In California, sanctuary cities may just give way to a sanctuary state

This may be one of those good news, bad news stories. The good news is that Donald Trump may not have to worry about sanctuary cities in California any more. The bad news is that the left coast denizens may just turn the whole darn thing into a sanctuary state. At least that’s the latest word coming from their state legislature. (Associated Press)

That last comment regarding the City by the Bay highlights where a lot of this unrest is coming from. The Mayor of San Francisco has been making the rounds of local radio, talking about a plan which seems to have been hatched by Eric Holder (in his new capacity as the Golden State’s chief warrior against Trump) and it’s gaining traction in liberal circles. We had a bit of foreshadowing of this strategy last week, as reported in the New York Times.

There’s some real irony in Holder’s approach because the Tenth Amendment is one which is generally either forgotten or despised by liberals in most cases. States’ rights is an issue which is almost exclusively near and dear to the hearts of conservatives. But now that Trump is talking about bringing the hammer down on cities which defy the laws of the land it’s suddenly becoming critical to the health of the democracy. Go figure.

Also, this is a fairly broad interpretation of the amendment to put it mildly. Article I, Section 8 of the Constitution charges Congress with the responsibility to “establish an uniform Rule of Naturalization.” Much of the details are left to the Executive branch as to how that’s enforced. At no point does the Constitution mention giving the states the right to overrule the federal government on immigration law. Similarly, the states have a lot of control over which state and local laws to pass and/or enforce, but they do not have the ability to simply break federal immigration law.

I’d love to see this one battled out in court and get a modern era ruling putting the question to bed. In the meantime, California stands to lose a massive amount of federal funding if they choose to go down this path, unless of course they can successfully challenge that in court as well. The SCOTUS has, in fact, ruled in the past that Washington can’t simply remove unrelated funding arbitrarily as punishment, but there’s plenty of law enforcement funding which would probably be on the table. It’s going to be a long and interesting ride from here on out.

In Texas v. White, an 1869 Supreme Court decision, Chief Justice Salmon Portland Chase ruled that the Union was permanent and indivisible. This meant that a constitutional amendment would be required to permit a state to be removed from the Union.

This concurred with Madison in Federalist #43. He had argued that the Constitution was a compact (contract). Under contract law, a party may remove himself from a contract only if all other parties to the contract concur. The one exception is if an action is taken that voids the contract.

Madison made this argument when we had only 13 states. He argued that if even one state wished to leave, the Union would have to be dissolved to accomplish that, and it would require the unanimous consent of the other 12 parties.

Lincoln's position was more moderate. Because we had so many more states than in Madison's day, Lincoln argued that a constitutional amendment would be the proper tool for dissolving the Union and then re-forming it, minus the states that chose to leave. This would require the concurrence of three fourths of the states, not unanimous consent. Arguing that unilateral secession was unconstitutional and thus forbidden, he asked the southern states to rescind their declarations of secession, send their senators and representatives back to Congress, and negotiate their way out of the Union via an amicable divorce.

After Lincoln's assassination, passions in Congress got out of control. Ten southern states were rolled into five military districts and effectively expelled from the Union. This was a violation of every principle for which Lincoln had prosecuted the war.

The states were told that they could restore their statehood only by ratifying the 14th Amendment. There were several constitutional problems with this. Only states can ratify constitutional amendments, not territories, not military districts -- which do not exist within the Constitution -- not foreign countries, and not the UN. As military districts they could not ratify, but in the heat of the moment, Congress made this a condition of their re-entry.

In 1939, these issues could have been peripherally addressed by the Supreme Court in Coleman v. Miller, but the Court chose to keep this can of worms welded firmly shut. The Civil War had ended only 74 years earlier, and the wounds were still fresh. No one wanted to seriously challenge the validity of the 14th Amendment.

The military district option has never been litigated, which means that it is still technically an option, even if it would be unwise to invoke it.

The proper way for California to leave the Union would be for a constitutional amendment to be proposed by Congress (or a Convention of the States) and ratified by 38 states, either by state legislatures or by state ratifying conventions as chosen by Congress under the provisions of Article V of the Constitution. Disunion negotiations in Congress would include disposition of land acquired by the federal government from the state for military bases and payment of the state's share of the national debt.

There is another factor. If the Union is divisible, then California is divisible. The San Francisco Bay Area and the City of Southern California wish to be independent, but the rest of the state is not so inclined.

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