Can Sanctuary Cities Survive the Second Trump Administration?

President-elect Donald Trump’s designated border czar, Tom Homan, and some of his fellow Republicans are not shy about threatening local leaders who express concern about mass deportations conducted by federal agents in their communities. For Denver Mayor Mike Johnson, Homan has jail in mind if the city tries to impede federal law enforcement from orchestrating mass round-ups of migrants. For Boston Mayor Michelle Wu, a highly credentialed lawyer Homan belittles as “not very smart,” there’s a threatened loss of federal funds unless she gets “the hell out of the way” when federal agents arrive in the city to deport migrants. For Los Angeles, where the city council recently reaffirmed its resistance to mass deportations, Homan vowed to send “twice as many officers” to the city if the local government doesn’t provide assistance.

Each of these cities and many others across the country have adopted policies that allow (or even require) local law enforcement officers to refuse to cooperate with federal Immigration Customs and Enforcement (ICE) agents except pursuant to a court order or arrest warrant. These localities are commonly called sanctuary cities, though there is no one legal definition of the term and local policies can vary.

Local leaders who resist federal cooperation point to the considerable evidence that aggressive immigration enforcement at the community level has a negative impact on public safety because it undermines trust in government and deters members of minority groups from interacting with law enforcement and reporting crimes. Negative public health consequences have also been well-documented, as targeted populations refrain from accessing medical help. Despite this evidence, states, counties, and individual cities sometimes find themselves at odds with the federal government when it comes to immigration enforcement.

Under current law, the Constitution assigns responsibility for immigration policy to the federal government, with federal immigration law preempting state attempts to enact their own distinct immigration policies. But as a practical matter, enforcement often happens far from the border, in the interior of the country, where federal agents necessarily seek the assistance of state and local law enforcement officers in identifying and apprehending undocumented immigrants. 

States can decline to help federal ICE agents. Under the Tenth Amendment, states retain police power within their own borders. Exercising that prerogative, Oregon is at one extreme, prohibiting state and local law enforcement from assisting federal authorities with immigration enforcement. Likewise, Illinois Gov. J.B. Pritzker signed legislation in 2021 barring local jurisdictions from working in partnership with ICE to effectuate deportations. As mentioned above, the federal government could cut federal funding, introduce military troops, or threaten other negative consequences to try to convince the state to change its policies.

At the other extreme are states like Texas and Florida, which mandate that local jurisdictions collaborate with federal ICE agents to identify and deport undocumented immigrants. (In between these extremes are states which have enacted more limited measures or that leave decisions about cooperation to local law enforcement authorities.)

Beyond simply complying with federal authorities, Texas has implemented its own state-level immigration laws, a trend other states have begun to follow. In 2023, Texas Gov. Greg Abbott signed legislation, SB4, making it a state crime for an individual to enter Texas from a foreign nation at any location other than a lawful port of entry, with additional jail time attached for each re-entry. The law also authorized state and local officers to question and arrest anyone suspected of having entered Texas illegally. The law has been stayed pending a challenge to its constitutionality, but if it is ultimately upheld it could encourage a race to the bottom as states like Texas, Florida, Georgia, and Arizona try to outdo each other with punitive immigration measures.

Some cities in states like Texas do not want to comply with federal enforcement efforts. Whether those local governments can enact friendlier immigration policies is ultimately a matter of state law. While the Tenth Amendment prevents the federal government from directly placing such demands on subnational jurisdictions, cities are creatures of the state, and states can command that their own localities cooperate in deportation efforts.

If implemented, Texas’s SB4 would require such cooperation. Local governments in Texas that oppose SB4 — including the county of El Paso and the cities of Austin, Dallas, and Houston — are among those challenging the law.

A Texas city’s “home rule” status does not alter this arrangement. The Texas Constitution allows any municipality with a population over 5,000 to adopt a Home Rule Charter establishing its own rules for municipal governance. However, the state’s Municipal Corporations law provides that “no charter or any ordinance passed under said charter shall contain any provision inconsistent” with the state constitution or laws passed by the state legislature. The purpose of SB4 is to prohibit sanctuary cities. To the extent that local sanctuary ordinances are inconsistent with SB4, they will be preempted if and when SB4 goes into effect.

Even with the provisions of SB4 currently in abeyance, Texas cities are limited in their ability to pass sanctuary measures. It is a federal crime in every state for an individual to harbor or conceal an undocumented migrant. Further, a separate state law in effect in Texas imposes a mandatory minimum sentence of 10 years for smuggling of persons — with no proof of criminal intent. Human Rights Watch and allied groups warn that under the law “a community member could face up to 15 years in prison for taking a loved one without legal status to a medical appointment or driving them to school.” The law prompted multiple local affiliates of the American Civil Liberties Union to issue a “travel advisory” sharing recommendations for those traveling in Texas, counseling travelers to develop a communication plan with friends and family in advance of travel and to memorize the phone number of a lawyer.

State preemption of local initiatives has been on the rise in recent years, as state legislatures override or withdraw authority from local governments to set policies tailored to their own constituents. For example, state authorities have preempted urban jurisdictions from setting municipal minimum wage levels, banning local use of plastic bags, regulating tobacco use, or addressing other challenges in their communities. The state of Texas is a leader in the effort to quash such local initiatives. In the immigration arena, the federal government and Tom Homan are also watching local governments, threatening funding cuts and imprisonment for anyone who “crosses the line.”

There is no single magic bullet for preserving local autonomy in addressing these challenges. But city leaders have been here before after experiencing similar threats and scrutiny during the last Trump Administration. Some cities may opt to become “silent” sanctuaries, hoping to avoid attention if they don’t advertise their policies — an approach that is unlikely to address the fears of immigrants in the community. Other cities are gearing up to coordinate services, allocate additional funds to immigration defense work, develop “know-your rights” resources, track and report the human impacts of deportations and law enforcement abuses, pursue legal remedies, and support the rights of their residents to protest. And when the opportunity arises, voters can support more humane state and federal policies.

Martha F. Davis is a distinguished professor at the Northeastern University School of Law.

Suggested Citation: Martha F. Davis, Can Sanctuary Cities Survive the Second Trump Administration?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 8, 2025), https://statecourtreport.org/our-work/analysis-opinion/can-sanctuary-cities-survive-second-trump-administration