Immigration

What Can Donald Trump Really Do About Sanctuary Cities?

The constitutional conflict between states and the federal government over undocumented immigrants.

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Donald Trump and Sanctuary Cities
Americanspirit/Dreamstime.com

Last week, President-elect Donald Trump re-emphasized the approach he will take in enforcing the nation's immigration laws, which is much different from the manner of enforcement utilized by President Barack Obama. The latter pointedly declined to deport the five million undocumented immigrants in the United States who are the parents of children born here — children who, by virtue of birth, are American citizens. Trump has made known his intention to deport all undocumented people, irrespective of family relationships, starting with those who have committed crimes.

In response to Trump's stated intentions, many cities — including New York, Chicago, Los Angeles, and San Francisco — have offered sanctuary to those whose presence has been jeopardized by the president-elect's plan. Can they do this?

Here is the back story.

Under the Constitution, the president is the chief federal law enforcement officer in the land. Though the president's job is to enforce all federal laws, as a practical matter, the federal government lacks the resources to do that. As well, the president is vested with what is known as prosecutorial discretion. That enables him to place priority on the enforcement of certain federal laws and put the enforcement of others on the back burner.

Over time — and with more than 4,000 criminal laws in the United States Code — Congress and the courts have simply deferred to the president and permitted him to enforce what he wants and not enforce what he doesn't want. Until now.

Earlier this year, two federal courts enjoined President Obama — and the Supreme Court, in a tie vote, declined to interfere with those injunctions — from establishing a formal program whereby undocumented people who are the parents of natural-born citizens may lawfully remain here. It is one thing, the courts ruled, for the president to prioritize federal law enforcement; it is quite another for him to attempt to rewrite the laws and put them at odds with what Congress has written. It is one thing for the president, for humanitarian reasons or because of a lack of resources, to look the other way in the face of unenforced federal law. It is another for him to claim that by doing so, he may constitutionally change federal law.

Trump brilliantly seized upon this — and the electorate's general below-the-radar-screen disenchantment with it — during his successful presidential campaign by promising to deport all 13 million undocumented immigrants currently in the United States, though he later reduced that promise so as to cover only the two million among them who have been convicted in the United States of violating state or federal laws.

Enter the sanctuary cities. These are places where there are large immigrant populations, among which many are undocumented, yet where there is apparently not a little public sentiment and local governmental support for sheltering the undocumented from federal reach. Trump has argued that these cities are required to comply with federal law by actively assisting the feds — or at least not aggressively resisting them.

Thus the question: Are state and local governments required to help the feds enforce federal law? In a word: No.

The term "sanctuary cities" is not a legal term, but it has been applied by those in government and the media to describe municipalities that offer expanded social services to the undocumented and decline to help the feds find them — including the case of Chicago's offering undocumented immigrants money for legal fees to resist federal deportation. As unwise as these expenditures may be by cities that are essentially bankrupt and rely on federal largesse in order to remain in the black, they are not unlawful. Cities and towns are free to expand the availability of social services however they please, taking into account the local political climate.

Enter the Supreme Court. It has required the states — and thus the municipalities in them — to make social services available to everyone resident within them, irrespective of citizenry or lawful or unlawful immigration status. This is so because the constitutional command to the states of equal protection applies to all persons, not just to citizens. So the states and municipalities may not deny basic social services to anyone based on nationality or immigration status.

The high court has also prohibited the federal government from "commandeering" the states by forcing them to work for the feds at their own expense by actively enforcing federal law. As Ronald Reagan reminded us in his first inaugural address, the states formed the federal government, not the other way around. They did so by ceding 16 discrete powers to the federal government and retaining to themselves all powers not ceded.

If this constitutional truism were not recognized or enforced by the courts, the federal government could effectively eradicate the sovereignty of the states or even bankrupt them by forcing them to spend their tax dollars enforcing federal law or paying for federal programs.

Thus the Trump dilemma. He must follow the Constitution, or the courts will enjoin him as they have his predecessor. He cannot use a stick to bend the governments of sanctuary cities to his will, but he can use a carrot. He can ask Congress for legislative grants of funds to cities conditioned upon their compliance with certain federal immigration laws.

