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InAlienable
Daily Dispatch
February 27, 2020
A federal court ruled yesterday that the Federal government is able to restrict funding to cities and states that do not cooperate with immigration enforcement policies of the federal government - particularly the sharing of information about people in state custody. The ruling will certainly be held up as a victory by the administration - though the final decision will ultimately rest with the Supreme Court: Three other lower courts have ruled on the same question already. Those courts said the Federal government could not restrict funding in this way.
The Federal government’s demand for information from state and local law enforcement about people in custody is not new. The Obama administration, for example, also sought to compel states to share information. So, while Trump’s team has been far more vocal in its criticism of “sanctuary” cities, in substance, the issue at stake is an old one. It is also worth noting that the amount of money at stake to states is minimal. The ruling was whether the federal government could demand cooperation as precondition for assistance under a national law enforcement grant program that offers about $250 million to state and local departments around the country. The amount at stake for New York and Massachussetes, for example, was less than 0.1% of their law enforcement budgets.
All of that said, there is a dangerous element to this ruling. If allowed to stand upon appeal, it could give the federal government a massive expansion of authority. In essence, as argued by Judge Raggi, it would make immigration policy an exception to long standing Constitutional principles that deny the Federal government the authority to command state behavior. From Vox:
For several decades, the Supreme Court has held that the 10th Amendment implicitly prohibits the federal government from commanding a state to take an action the state does not want to take. As the Court explained in Murphy v. NCAA (2018), the Constitution only gives the federal government a laundry list of specific powers, and “conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.”
This rule, that the federal government may not give orders directly to the states or to state employees, is known as the “anti-commandeering” doctrine. As a practical matter, it is not an especially rigid limit on federal power. If the federal government wants to enforce a particular policy, it is free to spend its own money or send its own officials to enforce that policy. As discussed above, the federal government may also offer to pay states for their assistance.
But if a state adamantly refuses to help the federal government achieve a particular goal, federal officials cannot make the state do something it does not want to do. The federal government cannot, for example, order state officials to cooperate with federal immigration enforcement. Nor can it require states to allow federal law enforcement into state-run facilities.
Raggi has argued that because states have no “reserved power” related to immigration policy, this must be an exception to the anti-commandeering doctrine. As explained in Vox,
Recall that the 10th Amendment provides that certain powers are “reserved to the states.” Raggi argues that “a commandeering challenge to a federal statute depends on there being pertinent authority ‘reserved to the States.’” But, “in the immigration context ... it is the federal government that holds ‘broad,’ and ‘preeminent’ power.”
Raggi suggests that, because the Constitution gives Congress the power to set the nation’s immigration policy, it also must have the power to command states to enforce that policy.
What could this mean?
One of the most significant constraints on President Trump’s power to crack down on immigrants is the fact that he has only so many resources at his disposal. In 2016, the federal government employed about 132,000 full-time law enforcement officers, and fewer than half of these officers work in immigration or border enforcement. By contrast, there are nearly 700,000 sworn law enforcement officers working throughout the United States. If the anti-commandeering doctrine isn’t an obstacle, the federal government could potentially order every single one of these officers to target immigrants.
Of course, conservatives on the court are historically loathe to weaken the anti-commandeering doctrine, and so it is likely that at least one of the five conservative justices would bail if/when this makes it to the Supreme Court. However, as we have seen in case after case on immigration policy, the Supreme Court has been quite deferential to the Trump administration. So, who knows.