Monday, November 4, 2019

Gardner on "Immigrant Sanctuary as the 'Old Normal': A Brief History of Police Federalism"

The Columbia Law Review has published "Immigrant Sanctuary as the 'Old Normal': A Brief History of Police Federalism," by Trevor George Gardner (Washington University School of Law). The abstract:
Three successive presidential administrations have opposed immi­grant-sanctuary policy, at various intervals characterizing state and local government restrictions on police participation in federal immigra­tion enforcement as reckless, aberrant, and unpatriotic. This Article finds these claims to be ahistorical in light of the long and singular his­tory of a field this Article identifies as “police federalism.” For nearly all of U.S. history, Americans within and outside of the political and juridi­cal fields flatly rejected federal policies that would make state and local police subordinate to the federal executive. Drawing from Bourdieusian social theory, this Article conceptualizes the sentiment driv­ing this longstanding opposition as the orthodoxy of police auton­omy. It explains how the orthodoxy guided the field of police federalism for more than two centuries, surviving the War on Alcohol, the War on Crime, and even the opening stages of the War on Terror. In construct­ing a cultural and legal history of police federalism, this Article pro­vides analytical leverage by which to assess the merits of immigrant-sanctu­ary policy as well as the growing body of prescriptive legal scholar­ship tending to normalize the federal government’s contemporary use of state and local police as federal proxies. More abstractly, police feder­alism serves as an original theoretical framework clarifying the struc­ture of police governance within the federalist system.
Read on here.