November 2018 Cover Story – Federalism and Sanctuary Cities: The New Nullification Crisis

by John C. Eastman

In 1832, Vice President John C. Calhoun resigned from the administration of President Andrew Jackson in order to join the protest against the federal tariffs of 1828 and 1832 being advanced by his home state of South Carolina. South Carolina argued that the tariffs were unconstitutional, and Calhoun provided the intellectual heft to the argument. The national government was merely a compact of the states, he argued; the states were therefore superior to the federal government and could unilaterally decide whether any particular federal law exceeded the authority that had been delegated to the national government. Although a compromise tariff bill ended that particular nullification crisis, Calhoun’s argument metastasized into full-blown secession by South Carolina and her sister states of the confederacy in 1861, drawing the nation into what remains the bloodiest war of her history, interring on the battlefields of Vicksburg, Antietam, and Gettysburg the specious doctrine that the Supreme Court itself had already rejected as incompatible with the Constitution’s Supremacy Clause.

Attempts to resurrect the nullification theory have resurfaced on occasion, most notoriously by southern states in response to the Supreme Court’s school desegregation decision in Brown v. Board of Education, but like its predecessor, the attempts were unsuccessful. Quite simply, although the states retain a residuum of sovereign power, they did not create the national government and therefore have no authority to nullify its enactments. The first three words of the Constitution are, after all, “We the People,” not “We the States.”

California seems not to have learned that basic lesson from history. It does not like federal immigration law (or, more precisely, the determination by the current administration to actually enforce federal immigration law) and therefore has attempted to nullify its operation within the state’s borders. The claims are on even shakier ground because California’s dispute is not even with the constitutionality of federal law, but rather with federal policy. Even Calhoun never so boldly claimed that states could nullify perfectly constitutional federal laws merely because of disagreement over policy.

Three laws the state adopted in 2017 press the issue. AB450 prohibits private employers from cooperating with federal Immigration and Customs Enforcement authorities (ICE) absent a judicial warrant, when federal law (8 USC §§ 1226(a) and 1231(a)) allows for the use of civil administrative warrants. The state law also prohibits private employers from ever checking immigration status a second time (interfering with federal enforcement of immigration law against those who overstay lawful visas), and requires private employers to notify their employees of federal immigration enforcement efforts, even if that also undermines those enforcement efforts.

SB54 prohibits state and local law enforcement officials from voluntarily transferring illegal aliens held in their custody to ICE officials, or from providing information to ICE regarding release dates of such illegal aliens. As the legislative counsel’s digest notes, the bill repealed provisions in existing state law that required local law enforcement agencies to notify ICE when they had reason to believe those arrested for drug crimes were not citizens; the new law prohibits those officials from providing that information, in violation of federal law (8 USC § 1373), which provides that “no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from . . . (1) Sending [information regarding the immigration status, lawful or unlawful, of any individual] to, or requesting or receiving such information from, the Immigration and Naturalization Service.” And AB103 requires state officials to inspect federal facilities operated by the U.S. Department of Homeland Security in the state, contrary to an established principle of constitutional law as old as the 1819 case of McCulloch v. Maryland.

Pushing back against these state efforts to prevent federal law enforcement from doing its job, President Trump issued Executive Order 13,768, requiring the Departments of Justice and Homeland Security to exercise their existing authority to “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.” Legal challenges were immediately brought (naturally), largely on the ground that states were being “commandeered” to help with the enforcement of federal immigration law, in violation of the Tenth Amendment.

While it is nice to see the newfound interest in the Tenth Amendment from states like California (who seem to have discovered that provision of the Constitution on January 20, 2017!), there are a couple of reasons why those legal challenges are ultimately (which is to say, in the Supreme Court) unlikely to succeed. First, the Supreme Court has never held that requirements to merely provide information implicate the commandeering principle in the way that compelling states to actually do the enforcing of federal law does. Indeed, quite the opposite. The Supreme Court held in Reno v. Condon, 528 U.S. 141 (2000), that Congress could regulate information that states provide without violating the anti-commandeering principle. There, the federal law prohibited states from selling driver license information; here, the law prohibits the states from barring the provision of information to federal law enforcement officials. In neither case are state officials being compelled to enforce federal law against others, but are merely being regulated by the federal law themselves.

