How the Legal Attack on Obamacare Protects the Sanctuary City
There is a moment in many cop movies where the cop, pursuing a fleeing suspect, has to stop the car of a random civilian, force him out of the car, and take over. He has commandeered the vehicle, and the popular conception is that this is not only legal but commonplace.
But imagine that the car is the local police in San Francisco, the cop is the Federal Government, and the pursuit is against someone alleged to be in violation of immigration laws. Can the Feds commandeer the police to help enforce the laws? No.
This freedom from commandeering forms the basis of potentially the most effective defense against Donald Trump’s planned deportation crusade. How is it so effective? Because of Obamacare.
Sanctuary Cities: Where They Don’t Ask for Your Papers
In 2010, Arizona passed a law that’s usually referred to as SB1070. Among other things, it made it a crime in Arizona to be in violation of immigration law, and required that state law enforcement inquire as to the immigration status of anyone they interacted with, where they thought the person might be illegally in the country. The law inspired a lot of protest, and ultimately the Supreme Court determined that some of the law was unconstitutional, but preserved the provision where police would check immigration status.
Many cities around the United States have gone the other way, declaring themselves to be Sanctuary Cities. In these places, law enforcement and other local officials are forbidden from asking about a person’s immigration status. Many of the largest cities in the country have declared themselves Sanctuaries, including New York, Los Angeles, Chicago, San Francisco, and Philadelphia. Almost 30 million people live in Sanctuary Cities.
People who believe strongly in enforcement of immigration laws see Sanctuary Cities as a barrier to the efficacy of the law. A person living in San Francisco who overstayed her visa can be essentially invisible to the Federal Government. If all her interactions with local government never address her immigration status, and nobody reports her to immigration authorities, she could effectively live and thrive, while remaining in violation of federal immigration law.
Federalism and Commandeering
The Constitution of the United States reserves exclusive authority to determine who may enter the country and under what rules to the Federal Government. How that power can be divided up and used is an interesting question I addressed earlier. State and local governments have no authority to interfere. Similarly, the Constitution grants sovereignty to the states over their own affairs. This is the system of Federalism, in which states and the Federal Government have their own distinct realms of power and responsibility. Outside of civil liberties issues, which rest on an entirely different constitutional theory that isn’t implicated here, the Federal Government is not able to force states to do something. Federal officials may not coöpt state resources by fiat, no matter how much they might want to do so or how good their arguments are that it is for the greater good.
Though Congress and the President may not themselves force states to act, they have found a way to make things happen anyway: Offering up money. When Congress wanted states to set up unemployment compensation, it used the promise of taxes and subsidies to inspire the states to do so. When Congress wanted the drinking age moved from 18 to 21, it offered funds for road construction to inspire the states. Where the stick is forbidden, Congress uses the carrot. And that carrot is huge: 17% of the federal budget, or 4% of the GDP of the United States, is dedicated to transfers from the Federal to state, county, and city governments.
This the legal basis behind Trump’s plan, to take away that carrot. San Francisco receives about $450 million in federal funding each year, plus another $800 million in state funding, of which some also came from the Federal Government. Compare this to San Francisco’s budget for its school system, which is $116 million. If Trump were able to pull all that funding away, it could starve the city of necessary funds, forcing cuts to important services. The strategy here is to see how long the government of San Francisco can continue to maintain a sanctuary city policy in the face of parents angry over school cuts, drivers raging over dilapidated roads, and locals distraught over fewer police officers. Eventually they would have to coöperate with Trump’s plans to deport immigrants.
To enact this plan would require a new law, passed by Congress and signed into law by the President. The law would require that states and cities enforce Federal Immigration Laws or forfeit their funding for other programs. To make the deal revenue-neutral for local governments, Congress would want to provide funding to cover the costs of such enforcement.
Obamacare to the Rescue, Sort of.
The carrot method of getting around the Constitution has worked, generally, for almost a century. The Supreme Court reviewed challenges to many of these attempts, including the above-mentioned unemployment and drinking age laws. The Court determined that, generally, such requests to change laws or use resources would be unconstitutional if attached to funding requests that are so coercive that “pressure turns into compulsion.” In the case of drinking age, the funding amounted to 5% of a state’s federal highway grant, and was not considered to be coercive. San Francisco’s $450 million in federal funds is about 5% of its $9 billion budget.
Enter Obamacare. Among many things, Obamacare expanded coverage of Medicaid. Medicaid was established in 1965 as a health insurance program for impoverished residents and citizens of the United States. It is set up by the states themselves, under Federal grants. Just like all other carrot programs, the states receive considerable federal funding to run Medicaid programs in line with how the Federal Government tells them to run them. Obamacare expanded the eligibility of who would qualify for Medicaid. It required, over the coming years, that states would pay up to 10% of the cost of this expansion. If they did not do so, they would forfeit all federal funds for Medicaid.
Opponents of Obamacare challenged many of its provisions, including this one. In 2012, the Supreme Court determined that the Medicaid provision was too coercive. It would be one thing to condition new funding on expansion of Medicaid, but to condition all existing and past funding on expansion was “a gun to the head.” While the Court specifically declined to determine where the line is drawn such that a program becomes coercive, withholding all payments was “surely beyond” that line.
The only way that Trump’s proposed cut to Sanctuary City budgets could work is by the same mechanism employed in Obamacare: A new law that conditions past promises of funding on coöperation. Thanks to the Court’s ruling on Obamacare, there is precedent showing that the law would be too coercive. Sanctuary Cities will be able to successfully challenge it in court. Thanks, Obama.
What Can Be Done?
Go to Congress. Immigration law sits properly with Congress. The power to spend and fund programs sits properly with Congress. None of Trump’s plan to counteract sanctuary cities can work without the help of Congress. While such a law would fall apart under a legal challenge, many cities will struggle because of the mere threat of a cut to funding, and the process of challenging it can take years. The best way to stop this would be to tell Congress not to try.
Disclaimer: The author is neither an academic nor your lawyer. Do not rely on any of this as if it were real legal advice. The author proudly uses the diaeresis, and is not interested in your critique against its use.