Op-Ed: Cities can’t defy state health orders by claiming to be ‘sanctuaries’ for businesses

Gun sanctuary in Virginia
The public applauds when the Buckingham County Board of Supervisors in Virginia voted unanimously on Dec. 9, 2019, to pass a Second Amendment Sanctuary City resolution.
(Steve Helber / Associated Press )

In the past year, several cities around the country have taken to declaring themselves “sanctuaries” of various sorts. Just last week, Atwater, a small California city with 30,000 residents, passed a COVID-19-related sanctuary resolution.

These sanctuary declarations have nothing to do with federal immigration enforcement, which President Trump has railed against for years. Instead, Atwater, for example, declared itself a “business sanctuary” and resolved to defy state closure orders during the COVID-19 pandemic. Other cities around the country, including some in California, have declared themselves 2nd Amendment sanctuaries, with the intention of not enforcing state gun laws.

In these places, local officials borrow the “sanctuary” label from the immigration arena — but with a big difference. The immigration-related sanctuary ordinances prevent local police or city agencies from assisting with federal immigration enforcement. But they don’t block or hamper federal authorities from enforcing immigration law. By contrast, cities like Atwater expressly adopted sanctuary resolutions to announce that local police would not enforce the state’s laws or orders.

In the immigration context, local sanctuary ordinances were created to stop local government involvement with federal enforcement programs, whereas sanctuary resolutions that oppose state shelter-in-place or state gun regulations seek to resist state policies.


This distinction matters a great deal. Supreme Court rulings prohibit the federal government from forcing states or localities to become unwilling enforcers of federal policy. Indeed, it was the National Rifle Assn.’s push to exempt county sheriffs from having to perform background checks as part of federal firearms law that extended this constitutional principle. Cities and counties, however, have no right under the federal Constitution to resist state laws or regulations.

Moreover, while immigration sanctuary laws might reflect an underlying disagreement with federal immigration law or opposition to the practices of Immigration and Customs Enforcement officers, they do not challenge the legality of immigration laws or deny federal officers the right to enforce those laws.

Even if local officials don’t assist in immigration enforcement, ICE can continue to investigate, apprehend and remove immigrants from this country. Courts have almost universally upheld the immigration sanctuary ordinances of several California cities, and similar ones at the state level, precisely because they are carefully written not to defy or contradict federal law.

In sharp contrast, when a city government refuses to enforce state criminal laws, those laws are effectively nullified in that locality. That’s because state laws are almost exclusively enforced by local enforcement agencies.


State agencies can have responsibilities over specific regulatory areas such as business licensing. But enforcement of statewide orders like stay-at-home orders depend on local officers acting on behalf of the state.

Supporters of these sanctuary resolutions argue that their opposition to state orders is grounded in the Constitution. The Atwater resolution, for example, states that the closure orders violated unspecified “fundamental constitutional principles.” But why should the city’s view of the Constitution prevail over the state’s contrary interpretation? Allowing localities to opt out of complying with and enforcing state orders because they oppose the state’s legal conclusion is a dangerous path. It would essentially permit every city to pick and choose state policies it supports and to nullify others through non-enforcement.

Of course, state policies, including business closure rules during the pandemic, are not immune from legal or political challenge. Nothing prevents an individual business from challenging the state order in court on the basis of a constitutional violation. Indeed, Tesla’s suit against Alameda County’s shelter-in-place orders, which the company decided to drop on Wednesday, included equal protection and due process claims under the 14th Amendment.

In addition, cities could challenge the state order by raising municipal autonomy arguments based on their charters or other state law. Alternatively, business owners or local officials can use their political influence to persuade state lawmakers to adopt a different course, even if other Californians disagree.


Both of these options are a better course than a local government’s unilateral defiance of state law under a sanctuary claim.

Pratheepan Gulasekaram is a law professor at Santa Clara University, where he teaches constitutional law and immigration law.