Motivating Sanctuary City Compliance Through Scofflaw Fines

Many people on the Hill and in the voting public are annoyed with sanctuary cities’ refusal to enforce laws that require the transferring of apprehended suspects and felons to the federal jurisdiction.  This is especially true for convicted criminals who are also undocumented aliens.   The elected representatives of sanctuary cities are striking this vaguely stylish pose hoping it will appear that they are fighting for the “downtrodden.”

Some hiding behind the sanctuary protection are probably just undocumented, but many of the “downtrodden” are fugitives or felons who are a genuine threat to the local community.  If you mention danger to the community sanctuary advocates, they will respond with their “America is a nation of immigrants” script.  It doesn’t mitigate the danger to the community.

In an effort to get state and local compliance with federal laws on immigration, the federal government is threatening to hold back some funds that would normally flow to these cities.   The holdbacks are usually small, sometimes akin to a J-walking fine.  In New Mexico, Santa Fe faces a $6 million holdback or 2% of its budget.  In contrast, New York City with a $77 billion spending budget for 2016, could lose $10 billion, or 14% of its budgeted income.  Still that is nowhere near the 30% of 2014’s state outlays that are funded by the federal government.

If the federal government follows through with scofflaw fines, no doubt the sanctuary city proponents will spin federal enforcement actions as the root cause of homelessness, poverty, rampant crime, poor education, drug addiction and other failures that are almost entirely under local control.

The rule of law and cooperation between state and local jurisdictions and the federal government is undermined when a jurisdiction chooses which laws to enforce and which to ignore.  Jurisdictions and residents are obligated to follow laws regardless of their feelings about them.  If disagreement with a law is compelling enough to resist that law then a person must resist peacefully and endure the consequences.  When the consequence of resistance is financial loss, voters deserve an opportunity to affirm they are willing to pay the actual costs of “resisting.”  The opportunity is unlikely to be offered because it spoils the elected representative’s chance to be a hero in local political theater.

The tactic of blocking funds flow to jurisdictions that resist a federal law will become a serious problem if it is allowed to metastasize.  Federal subsidies to states and local jurisdictions totaled $628 billion in 2015.  That provides huge scope for hold back transfers where states or locals refuse to enforce federal policies.  For example, federal law and most federally elected representatives oppose medically prescribed uses for marijuana and more vigorously oppose recreational marijuana.  Yet, Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington have authorized the medical and recreational use of marijuana.  The federal government could have withheld funding from states or cities that undermine federal laws on marijuana, even though the multiyear examples of Colorado, Oregon and Washington show no breakdown in communities due to legalizing pot.

One federal effect due to marijuana is that banks are off limits to marijuana businesses because bankers fear being scapegoated for money laundering by the federal government if they handle “drug money.”  The federal government occasionally reminds us that use of marijuana is unlawful, but it doesn’t try to enforce marijuana laws in states which deemed it to be lawful.  The federal government could have used withholding of federal funds to motivate compliance with federal law, but public opinion explains why no federal enforcement is likely.  Sixty-percent of the public favors legalizing marijuana, so whoever relaxes the federal laws on pot is likely to benefit politically.

The federal government could also use financial pressure to standardize the state laws and practices governing same sex marriage.  Some states have lined up as the federal government wants, but some are slow to salute the new norm.  Civil rights advocates may resumed their campaign to get uniform treatment for marriage licenses and rights.  Federal government cooperation will not include scofflaw fines because civil rights advocates may oppose such heavy-handed motivators.  After all, scofflaw fines are being used to attack the sanctuary city movement, a theme popular among civil rights advocates.

The federal government itself is tempted to ignore some laws rather than work to have them repealed.  The Volcker rule (part of Dodd Frank) prohibits banks from making stock market bets with the bank’s own money.  That is seen by some bankers as a particularly galling restriction, since the funds being put at risk are the bank’s own funds.  The easy way to remove the effects of Volcker  without a tortuous repeal is to refuse to enforce it – as was done with marijuana.  Aside from a small uptick in banking risk, the moral hazard is that a failure to enforce Volcker would mimic the scofflaw behavior of sanctuary cities. 

Based on this, it would seem that the threat to withhold funding from sanctuary cities is not as clean cut in its effects as the federal government may hope.

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