Some cities and counties in the United States refuse to cooperate with Federal immigration authorities.  This lack of cooperation takes several forms, including prohibiting the local authorities from inquiring about an individual’s immigration status, refusing to notify Federal immigration enforcement personnel of wanted illegals or refusing to detain illegal immigrants, at the request of Federal authorities, who are arrested for local criminal violations beyond their release date.  The cities and counties employing these tactics are collectively referred to as “sanctuary cities.”

President Donald J. Trump made “de-funding” sanctuary cities a cornerstone of his Presidential campaign.  The incidence of illegal immigrant criminal activity, coupled with high profile illegal immigrant murders, rapes and robberies too numerous to recount here, propelled the popularity of his proposal to stop sending Federal funds to these jurisdictions.  Yet, the term “sanctuary city” is not defined in Federal law.  The meaning ascribed to the moniker in popular culture simply refers to a city or jurisdiction which harbors illegal immigrants in defiance of the law.  For purposes of the Trump Administration’s policy to withhold Federal funds, however, the term “sanctuary jurisdiction” has the very specific meaning set forth in President Trump’s Executive Order on the issue.

In this brief, I will explain why the Federal government CAN (at least to some extent) de-fund sanctuary jurisdictions.  I will explain the inherent powers of the Federal government in the field of immigration, the corresponding State’s Rights or Federalism issues, the Trump Administration’s current policy regarding “sanctuary jurisdictions,” explore the current legal challenges to this policy and explain, as best I can, in layman’s terms the Constitutional and statutory issues, and legality, of the Administration’s policy.  The issues involved are quite complex, so I ask my readers to bear with me.  I will break the issues down to the basics and, hopefully, leave my readers with a better understanding of the law and Trump Administration policy.

Immigration Law and the Constitution

First and foremost, the United States Constitution grants the Federal government “. . . broad, undoubted power over the subject of immigration and status of aliens.”  Arizona v. U.S., 567 U.S. 387 (2012).  Arizona v. U.S., is the landmark case which arose during the Obama Administration wherein the Federal government challenged an Arizona State law which sought to make violations of Federal immigration law violations of State law and imposed criminal sanctions on illegals who worked in Arizona (among other things).  The United States Supreme Court invalidated most of the Arizona statute as issue.  In so doing, the Court found the Federal government’s power over immigration was broader than most commentators previously believed.

The Supreme Court found, on immigration, Congress had the power to “pre-empt” State law.  The Court further found the Congressional acts on immigration, coupled with the extensive Federal regulations bearing directly on immigration, resulted in the Federal government “occupying the field” of immigration.  This is known as the doctrine of “field pre-emption.”  See Arizona v. U.S., 567 U.S. 387 (2012).  Field preemption results when the Federal control (through statutes, regulations, etc…) of an area of the law is so widespread, no room remains for any State law.  The Court found this to be the case regarding immigration law in the Arizona case.

Likewise, when the Federal government undertakes a valid exercise of its power as a sovereign nation, state laws which conflict with Federal law are pre-empted.  As the Court stated in Arizona, this principle includes “. . . those instances in which the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  (I don’t want to bog my readers down with too much information on preemption doctrines, but this is a type of implied preemption called “conflict preemption.”)

The end result is States are not at liberty to legislate regarding immigration.  They are not even authorized, on their own, to make violations of Federal law a violation of State law.  This practice was specifically rejected in Arizona v. U.S.  (The repudiation of this practice surprised some legal experts, simply because in other areas of exclusive Federal jurisdiction, this practice is allowed.  Any duck hunter will know the Federal government sets the rules and bag limits, but the State game wardens can charge a hunter for violations of the law and the State can prosecute the hunter in State court.)  Thus, the power of the Federal government over immigration is complete.

The Violation of Federal Law at Issue and the Effort to Strip Funding

In 1996, the Republican-controlled Congress passed a statute specifically directed at sanctuary jurisdictions.  The statute is 8 U.S.C. §1373.  While I doubt many of you want to read statutes, a portion of this one is worth reproducing.  Section 1373 provides, in part:

Notwithstanding any other provisions of Federal, State or local law, a Federal, State or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

8 U.S.C. §1373(a).  It is this specific provision forming the basis of President Trump’s Executive Order on sanctuary jurisdictions.  President Trump signed the Executive Order at issue, entitled, “Enhancing the Public Safety in the Interior of the United States,” on January 25, 2017.  Section 9 of the Executive Order deals with Sanctuary Jurisdictions.

Section 9 states it is the policy of the executive branch to ensure States and political subdivisions of States comply with 8 U.S.C. §1373.  Section 9(a) requires the Attorney General and the Secretary of the Department of Homeland Security to ensure that “jurisdictions that willfully refuse to comply with 8 U.S.C. §1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” (Executive Order)  This provision, coupled with the applicable statute, forms the basis of the effort to strip funding from sanctuary jurisdictions.

