Can Executive Orders Satisfy Federalism “Clear Statement Rules”?

Among the flurry of the new administrations executive orders is a directive to the Attorney General to withhold federal funds from “sanctuary cities.” To say that again with a little more detail, the EO would deny support from city that refuse to provide to the feds information they hold about the immigration status of any individual. At the VC, Ilya Somin suggests that the EO is ineffective, either because it would represent “commandeering” of city officials or because the EO lacks grounding in a “clear statement” from Congress. Withholding funds clearly isn’t commandeering, so let me focus on the second issue. My bottom line ultimately may be the same, but for different reasons.

Ilya claims that the federal government cannot condition funds to state & local governments unless clearly authorized in legislation. “ Any such condition must be passed by Congress,” he writes.

I don’t think this is an accurate description of the law. It is true that(despite my arguments to the contrary) the Supreme Court has regularly held that conditions attached to federal funds must provide states with “clear notice” of the strings. But in 1999, the Court also appeared to hold that such notice could be supplied through federal regulations. See Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Ed., 526 U.S. 629, 643 (1999) (“ [T]he regulatory scheme surrounding Title IX has long provided funding recipients with notice….”).

While the dissenters took a different view on the merits, I think ultimately both sides would probably embrace clear statements in regulations. The central rationale for the clear statement rule in this context (first suggested by Laurence Tribe) has been to ensure that states have an opportunity to participate in and exert their influence over the processes that lead to spending conditions. It is hard to argue that states do not have that opportunity in regulations that go through the notice & comment process.

Still, I end up at Ilya’s end result, albeit with a few more steps. For one, any regulation of course has to be authorized by statute, otherwise it is ultra vires. Even if we take a fairly expansive view of the borders of the ultra vires doctrine (as I do, and I’m pretty sure Ilya doesn’t) there is no obvious underlying federal statute that appears to authorize a regulation that would lead to the withholding of expenditures from sanctuary cities.

Further, while there is no ultra vires doctrine with respect to executive orders, an EO probably does not fit into the clear statement rule rationale I just described. States may well lack opportunities to participate in and influence the crafting of EOs. Certainly that was the case here. So (while I think the whole clear statement doctrine is indefensible and rests on mistaken factual assumptions) as a descriptive matter, the EO probably would flunk the clear statement test.