The spread of “sanctuary cities”—local governments that resist federal laws or regulations in some fashion, and typically for strongly-held moral reasons—is one of the most interesting and controversial governance developments of recent decades. Unfortunately, the concept receives only a selective defense from people when it fits their narrow political objectives, such as sanctuary movements for immigration and gun rights.
But there is broader case to be made for sanctuaries in many different contexts as a way to encourage experiments in alternative governance models and just let people live lives of their choosing. The concept faces many challenges in practice, however, and I remain skeptical that sanctuary cities will ever scale up and become a widespread governance phenomenon. There’s just too much for federal officials to lose and they likely will crush any particular sanctuary movement that gains serious steam.
Sanctuary Cities as Political Civil Disobedience
First, let’s think about what local officials are really doing when they declare themselves a sanctuary. (Because they can be formed by city, county, or state governments, I will just use “sanctuaries” as a shorthand throughout this essay.)
Academics use the term “rule departure” when referencing “deliberate failures, often for conscientious reasons, to discharge the duties of one’s office.” [Joel Feinberg, “Civil Disobedience in the Modern World,” in Humanities in Society, Vol. 2, No. 1, 1979, p 37.] In this sense, sanctuary cities could be viewed as a type of collective civil disobedience by public officials because these governance arrangements are typically defended on moral grounds and represent an active form of resistance to policies imposed by higher-ups.
Rule departure and political civil disobedience can be carried out by individual government officials or entire governing bodies. Back in the 1970s, for example, some judges refused to convict Vietnam-era “draft dodgers,” even though laws made it clear that they were supposed to be punished. And, although it is rare, juries have sometimes nullified laws that they find unconscionable.
When a legislature engages in rule departure, it is often in opposition to federal policies that local officials feel is unfair or unethical. They may even declare themselves in a sort of open rebellion against a very specific directive and steadfastly refuse to acknowledge the legitimacy of the policies being imposed from above. This is how modern sanctuaries developed. In my forthcoming book, Evasive Entrepreneurs & the Future of Governance, I discuss a couple of prominent recent examples.
When state lawmakers refuse to enforce federal marijuana restrictions because officials in those states favor decriminalization that represents rule departure between levels of government. Similarly, in May 2018, Vermont became the first state to legalize the importation prescription drugs from Canada in an attempt to gain access to lower-priced drugs for its citizens. That policy departed from federal law, which tightly controls the importation of drugs into the US.
Rule departures by city and county governments can be even more daring and far-reaching in effect. After the Trump Administration took office and announced more restrictive immigration policies, many mayors and local officials promptly announced that they would become sanctuary cities and not follow federal immigration reporting requirements. The number of immigration-related sanctuary cities, counties, and even entire states has grown steadily since then. [The Center for Immigration Studies keeps a running list.]
Even more controversial is the rise of the “Second Amendment sanctuary” movement that resists state or federal firearm restrictions. Virginia cities and counties have been particularly aggressive in declaring themselves gun sanctuaries, but the movement is nationwide and growing fast. Interestingly, the leaders of this movement include many local officials, including some sheriffs, who actively oppose immigration-related sanctuary cities. Conversely, most of the local officials who favor immigration sanctuaries oppose Second Amendment sanctuaries. The only thing unifying officials on either side is a commitment to engage in rule departure for moral reasons.
But here’s the question I want to explore: Why not give both these sanctuary movements (and many others) a chance, regardless of what motivates them?
A Sanctuary for Me, But Not for Thee
Of course, there are few issues that divide the Left and the Right more bitterly these days than immigration and guns, and neither side will accept the moral case for rule departure when the other side is promoting it. Stated differently, while each side will make strong moral claims in favor of rule departure for their pet issue, their defense will not extend to the underlying act of rule departure or political civil disobedience more generally.
And that’s a shame. There is a good case to be made not just for greater localized decision-making and policy experimentation, but also for letting people lives of their own choosing in different governance arrangements.
