Understanding the Sanctuary Cities Cases

Sanctuary Cities are the municipalities that refuse to cooperate with the Federal government’s efforts to enforce immigration laws. To try and bring them to heel, the Trump administration threatened to pull federal funds away from them. On Tuesday, a federal judge blocked the administration from following through on that threat.

Depending on your point of view over immigration, you either cheered or jeered — but for the most part, few understand the decision. Those on the pro-immigration side seem to believe that this means that the sanctuary cities are home free. Those on the anti-immigration side seem to think that the judge usurped some authority.

They are both wrong. The decision is constitutionally correct. But, the federal government is a mighty thing, and it can still get what it wants — it just has to pay for it.

It all comes down to the limited powers of the federal government. The federal government has constitutional authority to manage immigration policy. But, while the federal government has such powers, it does not have the power to force state or local governments to cooperate. For example, if the federal government wants to maintain its laws against marijuana, Colorado can say “lol, no.”

Of course, the state and local governments certainly maintain the right to enforce federal law, but it would violate the Constitution to try and compel them to do so.

In Prigg v. Pennsylvania, 41 U.S. 539 (1842) the Supreme Court held that a Pennsylvania law prohibiting the extradition of runaway slaves violated Article VI, Section 2 of the Constitution — the Supremacy Clause. However, at the same time, the federal government could not compel Pennsylvania authorities to participate in the federal scheme of recapturing escaped slaves. If the Feds wanted to go slave-catching, they could, and Pennsylvania couldn’t get in the way, but it didn’t have to participate either.

In New York v. United States, 505 U.S. 144 (1992), the Supreme Court clarified that the feds could not hijack state governments to enforce federal rules. In that case, the Low-Level Radioactive Waste Policy Amendments Act gave states a choice: Either comply with federal regulations or “take title” to radioactive waste. Since the federal government could not independently do either of those things (force compliance or force states to take title), they could not force states to make a decision between the two.

In Printz v. United States, 521 U.S. 898 (1997) the Supreme Court reviewed the Brady Bill — where it required local law enforcement participate in federal background checks for handguns. Again, the Court held that this was unconstitutional, because it was forcing local governments to administer a federal regulation.

And, in National Federation of Independent Business v. Sebelius, 567 U.S. 1 (2012), the Court held that the federal government could threaten to withhold Medicaid funding from states that refused to expand Medicaid.

Do you see a pattern? Trump can say that he wants to round-up illegal immigrants all over the country, but he’s going to need police to do that. He has his own. He has INS agents, and homeland security, the FBI, etc. If they are federal agents, the federal government can use them to enforce federal law. But, the federal government can’t tell Massachusetts to call out all the stateys to start conducting raids.

Trying to coerce local governments by withholding funds from those that refuse to play along? That’s what just got knocked down. If the state or local government already has funds flowing to it, the federal government can’t threaten to turn off the tap if they don’t start enforcing a federal mandate — unless that mandate was already a condition of receiving the funds.

But, the federal government can always buy off local governments. It can authorize new funds to incentivize states and cities to start rounding up illegal immigrants.

That is what Congress did when it passed The National Minimum Drinking Age Act of 1984 (23 U.S.C. § 158). When it passed that Act, it offered federal highway funds to the states, but states got 5% less if they didn’t implement a 21 and over drinking age. South Dakota resisted, but in South Dakota v. Dole, 483 U.S. 203 (1987) the Supreme Court said that this kind of coercion was constitutional. Congress can dangle money in front of the states and municipalities, and condition receipt of the federal funds on conditions that the Feds could not forcibly impose.

Essentially, the Feds can buy what they may not take.

If Trump wants to bring the sanctuary cities to heel, he can’t do it by fiat or by compulsion. He is going to have to launch a new federal funds program, with the condition that the city help him round-up illegal immigrants and enforce federal law. This is going to need Congress to come up with money to dangle in front of municipalities. It is going to need to be enough money to make the resistant cities think twice about it. And, for the cities that say “do it yourself, Donny,” he’s going to be out of luck.

Marc J. Randazza is a Las Vegas-based First Amendment attorney, the national president of the First Amendment Lawyers’ Association, and managing partner of the Randazza Legal Group.