U.S. Sanctuary Policies: A Legal Fiction Undermining Federal Supremacy

By James Hirsen
Monday, 26 January 2026 05:33 PM EST

Many in our country are painfully aware of numerous clashes recently occurring between protesters and state and federal law enforcement officials.

Concurrently, we hear the word “sanctuary” bandied about in reference to policies in some major U.S. cities and states.

A deeper dive into the meaning of “sanctuary” is necessary, especially within its current political context.

This analysis aims to shed light on recent events, potential future developments, and how the nation can navigate uncharted waters.

From California’s longstanding policies to Minnesota’s more recent defiance amid ICE operations, these jurisdictions have been working to severely limit cooperation between state and federal immigration authorities.

Certain areas have refused to honor detainer requests or lend assistance in deportation matters, even in cases involving the most dangerous criminals.

Proponents of city and state sanctuary policies claim to be guardians of civil liberties. However, a closer examination reveals that sanctuary status is actually a legal fiction.

In my research, I have found the idea of sanctuary cities and states to be a clever contrivance.

Clever, but at the same time insidious, because it skirts federal supremacy and flirts with partial secession.

As President Donald Trump’s administration attempts to restore the rule of law, logic dictates that it is an appropriate time to deconstruct the sanctuary myth and clarify the constitutional principle of uniform enforcement of the law.

The concept of a sanctuary jurisdiction is dependent on something called “the anti-commandeering doctrine,” which was set forth in specific United States Supreme Court rulings as follows:

—In New York v. United States, 505 U.S. 144 (1992), the high court struck down parts of a federal law that required states to take title to radioactive waste if they failed to regulate the waste themselves. The majority held that Congress cannot “commandeer” state legislatures into enacting federal programs.

—In Printz v. United States 521 U.S. 898 (1997), the Supreme Court invalidated certain provisions of the Brady Handgun Violence Prevention Act, which required local law enforcement officers to conduct background checks on gun buyers.

—In Murphy v. NCAA, 584 U.S. 453 (2018), the doctrine was used to prohibit Congress from barring states from authorizing sports betting.

The Supreme Court has not yet directly ruled on sanctuary policies in a major case. Lower courts, however, have applied this doctrine to affirm that cities or states do not have to cooperate with federal agents who are enforcing immigration law.

This interpretation is a legal fiction because it is built on a selective reading of the law, which ignores the broader constitutional framework. The Supremacy Clause (Article VI) declares federal law to be the “supreme Law of the Land,” preempting conflicting state actions. By actively obstructing federal efforts, such as prohibiting local police from notifying federal law enforcement about arrested illegal immigrants, sanctuary policies do not merely deny law enforcement the much-needed assistance; they materially interfere with national sovereignty.

The practical fallout of sanctuary policies is significant. In sanctuary strongholds, federal law enforcement professionals face a labyrinth of obstruction that can lead to serious risks for themselves and the public. Federal law (e.g., 8 U.S.C. § 1373) prohibits states from restricting information-sharing about immigration status and explicitly forbids states from engaging in active obstruction.

In places like Minnesota, such obstruction crosses into preemption territory under the Supremacy Clause, rendering these actions illegal. The Department of Justice’s August 2025 list designating states—including California, Illinois, and New York—as sanctuaries underscores this issue. These areas create de facto safe havens where federal immigration law is selectively ignored.

Rather than applying law, courts have allowed states to nullify federal policy without the outright defiance seen during the Nullification Crises—a period when some Southern states threatened secession over slavery. Sanctuary policies are, in essence, a form of partial secession—a veiled attempt to carve out territorial exemptions from national authority. By declaring certain cities or states off-limits to full federal enforcement, these jurisdictions assert faux-sovereignty, reminiscent of the Confederate resistance to the abolition of slavery.

If states were to refuse cooperation on federal tax collection or environmental regulations, such defiance would be intolerable. Immigration, a core federal power under Article I, Section 8, demands uniformity in order to prevent chaos. Defiance of federal law has an actual human toll, one that history demonstrates may lead to tragic consequences.

Congress needs to pass legislation affirming that while states should not be “commandeered,” they also cannot obstruct federal operations. For this to happen we need a return to reality. Time to end the illegal charade of sanctuary cities and states.

James Hirsen, J.D., M.A., in media psychology, is a New York Times best-selling author, media analyst, and law professor.