The president cannot constitutionally threaten to withhold funds from so-called sanctuary cities.
If he carries out his threat to cut off funds to jurisdictions that resist his immigration policies, President Donald Trump will violate the Constitution. In a speech on Tuesday, January 13, Trump announced that starting February 1, he will deny federal funding to any states that are home to local governments resisting his administration’s immigration policies.
This, of course, is not the first time Trump has made threats to jurisdictions that do not cooperate with deportation efforts led by U.S. Immigration and Customs Enforcement (ICE). He tried to do exactly this in his first term, only for the federal courts to declare his actions unconstitutional. Last year, just a day after the inauguration, Acting Deputy Attorney General (and now federal court of appeals judge) Emil Bove wrote a memo to the Justice Department calling on United States Attorneys to prosecute state and local officials who do not cooperate with the deportation efforts of the Trump administration.
President Trump also has expressed this, saying that state and local officials face prosecution for failing to assist his immigration policies.
These pronouncements, which obviously are meant to intimidate state and local governments, ignore the constitutional limits on the ability of the federal government to coerce state and local governments to carry out federal mandates. The Supreme Court has long held that the federal government may not commandeer state and local governments and force them to administer federal mandates.
In 1992, in New York v. United States, the Court declared unconstitutional a federal law that required that every state clean up its nuclear waste by 1996 or face significant legal consequences. The Court held that this violates state sovereignty and the Tenth Amendment. In an opinion by Justice Sandra Day O’Connor, the Court explained that Congress can try to induce state and local governments to act, but forcing them to adopt laws or enact regulations is unconstitutional. For example, when Congress wanted there to be a 21 year old drinking age it said that every state receiving federal highway money had to adopt this or it would lose five percent of those funds. This was deemed to induce, but not coerce state and local governments to act.
Under the Constitution, state and local governments are not enforcement arms of the federal government and cannot be treated as such.
The Court extended this in 1997, in Printz v. United States, declaring unconstitutional a provision of the Brady Handgun Control Act that required state and local law enforcement departments to conduct background checks before issuing permits for firearms. Once more, the Court said that the federal government could do its own background checks, but it could not conscript state and local governments and compel them to administer a federal law. The Court, in an opinion by Justice Antonin Scalia, stressed that the federal government cannot require state and local governments to serve as its enforcement arm — and concluded that it violates the Tenth Amendment for Congress to commandeer the states and force them to administer a federal mandate.
More recently, in 2018, in Murphy v. NCAA, the Court unanimously concluded that the federal government could not force New Jersey to have a law banning betting on college sports. Congress certainly could use its power to regulate commerce among the states to prohibit such gambling everywhere in the country. But the Court, in an opinion by Justice Samuel Alito, ruled that it violates the Tenth Amendment for Congress to compel that state legislatures adopt laws.
Thus, the law is clear that Trump cannot force state and local governments to assist federal immigration officials. This would be impermissible commandeering.
Indeed, this was the basis for declaring similar efforts in Trump’s first term unconstitutional. Then, too, Trump adopted a policy to cut off federal law enforcement money to local governments that did not cooperate with ICE. The United States Court of Appeals for the Ninth Circuit held that this was unconstitutional. Also, California, during the first Trump term, adopted a law limiting state and local cooperation with federal immigration officials. A federal district court upheld this law as constitutional.
There is a separate, important constitutional reason why Trump cannot unilaterally cut off funds: Only Congress, not the president, has the spending power and can set conditions on the receipt of federal money. The Supreme Court has held that the legislature can put strings on federal grants, but only if the conditions are clearly stated, they relate to the purpose of the program and they are not unduly coercive. Congress has not conditioned federal law enforcement money on state and local governments cooperating with ICE. As mentioned above, this is why Congress could say that state governments would lose five percent of their federal highway money if they did not set a 21-year-old drinking age: the condition was clearly stated, it related to the purpose of the highway funds and five percent was not unduly coercive. The Trump administration cannot add requirements that are not found in the federal spending law.
Throughout American history, it has been conservatives, and conservative justices, who have championed states’ rights and federalism.
Additionally, the Supreme Court has been clear that the federal government cannot coerce state and local action by withholding federal funds. In 2012, in National Federation of Independent Business v. Sebelius, the Court declared unconstitutional a provision of the Patient Protection and Affordable Care Act that required state governments receiving Medicaid funds to provide coverage to those within 133% of the federal poverty level. Those not complying would lose all federal Medicaid funds. The Court said that this was “dragooning” the states, impermissibly commandeering them to comply with a federal mandate. Such coercion, it ruled, violated the Tenth Amendment.
But that is exactly what Trump is trying to do if he cuts off money to state and local governments for not adequately cooperating with federal immigration officials. He is using federal money to coerce state and local governments that disagree with his immigration policies.
These cases reflect the Supreme Court’s upholding of the basic principles of federalism, which safeguard the autonomy of state and local governments. These are not new, and they are not historically liberal. Quite the contrary: Throughout American history, it has been conservatives, and conservative justices, who have championed states' rights and federalism. That is why it is realistic to imagine that the Roberts Court, which so far has generally been supportive of President Trump, would be likely to rule against his administration if he carries through his threats to cut off federal funds to jurisdictions that do not cooperate with federal immigration authorities to his satisfaction.
To be clear, despite the use of the phrase “sanctuary cities,” that is a misnomer. No state or city can or does protect undocumented individuals from ICE enforcement or deportation. Rather, “sanctuary cities” are jurisdictions that say that they will not explicitly assist the federal government in its immigration efforts. In other words, the state or local government cannot literally provide sanctuary to anyone, but they also don’t have to assist the federal government’s immigration enforcement efforts.
There are compelling reasons for cities to adopt such policies. Law enforcement agencies are understandably concerned that victims of crime and witnesses to crime will not come forward to the police if they fear deportation. This is not a new concern. In 1979, the Los Angeles Police Department adopted Special Order 40, which provides that “Officers shall not initiate police action with the objective of discovering the alien status of a person. Officers shall not arrest nor book persons for [violating] the United States Immigration code.”
Public health officials worry that sick people, including those with communicable diseases, will not go for treatment if they fear that it could lead to their deportation. Education officials fear that parents will not send their children to school if they think it might lead to deportation. This is not hypothetical. Cities are reporting significant absenteeism in schools as parents fear ICE actions there.
Under the Constitution, state and local governments are not enforcement arms of the federal government and cannot be treated as such. Federal authorities — such as ICE and border patrol agents — can enforce federal law so long as they do so in a manner consistent with the Constitution. But whether state and local governments wish to cooperate is entirely up to them. Cutting off funds from jurisdictions that don’t assist ICE would be unconstitutional.