Law Not Clear Cut On ​“Sanctuary” Edict

(News analysis) New Haven plans to join communities across the country suing the Trump administration if it follows through on a vow to take federal money away from ​“sanctuary cities” that refuse to help track down and deport undocumented immigrants. In doing so, the city will enter some uncharted legal territory.

How strong is New Haven’s legal case?

A lot rides on that question. The federal government is sending New Haven $56 million this year. Under an executive order signed by President Donald Trump, much of that money may be at stake in the future.

Can the federal government just withhold funds from cities?

Maybe. The general idea is that the more relevant the funding is to the issue that federal and state or local authorities are arguing about, the more grounds the federal government has for withholding funding. The federal government has withheld funding for highways to get states to impose speed limits. In the 1987 case South Dakota v. Dole, the Supreme Court found that the federal government could withhold highway money to get states to comply with the new national drinking age. This created, as Yale constitutional law expert Akhil Reed Amar put it, a test for how ​“germane” the funding was to the issue at hand.

But there are other questions at stake, according to Amar. ​“One is: At what point does the federal threat to defund become the proverbial gun to the head of the states and localities? Is it too coercive?” The Constitution, as Yale immigration law expert Michael Wishnie pointed out, does not allow the federal government to use ​“highly coercive conditions” — that is, withholding funding — to get states to comply with laws.

“Most important,” for Amar, however, is that following the Constitution, ​“whatever strings are attached to funding of state and local efforts by the federal government have to be clear and visible in the statute in advance” out of ​“respect for states and federalism.” States and cities can’t be subject to a ​“bait and switch,” in which they take federal funds only to have conditions applied on that money later.

“And there’s the separation of powers issue,” Amar added. ​“Once Congress writes the statute, the president shouldn’t be allowed to rewrite it.”

Yet the possibility of withholding federal funds certainly looms as a threat. New Haven gets federal money for a variety of uses. Possibly the most relevant to the argument over sanctuary cities is the Justice Assistance Grant program, through which the federal Department of Justice funds a range of law enforcement programs. though as Amar pointed out, ​“Trump has been known to change his mind.”

And as a declared sanctuary state, ​“Connecticut is already on the chopping block for law enforcement grants,” said Jessica Vaughan, director of policy studies for the Center for Immigration Studies. The state has until June 30 to comply.

Legal arguments could be made for other sources of federal funding as well, Vaughan pointed out. Community block grants could be withheld in sanctuary cities because sanctuary policies create ​“places for illegal settlement,” for example. The farther afield the threat of pulling funding goes from law enforcement — which is where the rubber hits the road concerning sanctuary city policies — the harder the federal government will have to work, legally speaking, to justify pulling it.

I know New Haven is proud to be a sanctuary city. But just to play devil’s advocate here, why exactly is what sanctuary cities are doing legal in the first place? Don’t states and cities have to follow and enforce federal laws?

That’s the gist of the argument against sanctuary cities, which on its face is straightforward. ​“The supremacy clause of the Constitution says that federal law is the supreme law of the land and it trumps state law to the contrary, and local law. And when it comes to immigration and naturalization, these are topics that the Constitution quite clearly and uncontroversially, for over 200 years, has given the federal government power over,” Amar said. ​“The federal government exists to defend our borders, and states and localities are not at liberty to basically try to nullify federal policies.” 

Vaughan agrees. ​“Under the Constitution, the federal government has the authority to make immigration decisions and decide who gets to stay,” she said. ​“It’s unreasonable for state and local governments to try to usurp that authority.”

Generally speaking, federal authority supersedes state and local authority — where it’s clearly stated in the law.

But that’s where things get complicated.

Take a portion of the law officially designated as 8 U.S.C. § 1373, known more informally as Section 1373. It states that ​“a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

An opponent of sanctuary cities can read this section of the code and argue that, by not asking about people’s immigration status, cities violate this part of U.S. law; they’re ​“restricting” immigration information.

A proponent of sanctuary cities can read this same section of law and argue that cities aren’t violating it because the law doesn’t create an obligation for police to actively collect and pass along information. If police just don’t collect the information, then they have nothing to pass along.

