Please welcome Curtis Herbert as the newest High School SCOTUS contributor. Curtis is a high school junior from Minnesota. He’s interested in constitutional law, heavy metal music, and the Houston Astros.
Sanctuary Cities and Supreme Court Precedent
Under the anti-commandeering doctrine, the federal government cannot force a state to change its immigration laws. Although the monetary incentives the government imposes on the states are arguably constitutional under South Dakota v. Dole and NFIB v. Sebelius, Supreme Court precedents such as New York v. United States and Printz v. United States expressly forbid the infringements on federalism that are contained in the federal government’s sanctuary city policy. This post will focus on two provisions of the policy: the requirement that cities cooperate fully with federal immigration officials, and the government’s prohibition of state laws that are contrary to cooperation.
Recently, Attorney General Jeff Sessions’ plan to force so-called “sanctuary cities” to cooperate with federal immigration officials was stymied by federal judges. But these rulings are far from left-wing judicial activism; they are based on well-established and recently affirmed Supreme Court precedent.
In New York and Printz, the Court laid the groundwork for what is now dubbed the anti-commandeering doctrine. Simply put, this doctrine holds that the federal government may not ‘commandeer,’ or force, state legislatures or officials to take action. In New York, the federal government tried to force the New York state legislature to construct facilities for radioactive waste disposal. The waste was a byproduct of wristwatch-making, since manufacturers used radium to make watches glow in the dark. New York would be forced to “take title,” or assert ownership of, this waste if it didn’t construct the proper facilities. To summarize Justice Sandra Day O’Connor’s majority opinion, the government cannot mandate state action on the legislative level. And Printz extended this logic to state officials. It essentially held that if the federal government wishes to enforce its federal regulations in the states, and the states are not complying, the federal government may send federal agents to enforce its federal laws. States can’t be forced to comply. Last term, in NCAA v. Christie, the court also extended the anti-commandeering doctrine to cover federal laws that prohibit state legislation.
For the most part, the justices who dissented in New York also dissented in Printz, with Justice Souter acting as the exception. And Printz was not an obscure case; state officials were being ‘commandeered’ to enforce provisions of the Brady Gun Control Act. It was a 5-4 decision. However, as we will see in part III, the logic that once applied favorably to the political right has now turned against it. Let’s now examine Dole and NFIB.
Having dispensed with the first portion of federal action, we now address the second: federal withholding of funding. There are two relevant precedents here: South Dakota v. Dole and NFIB v. Sebelius. Here are the facts of Dole: After noticing that South Dakota had a lower drinking age than its neighboring states, the federal government feared that teenagers would cross state borders to drink. So Congress passed the National Minimum Age Drinking Act in 1984. This law withheld 10% of federal highway funding from states with a legal drinking age under 21.
The question presented in Dole was, ‘Does the spending clause enable Congress to attach strings to funding?’ The majority opinion held that it does give Congress that authority, so long as the government doesn’t (among other things) withhold funds in a coercive manner. Also, the government can only withhold funding for an activity that’s reasonably related to the government’s interest “in particular national projects or programs.” For example, the Attorney General can’t withhold funding for state border patrol agencies because the state isn’t conducting health inspections of its restaurants. In her dissent, Justice O’Connor argued that the government could only attach strings to how money is spent. So she found that the government could control how South Dakota’s highway was constructed, but it couldn’t withhold money from the state’s highway coffers.
This brings us to NFIB. Now, most people who are familiar with NFIB think of Chief Justice John Roberts’ construction of “tax,” or, if they are particularly invested, the Commerce and Necessary and Proper Clauses. But many forget the portion of the law that the Court invalidated. In that portion, the government threatened to withhold the entirety of federal Medicaid funding from the states if they didn’t expand the program. A seven-justice majority of the court (Breyer, Kagan, Roberts, and the four dissenting justices) held that this was impermissible coercion under Dole. They reasoned that if billions of dollars of Medicaid funding was withheld, state governments would go under. The states were free to either accept federal funding and expand Medicaid, or to retain their current funding and the size of their Medicaid programs.
But what does this have to do with sanctuary cities? For the purposes of this blog post, I’ll discuss how the anti-commandeering doctrine and the non-coercion doctrine relate to the current sanctuary cities cases.
The anti-commandeering doctrine applies readily to this situation, since it’s a classic example of the federal government trying to infringe on state sovereignty. Both sides should be consistent in acknowledging this. Recall that New York and Printz were opinions written by conservatives. Judges who have never cited a Scalia opinion in their lives now cling to even the dictum, while conservative commentators rail against ‘left-wing activism.’ The political parties are ignoring nuance and throwing intelligent discussion to the wind. If you believe that New York and Printz were correct, then it follows that the federal government’s provisions requiring state assistance to federal officers and mandating state legislation are unconstitutional. If you believe that New York and Printz were wrong, then there’s no basis for believing that the government’s current actions are invalid.
The spending clause issues are different. I will discuss, under Dole, three different arguments. They all assume that the withholding of federal grant funds can be non-coercive. In the current sanctuary city cases, the government is only withholding a couple of million dollars — a pittance compared to the massive budgets of cities like San Francisco, Chicago, and New York. I don’t think that that can be faithfully classified as coercive. But this is where the arguments branch off. The first one stops there, and it claims simply that the grant funding provisions are facially constitutional under Dole. The second argument also accepts Dole, but contends that the grant funding is not reasonably related to sanctuary city policy. The third rejects Dole wholesale and agrees with Justice O’Connor’s dissent, saying that Congress’ spending clause authority is only limited to the money it provides and how that money can be used — nothing more. It follows that law enforcement grants can only impose conditions on what sort of materials, training, and police officer benefits that the city can supply.
I don’t have the space to reargue Dole, evaluate the merits of overruling it, or interpret it more narrowly. And I take a stronger position on the commandeering of state officials because I believe it’s useful to expose inconsistency on both sides of the political spectrum. The reader is encouraged to disagree with and challenge any of my assertions.