The Trump administration intensified its fight with California last month when the Department of Justice filed a lawsuit arguing that the state's so-called sanctuary laws undermine federal immigration enforcement and are therefore unconstitutional. A few cities and counties in California have also opposed the policies in recent weeks.
Despite all the bluster, California is likely to prevail. The Supreme Court's governing interpretation of the 10th Amendment protects the autonomy of states and prevents them from being conscripted into federal enforcement programs.
Whatever the outcome of the lawsuit, a new development could undercut the DOJ's anti-sanctuary campaign. Across California and the country, many institutions of everyday life — churches, schools, employers, businesses and nonprofits of every stripe — are taking bold steps to protect undocumented immigrants. The sanctuary offered by this groundswell has the potential to be just as effective as the protections offered by the state.
Churches from Tucson to Boston have offered shelter to the undocumented and provided emotional and spiritual support to families under threat of deportation. In Los Angeles, an extensive consortium of religious organizations of various faiths has provided housing, food and legal assistance to undocumented immigrants.
Universities have declared themselves "sanctuary campuses," including Wesleyan in Middletown, Conn., and Pitzer College in Claremont, or have adopted other policies to shield undocumented students, as the University of California system has done. Entire school districts from Chicago to Davis, Calif., have taken measures to protect the privacy rights and information of undocumented children and their families.
Restaurants across the country are advertising a "table for everyone," while community members in places such as Oakland have set up rapid-response networks to document raids by Immigration and Customs Enforcement agents and assist people who are targeted. Many others are using mobile apps or social networks to warn noncitizens about immigration enforcement activity. Facebook groups such as Retenes California, for instance, routinely post information on ICE, Border Patrol and checkpoints around the state.
These groups and individuals happen to have a wealth of legal protections that the DOJ's lawsuit can't defeat. For the most part, their policies and actions are safeguarded by the 1st Amendment's protections of free speech and free religious exercise; the 4th Amendment's prohibition against unreasonable searches and seizures; federal privacy laws governing student information; and common-law rights regarding private property and workplaces.
The DOJ's lawsuit has no purchase with this diverse set of rights and legal defenses. It focuses only on the constitutional leeway that states have to disentangle themselves from federal immigration enforcement.
For example, one of the California laws being challenged, AB 450, requires employers to verify that immigration officials have a judicial warrant or subpoena before allowing them into their workplaces. But regardless of whether AB 450 is ultimately upheld, the right of employers to keep immigration agents out of their workplaces is settled. The 4th Amendment and common-law rights allow any private property owner to turn away law enforcement who lack proper judicial approval.
Leveraging these long-standing rights, a restaurant owner in Ann Arbor, Mich., lawfully refused to grant ICE officials entry to his restaurant's kitchen last summer. "Sanctuary restaurants" abound, and now advocates are pushing for Greyhound to exercise its property and civil rights protections and bar ICE officials from their buses.
Universities and colleges that are safeguarding undocumented students from immigration enforcement have rights to protect the physical space of their campuses from undue intrusion. Federal privacy laws allow educational institutions to protect information about undocumented students without fear of legal reprisal.
Our Constitution and federal and state laws empower nongovernment actors to provide sanctuary to undocumented immigrants. These groups and individuals are therefore engaged in lawful forms of resistance, not civil disobedience. If they were to coordinate their efforts, these institutions and local actors could form a formidable sanctuary network for undocumented immigrants.
There are already signs of collaborative efforts between private organizations and like-minded government officials. One Denver church gave shelter to an immigrant, Jeanette Vizguerra, last year while three Colorado Democrats in Congress introduced legislation on her behalf. In New York City, a public-private partnership called the New York Immigrant Family Unity Project has provided legal defense at no cost to undocumented immigrants since 2013.
An extensive sanctuary network in this vein would help to mitigate the harshest effects of the Trump administration's immigration crackdown, potentially in ways that state laws alone could not.
Pratheepan Gulasekaram is law professor at Santa Clara University School of Law. Rose Cuison Villazor is law professor at the UC Davis School of Law.