The idea that we could ever have of one single utopia has always been a silly notion for a simple reason: People are just very different. What would make more sense, the late philosopher Robert Nozick once argued, is a governance arrangement that was truly fit for a pluralistic society. In his 1974 book, Anarchy, State, and Utopia, Nozick made the case for a regime in which citizens could potentially take advantage of many different utopias to better fit their preferred governance arrangements. “Utopia is a framework for utopias, a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others,” he said.
I’ve always found this “utopia of utopias” vision enormously compelling in theory but somewhat unrealistic in practice. It is appealing precisely because it rejects any effort to define utopia in a monolithic fashion. A true utopia would reject one-size-fits-all governance schemes and instead promote a framework for optimizing an individual’s ability to choose their preferred governance arrangement (hopefully among many options). “There is no reason to think that there is one community which will serve as ideal for all people,” Nozick noted, “and much reason to think that there is not.”
Indeed, it is likely that my preferred utopia is not yours. What’s my particular sanctuary look like? Adam Smith argued in 1755 that all that was needed for lifting civilization up “from the lowest barbarism” to “the highest degree of opulence” is “peace, easy taxes, and a tolerable administration of justice; all the rest being brought about by the natural course of things.” More recently, Emily Chamlee-Wright, president of the Institute for Humane Studies, elaborated on this vision when she identified the core elements of a good society as, “a pluralistic and tolerant society in which intellectual and economic progress are the norm, and where individuals and communities flourish in a context of openness, peaceful and voluntary cooperation, and mutual respect.”
That pretty much sums up the utopia or sanctuary I’d like to live in. More concretely, my perfect sanctuary would combine elements of all the real-world sanctuary cities described above. It would give immigrants safe haven and allow everyone to carry firearms openly while also ignoring federal marijuana restrictions and drug importation rules! Moreover, drones would zip through the air delivering goods (regardless of what the FAA said), driverless cars would occupy the roads (regardless of what the DOT said), and citizens with serious illnesses would be more free to try alternative treatments (regardless of what the FDA said).
Of course, I also appreciate that many other people would prefer to live in sanctuaries where government plays are a far more active role. Might it be possible for us all to agree to live peacefully in our separate utopias, yet also remain part of some loosely unified federation? What would help make that model work, Nozick argued, was some sort of minimal state above all the utopias that ensured peace and free movement of people, goods, and information among them. So, you pick your utopia and I’ll pick mine, but let us agree to be free to trade with each other and move to other utopias if we are not satisfied.
That remains a beautiful governance vision to me, and, if nothing else, I hope others would appreciate the potential benefits associated with experimentation in government administration. In his 1970 book, Exit, Voice and Loyalty, the economist and political theorist Albert Hirschman discussed the interplay between “voice” and “exit”—for businesses, organizations, and even governments—and argued that, “exit has an essential role to play in restoring quality performance of government, just as in any organization.”
Sanctuaries represent a form of localized collective voice (opposing specific policy choices made by higher-ups) combined with the implicit threat of some sort of exit. “The chances for voice to function effectively as a recuperation mechanism,” Hirschman argued, “are appreciably strengthened if voice is backed up by the threat of exit, whether it is made openly or whether the possibility of exit is merely well understood to be an element in the situation by all concerned.” I doubt any cities, counties, or states are going to try to completely exit the American republic over the issues that led them to form sanctuaries. Nonetheless, sanctuaries—and even the very threat to form one—can still act as a sort of relief valve that allow citizens to push back against over-zealous edicts from above, while also potentially giving citizens the chance to “shop around” for better jurisdictional governance arrangements.
Haven’t We Already Tried This?
Practically speaking, however, a utopia of utopias must have some limits or else it breaks down under the weight of endless splintering, border disputes, and even the threat of violence. As the Wall Street Journal editorial board argued in a recent essay about sanctuary cities, an atomistic patchwork of breakaway sub-governments could lead to discord and “lawlessness.” And that was in an editorial about Second Amendment sanctuary cities, which the Journal is more ideologically predisposed to favor!
