In Tennessee, a vote by public officials can send them directly to jail
Around 400 immigrants attended a rally in Nashville's Centennial Park on Feb. 3, 2025, tp recognize and push back on an immigration bill passed by the Tennessee Legislature. Metro Nashville Councilmember Zulfat Suara, in striped robe and hat, attended. (Photo: John Partipilo)
The Tennessee legislature just passed a bill that will go down —or should go down — in infamy: It provides criminal penalties for any local public officials who vote for sanctuary policies, in which municipalities may refuse to cooperate with federal immigration policies. This law strikes at the very heart of representative government.
The right to vote and the right to expression are among the most cherished rights of all Americans. Restrictions on either right demand the strictest scrutiny.
Individuals who run for public office run with the understanding that they are representing their constituents. Although some see this task as serving as a mere mouthpiece for members of their districts (the delegate view), others believe the best they can do is to exercise their own independent judgment (the trustee view). In either case, as representatives, they are the voice of their constituents, who may choose to reelect them or to deny them further time in office.
Are we now going to chain these representatives? What if we make it a crime to vote for any measures offered by Democrats? Or Republicans? Or for policies refusing to recognize Christianity as the official state religion? Or for those who vote against authorizing a local charter school? Or a new sports franchise?
This law sets a terrible precedent. If we begin jailing public officials for voting for one law, what is to stop them from jailing them for voting for another? Moreover, this law comes at a time when in Trump v. United States (2024), the U.S. Supreme Court recently widened protections for U.S. presidents for any official acts — even those within the outer perimeter of their authority. Presidents who can jeopardize the entire nation are immune and local officials may be fined and sent to jail.
Bill criminalizing votes for immigrant sanctuary policies 'constitutionally suspect'
Even before the First Amendment to the U.S. Constitution provided for freedom of speech and press for all, the drafters of the Constitution provided in Article I, Section 6, not only that members shall 'in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance' but that 'they shall not be questioned in any other Place,' for 'any Speech or Debate in either House.' In similar fashion, Article II, Section 13 of the Tennessee Constitution provides that members of the state Senate or House shall 'not 'for any speech or debate in either House . . . be questioned in any other place.'
If we take such privileges away from local entities, what will be next?
Gov. Bill Lee argues that a state law adopted in 2018 against establishing immigrant sanctuaries have lacked teeth. According to House Majority Leader William Lamberth, the new law will apply to city councils, county commissions, school boards, and city and county mayors.
To be very clear, this law offends First Amendment freedom of speech because it is content based. Representatives will be free to vote against sanctuary laws but not for them. In this case, we will go from criminalizing entry of noncitizens to criminalizing representatives to express the views of their constituents.
There is considerable irony in the fact that a state that so valued its rights that it once went to war with the Union, would now give so little regard to the will of officials within its own localities that they would seek not simply to limit the scope of their authority but to throw dissenters in jail.
It can be slow, but there is a thoroughly constitutional manner for the state to enforce its laws. If a locality adopts a sanctuary policy that the state legislature has outlawed, the legislature can take the matter to court. If the state has issued a constitutional policy, the courts will strike deviant local policies down, without having to fine or throw anyone in jail.
I am arguing on behalf of the sanctity of voting. If a Republican-dominated legislature can punish an official for voting for sanctuary status, a Democratic-dominated legislature can punish them for failing to do so.
The Preamble to the U.S. Constitution proudly boasts that it is the work of 'We the People.' Article I of Tennessee's Declaration of Rights declares that 'all power is inherent in the people, and all free governments are founded on their authority.' It further declares that the people have 'at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.'
The Tennessee legislature has decided to limit this right when it comes to votes on the treatment of immigrants. What will be next?
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