All of this is part of our constitutional republic. By dividing powers between the feds and the states — and by separating federal powers among the president, Congress, and the courts — our system intentionally makes the exercise of governmental power cumbersome by diffusing it. And since government is essentially the negation of freedom, the diffusion of governmental powers helps to maximize personal liberty.

COPYRIGHT 2016 ANDREW P. NAPOLITANO|DISTRIBUTED BY CREATORS.COM

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79 responses to “What Can Donald Trump Really Do About Sanctuary Cities?

  1. Completely delusional, as usual. Trump’s goons can still wage house-to-house urban warfare to round up illegals by the millions, which is why the Trumpkins got so excited at his rallies, and why they voted for him. And Trump can still hold them indefinitely in Sheriff Joe’s open air prison camps until the wall is built. (When will the wall be built? “The wall just got 10 feet higher, jackass!”)

    1. Get a hold of yourself.

      People “got so excited” about Trump because he represented a big “fuck you” to the establishment. If you look at recent polling, “Trumpkins” are relatively lukewarm on issues of immigration (although they still want the wall).

      Peddle your FUD elsewhere.

      1. Eh, more like Trump validated their inner bigotries and narratives. His voters WANT to believe that Mexicans are rapists, China is stealing all our jobs, and protectionism will mean a revival of 1950’s-scale manufacturing.

        1. In the weeks following the election, has that not been explicitly proven utterly false?

          FFS, do you people read the news?

          1. we don’t haz to readz the newz we has da feelz…

    2. Yeah, that’s a realistic scenario.

    3. You obviously don’t listen to anybody but the voices in your head are saying.
      Take your insane rant somewhere else

  2. Completely delusional as usual. Didn’t you just read him say (of course you didn’t, I’d be surprised if you read much of it at all) that the feds don’t have the resources to find and prosecute everyone?

    They don’t have the manpower, and they can’t conjure up the money for it out of thin air. You, like most authoritarians, think government accomplishes its aims via magic and can do anything as long as it decrees it.

    1. Dammit, this was supposed to be a reply to Idiot Myth up there

    2. And yet a law that makes it punishable by a $1000/day fine and 1 year in prison to negligently (defined as “failure to run an E-Verify check) rent property to or employ a criminal alien would probably get rid of most of them. No jobs and no place to live. Back that up with serious enforcement… Might as well go back to Mexico.

      1. What a wonderful idea! Let’s all ask fed.gov for permission to get a job or a place to live.

  3. If what you say were actually broadly true judge, than my state would have a drinking age that was 18.

    Federal corruption has made that not be so. But of course for the new liberal causes no federal laws matter. Pray that you don’t violate the new federal view of marriage, because you personally will get destroyed, but thumbing your nose at immigration law makes one a hero…. The progressives do not believe in two way streets. But of course that’s true because the road to the “right side of history” is a one way….

  4. As is usual, the end run around the Constitution to force states to do what the federal government wants them to is to simply tax everyone and give the money back to states that cooperate. It’s too bad the founders didn’t foresee this problem and specifically deny the federal government the ability to do that. We’ll probably never get a Constitutional Amendment to fix it either, given how hard it is to pass one.

    1. The Founders did foresee that problem and fixed it, by denying the federal government the power to tax incomes. We foolishly changed that in 1913 with the 16th Amendment. And then we compounded the error that same year with the 17th Amendment, thus divesting the states of their ability to control the Senate (which was supposed to represent the states as sovereign entities, just as the House was supposed to represent the people as individual citizens). Our forebears in 1913 were a really stupid bunch, and we’re paying the price for their collective idiocy.

  5. I can’t really question the Judge. Or do I?

    The Feds have mandated that all funds go into them, and then federal money get’s dispersed according to the federal whims.

    Cutting off funding for sanctuary cities seems as legal as cutting off highway funding for states that’s allow PFC’s who aren’t 21 to have a beer.

