Federalism has rarely been a friend to the most vulnerable people in American society. For much of our history, the doctrines of states’ rights and local control empowered reactionaries to deny African-Americans the security of full citizenship.
But now that reactionaries have taken control of the federal government, the independence of states and municipalities may be the greatest source of security for those who are presently shadowed by the ambiguity of their legal status.
Across the United States, hundreds of municipalities function as “sanctuary cities” — areas in which local law enforcement refuses, upon the request of federal authorities, to detain undocumented immigrants who have not committed a crime within the city. Some sanctuary cities also prohibit local law enforcement from inquiring about an individual’s legal status and/or provide the undocumented with identification cards and access to government services.
In the wake of Donald Trump’s election, the mayors of such cities — including those of New York, Los Angeles, Chicago, and San Francisco — rushed to reiterate their commitment to protecting their law-abiding residents against the threat of deportation.
The president-elect, for his part, has vowed to “cancel all federal funding to sanctuary cities” within his first 100 days in office, while also pursuing the mass deportation of 3 million undocumented immigrants.
And his appointment of immigration hawk Jeff Sessions to the Justice Department lends credibility to that promise.
In July, that department’s Inspector General concluded that 300 sanctuary jurisdictions were likely in violation of a federal law that prohibits local authorities from withholding information about the legal status of detainees. The IG’s report has led advocates for restrictive immigration to believe that the Justice Department has grounds to sue sanctuary cities.
“The Inspector General’s decision is sound and firmly settles the question,” Sessions said upon the report’s release. “Now, the law and the American people demand that this Administration cease its acquiescence in this illegality. The Obama Administration must immediately take action to withhold significant federal law enforcement funding for these offending jurisdictions.”
The Obama administration’s Justice Department has sued states for attempting to implement hardline immigration-enforcement laws that contradict federal policy. Should Sessions take the reins of that agency, he could, ostensibly, use the department’s prosecutorial discretion to opposite ends.
Few cities could afford to continue protecting the undocumented, should a total loss of federal funding become the price of such a policy. To take just one example, Chicago plans to finance more than 10 percent of its $9.3 billion 2017 budget via federal grants.
But sanctuary cities may themselves be sheltered by a series of Supreme Court decisions that were lambasted by liberals at the time they were issued.
In 1997, the court ruled that a federal gun-control law violated the Tenth Amendment’s separation of powers. In his majority opinion in Printz v. United States, Antonin Scalia wrote that the Tenth Amendment prohibited the federal government from “commandeering” the cooperation of state governments in enforcing federal law.
The Printz decision strengthened a precedent that the court established in New York v. United States in 1992, which found that that the federal government could not force states to assume liability for radioactive waste generated within their borders, should they refuse to enforce federal policy on the management of such waste.
Writing for the Washington Post, George Mason University law professor Ilya Somin argues that these precedents will render Trump’s threats of cancelled funding all but toothless:
Few if any federal grants to state and local governments are conditioned on cooperation with federal deportation efforts. The Supreme Court has long ruled that conditions on federal grants to state and local governments are not enforceable unless they are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” In ambiguous cases, courts must assume that state and local governments are not required to meet the condition in question. In sum, the Trump administration can’t cut off any federal grants to sanctuary cities unless it can show that those grants were clearly conditioned on cooperation with federal deportation policies.
Should the Trump administration forgo executive action, and opt to punish sanctuary cities via legislation, it would still likely run up against a big, beautiful wall of Supreme Court precedent.
In 2012, the court struck down the enforcement mechanism in Obamacare’s Medicaid expansion, on the grounds that the federal government cannot establish conditions for funding so coercive, they amount to a “gun to the head” of state or local governments. This decision had terrible consequences for poor, sick people in deep red states, and was condemned by progressives, accordingly. But the ruling also seems to prohibit congressional Republicans from forcing sanctuary cities to choose between their federal funding and their commitments to undocumented residents.
Of course, Trump will have his pick of at least one Supreme Court justice. And justices have, on occasion, found ways to twist precedent into whatever shape their ideological leanings demand.
Still, for now, it appears that the undocumented residents of America’s largest cities may find sanctuary in Antonin Scalia’s veneration of states’ rights.