Sanctuary cities are back in the news, with Donald Trump issuing an executive order, based on a 1996 law, to cut federal funds to all state and local governments that refuse to cooperate with federal immigration enforcement. News reports claim that local governments may lose millions of dollars. Already, the mayor of Miami-Dade County says that he will comply with President Trump’s demand. On the other extreme, San Francisco has filed a lawsuit challenging the constitutionality of the executive order. Can the president actually cut current federal funding? The answer is almost certainly “no.”
The United States constitution recognizes that the states and the federal governments are independent sources of political power, a doctrine that lawyers call “federalism.” Thus, the United States government cannot force state and local governments to enforce federal law. In Printz v. United States, the United States Supreme Court ruled that a federal handgun control law could not require local law police to enforce it. If the federal government wanted to conduct background checks, it would have to do so itself. Likewise, if the federal government wants to enforce its immigration laws, it can. But it can’t force other governments to do that job for it.
{mosads}Of course, the federal government can impose conditions on the use of money that it gives to state and local governments, but there are limits. For example, in South Dakota v. Dole, the United States Supreme Court held that the federal government could require a state to raise its minimum drinking age to 21 if it wanted to receive federal highway funds. In doing so, however, the Supreme Court imposed limits on the federal government’s power to use money as a carrot for state compliance. First, the federal government must clearly state conditions in the terms of any state-federal program before states agree to them. Second, the conditions must be related to the purpose of the program. (For example, highway safety is related to drunk driving, and it is reasonable to assume that drinking age and drunk driving are related.) And finally, the federal government cannot coerce the state to comply.
The Supreme Court clarified that last requirement in National Federation of Independent Businesses v. Sebelius (the so-called “ObamaCare” case). That case held that the federal government cannot compel state or local governments to comply by threatening to withdraw previous funding, particularly if that funding is a significant part of the state or local governments’ budget. The Medicare expansion in the Affordable Care Act violated that requirement, because states that refused to agree to the new provisions would lose all prior Medicare funding.
Trump’s executive order fails all three of these requirements. First, sanctuary cities agreed to receive their federal funds well before he was ever elected. Unless the funding agreements contain a clear statement that cities and states must provide information to immigration authorities, the president cannot impose that requirement retroactively. Second, most of these funds that state and local authorities receive are unrelated to immigration enforcement. And ironically, necessary funding for “law enforcement purposes” is the one area that Trump excludes from his order.
Finally, the president’s executive order seeks to compel state and local governments to comply with his demands under threat that the federal government will withdraw prior levels of funding. The amount at stake is immense. California, for example, received more than 54 billion dollars in federal aid in 2013. As a proportion of California’s total budget, this was lower than most states, a “mere” quarter of California’s general revenue. By contrast, federal government funds make up thirty-five percent of Oregon’s general revenues, and more for other states. In short, President Trump’s executive order is more coercive than President Obama’s signature legislation, the Affordable Care Act.
On this issue, principled conservatives should be particularly alarmed. If Trump can order state and local law enforcement officials to do his will, what prevents a future Democratic president from ordering the local police to do her will? The immigration order should be bone-chilling to those conservatives who care about federal government overreach. And principled liberals should be thanking the conservative justices on the United States Supreme Court for their defense of state independence.
William Fernholz is a lecturer-in-residence at the UC Berkeley School of Law and the director of its appellate and competitions programs.
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