    1. “Cutting off funding for sanctuary cities seems as legal as cutting off highway funding for states that’s allow PFC’s who aren’t 21 to have a beer.”

      Judge Napolitano is saying that such and action would require legislation from Congress.

      “He can ask Congress for legislative grants of funds to cities conditioned upon their compliance with certain federal immigration laws.”

      1. An approach restricted in NFIB v. Sebelius, where the Democrats attempted to put conditions on Medicaid funding unrelated to Medicaid.

  6. He can prosecute sanctuary city politicians, etc. For harboring illegals, for one. Look it up- most things sanctuary cities do to be sanctuaries are prosecutable.

    1. For “harboring illegals”? This is an actual crime?

        1. Printz v. U.S.

  7. A few dozen more 3am tweets should clear this problem right up.

    1. Tomorrow I’ll be sober, but you’ll still be Sugarfree.

  8. He must follow the Constitution, or the courts will enjoin him as they have his predecessor.

    FTFTJ

  9. Thus the Trump dilemma. He must follow the Constitution, or the courts will enjoin him as they have his predecessor.

    That’s the rub – He must follow the Constitution…

    Authoritarians follow the ‘Constitution’, just not the US Constitution.

    They follow the ‘Constitution,’ in their authoritarian minds.

    Obamacare? – oh yea – it’s there
    Social security ? – oh yea – it’s there
    The drug war? – oh yea – it’s there
    on and on…….

    1. The Constitution is not a suicide pact and when the Congress refuses to Constitutionally do their duty to enact laws needful and proper to the administration of governance, what can the President do but to issue executive orders mandating such actions as are necessary to carry out such administration? When Congress refuses to act it becomes necessary and proper for the President to act – the Constitution itself gives Congress the power to make laws but it doesn’t give Congress the power to not make laws, does it? Huh? What you got to say about that, smart guy?

      1. I hope that reply was sarcasm. Unless, of course you are one of ‘Garyskids’. The Johnson literally said before that you likes the use of executive orders when ‘Congress refuses to act’. Perhaps the most authoritarian comment made by the mushy moderate.

        When Congress refuses to act, it has acted. Congress has no requirement to abide by the will of the executive.

        1. When Congress refuses to act, it has acted.

          The “but we have to do *something*!” crowd refuses to “get” this.

        2. When did Gary Johnson ever say this? Provide a source, please.

          “If Congress refuses to act, as president I would do everything possible under the law to go even further [than President Obama]” – Hillary Clinton. [Source]

          She promised to do the same on “common sense gun legislation” as well.

          The only things I’ve ever heard Johnson talk about were agreeing with Obama’s amnesty actions and pledging to deschedule marijuana.

          1. “common sense gun legislation” = communist sense = confiscation

      2. What you got to say about that, smart guy?

        I’m assuming you’re sarcastic

  10. Let’s take a trip down Memory Lane.

    In 1994, California passed Prop 187, which denied all state social services to illegal aliens–no public schools for children who aren’t verified U.S. citizens, no emergency room services for non-US citizens, etc.

    The law was prevented from ever being implemented by a restraining order, and was ultimately declared unconstitutional–because the states have no constitutionally legitimate role in enforcing immigration laws.

    In the meantime, California sued the federal government for the annual costs associated with providing social services to illegal aliens.

    “The lawsuit, filed in April during the gubernatorial campaign, seeks $377 million for the cost of incarcerating 17,000 illegal immigrants convicted of felonies, $1.6 billion to build eight prisons, $1.7 billion for education costs and $400 million for providing emergency health care.

    http://articles.latimes.com/19…..immigrants

    The lawsuit was dismissed by a federal judge on the basis that, for instance, “The state cannot sue to recover the cost of education for illegal immigrants because public education is mandated by state law, not federal law.”

    1. I would have been nice had that decision put a stake through the heart of the Department of Education…

      1. The case should have gone to the Supreme Court.

        If illegal immigration is the sole purview of the federal government, then the federal government should pay for the costs associated with illegal immigrants.

        . . . especially after the courts have ruled that voters can’t amend their state constitution so as to refuse services to illegal aliens.