But this is not a completely unfounded concern. Think about American history. Many people forget that America’s current constitution is not our nation’s first. The Articles of Confederation were formulated by the 13 original colonies as they fought for their independence from Great Britain. The Articles were a dismal failure, however, and did not even last a decade. America’s Founders abandoned the Articles because the sole governing agent—Congress—lacked any real power. It couldn’t do much to sustain itself or an army to defend the new nation, which the Articles treated as more of just a collection of territories in “a firm league of friendship with each other.”
More importantly, because states retained all the real power under the Articles, trade skirmishes broke out among them and Congress was virtually powerless to do anything about it. The so-called “league of friendship” threatened to degenerate into endless commercial and political conflicts among loosely joined state sovereigns. The situation grew intolerable and by 1789 the Articles were discarded in favor of a new Constitution that opted for a more tightly integrated union, which would guarantee some basic rights and also help ensure that commerce and people could move freely across state borders.
The durability of this framework remains a remarkable achievement and, in some ways, could be viewed as a more workable “utopia of utopias” than what the Articles of Confederation proposed. Yet, while plenty of people still play up the benefits of devolution and local control, American federalism has been increasingly neutered over the past century. The federal government came to take on more and more authority over even the most trivial parochial matters. States and localities must now beg for freedoms from federal restrictions, but they usually cave fairly quickly and fall in line with federal demands at the mere threat of federal lawmakers just denying them a few grants. Political kickbacks, it turns out, is a remarkably simple way to get subordinate bodies to fall in line and comply with top-down edicts.
Does a Broader Sanctuary Movement Have Any Hope?
Which is why it is remarkable that the sanctuary city movement is still alive at all. It might be because, as George Mason University law professor Ilya Somin has suggested, many Democrats fell back in love with federalism following the election of Donald Trump. Devolution and local control suddenly sounds a lot more appealing to many Dems when it becomes a way to resist federal restrictions on immigration and marijuana decontrol, among other issues.
It could still be the case that these sanctuary movements will be brought to heel in coming years. Current sanctuary efforts provide a good litmus test for just how much real-world policy experimentation federal officials are willing to tolerate. To the extent any particular sanctuary effort gained meaningful momentum and posed a serious challenge to federal power in some fashion, I believe it would likely be crushed eventually. While plenty of politicians provide lip service to the idea “reinventing government” and enhancing local decision-making, the reality is that if we ever had anything approximating actual entrepreneurial government administration in this country, the feds would likely move quickly to snuff it out.
If the Supreme Court took action to limit semi-rebellious efforts like these, it would also discourage future sanctuary city experiments. But it is more likely that, as suggested above, federal officials would just double-down on the “power of the purse” to intimidate state officials into complying—and then presumably force governors and state legislatures to do the dirty work of cracking down on cities and counties that won’t comply with federal demands. President Trump has already tapped this playbook to threaten immigration sanctuaries with Executive Order 13768 of January 25, 2017, which sought to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds.” Lower courts have pushed back, however, and a bit of a stalemate has ensued.
If things got really ugly, one could imagine President Trump or a future Democratic president calling in the National Guard to deal with sanctuaries that really pushed the limits on immigration, guns, or anything else disfavored by the powers that be. God help us if we get to that point. Hopefully cooler heads will prevail.
A Dream Deferred
In the meantime, I will persist in making the case for sanctuaries and other forms of experimental government—including charter cities and special economic zones—more generally. I remain a bit of a dreamer and will continue to defend alternative governance visions based on the benefits associated with political decentralization, policy experimentation, and citizen choice. I continue to long for Nozick’s noble vision of, “a society in which utopian experimentation can be tried, different styles of life can be lived, and alternative visions of the good can be individually or jointly pursued.”
Alas, I am also a political realist and I recognize it is highly quixotic to believe that this governance framework will carry the day in the short-term. Selective morality will prevail instead. That is, most people will loudly proclaim the moral imperative of sanctuaries only when it fits their ideological priors, while equally vociferously decrying creative governance alternatives when they do not align with their political values. In the end, both sides will only succeed in crushing the broader dream of more decentralized communities of common interest, simply because a lot pf people just cannot tolerate giving others a little zone of freedom in this world.
And so a “utopia of utopias” will likely remain a dream deferred.
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