In one lawsuit after another, the hypocritical and upside-down vision that the open-borders crowd has of the U.S. Constitution becomes clear. States and local governments, they assert, have an absolute choice to adopt sanctuary policies, but they have no choice not to. That’s not much of a choice, is it? But it’s the absurd inescapable logic of what’s been called the “Imaginary Constitution.” Disregarding federal immigration law isn’t just permitted—it’s actually mandatory.
Under the Imaginary Constitution, the Tenth Amendment means California or Oregon can be sanctuary states, but Texas or Arizona can’t be anti-sanctuary states. States are apparently absolutely free to ignore and even interfere with federal law, but absolutely not free to support or cooperate with it.
Under the Imaginary Constitution, immigration detainers violate the Fourth Amendment. State and local law enforcement aren’t just allowed but actually constitutionally required to ignore them. From suburban Long Island to South Florida and from rural Colorado to Nashville, the anti-detainer suits are always essentially the same. They say someone can never be held in state or local custody except with probable cause of the commission of a crime. Never mind that even U.S. citizens are routinely held in custody for other civil matters, like non-payment of child support. Never mind that the Fourth Amendment says nothing like this, but only that searches and seizures have to be “reasonable.” And never mind that the only court to directly address this issue, the U.S. Court of Appeals for the Fifth Circuit in upholding Texas’s anti-sanctuary law, specifically held that detainers do not violate the Fourth Amendment.
Under the Imaginary Constitution, sanctuary jurisdictions are entitled to federal taxpayer money to subsidize their willfully breaking federal law. Never mind that the federal government put conditions on that money saying otherwise. And never mind that the Supreme Court has said for decades that such “strings” can be attached to federal money. According to the Imaginary Constitution, that’s outrageous “coercion.”
Under the Imaginary Constitution, we can probably only imagine what might be required next, but we can be pretty sure it will enshrine the policy preferences of the people pushing it. And that’s despite little to no resemblance to the actual Constitution’s text, history or intent. Curiously convenient how that works.
Unfortunately, not just open-borders activists but too many legislators and judges have themselves come to believe in the Imaginary Constitution, and done all they can to impose it on the rest of us. But as the late Supreme Court Justice Antonin Scalia said “[t]he Constitution is not a living organism … It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.” If he was right, the open-borders crowd should find themselves out of luck sooner rather than later. If he was wrong, then evidently the rule of law no longer means anything.