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5 Ways Trump’s Anti-Sanctuary City Orders Are Unconstitutional

Devin Watkins

Attorney General Jeff Sessions recently announced that he
will begin punishing states and local governments who refuse to
help the federal government enforce its immigration laws —
known as sanctuary cities – by taking away federal
grants. Sessions even mentioned using a “claw-back” to
retake money already given to local governments. Two federal judges
are already examining if they should be put on hold.

The order is plainly unconstitutional. It
undermines federalism in several ways.

1. States
can’t be forced to help enforce federal law.
1996, Congress enacted 8 U.S.C. § 1373, which attempts to stop states and cities
from enacting policies that would block state employees from
helping the federal government enforce its immigration laws. Yet
the next year, the Supreme Court ruled that the federal government
cannot force states and cities to help enforce any federal law. As the late Justice Antonin Scalia
wrote in the court’s opinion for Printz v. United States,
states can be enticed to do so willingly, but they can’t be
“commandeered.” States and cities do not have to obey
— which directly contradicts Sessions’ requirement.

The order is plainly
unconstitutional. It undermines federalism in several

2. The White House
can’t make new requirements.
The executive order
purports to create new conditions on federal grants to state
governments. But the Administration has no authority to do so. The
Supreme Court, in Pennhurst State School and Hospital v.
(1981), held that only Congress could impose
conditions on federal grants to states — not a President.

3. Even if
Congress added the requirements, these are unclear.
where Congress imposes conditions on spending, it must “speak
with a clear voice” and make the condition
“unambiguous” so that states know what they are
agreeing to by taking the money. Sessions’
“claw-back” threat spotlights how unclear the
immigration-enforcement requirements — if they exist at all
— are for the thousands of federal programs and grants
potentially affected. Didn’t the states and cities have to
qualify to get the money in the first place?

4. It’s too
late to add new requirements.
After a new large spending
program is created, even Congress can’t later add new major
conditions. The Supreme Court considered this problem with
Obamacare’s Medicaid requirement that either a state expand
Medicaid or lose even its preexisting Medicaid funds in
2012’s NFIB v. Sebelius. Seven
justices found this unconstitutional. So even if Congress wanted to
impose these conditions on current substantial funding, it
couldn’t. It could only impose them on new funding.

5. The
requirements have nothing to do with many of the threatened
Any condition attached to spending must be
germane to the purpose of that spending. In South Dakota v. Dole (1987),
the Supreme Court allowed Congress to condition a small portion of
the federal highway funds on the requirement that the state enact a
minimum drinking age of 21. The Court found this constitutional
because this was related to the purpose of the funds. Even Congress
cannot use highway funds to force states to change education
policy. If the Administration limits the order to the Department of
Justice programs that Sessions talked about, they might be
considered germane. But Trump’s executive order adds
conditions to all federal grants, and the vast majority of them
have purposes — like education or environmental protection
— entirely unrelated to immigration. We will see how far the
executive order reaches.

What Should Be Done Instead

Before Sessions’ announcement to begin
enforcement, San Francisco and Santa Clara County were seeking to
prevent these actions from going into effect. They have asked for a
nationwide preliminary injunction, which a federal judge will
consider on April 5 and April 12. Seattle is also seeking to stop
these actions, but likely will take longer for the courts to
consider. Now that the Administration has started enforcing the
order, the courts seems likely to issue the injunction and block

Immigration reform is an important issue for
the President, and an important reason for his election. But there
are other ways of accomplishing this objective. For instance, the
President could send federal agents to sanctuary cities to enforce
federal law. Or he could ask Congress to pass a new law that
tailors new law-enforcement grants to these purposes.

As it stands, a President could use these
kinds of threats to coerce states in all kinds of ways, including
against policies dear to his fellow conservatives. Trump will not
be in office forever, but the precedents he sets will live on.
Accordingly, this threat to constitutional governance should be
reconsidered or struck down.

After all, the people elected Donald Trump to
“drain the swamp” by taking power away from Washington
and returning it to the states, not the other way around.

is a legal associate in the Cato Institute’s Center for
Constitutional Studies.