I actually agree with most of what Adam Thierer says in his insightful response essay, including his reply to Max Borders, his warning that “ we probably shouldn’t place too much faith in the most radical exit solutions,” and most of his comments on sanctuary jurisdictions. But I do take a more favorable view of imperfect versions of the latter than he does.
“Sanctuary” jurisdictions are state and local governments that refuse to help higher-level governments (such as the federal government) to enforce certain types of laws. In more controversial cases, they may even make affirmative efforts to provide refuge for violations.
I myself have written extensively about immigration sanctuary cities, which restrict cooperation with federal efforts to deport undocumented immigrants (e.g. here and here). I am even one of the relatively few people who is sympathetic to both liberal immigration sanctuaries and conservative gun rights sanctuaries.
Thierer is right that there is a good deal of inconsistency and “selective morality” in the discourse over sanctuary cities. People who sympathize with left-wing sanctuary causes tend to condemn right-wing ones, and vice versa, even in cases where the legal and moral issues involved are remarkably similar. Such ideological—and often even purely partisan—bias is part of the broader phenomenon of “fair weather federalism,” where both Republicans and Democrats all too often condemn or praise limitations on federal power depending primarily on whose ox is being gored.
Last year, I wrote a Washington Post article explaining how liberals had begun to take a more favorable view of limits on federal power in recent years. Much of this was simply a consequence of efforts to combat Trump administration initiatives. But I also outlined ways in which this shift reflects more deeply rooted changes in the political valence of federalism. How much of the latter will survive the double whammy of the coronavirus pandemic and Joe Biden potentially recapturing the White House for the Democrats remains to be seen.
Like Thierer, I would prefer a broader and more principled commitment to limiting federal power, on both left and right. But I fear we may not get it anytime soon.
In the meantime, even hypocritical sanctuary movements can still provide valuable foot-voting options and protect people against overreaching federal government policies. Immigration sanctuaries can still provide valuable refuge to undocumented immigrants, their families, and those who seek to engage in various economic and social transactions with them. Gun-rights sanctuaries can do the same for those who place a high value on the right to bear arms. And they can serve that purpose even if the politicians who enact such policies are doing so primarily out of ideological or partisan bias, rather than any principled commitment to limiting federal power.
The refuge provided by sanctuary jurisdictions is necessarily imperfect. In most cases, they cannot prevent the federal government from simply sending in its own law-enforcement agents to arrest and punish those “protected” by states or localities. In the long run, the best way to maximize foot-voting opportunities and constrain federal power is to enforce tighter limits on the range of substantive issues the latter is allowed to regulate. I would include both immigration and guns among the many issues where federal power needs to be curbed. I discuss the foot-voting rationale for such constraints in much greater detail in my recent book Free to Move: Foot Voting, Migration, and Political Freedom.
But the severely limited resources of federal law enforcement (which have only a fraction of the personnel of their state and local counterparts) ensure there are tight limits to what the feds can accomplish without state and local cooperation. The rapidly growing fiscal crisis facing the federal government will make it difficult to radically expand its law enforcement establishment.
As they currently exist, sanctuary movements have many serious flaws. Over time, I hope we can expand them in some of the ways Thierer suggests in his recent essay on the subject. In the meantime, we should take what we can get, and remember that the best possible sanctuary system should not be the enemy of a good one—or even one that’s just good enough for government work. As Thierer notes in his response to Max Borders, we should “push for more incremental approach[es] and small wins,” even as we seek to accomplish more than that in the long run.