Sanctuary Cities Executive Order is Illegal “Gun to the Head” of Cities; Denial of Funds Cannot Stand
Trump’s sanctuary cities order threatens public services
By Edward T. Waters
Little known is the fact that since the 1960s, virtually all initiatives to improve our country have been accomplished by state and local governments, nonprofit agencies and others fueled by federal grants.
Combating Zika, fighting infant mortality, housing impoverished families, providing young children with health and educational services — all this and more hinges on federal dollars. In fiscal year 2016, such grants topped $660 billion. Absent those funds, critical services would have been hobbled.
The president, on Jan. 25, put those funds and the totality of public services in dozens of jurisdictions in jeopardy. With his sanctuary city executive order, he made every community that refuses to assist U.S. Immigration and Customs Enforcement (ICE) ineligible for federal funding. In that order’s crosshairs are San Francisco, Boston, Denver and every other city that has declared itself, or simply acts like, a sanctuary jurisdiction.
This administration’s threat to withhold grants follows a long tradition of using the power of the federal purse to further Washington’s policy objectives. When then-President George H.W. Bush chose to prevent doctors from even uttering the word “abortion,” his administration restricted the use of family planning grants to determining that a woman was pregnant. This so-called “gag rule” was upheld by the Supreme Court, although my firm subsequently got it rescinded through separate litigation just before Bill Clinton took office.
What sets the sanctuary cities executive order apart is the magnitude of the penalty it would impose on state and local governments that do not toe the line — withholding virtually all grant funds, including those for health and education.
That threat alone is already having a profound effect, underscoring local governments’ dependence on federal funding. A number of jurisdictions, such as Maryland’s Howard County and Florida’s Miami-Dade County, have reversed their sanctuary policies and pledged to cooperate with ICE.
Courts have struggled with this overwhelming federal power, asking: At what point does encouragement of an activity through the provision of funding become, as Chief Justice John Roberts termed it recently, “a gun to the head”?
On occasion, the nation’s highest court has found that hypothetical gun. In its 2012 ObamaCare decision, the Supreme Court ruled that compelling states to accept a major expansion of Medicaid at the risk of losing all Medicaid funding undermined the constitutional balance between states and the federal government.
The Court has also shown concern about using the power of federal funds to trample free speech. The justices in 2013 struck down a requirement that organizations had to first “pledge allegiance to the Government’s policy of eradicating prostitution” before even applying for funding to combat HIV/AIDS overseas.
The sanctuary city order is plainly illegal. It employs the same blunt tactics that the Supreme Court rejected in the past. Declaring grantees ineligible without due process violates longstanding regulations on suspension and debarment, but more importantly, to paraphrase Chief Justice Roberts, it is unconstitutional to “conscript” states, and by extension local governments, into “the national bureaucratic army.”
Regrettably, until this executive order is withdrawn or struck down by the courts, it will have its desired effect of altering local decision-making and actions in the absence of legal procedures and safeguards.
Federal grant programs should be implemented as intended by Congress, whether to improve public health, teach our children or make our roadways safe. They should not be subject to the whim of heavy-handed political figures. In this instance, if the present administration and Congress fail to nullify the sanctuary cities executive order, the courts surely will.
Edward T. Waters is Managing Partner at Feldesman Tucker Leifer Fidell LLP. This column was first published as an op-ed in The Hill on March 14, 2017.