrug from the administration -- and when will it become a federal case, including the possibility of spending time behind bars for contempt of court?

That question has come up many times during the Obama years, as state and local officials have pushed back on policies ranging from the Affordable Care Act, gun control, mass transit, gay marriage to, perhaps most often, immigration. Such conflicts historically have come up around civil rights matters, starting with the divide among the states over slavery, legal experts say. And while no one’s expecting another civil war over Obamacare or marriage licenses, the deep divides on contemporary social issues will have local and federal authorities sparring for some time.

”You have a federal government setting policy, but communities and 50 states around the country having a conversation about what they would like their participation” to be, says Annie Lai, co-director of the Immigrant Rights Clinic at the University of California, Irvine law school. On such emotional and politically-loaded issues, “you’re going to see this kind of disconnect,” she adds.

State and municipal officials may see the issues as ones of national security, human rights, or -- in the case of Davis, who refused to sign marriage licenses for same-sex couples -- a matter of religious freedom and conviction. But what it comes

Tsou, Christina 9/28/2015 For Educational Use Only

State and Local Officials Frequently Defy National Laws, 2015 WLNR 28045551

down to, legally, is money, experts say. States and municipalities can refuse it or just refuse to spend it, but they cannot stick their collective noses into policy matters reserved for the federal government.

PHOTOS: [ The Big Picture -- September 2015 ]

For example, the entire nation is bound by the Affordable Care Act, setting minimum standards for health insurance coverage and requiring everyone to have insurance. But some states didn’t want to expand Medicaid under the law, and the Supreme Court in 2012 said they could opt out by refusing to accept the federal cash for expansion of the program for the poor. And the Obama administration set out to create a national network of high-speed trains, which some lower-ranking conservative officials opposed, calling it a waste of public funds. They couldn’t stop the initiative itself, but Florida Gov. Rick Scott took his state out of it, refusing the $2.4 billion offer from Washington to build a bullet train between Tampa and Orlando.

Maricopa County, Arizona sheriff Joe Arpaio has made a career out of challenging federal policies, ranging from immigration to guns. On the latter, Arpaio (along with hundreds of other local sheriffs) declared he would not enforce gun control laws he believed to violate the Second Amendment. And on that matter, says Yale Law School’s Michael Wishnie, the defiant sheriffs are within their rights. While they cannot set federal firearms laws, they can decide how to use local funds -- and the feds can’t make localities spend it on gun law enforcement. “Those sheriffs work for the county executives, so neither the president nor Congress in general can tell states or counties how to spend their taxpayer dollars,” Wishnie explains.

Republican presidential candidates have slammed “sanctuary cities” -- Donald Trump told a Dallas rally that “we have to end this sanctuary cities crap,” and Carly Fiorina lamented at the most recent debate that more than 300 communities had declared themselves such. But legally, the cities’ right to control their own finances is also what allows them to declare themselves “sanctuary” or “trust” cities, without running afoul of federal law, experts say. It’s not that such communities are actively harboring immigrants without legal status, they say, but rather, encouraging immigrants to report crimes and serve as witnesses without fear of being turned over to Immigration and Customs Enforcement. Some communities also allow immigrants without legal status access to certain public benefits.

”The true sanctuary cities have done it affirmatively, recognizing that community trust is an important part of community policing,” says Christopher Lasch, a professor at the University of Denver law school.

Where local officials run afoul is when their behavior violates federal anti-discrimination or equal protection laws. Granting marriage and drivers licenses, for example, is a state power. But just as Davis was punished for discriminating against same-sex couples, states have also run into trouble trying to deny drivers’ licenses to immigrants given temporary legal status under the Deferred Action for Childhood Arrivals program, notes Jonathan Blazer, a state and local immigration law specialist with the American Civil Liberties Union. A federal circuit court has ruled that the drivers’ licenses must be issued (Arizona was the last holdout) but Blazer believes the issue may end up in the Supreme Court.

MORE: [ Obama Loses Again in States’ Immigration Lawsuit ]

Immigration continues to fuel the battle between states’ rights and the authority of the federal government to set rules for who is allowed to enter and remain in the country. Only the federal government can issue passports and control the border. But states and localities can meddle -- ether by being more or less friendly to immigrants -- by using their own discretion in how to spend their locally-raised tax money, says Huyen Pham, associate dean of the Texas A&M University School of Law. “States are limited in the sense that they can’t set up their own border or guest worker program. But they do have control over what their police are going to do, and whether to require proof of [legal] status for professional licenses,” she says. “It really affects people’s lives.”

Pham and a colleague have created an “immigrant climate index” map, showing a widely varying state-by-state environment for immigrants. Factors include how aggressively local law enforcement goes after suspected illegal immigrants; ability to receive government benefits and professional licenses, and ability to obtain private housing. The map also includes such © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Tsou, Christina 9/28/2015 For Educational Use Only

State and Local Officials Frequently Defy National Laws, 2015 WLNR 28045551

initiatives as “English only” laws and voter registration rules that may make it harder for immigrants to vote, such as by requiring ID cards or “purging” from registration rolls voters whose naturalization status has not yet made it to government lists.

Local discretion over such laws means that despite a single national policy on borders and legal status, an immigrant will have an entirely different experience living in Arizona (which Pham says is the least immigrant-friendly) than in Illinois, one of the most welcoming states for new arrivals.

And while liberal communities declare themselves “sanctuaries” for immigrants, other jurisdictions are pushing back in the other direction. More than half the states are engaged in a lawsuit against the Obama administration, challenging the November 2014 executive order extending DACA and also expanding temporary legal status to some immigrant parents of U.S. citizens. “It seems every 50 years, we circle back to the same thing,” Lai says. “Maybe in some ways, this is the court’s way of setting the civil rights norm for our generation.” Millions of immigrants are waiting to learn what that standard will be.

Susan Milligan is a political and foreign affairs writer and contributed to a biography of the late Sen. Edward M. Kennedy, “Last Lion: The Fall and Rise of Ted Kennedy.” Follow her on Twitter: @MilliganSusan

---- Index References ----

News Subject: (Gay & Lesbian Issues (1GA65); Gun Rights & Regulations (1GU97); Immigration & Naturalization (1IM88); Social Issues (1SO05))

Industry: (Healthcare (1HE06); Healthcare Regulatory (1HE04); U.S. National Healthcare Reform (1US09))

Region: (Americas (1AM92); Arizona (1AR13); Connecticut (1CO13); District of Columbia (1DI60); Florida (1FL79); North America (1NO39); Texas (1TE14); U.S. Mid-Atlantic Region (1MI18); U.S. New England Region (1NE37); U.S. Southeast Region (1SO88); U.S. Southwest Region (1SO89); USA (1US73))

Language: EN

Other Indexing: (Donald J. Trump; Donald Trump; Edward Kennedy; Susan Milligan; Rick Scott; Michael Wishnie; Carly Fiorina; Huyen Pham; Joe Arpaio; Ted Kennedy; Annie Lai; Christopher Lasch; Kim Davis)