by Erwin Chemerinsky

Throughout American history, conservatives have been the champions of states’ rights. But apparently, at least for President Donald Trump and Attorney General Jeff Sessions, that is only for when states’ rights serve their ideological agenda.

In January of 2017, soon after his inauguration, President Trump issued an executive order that so-called “sanctuary jurisdictions” would lose their federal money. In March 2017, Attorney General Sessions vowed to take Justice Department funds away from such places. In April 2017, Sessions sent letters to the state of California and to cities including Philadelphia, New York, and Chicago, indicating that the Trump administration intends to punish cities that do not cooperate in its crackdown on illegal immigration. An accompanying press release from the Justice Department declared that “many of these jurisdictions are also crumbling under the weight of illegal immigration and violent crime.”¹

Federal district courts in San Francisco, Chicago, and Philadelphia have declared these Trump policies to be unconstitutional.² The Ninth Circuit came to the same conclusion.³ Also, California adopted a law limiting state and local cooperation with federal immigration officials.⁴ A federal district court has upheld the law as constitutional.⁵

A great deal of confusion exists over what it means for a city to declare itself to be a “sanctuary.” It does not mean that a city will conceal or shelter undocumented immigrants from detection. It is not like when churches and synagogues have claimed to be sanctuaries and attempted to physically protect people from law enforcement.

Instead, when a city says that it is being a “sanctuary” it means that the city will not be an arm of federal immigration authorities. For example, a sanctuary city will not investigate, arrest, or detain individuals on the basis of immigration status because that is the role of the federal—not local—government. The city will provide services to all, regardless of immigration status, and generally not turn over undocumented individuals to federal immigration authorities.

There are compelling reasons for cities to adopt such policies. Victims of crime and witnesses to crime will not come forward to the police if they fear deportation. Indeed, it was for exactly this reason that in 1979 the Los Angeles Police Department adopted Special Order 40, which provides that “Officers shall not initiate police action with the objective of discovering the alien status of a person. Officers shall not arrest nor book persons for [violating] the United States Immigration code.”⁶

Public health officials fear that sick people, including those with communicable diseases, will not go for treatment if they fear that it could lead to their deportation. Of course, their untreated communicable diseases can spread to all of us. Education officials worry that parents will not send their children to school if they think it might lead to deportation. Educating children, whether documented or undocumented, is a moral obligation and obviously essential and beneficial for society.

Nonetheless, President Trump issued an Executive Order on January 25, 2017, that threatens sanctuary cities with loss of federal funds. The Executive Order is titled, “Enhancing Public Safety in the Interior of the United States.” It declares: “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.”⁷

The key provision says: “In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Section 1373 says that no law can prevent “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.”⁸

It is unclear whether and when a sanctuary city is violating Section 1373. But assuming that the Executive Order accomplishes what President Trump wants, this violates the Tenth Amendment.9 Likewise, Sessions’ policies to implement the Executive Order are unconstitutional as impermissible coercion of state and local governments. The Supreme Court has held that it is unconstitutional for Congress to commandeer state and local governments and force them to administer federal mandates.

For example, in United States v. Printz, in 1997, the Supreme Court declared unconstitutional a provision of the federal Brady Handgun Control Act that required state and local governments to do background checks before issuing permits for firearms. The Court, in an opinion by Justice Scalia, said that such coercion violated principles of federalism and the Tenth Amendment.¹⁰

Most recently, last spring, in Murphy v. NCAA, the Court declared unconstitutional a federal law that required states to have laws prohibiting gambling on professional or amateur athletics. Justice Alito wrote for the Court and held that it violates the Tenth Amendment for Congress to force states to enact or have particular laws.¹¹

Nor may Congress do this by putting strings on grants to state and local governments. The Supreme Court has said that such strings are constitutional only if the conditions are clearly stated, relate to the purpose of the program, and are not unduly coercive.¹² None of these requirements are met by the Trump Executive Order. No federal law conditions federal funds on cities not being able to have sanctuary status. Most federal grants to local governments have nothing to do with immigration.

But most of all, the Trump Executive Order is impermissibly coercive. In 2013, in National Federation of Independent Businesses v. Sebelius, the Supreme Court, 7-2, declared unconstitutional the Medicaid provisions of the Patient Protection and Affordable Care Act. These provided that if a state accepted federal Medicaid funds, it had to provide coverage for those within 133% of the federal poverty level. The federal government paid 100% of these costs until 2019 and 90% thereafter.13 The Court, in an opinion by Chief Justice Roberts, declared this unconstitutional as impermissibly coercing state governments in violation of the Tenth Amendment. The Court referred to this as like “a gun to the head” of the states and as “dragooning” them.14 The Trump Executive Order does exactly the same thing.

The federal government can use its agencies and agents to enforce federal immigration law however it chooses. The federal government has broad authority to regulate immigration. But it cannot turn local governments into enforcement arms of the federal government. That is exactly what the Trump administration is doing. It is misguided as a matter of policy and unconstitutional coercion in violation of the Tenth Amendment.

ENDNOTES

1. Press Release, Dep’t of Justice, Off. of Pub. Aff., Department of Justice Letter to Nine Jurisdictions Requiring Proof of Compliance with 8 U.S.C. § 1373 (Apr. 21, 2017, updated May 16, 2017) (https://www.justice.gov/opa/pr/department-justice-sends-letter-nine-jurisdictions-requiring-proof- compliance-8-usc-1373).
2. See, e.g., City of Chi. v. Sessions, 264 F.Supp.3d 933 (N.D. Ill. 2017); City of Phila. v. Sessions, 309 F. Supp. 3d 289, 344 (E.D. Pa. 2018).
3. City & Cty. of S.F. v. Trump, 897 F.3d 1225, 1245 (9th Cir. 2018).
4. Cal. Gov’t Code §§ 7282-7284.12 (2018).
5. United States v. California, No. 2:18-cv-490-JAM-KJN, 2018 U.S. Dist. LEXIS 113759 (E.D. Cal. July 9, 2018).
6. Daryl F. Gates. Los Angeles Police Dept., Special Order No. 40 (Nov. 27, 1979).
7. Enhancing Public Safety in the Interior of the United States, Exec. Order No. 13768, § 5, 82 Fed. Reg. 8799, 8800 (Jan. 30, 2017).
8. 8 U.S.C. § 1373(b).
9. “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.” U.S. Const. amend. X.
10. Printz v. United States, 521 U.S. 898 passim (1997).
11. Murphy v. NCAA, 138 S. Ct. 1461, 1476 (2018).
12. South Dakota v. Dole, 483 U.S. 203, 207-08 (1987).
13. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 542 (2012).
14. Id. at 581, 523.

Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at University of California, Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.

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