Sanctuary cities

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Dear Donald –

You had quite the day today. You finally got to order someone to get to work on that wall!  The more interesting part, to me, was your proposed funding ban for so-called “sanctuary cities.”

It’s not clear how the government will identify these sanctuaries, but for purposes here, we’ll assume it includes both localities that won’t dedicate law enforcement resources toward enforcing federal immigration laws and those that won’t discriminate in service provision on the basis of immigration status. 

The simple fact of the matter is that you’ve got some basic constitutional problems with your plan. The 10th and 14th amendments pose problems, as does the Soending Clause. 

 Back in 1997, the Supreme Court made it clear that the federal government can’t force local governments to comply with a federal mandate. There, the issue was whether local law enforcement had to help enforce federal gun control laws, and they clearly said it was unconstitutional under the 10th amendment.   You can’t make local law enforcement enforce federal immigration law. Period. It’s a federal obligation and a federal responsibility. 

It’s also not clear whether you can mandate that they discriminate on the basis of actual or perceived immigration status. That also seems ripe for a 14th amendment challenge. If New York City started refusing services on the basis of perceived immigration status, they’d quickly land in court, and I will guarantee they’re unwilling to take that legal risk for something they disagree with.  After all, unless they ask for immigration papers from everyone they serve (and most citizens don’t carry sufficient documentation day to day), they have to rely on cheap stereotypes and biases – a recipe for constitutional disaster. 

Well, what about your proposed penalties (cutting off federal funding)? There’s the small problem of determining what funding you want to tie up here. Are we talking any federal money that gets spent within a city? Or will money going to citizens be exempt? What about money that nonprofits receive? What about schools? Is their funding sacrosanct?  What about money that States get from the Feds and then direct out to localities? If you keep going down that path, there’s not much actual money left, even before you wall off the law enforcement funding that’s exempt under the order. 

From the constitutional side of things, the Supreme Court has ruled that Congress can put conditions on funding, but there are some basic rules:

  • No surprises. Folks have to know all of the conditions upfront. You can’t change the rules midstream. That means you can’t add conditions to existing funding streams. 
  • It’s got to be relevant. The conditions have to be relevant to the funding it’s attached to. You can’t threaten to withdraw education dollars to force behavior on housing policy. This means that law enforcement behavior can only be conditions of law enforcement funding, which you’ve already exempted from the order. 
  • It can’t be coercive. The conditions and implicated funding can’t be so substantial as to constitute coercion. That means localities need to have a genuine choice – it can’t be comply or die. 

All in all, you don’t really have a constitutional leg to stand on here. I’d back slowly away if I were you. These cities feel strongly about this, and the amount of money involved means that they’ll definitely sue. And they’ll win. 

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