Sanctuary or Secession by David Montgomery

Several commentators, including Ben Stein, have suggested that the Sanctuary Cities are repeating the Secession crisis that led directly into the Civil War.  There is an enlightening comparison to be made, but the facts need to be straight first.

The Sanctuary Cities are not yet at the stage of secession, their actions so far amount to an attempt at nullification.  Likewise, the states that have declared marijuana to be legal in defiance of Federal law appear to me to be attempting nullification.

The famous Nullification Crisis was prompted by South Carolina, but it was over a tariff not slavery.  It occurred during the administration of Andrew Jackson, a President almost as famous for his populism as Donald Trump.  The very protective Tariff of 1828 was enacted during the presidency of John Quincy Adams, and it was very unpopular in the South and parts of New England.  

The more radical opponents of the tariff in South Carolina began to advocate that the state declare the tariff null and void within its borders.  The compromise Tariff of 1832 provided insufficient relief, and in 1832 a state convention in South Carolina adopted an Ordinance of Nullification that declared both tariffs to be unconstitutional and unenforceable in South Carolina.  

Congress responded by passing the Force Bill, which authorized the President to use military forces against South Carolina, and a compromise tariff that was acceptable to South Carolina.

Leading up to the Civil War, it was actually the Northern States that practiced nullification.   In the aftermath of the Fugitive Slave Law, which declared the right of owners to capture escaped slaves anywhere, Pennsylvania and twelve other Northern states passed laws making it “a crime for any person to forcibly remove a black person from the state with the intention of keeping or selling him as a slave.”  The Supreme Court ruled against all these attempts at nullification by states.   Nevertheless, abolitionists defied the law by refusing to turn over escaped slaves and preventing their capture.

I have not yet read about a sanctuary city or state trying to clothe itself in the righteousness of abolition, but I expect it any day.  Where our ancestors overthrew slavery by nullifying laws that required them to return slaves, sanctuaries are determined to overthrow … what? … by nullifying laws that require illegal entrants to be detained and possibly deported.

So one question is, what are sanctuary cities trying to accomplish? If it is to prevent convicted criminals from being deported, that is a foolish obstruction of justice.  What claim does someone who violates the law after arriving in the U.S. have on a right to live here?  Those who have earned a chance are the dreamers who have respected the law and worked hard since being brought here, not the criminals among them.  If the purpose is to undermine enforcement of U.S. immigration laws and create open borders within the sanctuary jurisdictions, that is another and much more serious matter.

The next historical nullification attempt should give the Sanctuary Cities more pause about whom they emulate.  After the Supreme Court declared segregated schools unconstitutional in Brown vs Board of Education (1954), at least ten Southern states passed what amount to nullification measures and refused to follow the Brown decision.  

The Supreme Court explicitly rejected these attempts at nullification in 1958.  In a unanimous opinion, it held that Federal law “can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes…”

The first Nullification Crisis led to granting the President power to intervene with force to enforce laws that states claimed to nullify, and the states backed down.  The Supreme Court held that Brown vs Board of Education could not be nullified, and President Eisenhower sent the soldiers of the 101st Airborne to escort the Little Rock Nine into Central High School.  His action was violently condemned by the Democrats who then held sway in the South.

There is a great deal for Sanctuary Cities to learn from this.  

The first and last nullification crisis ended when the states backed down after President Jackson and President Eisenhower made it clear that they would use sufficient force to uphold the law.

The nullification practiced by abolitionists and endorsed by Northern States had a different outcome – it contributed to the confrontations that precipitated the Civil War.  The Declaration of Immediate Causes that South Carolina issued along with its secession ordinance in December 1860 stated that nullification attempts by the northern states were a cause of its action.  From there on, a series of confrontations led to an avoidable war in which 750,000 soldiers died on both sides.  Nullification inflamed tensions between slave and free states and made a gradual and peaceful abolition of slavery, such as Robert E. Lee and other slave and free state leaders tried to accomplish, impossible.

Thus I agree that there is an enlightening comparison between Sanctuary Cities and the secession crisis.  The Sanctuary Cities are turning the immigration debate into a confrontation between those who would nullify immigration laws and those who favor closing the borders and exporting them all, leaving no room for some compromise on legalizing the status of otherwise law-abiding and productive illegal entrants.   In this, they are just like the nullifying abolitionists whose moral fervor contributed to the disastrous outcome of the Secession Crisis and Orval Faubus who defied Federal law on desegregation.

Even I, firmly lodged in the middle group favoring some compromise, am outraged by sanctuary cities’ and states’ defiance of Federal law and willingness effectively to pardon convicted criminals and release them to continue their predation.  None of us want to face the choice between allowing that practice to continue and ending it by force.  One civil war was enough.

David Montgomery was formerly Senior Vice President of NERA Economic Consulting. He also served as assistant director of the US Congressional Budget Office and deputy assistant secretary for policy in the US Department of Energy. He taught economics at the California Institute of Technology and Stanford University and was a senior fellow at Resources for the Future.