Importantly, as I write this, the Trump Administration is yet to actually strip any city or State’s funding for any violations of 8 U.S.C. §1373.  Nonetheless, a couple of cities, including San Francisco, filed suit in Federal court seeking to stop any effort to strip their Federal funding.  Oddly enough, San Francisco seeks a declaration it is not in violation of the 8 U.S.C. §1373.  (San Francisco Complaint)  The city claim its sovereignty and 10th Amendment rights are potentially going to be violated.  What to make of these contentions?  Let us take a look at that.

The Exercise of the Federal Spending Power and State’s Rights

Article I, Section 8, Clause 1 of the United States Constitution grants Congress the power to “. . . lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general welfare of the United States; . . .”  This provision is commonly referred to among Constitutional scholars and the Supreme Court as the Taxing and Spending Clause.  It forms the basis of the Federal Government’s Spending Power.

If my readers will harken back to high school civics class, one may recall the Federal government is one of limited, enumerated powers.  Congress does not have the right to legislate over anything and everything.  The Federal government only possesses the powers set forth in the Constitution itself.  Nevertheless, the Spending Power has been used by the Federal government to make States pass laws and undertake actions the Federal government otherwise did not have the power to force on the States.  The United States Supreme Court expressly held the Taxing and Spending Clause “. . . empowers Congress to authorize expenditures of public monies for public purposes not limited by the direct grants of legislative power.”  U.S. v. Butler, 297 U.S. 1 (1936).

There are limits on the exercise of Federal power, including the Spending Power, to be sure.  These limitations are based on the nature of our Republic, imposed by the Constitution.  The United States Constitution established a system of dual sovereignty between the States and the Federal government.  Printz v. U.S., 521 U.S. 898 (1997).  As the Supreme Court observed, “Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect.”  Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). The existence of two sovereigns (the Federal government and State governments) leads to the “. . . possibility that laws can be in conflict or at cross-purposes.”  Arizona v. U.S., 567 U.S. 387 (2012).

Some States, in connection with this issue claim, requiring them or their political subdivisions to cooperate with Federal immigration authorities infringes on their rights as separate sovereigns.  They further argue that conditioning receipt of certain Federal funds on such cooperation further violates their rights.  This is the fundamental basis of the disagreement.

Central to this disagreement are Supreme Court cases holding the Federal government may not “compel the States to enact or enforce a federal regulatory program.” New York v. U.S., 505 U.S. 144 (1992).  Similarly, the Federal government cannot “circumvent that prohibition by conscripting the State’s officers directly.”  Printz v. U.S., 521 U.S. 898 (invalidating portions of the Federal Brady Act which required State law enforcement officials to conduct background checks on gun purchasers.  Importantly, this case involved an exercise of Federal power under the Commerce Clause.)  These cases also form the basis of the local government’s challenge to compliance with Federal immigration law.  Yet, one must be mindful of what the Court did NOT decide in Printz. The Court refrained from “. . . deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid.” Printz, at 936 (Connors, J., concurring.)  Furthermore, the Court was not faced with an exercise of the Federal government’s inherent powers (such as the power to regulate immigration).

The Supreme Court noted, in specific reference to the exercise of the Spending Power, that “The framers explicitly chose a Constitution that confers upon Congress the power to regulate people, not States.”  New York v. U.S., 505 U.S. 144 (1992).  The Supreme Court’s case law on this issue requires the Federal government to give notice to the States of the “strings” attached to the receipt of Federal funds, such that the States “voluntarily and knowingly accept the terms.”  National Federation of Independent Businesses v. Sebellius, 567 U.S. 519 (2012).  Further, the financial inducement offered by Congress may not be so “coercive as to pass the point at which pressure turns into compulsion.”  Steward Machine Co. v. Davis, 301 U.S. 548 (1937).  Also, Congress may not change the rules retroactively on the States (after the fact).  Bennett v. New Jersey, 470 U.S. 632 (1985).  Another important limitation on the Spending Power is the grant to the States must be “germane to the federal interest in particular national projects or programs.”  South Dakota v. Dole, 483 U.S. 203 (1987).

These principles led the Supreme Court to invalidate the provisions of the Affordable Care Act which authorized the Federal government to strip ALL Medicaid funding if the States did not adopt the mandated Medicaid expansion.  The Court found stripping millions and millions of dollars from the States for failing to agree to expand the program at the cost of millions and millions of dollars to the States was not an “inducement,” it was a “gun to the head” and went too far.  See National Federation, 567 U.S. 519 (2012).

How do these principles apply to the current “Sanctuary Jurisdiction,” Federal funding issue?  First of all, the Federal government has complete, unfettered authority to regulate and control immigration.  Arizona v. U.S., 567 U.S. 387 (2012).  Importantly, The Supremacy Clause of the United States Constitution provides, in part, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land and the Judges in every State shall be bound thereby. . .” Article V, Clause 2, United States Constitution.  Clearly then, 8 U.S.C. §1373 is a Constitutional exercise of Congressional authority.

