The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, San Francisco's City Attorney filed a lawsuit challenging the constitutionality of Donald Trump's executive order pulling federal funds from sanctuary cities—jurisdictions that refuse to aid in federal efforts to deport undocumented immigrants. This is the first suit against the order. The complaint is available here.
In a previous post, I explained why Trump's order is unconstitutional. If allowed to stand, it is likely to be a menace to both constitutional federalism and the separation of powers. For these reasons, among others, I strongly support San Francisco's position and hope they prevail.
Earlier, I discussed some of the broader federalism issues raised by Trump's attack on sanctuary cities, and explained why defenders of his position are wrong to claim that the Constitution permits the federal government to coerce state and local officials into turning over information about immigrants. To put it simply, there is no information-disclosure exception to the Tenth Amendment, and creating one would establish a dangerous precedent. San Francisco's complaint makes many of the same arguments against the order as I did.
There is some irony in one of the nation's most liberal cities suing the Trump administration on the basis of federalism precedents authored by conservative Supreme Court justices, and opposed by most liberals at the time. It is a notable example of how the rise of Trump has led many on the left to take a more favorable view of constitutional limits on federal power.
Be that as it may, consistent supporters federalism should oppose Trump's efforts to undermine it. And we should welcome all who are willing to join the fight— even if some of them may be "fair weather federalists," whose past records include positions we might not approve of. Now is as good a time as any for both right and left to recognize that a renewed commitment to federalism can help save the troubled marriage between red states and blue ones.