  11. Note the contradiction. On one hand, the state can’t restrict services to illegal immigrants because immigration is the purview of the federal government, but, on the other hand, the federal government isn’t responsible for the cost of services provided to illegal immigrants because those services are mandated under state law.

    There’s the contradiction. There’s the rub. The federal government shouldn’t have it both ways, but they do. Now you’re telling me there isn’t anything the federal government can do to make states and local government enforce immigration law either? No matter what the question is, how can the answer always be that no one can ever do anything about illegal immigration?

    1. That’s not a contradiction. The state can change it’s own law to provide services. They chose not to, but they were attempting to get the Federal government to pay for the services.

      1. “On one hand, the state can’t restrict services to illegal immigrants because immigration is the purview of the federal government, but, on the other hand, the federal government isn’t responsible for the cost of services provided to illegal immigrants because those services are mandated under state law.”

        That is most certainly a contradiction.

        The courts drew a clear line between the state and federal government on enforcement and then erased it on funding.

        And what about the cost of providing “services” to 17,000 illegal immigrants who were convicted felons and serving time in California’s prisons?

  12. Can Trump nominate Boris Johnson for SecState?

    “You’ve got the Saudis, Iran, everybody, moving in, and puppeteering and playing proxy wars. And it is a tragedy to watch it,” Johnson was shown saying in footage posted on the Guardian newspaper’s website.

    “There are politicians who are twisting and abusing religion and different strains of the same religion in order to further their own political objectives. That’s one of the biggest political problems in the whole region,” Johnson said.

    This is of course a major diplomatic “gaffe” requiring Johnson to be “slapped down” since the official position is that the Saudi’s shit don’t stink. Everybody knows there’s no terrorism in Saudi Arabia because the Saud’s pay the terrorists to go be terrorists somewhere else, but we’re all supposed to pretend they’ve got nothing to do with it.

  13. I wouldn’t have a problem with cities doing this if they were willing to pay for the resulting costs themselves. And why shouldn’t they? I’m always told that illegal immigrants pay more in taxes and generate more economic activity than they use in services. So there should be no need to hit up taxpayers in other states.

    Yes, I know. That isn’t how it works. Well, at the very least we could be consistent about it. If a city were to decline to enforce federal gun control laws, that would be okay too, right?

    1. >> If a city were to decline to enforce federal gun control laws, that would be okay too, right?

      Yes. Or at least it was for counties. Sheriffs in a number of counties refused to perform the background checks demanded by federal gun control law (before the current “instant check” system was up and running), and their right to so refuse was upheld by the Supreme Court.

  14. It’s the jails where the rubber meets the road. Cities and states are supposed to inform the feds when the have a suspected illegal in their custody – sanctuary cities don’t. That’s how we get all the stories about an illegal who was arrested 8 times before he killed somebody in a robbery or whatever.

    I despise the “revenue” sharing between the federal and local governments, but it will be Trump’s lever. Don’t want to turn over illegals in your jails? A big revenue stream dries up for your city.

    1. Actually, cities and states are supposed to inform the feds when they arrest any foreign born suspect regardless of citizenship status. This is so the Dept of State can contact the appropriate consulate so that the consul can determine if any legal or other aid is needed, not because of any immigration issues. It is not up to local officials to determine the citizenship or immigration status of anyone; only the feds can do that.

  15. “We are going to bring in hundreds of thousands of immigrants but we are going to do it legally.” – Trump

    Trump isnt anymore anti-immigrant than I am. What would fix the current clusterfuck? Reform immigration laws (congress). That is a tall mountain to climb.

    Where would I start? With the DOE. Pop the college loan bubble.

  16. He must follow the Constitution, or the courts will enjoin him as they have his predecessor.

    What a kidder!

  17. Enter the Supreme Court. It has required the states ? and thus the municipalities in them ? to make social services available to everyone resident within them, irrespective of citizenry or lawful or unlawful immigration status. This is so because the constitutional command to the states of equal protection applies to all persons, not just to citizens. So the states and municipalities may not deny basic social services to anyone based on nationality or immigration status.