Simply not knowing about a person’s immigration status is also what allows sanctuary cities to argue that they’re not violating 8 U.S. Code § 1324, which states that any person who ​“knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation,” faces penalties under the law.

Opponents of sanctuary cities argue that sanctuary cities are violating this law. Proponents argue that if someone — say, a police officer or a city official — doesn’t know a person’s immigration status, then the law doesn’t apply.

Again, playing devil’s advocate, this sounds a little bit like a loophole for proponents of sanctuary cities.

Maybe it is. But proponents of sanctuary cities would argue that it falls under the 10th Amendment, which states, in beautifully sweeping terms but with a maddening lack of detail, that ​“the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

There’s no real question that immigration policy is and should be the province of the federal government, for lots of obvious reasons. But traditionally, law enforcement issues, for better and for worse, have been left more up to states and cities. Sanctuary city policies create a lot of friction between these two positions.

But a clear federal law trumps state and local law.

Right.

So could Congress just pass a law requiring local authorities to collect immigration information? 

Theoretically, yes. Congress could pass a statute saying ​“from now on, if you want to get money from the federal government, cooperative federalism block grant money, here’s what it means to be cooperative” — and impose conditions like requiring law enforcement to more actively help the feds enforce immigration law, Amar said. But because such a statute involves infringing on states’ rights, which conservatives generally support, it could be a tough political battle, even in the current political climate.

Which is why, at least right now, the Trump administration’s angle is more about withholding federal funding than about changing the law. Even the threat of withholding funding turned out to be enough for Miami-Dade Mayor Carlos Gimenez to back down.

But Vaughan doesn’t think such coercion would work on the ​“diehard” cities. ​“That may take litigation,” she said — litigation that, with San Francisco’s Jan. 25 filing contesting Trump’s executive order, has now potentially already begun.

What are the chances that the sanctuary cities could lose their lawsuits against the federal government? And what could the consequences be?

A case between the federal government and a municipality over sanctuary city policies could make its way to the Supreme Court. If the federal government prevails, it could be ​“game over,” as Vaughan said, for sanctuary cities.

In favor of sanctuary cities is the anti-commandeering principle — the judicial opinions against the federal government using ​“highly coercive conditions,” as Wishnie put it, to force state compliance. This principle has a long history. In the 1842 case of Prigg v. Pennsylvania, the Supreme Court struck down state-level laws that prohibited extraditing slaves to other states, arguing that those laws violated the federal Fugitive Slave Act of 1793. However, in the court’s opinion, this did not mean that Pennsylvania had to actively enforce the Fugitive Slave Act — that is, round up escaped slaves. The Fugitive Slave Act was a federal law, and therefore the federal government’s responsibility to enforce it. The states could not be ​“compelled to enforce” it.

The Court upheld the principle in three more recent cases. In New York v. United States (1992), Justice Sandra Day O’Connor wrote in that case’s majority opinion that, ​“as an initial matter, Congress may not simply ​‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’”

Citing the 1992 case, Justice Antonin Scalia’s majority opinion in Printz v. United States (1997) held that the Brady Bill had gone too far in making state and local law enforcement conduct background checks for guns. ​“Congress cannot compel the States to enact or enforce a federal regulatory program,” Scalia wrote. Then he went a step further — ​“today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly” — expanding state protections under the 10th Amendment. In Independent Business v. Sebelius (2012), Justice Roberts used the same principle to strike down parts of the Affordable Care Act.

But it’s possible that the anti-commandeering argument won’t hold up in this case. As Amar pointed out, ​“Printz is a 5‑to‑4 decision,” and ​“many of the people who were in the five are not on the court anymore.” The court could decide that the principle doesn’t apply on national security grounds.

On whatever ground the court’s decision rests, a strong decision against sanctuary cities could, in effect, provide the clarity in the law that effectively puts an end to state and local policies that create sanctuary cities.

So what happens now?

Between the complicated legal situation that sanctuary cities have always been in, and the fact that these are days in which precedents seem a little more prone to be broken than usual? It’s anyone’s guess.

Paul Bass contributed reporting.

Click on or download the above audio file to listen to a interview with Akhil Reed Amar on WNHH radio’s ​“Dateline New Haven” program about the constitutional issues at play in a number of President Trump’s executive orders.