Importantly, sanctuary jurisdictions cannot now claim to be “surprised” by the funding issue, at least with respect to the Edward Byrne Memorial Justice Assistance Grant program and the State Criminal Alien Assistance Program.  This is because the Obama Administration put the participating jurisdictions on notice of the requirement that they be in compliance with 8 U.S.C. §1373 as of July 7, 2016.  This was done at the behest of Republicans in Congress (specifically Rep. John A. Culberson, R-TX).  (Obama DOJ Notice)

(If you are interested in biased reporting, you will not be surprised to learn when the Obama Administration decided to notify sanctuary cities of the potential for their Federal funding to be stripped, the press was much more favorable.  (Fake News) Not a word about lawsuits or unconstitutionality, nothing of the kind.  How about that?)

Anyway, can the Trump Administration start stripping some of the funding from sanctuary cities?  Sure, after all, the Supreme Court approved of Congress using the Spending Power to entice States adopt unemployment compensation laws, See Steward Machine Co., v. Davis, 301 U.S. 548 (1937), to make States change their legal drinking age, See South Dakota v. Dole, 483 U.S. 203 (1987), to adopt coal mining standards, Hodel v. Virginia Surface Mining & Reclamation Assn, Inc., 452 U.S. 264 (1981), and to adopt environmental standards, Arkansas v. Oklahoma, 503 U.S. 91 (1992)(case involving the Clean Water Act), to name a few.  On what grounds can the States refuse to comply with the Law of the Land on immigration? If the States can be compelled to create unemployment compensation schemes (something FAR beyond the power of Congress to do itself) by creative use of Federal funds, why can’t the Federal government require States to comply with 8 U.S.C. §1373 (which requires nothing more than communication) or lose Federal law enforcement grants?

A review of the applicable Supreme Court cases reflects the Federal government would NOT run afoul of any of the limitations imposed on the use of the Spending Power by stripping Federal law enforcement grants from Sanctuary Jurisdictions.  The States received notice of these obligations.  The States are not being “coerced” to the point of having a “gun” to the head.  The rules are not being changed after the fact.  And the funds to be withheld are germane to the Federal interest of law enforcement.

Where the Administration might be on shakier ground is if it tries to withhold funds without notice or unrelated to the Federal programs of which the local jurisdictions are on notice.  Can the Federal government simply pull ALL Federal funding from Sanctuary Jurisdictions?  Probably not.  That might be the proverbial “gun to the head” right?  The Department of Justice, however, could greatly expand the programs and Federal grants upon which compliance with 8 U.S.C. §1373 are required.  That would allow the Federal government to target all manner of other funding (education, prisons, housing, SNAP, etc…).

One last significant point of note on this issue is this: the Federal government could sue the local jurisdictions and obtain Federal court orders requiring compliance.  Federal courts have authority under the Supremacy Clause to order State officials to comply with Federal law.  See Washington v. Fishing Vessel Ass’n, 443 U.S. 658 (1979); Griffin v. School Board of Prince Edward County, 377 U.S. 218 (1964); City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958); Puerto Rico v. Branstad, 483 U.S. 219 (1987).  The Federal government could literally use the judicial power and have Federal courts order State officials to comply with Federal law.

Congress clearly had the power to enact the applicable statutory law. The Executive Branch clearly has the power to enforce it.  In fact, the Federal Spending Power is typically used to get the States to do things the Federal government could not ordinarily make the States do.  Stated another way, the Federal government can use the Spending Power to compel the States to act beyond the Federal government’s enumerated powers.  That is why conservatives oftentimes oppose the use of the Spending Power.  (Does anyone see the irony here of conservatives arguing for the Spending Power, while the City of San Francisco files a suit claiming its “State’s Rights” are violated?)  Here, the Federal government has complete authority to make the law and make the States comply with it.

I will conclude by observing the Federal government has the power to compel reluctant States to comply with Federal immigration law.  The Federal government may use the Spending Power, as long as the conditions imposed by the Supreme Court are observed.  In my opinion, the Federal government could also use the judicial power and have Federal courts order such compliance.

Compelling compliance among the more radical jurisdictions may require the Trump Administration to bring all available means to bear.  Stripping Sanctuary Jurisdictions of the right to receive a share of a few billion dollars in Federal law enforcement grants may not be enough.  To expand beyond those funding sources, the Federal government will need to implicate other Federal programs, such as housing, supplemental nutrition assistance and other benefit programs and provide States with notice of the need to comply with Federal legal requirements to exclude illegals from participating in those programs as well.

There is more than one way to “skin the cat,” so to speak.  If the Trump Administration intends to break the will of the leftist “resistance” in cities like Chicago or New York, it will need to use every means at its disposal.

Randy Street, Esq.
Monroe, LA
April 11, 2017

Randy Street, Esq.

Hunting, fishing, gun toting Louisianian. Republican. Attorney. Pro-gun. America First. Donald J. Trump is my President. #MAGA