After repeated campaign claims that Obama’s executive order on immigration was an extreme overreach of executive power, it doesn’t come as a surprise Trump has issued an executive order of his own that runs contrary to what Obama was trying to accomplish. In the wake of several questionable orders that have incited national outrage, San Francisco is fighting back and has filed a lawsuit against Trump in an attempt to block the order that would defund sanctuary cities.
In a nutshell, a sanctuary city is a jurisdiction that limits local law enforcement cooperation with federal immigration agents. These safe-haven cities don’t inquire into a person’s immigration status and do not use municipal funds or resources to enforce federal immigration requests.
Although a sanctuary city cannot stop the federal government from enforcing immigration laws within their jurisdiction, federal officials often do rely on the cooperation from local authorities to enforce these laws. For example, consider when an illegal immigrant gets arrested, is set to be released, and federal officials request local law enforcement to keep the illegal immigrant detained. This requires cooperation and it’s something sanctuary cities could refuse to do. In fact, case law suggests local compliance is entirely involuntary; the federal government cannot force local officials to enforce federal law.
California, Vermont, Connecticut, and Rhode Island are the only states that have laws limiting local cooperation with federal authorities, but, according to the Immigrant Legal Resource Center, 39 cities, San Francisco being one of them, across the U.S. have policies enforcing limited cooperation. Trumps executive order claims these sanctuary cities are violating federal law because they “shield aliens from removal from the United States”. The order says state and local law enforcement agencies can perform the functions of an immigration officer and threatens,
“…jurisdictions that willfully refuse to comply…are not eligible to receive Federal grants…”.
Is the EO Valid?
The 10th Amendment, along with case law, tells us the federal government cannot force non-federal entities to do their dirty work. Herein lies the major problem with Trump’s executive order because it’s asking, or otherwise coercing, states to do so.
Case law also tells us the government cannot threaten large funding cuts to coerce states into adopting federal policies. While the U.S. Constitution says the federal government can put conditions on the money they give out, case law tells us the government cannot threaten large funding cuts to coerce states into adopting federal policies. Conditions can be implemented, but they must meet certain requirements.
- The amount of funding to be taken away must be a “reasonable amount”. Case law tells us that the federal government can take away a reasonable amount of funding, but not all funding. For example, taking away 5% cut of federal funding has been found reasonable.
- The funding being threatened to be taken away must be relevant to the condition the government is trying to enforce. If Trump wants to enforce federal immigration policy, the funding he wants to take away must be limited to enforcing that same policy. Who would be responsible for enforcing immigration policy? Local law enforcement officials. Taking away law enforcement funding would be appropriate, however, taking away all funding from a city would not. Trump’s executive order states sanctuary cities are “not eligible for federal funding, except as deemed necessary for law enforcement purposes…” This suggests he would take away all funding except for law enforcement, which is contrary to the rule.
- Referenced. Federal funding requires legislation, which means funding doesn’t just appear out of thin air; it’s granted through legislation. If the government wants to put a condition on how and when federal funding is given out, the condition must be specifically referenced in the legislation. Trump would have to get Congress to pass new legislation. Considering the GOP holds the majority of Congress, this seems feasible, but the conditions still need to be relevant.
- Coerciveness. The threat to take away funding cannot be coercive—simple as that. The Supreme Court has already ruled once before that taking away all of a state’s federal Medicaid money is coercive, so it seems to reason that the same principles would apply in San Francisco’s lawsuit.
Supreme Court Nominee Could Change the Game
As you can see, Trump’s executive order has quite a few constitutional hurdles to jump before it can be held valid. Case law suggests the order as written could prove unconstitutional, but we can assume Trump chose his Supreme Court nominee carefully in the sense that he hopes his nominee will further his own political agenda. If Neil Gorsuch is confirmed as a Supreme Court Justice, there’s a legitimate fear looming that his vote could sway the bench in Trump’s direction.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law