    Except equal protection only applies to certain protected classes. The states can discriminate till the cows come home against blue eyed people, people who don’t like broccoli, or southpaws, with no judicial sanction. So why should illegal immigrants be treated as a protected class?

  18. Well, at least Trump won’t sue states that try to help enforce federal law.

  19. The latter pointedly declined to deport the five million undocumented immigrants in the United States who are the parents of children born here ? children who, by virtue of birth, are American citizens.

    Note that’s about half the illegal immigrant population; who said “anchor babies” weren’t a big issue. In any case, I still fail to see the problem here. If the child is too young, he/she goes with the parents, and if the “child” is old enough, they can stay here on their own.

    I think a bigger problem are kids who were brought to the US at a very young age and are not citizens. If they are still young, they can return to their country of origin with their parents. If they are old enough, it might be compassionate to give them a path to citizenship; they didn’t willingly violate any laws and the US is all they know. Their parents should still be deported and barred from the US.

    This whole debate is independent of whether immigration is good for the US. If we are going to have any kind of national borders, there must be significant consequences for people who break immigration law, not grants of citizenship as a reward.

  20. to describe municipalities that offer expanded social services … Enter the Supreme Court. It has required the states ? and thus the municipalities in them ? to make social services available to everyone resident within them, irrespective of citizenry or lawful or unlawful immigration status.

    Note how the word “expanded” dropped out there? Special services for immigrants (and illegal migrants) fall outside “equal protection”.

    Furthermore, such decisions are precisely why people want illegal migrants to be deported: if they remain in the US, they are entitled by law to large amounts of public support and services.

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  22. I personally believe that benefits are any other “help” should only be given to legal citizens of the USA. We have enough problems without trying to help the world.

  23. Trump probably won’t have ICE officers going door-to-door in San Fran. But I’d imagine a GOP-held House could come up with a budget item that withheld some federal money from states that refuse to do some basic law enforcement actions.

    As a Wild Ass thought base medicare grants to the states on them taking steps to ensure that the beneficiaries receiving care are actually entitled to it by being US citizens, legal residents, etc. Develop a formula that withholds x% of the money based on an estimate of the number of unauthorized people receiving the benefit.

  24. Did the Judge just write an article that wasn’t all questions?
    Will Trump use executive orders to punish sanctuary cities?
    Will Trump push legislation that restricts federal dollars to states/cities for not assisting the feds?
    Will Trump drop or soften his position on sanctuary cities as negotiation for something he wants more?
    If Trump pursues any action on sanctuary cities and state will it end up at the Supreme Court?
    Will Trumps pick(s) for SCOTUS align with his punishment of sanctuary cities?

  25. “What Can Trump Do About Sanctuary Cities” by Andrew Napolitano

    Hmmm, this should be good.

    Oh, it isn’t.

  26. “They did so by ceding 16 discrete powers to the federal government and retaining to themselves all powers not ceded.”

    You forgot ‘or the people’, not that it particularly matters. The above isn’t even particularly true anymore either, which is yet another indicator of how neutered the Constitution is these days.

    “Enter the Supreme Court. It has required the states ? and thus the municipalities in them ? to make social services available to everyone resident within them, irrespective of citizenry or lawful or unlawful immigration status.”

    So people who technically don’t fall under the rule of law of the United States of America, being that they are in fact foreign nationals, would theoretically open the door for us to expand constitutional protections for the entire world since the rule of law in other nations doesn’t really exist, right? I say we go to war with China right now so they’ll stop violating the Constitution which clearly says that it applies to their citizens. Right? I mean, there isn’t a ‘geographic’ component to this at all so this must be true. Right?

    Such bullshit, from top to bottom on this one. I know the above is pretty farcical but that’s what it feels like at this point. It seems the only people who don’t have protections under the Constitution are legal citizens of the United States.

  27. Duh starve them of federal funding. These are blue states, what’s the problem? Either we are a nation of laws or we are not. If we aren’t going to enforce all laws equally then why bother following any of them.

