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Calling All Trumpistas: Why Red States Should Stand With San Francisco’s Sanctuary City Lawsuit
Lamar Anderson | Photo: Franco Folini/Creative Commons | February 1, 2017
“Even if today the ox being gored is liberal San Francisco, tomorrow it could easily be Texas or South Dakota.”
Mention one of the roughly 300 sanctuary jurisdictions in the U.S. to a hot-blooded conservative and you're likely to get an earful of hate. Cue Bill O'Reilly: "If these protesters and these loony mayors think that open borders and lax immigration enforcement are good things, they're idiots and deserve to be scorned.” President Trump took a similar attitude last week when he signed an executive order that strips federal grants from sanctuary jurisdictions like San Francisco, which counts on $1.2 billion annually from the feds. Yesterday, San Francisco became the first city to sue the new president over the order. “Not only is it unconstitutional, it’s un-American,” City Attorney Dennis Herrera said at a press conference.
But as much as pundits like O'Reilly thrill to see San Francisco values—that's a slur in Fox parlance—get a serious drubbing, they could come to regret their glee if Trump's executive order is allowed to stand. That's because the order isn't really about immigration at all. It's about amassing unchecked presidential power. Trump believes that San Francisco is flouting federal law. San Francisco says that it's complying. And the city has a good case: Our sanctuary city ordinance doesn’t block officials from sharing someone’s immigration status with Immigration and Customs Enforcement. Where our law draws the line is on action: San Francisco doesn’t give the feds advance notice of undocumented immigrants’ release date from custody or honor immigration detainers, or requests to hold them past their release dates. But none of that is quite the point, argues Seth Chandler, a law professor at the University of Houston who teaches constitutional law. “It’s a pretext for Trump to usurp congressional and state authority,” Chandler says. "The real issue is whether a president alone can cut off vast amounts of federal funding to a city or state with whom the president disagrees.”
With this executive order, Trump is pushing for two kinds of overreach: infringing on state sovereignty and undermining the separation of powers between the executive branch and Congress. Both of these leave troubling paths open for future presidents who want to exert power. Maybe that feels fine when it’s your guy in office, but when it’s the other side, suddenly there’s plenty to squeal about.
All the sanctuary city critics out there are probably wondering why there’s even a question of state sovereignty when it comes to immigration enforcement. Aren’t undocumented immigrants clearly breaking the law? Absolutely, says Chandler. But it’s up to the federal government to enforce the laws it makes. “Federal tax evaders are breaking the law too, and we don’t require states to notify the IRS every time they have someone in custody who might be a tax evader,” he says. “If the federal government wants to tighten immigration enforcement, it can hire more ICE officers, it can build a wall—there are a lot of things the federal government can do. The one thing they can’t do is dragoon states into being their policemen.”
And there’s long-standing, well-loved (and conservative!) precedent for this, as George Mason University School of Law professor Ilya Somin recently pointed out. In the 1997 Supreme Court opinion Printz v. United States, authored by none other than the late Antonin Scalia, the court struck down a federal law that required state officials to collect background information on prospective gun buyers. The rub: The feds can’t “commandeer” state officials to do the feds’ work. So here’s a question for you, Bill O’Reilly: Is punishing San Francisco worth such a big reversal that you want to put gun background checks back on the table?
Or, if you need that in bloodier language, take it from Somin: “Even if today the ox being gored is liberal San Francisco, tomorrow it could easily be Texas or South Dakota."
Separation of powers
The thing to remember here is that Congress, not the president, decides how to spend money. Trump’s executive order on sanctuary cities is on shaky ground, legal scholars say, because it interferes with congressional authority. In Chandler’s view, Congress could take away any funding San Francisco gets for, say, immigration detention if the city refuses to honor those immigration detainer requests from ICE. But Trump’s executive order goes way beyond that. “This order says, ‘Not only are we cutting off any immigration funding, but we’re cutting off unrelated funding, and Congress never authorized it,’” says Chandler. “If the executive branch can cut off all funding to a jurisdiction because it’s unhappy about some aspect of state policy, who’s to say what happens next time? ‘If you don’t insert multiculturalism into your educational curriculum, we will cut off your Medicaid funding’?”
Chandler does see a way for the executive order to stand: Say the Department of Justice argues that the order isn’t trying to be broad—it’s only trying to take away funding related to immigration. That passes one smell test: germaneness, or the idea that the conditions of the funding have to be related to what’s being funded. In this hypothetical, San Francisco gets to keep the lion’s share of its federal money, but at great cost to the principle of separation of powers. Yet even this outcome is scary, because it’s now the president who’s allowed to muscle in and attach strings to funding, not Congress. This, says Somin, would be a very bad precedent. “It would give the president a powerful tool to coerce and bully states and local governments—and give him the ability to bypass Congress,” he says. “If we were to junk that principle, it would be very dangerous.”
The order also defies another precedent that Conservatives actually may remember fondly: As recently as 2012, the Supreme Court struck down a provision of the Affordable Care Act that was found to “coerce” states into expanding their Medicaid programs. As the law was originally written, states that didn’t expand Medicaid stood to lose all Medicaid funding—which would have been disastrous for their budgets. As soon as President Obama signed the ACA into law, 14 states sued (over the Medicaid provision and the individual mandate, among other things). The individual mandate lived, but the Medicaid stipulation died. In his opinion for the majority, Chief Justice John Roberts wrote that the threat to strip states of all Medicaid funding “is much more than ‘relatively mild encouragement’—it is a gun to the head.”
So, to all of those 14 states still basking in the glow from that Supreme Court victory—Florida, Alabama, Colorado, Idaho, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, and Washington—whatever you think about sanctuary cities is beside the point. The gun is pointed at your heads, too.