Trump’s threat to ‘anarchist cities’ violates the Constitution

Since 2017, the Trump administration’s Justice Department has battled sanctuary cities as they have prioritized deportations of undocumented persons by withholding federal grant funds appropriated by Congress. Now, the Department of Justice (DOJ) and other agencies are using the same tactics to undermine cities and states under the control of Democratic leaders. 

Last month, the administration issued an executive order saying that it would withhold government funding from so-called “anarchist cities” — a term without legal or statutory meaning. Last week, they made good on that threat by saying that Transportation Department-administered emergency funds for COVID-19 relief would be denied to “state and local governments … that are permitting anarchy, violence and destruction in American cities.” 

Also last week, we learned that the administration has asked Health and Human Services (HHS) and other agencies to comb through grants to cities, including New York, to deprive them of money that provides vision and hearing screening for newborn babies, HIV testing and other services to indigent urban residents.

In all these cases, the administration violated the separation of powers by refusing to disburse funds appropriated by Congress to the states. It has attached conditions to the distribution of money that have no relation to the purpose of the programs for which the funds were appropriated, and it has tried to commandeer the states into pursuing federal policy goals by tying them up financially — leaving cash-strapped cities and states, with fiscal positions only made worse by the COVID-19 crisis, without a meaningful way to say no to the federal government’s policy priorities. 

Sometimes described as “punitive federalism,” the administration’s approach to its interaction with the states is a perversion of the traditional relationship of the central government to the states. It also violates the Impoundment Control Act passed by Congress after President Nixon refused to distribute appropriated funds.

While immigration is primarily a matter of federal law, states and cities that are home to many undocumented persons still are responsible for the essential well-being of those souls, and the larger population of their jurisdictions. If the undocumented cannot go to an emergency room, drive legally, report crimes or domestic violence, they suffer — and their communities suffer as well. For this reason, many American cities have decided that they will not impede federal immigration authorities, but also will not cooperate with them, typically by not collecting certain personal information and by limiting data-sharing with federal agencies. That, in essence, is what makes them “sanctuary” cities.

At the beginning of the Trump administration, an executive order was issued by the White House to disqualify such cities from federal grants. To implement the order, the Justice Department promulgated rules for a formula grant, the Byrne Justice Assistance Grant that would have cut off sanctuary cities from eligibility for the first time in the program’s 15-year history. In one federal lawsuit after another, the administration lost. The reasoning of the cases in Chicago, Philadelphia and California was remarkably uniform: The courts found that the executive branch had refused to carry out the will of Congress when it appropriated funds for the grants, violating the separation of powers. Only the Second Circuit panel agreed with the Justice Department’s arguments, leading to a circuit split that may send this case to the U.S. Supreme Court for final resolution.

The cities being targeted are exploring their legal options on the two newer orders; some already have sued. Meanwhile, cities around the nation are deprived of Byrne grant funds needed to improve the quality of policing, a subject brought into keen focus by police shootings of unarmed Black men and women on the streets and in their own homes. Some smaller cities have just given up: One lawyer for a smaller jurisdiction told me that the amount of money at stake was not huge and the city could forgo the funding. 

In an era of massive federal grants to the states, resistance to federal coercion is futile if the amount of money involved is large enough. This is the “gun to the head” problem that the Supreme Court described when it ruled in the Affordable Care Act (ACA) case that the Obama administration could not condition Medicaid funding — 10 percent of the budget for many states — on compliance with Medicaid expansion. It is the less-noted part of the ACA case (you probably remember it for upholding the individual mandate) but provided an important protection for states that want to assert policy autonomy.

The Trump administration seems to be trying to accomplish by degrees what the ACA decision says cannot be done in a single decisive blow.

And time works against the cities. By procedural maneuvers and delays, and outright refusal to obey court orders, the administration is slowly stifling cities around the country in their efforts to tailor their public safety programs to local needs. And the targets are — exclusively and intentionally — cities under the leadership of Democratic mayors. 

The courts have been reluctant to issue contempt orders and levy fines against federal officials who refuse to comply with valid orders, but that may need to change. Meanwhile, congressional oversight committees should be asking federal officials why the money is being held up. 

Meryl Justin Chertoff is executive director of the Georgetown Project on State and Local Government Policy and Law.