Second, and more fundamentally, states can be compelled to help enforce federal law as a condition on the receipt of federal grants. Such grants are treated like contracts, and if the federal government wants to require that states provide information about illegal immigrants in their custody as a condition of receiving federal grants to local law enforcement, it can clearly do so. The states, in the exercise of their residual sovereign authority, can decline the grant money, but what they cannot do is take the money and run, ignoring the strings attached.

There are a few constraints on that “conditional spending” doctrine, to be sure. The condition must be “related” to the spending, for example, but the Supreme Court has adopted such a weak test for “relatedness” that it is hardly a constraint at all. The federal government could require states to raise their drinking age to twenty-one as a condition on receipt of federal highway funds, the Court held in South Dakota v. Dole, 483 U.S. 203 (1987), thirty years ago, and it has not backed away from that very loose interpretation of “relatedness” since then.

Another constraint is that the amount of money at risk must not be so large as to amount to coercion rather than choice, but the Supreme Court has only once ever found a violation of that constraint, in the recent Obamacare challenge where states were threatened with the loss of all of their existing Medicare funding if they did not go along with the law’s Medicare expansion provisions. The Trump order, limited as it is to a small range of grants that are doled out by the Departments of Homeland Security and Justice, does not remotely rise to that level.

Finally, the condition imposed on the states must be unambiguous, so that the states can make an informed choice when deciding whether or not to accept the offer of federal money. The conditions imposed by the federal government in the most recent round of local law enforcement grants are clearly unambigious—state officials must, if requested, provide ICE with advance notice of the date and time any particular alien is going to be release from state incarceration; they must allow ICE access to such individuals while they are incarcerated; and they must certify compliance with 8 U.S.C. § 1373. Normally that requires we look to the language of the statute authorizing the grant money, but here, the conditions were imposed not by Congress but by executive branch departments, acting pursuant to an Executive Order by the President. Accordingly, the case triggers another constitutional doctrine, namely, whether there has been a proper delegation from Congress to the executive branch to fill out the details of congressional policy.

I’m a big fan of reviving the non-delegation doctrine, which would greatly limit vast amounts of power that have been delegated to executive branch agencies or, even more troubling, so-called “independent” agencies. But the simple fact is that, as least for now, the non-delegation doctrine is largely a dead doctrine and hasn’t been used to invalidate an act of the federal executive in more than 80 years. In any event, a federal statute does provide a very broad delegation of authority. Section 10102(a)(6) of Title 34, which establishes the Office of Justice Programs in the Department of Justice, authorizes the Assistant Attorney General in charge of those programs to “plac[e] special conditions on all grants” and to “determin[e] priority purposes for formula grants.”

In a thorough opinion a year ago, Judge Harry Leinenweber preliminarily ruled in the Chicago v. Sessions litigation that this delegation of authority did not apply to grants issued pursuant to the Edward Byrne Memorial Justice Assistance Grant Program because that program was established under a different subchapter of the law, one which was not covered by the delegation of authority set out above. As a result, the Department of Justice was enjoined from enforcing the “notice” and “access” conditions with respect to the Byrne grants. (The Seventh Circuit, sitting en banc, stayed the nationwide aspect of the injunction pending appeal, and Judge Leinenweber subsequently reissued a nationwide injunction on a permanent basis and extended it to cover the compliance condition as well, but immediately stayed his decision pending the appeal).

Given Judge Leinenweber’s ruling, it seems clear that the Department of Justice can at least impose conditions on grants other than the Byrne Grant, and require that states and local law enforcement give ICE officials access to incarcerated aliens, and also provide ICE with notice of release dates. Because those are unambiguous conditions on spending, using authority explicitly delegated to the Department, they would not violate the Tenth Amendment’s anti-commandeering principle. Jurisdictions such as California that nevertheless refuse to comply are claiming, as Calhoun did, that they have the authority to nullify federal law. That argument is in the ashbin of U.S. history; we should not countenance its revival.

Dr. John C. Eastman i is Henry Salvatori Professor of Law & Community Service and former Dean at Chapman University School of Law, and a Senior Fellow at The Claremont Institute. He can be reached at jeastman@chapman.edu.

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