This Article explores the doctrinal and theoretical challenges confronting San Francisco's non-cooperation ordinance, and similar subfederal actions. It does so using a non-conventional but useful method of engaging in a dialectic exchange. In using the dialectic structure, we take our cue from Professor Stephen Legomsky's elegant use of the device in his recent article on the meaning of undocumented status. As he noted, the format has been "under-utilized" in legal scholarly literature. More scholars should use this method, he contended, because it helps to reveal the diametrically opposed positions of various groups concerning aparticular issue. Importantly, a dialectic conversation facilitates a more constructive discussion of the issues at stake.
The Article proceeds as follows. Part I provides a brief discussion of the history and current state of the sanctuary ordinance and other immigrant-friendly aspects of San Francisco's policy. Part II engages in a conversation about the constitutionality of sub-federal enactments like the San Francisco ordinance. It highlights the motivations and purposes of San Francisco's policy and the specific preemption challenges it faces. Part III launches into a more general examination of the preemption doctrine on sub-federal lawmaking related to undocumented immigrants. In this part, we posit ways of doctrinally distinguishing inclusionary from exclusionary laws and policies. Part IV concludes with a discussion of the implications of the arguments presented for comprehensive federal immigration reform.
Pratheepan Gulasekaram and Rose Villazor,
Sanctuary Policies & Immigration Federalism: A Dialectic Analysis
, 55 Wayne L. Rev. 1683
Available at: http://digitalcommons.law.scu.edu/facpubs/20