  28. I remember when some states didn’t want to enforce federal laws, and we sent in the 101st airborne.

  29. Sanctuary cities aren’t about just resisting undue demands from ICE and the federal government. It’s about providing blanket protection to ANY undocumented immigrant. To that end, they’ll ignore federal requests, legal or not.

    We can’t assume that the liberals will follow the rule of law, even something they made up. The illegal who shot Kate Steinle had 7 felonies on record and was deported 5 times. The hyper lib sheriff refused to detain him or provide information to ICE, even though (as I understand it) they did not require court’s permission to do so. Ed Lee and even Feinstein insisted that SF sanctuary policy allowed for local coordination with the feds.

    The states might have the right not to help the feds enforce the nation’s laws, but in practice, most American people won’t accept the notion of their mayors and city councils essentially allowing for undocumented individuals with KNOWN criminal records roaming their streets with no federal oversight. When President Trump asserts his own authority by cutting funding to sanctuary locations, most of the nation will be on his side.

  30. If the “sanctuary cities” thrive without Federal subsidies, and do so because they are able to farm a herd of immigrants, the problem becomes a non-problem. The question is, will they thrive.

  31. Always a pleasure reading the good judge’s columns…

  32. Watch progressives become fervently for states’ rights, at least as long as Trump is in power.

  33. The analysis is weak. Trump cannot force local officials to enforce federal law. He can, with some limits imposed by the Supreme Court, financial penalize agencies which refuse, but cutting federal funding to them.

    And, he should, if sanctuary cities and universities actively obstruct the federal government.

  34. I’m disappointed in Napolitano’s analysis. It leaves out all consideration of 8 U.S.C. ?1324 which provides penalties of up to $250,000 and 5 years in prison for anyone who,

    (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;
    (iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
    (v)
    (I) engages in any conspiracy to commit any of the preceding acts, or
    (II) aids or abets the commission of any of the preceding acts,

    Apply these penalties to officials in “sanctuary cities” and watch the cooperation begin.

    1. Nice.

  35. Enter the Supreme Court. It has required the states ? and thus the municipalities in them ? to make social services available to everyone resident within them, irrespective of citizenry or lawful or unlawful immigration status. This is so because the constitutional command to the states of equal protection applies to all persons, not just to citizens. So the states and municipalities may not deny basic social services to anyone based on nationality or immigration status.

    Totally bogus.

    I assume he’s talking Plyler v. Doe. 1982, based in the 14th amendment. More rights magically *discovered* in the constitution. Funny how no one noticed them for a hundred years after passing the 14th amendment.

  36. Re the question posed by the headline, damned if I know, but it might be worth the effort to find out, or so it seems to me.

  37. All well and good,maybe, the above stated. Interestingly or unfortunately, we are left with the problem of illegal immigration, unsolved, and the problem appears to get worse with the passage of time.

  38. I wonder if President Trump can shift limited prosecutoral resources from say, the EPA to border control? Per the judge, he can decide that OSHA violations just aren’t the best use of limited resources, which could be used to round up illegals and deport them.

    Good to know.

    Also, taking away the carrot isn’t the same thing as using the stick.

  39. There are many things the president can do. Starting with enforcing existing law. If a state refuses to uphold federal law, I can’t see why federal funds can not be withheld. They certainly did it with the age 21 drinking law. The president has been set.

    We are a nation of laws. Or we are not.

    1. At this point, we are not.

  40. Another writer from the looter press lets his basic premise out of the bag: “government is essentially the negation of freedom,” an assertion true of mohammedan, socialist and christian mixed economies, but not at all an essential or inescapable consequence of the defense of individual rights. It is the presence of folks like Napolitano in government that makes it dangerous–and he is WAY better than the average mystical conservative as a matter of degree. Still the same in kind, however.

  41. An example of states declining to participate in the enforcement of federal laws was Wisconsin’s repeal by referendum of the Severson Act. As a result, all enforcement of the Volstead Act in Wisconsin was conducted by federal agents without any assistance from state and local law enforcement.

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