Donald Trump

James Madison Would Love Sanctuary Cities

Federalism is alive and kicking in the age of Trump.

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Library of Congress

The powers delegated to the federal government under the U.S. Constitution, James Madison wrote in Federalist 45, are "few and defined." But what happens when the federal government goes beyond those limited and enumerated powers? According to Madison, that's when the constitutional system of checks and balances kicks in.

One powerful check is provided by the judiciary, which Madison described to Congress in 1789 as "an impenetrable bulwark against every assumption of power in the legislative or executive." If only his description of the courts held true in more cases.

Another key check is provided by the states. "Should an unwarrantable measure of the federal government be unpopular in particular states, which would seldom fail to be the case," Madison wrote in Federalist 46, "the means of opposition to it are powerful and at hand." For one thing, the federal government would be forced to contend with "the disquietude" and "perhaps refusal" of the people of those particular states "to co-operate with the officers of the union." There would also be "the frowns of the executive magistracy of the state" and the "embarrassments created by [state] legislative devices" for the feds to tangle with. In short, federalism is supposed to help slam the brakes on an out-of-control federal government.

Which brings us to the Trump administration's unconstitutional attack on sanctuary cities, which are those jurisdictions that either decline to help the federal government round up and deport undocumented immigrants or otherwise refrain from enforcing federal immigration statutes.

The case for sanctuary cities is pure Madison. Because the federal government has no delegated power to commandeer state officials and force them to carry out federal schemes, state and local officials in sanctuary jurisdictions are simply reaffirming their basic 10th Amendment right to refuse to do Washington's bidding.

The federal courts clearly support the states in this fight. As the late Justice Antonin Scalia observed in his 2007 majority opinion in Printz v. United States, "the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."

As for the Trump administration's various threats to withhold, terminate, or "claw-back" federal funding for sanctuary cities, those threats would also violate the Constitution if the federal government carried them out. As the Supreme Court ruled in 2012 when it voided the Obamacare Medicaid expansion, which would have cut off all Medicaid funding for any state that refused to expand the program in accordance with the federal edict, federal "economic dragooning" of the states is unconstitutional because it "leaves the States with no real option but to acquiesce."

Here's a good rule of thumb: If you find yourself picking between the constitutional views of James Madison and Donald Trump, always let Madison be your guide.

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  1. OH MY GOD REASON THERE WITH THE TRUMP SWIPE AGAIN COME ON.

    1. Reason is fine with anti-constitution swipes all right. Naturalization, immigration, and national defense are enumerated powers of the Constitution.

      Securing borders just goes against the open border types here.

      1. immigration

        No.

        Securing borders just goes against the open border types here.

        The constitution says the feds are to protect the states against invasions. It doesn’t say they can regulate regular people coming and going.

        1. US Constitution, Art. I, Sec. 9:
          The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

          Yes. After 1808, Congress can regulate immigrants (who migrate into the USA) and slaves.

          The $10 tax or duty only applies to importation of slaves.

          1. The question is not whether Congress can regulate immigration.

            It’s whether Congress can require state officers to enforce congressional regulation of immigrants.

            1. The answer to that question is no, but it makes me wonder why the ridiculous drinking age stands. Certainly there is an element of do-gooderism, but “economic dragooning” is the ONLY way 21 remains the default age.

  2. The court is more often a rubber stamp than a check, as loving government power is de rigueur if you’re in the government. And the states and cities would have to wean themselves from the federal teat to be an effective check.

    1. Yes, the federal government can make you buy broccoli.

      1. Want to make it extra insulting, can’t just tax us and spend the money on things.

      2. As long as it’s done through the IRS. Or something stupid like that.

      3. No, but they have power to go after illegals.

  3. Because the federal government has no delegated power to commandeer state officials and force them to carry out federal schemes, state and local officials in sanctuary jurisdictions are simply reaffirming their basic 10th Amendment right to refuse to do Washington’s bidding.

    If only it weren’t so selective.

    My guess is Madison probably wouldn’t even understand the concept of sanctuary cities, because he’d be too busy wrapping his mind around the rest of the things our Federal Government does with zero authority which fall thousands of miles outside of ‘enumerated powers’.

    “So… a plant is illegal?” might be one of the things Madison would utter just on the first day of orientation. I’d also imagine he’d spend a lot of time perplexed at civil asset forfeiture and the IRS.

    1. This. What a ridiculous article.

    2. I think he’d be able to wrap his head around the concept, but would look it and and say, “This?!?! This is the hill you’re choosing to die on?!?!? Why did you wait this long to stand up to the central government?”

  4. federal “economic dragooning” of the states is unconstitutional because it “leaves the States with no real option but to acquiesce.”

    Such a dangerous problem with the current powerful federal government. Everyone is desperate for funding and so make themselves whore of the powers that be. It may be unconstitutional but all that means is that the fed will just become more subtle about how it denies funds to punished states.

    The solution is to get out of this dependence on federal funding to begin with. Beyond the obvious fact that taxing states to fund others is questionable.

  5. But we should also understand that those who support sanctuary cities don’t really believe in federalism, so don’t look for their support when you’re the one invoking it to defy the fedgov.

  6. The Trump admin’s original strategy was to threaten to deny funding to sanctuary cities, which they assumed would make everyone panic and capitulate and they’d be able to round up immigrants en masse. However the opposite would have happened – the cities would have realized that they didn’t actually need fed funds, and then the secondary benefit would have been they’d say, “Why should we pay fed taxes when they won’t pay for our security?” And then they’d fight taxes – would have been a libertarian victory. Thus it’s actually a defeat for us the way it’s played out. (And by ‘us’ I mean ‘only me’, of course.)

    1. the cities would have realized that they didn’t actually need fed funds

      LOL good one

        1. I suspect they’re baking on a victory in the court. I’m guessing their lawyers have told them that a loss of federal funding would be unprecedented and a real ‘worst case scenario’.

          1. Oh absolutely. This is from last year when everyone was completely hysterical and terrified and we were all walking around like zombies afraid of getting droned at any second. Once people settled down and realized that they could get the funding anyway, then they suddenly changed their tune – “We must have fed funds or we will surely die from crime and rapes (from white people)”. The sad thing is, it was the liberals who were willing to forgo funding, at least briefly. Would have been such a sweet victory for real libertarians – by which of course I mean me.

            1. Yeah. Count on that funding. Not like a federal budget is coming up soon.

              I can hear the screams already. OMG! Don’t cut our funding for welfare programs that we use to undermine the constitution and rule of law at every turn.

        2. I guess #resist is more important than the $$. I’m sure the voters will appreciate that position if they lose.

        3. They need to lose much more than that. Oh how I would love to see Jerry Brown (would his aura finally frown?) and Gavin Newsom perp walked into federal custody. The number of groggy smiles turned upside down would be truly joyous.

  7. WAKE UP MY DARLING FRANKENTRUMPKENKOOKENSTEINSTILTSKINS.

  8. As the Supreme Court ruled in 2012 when it voided the Obamacare Medicaid expansion, which would have cut off all Medicaid funding for any state that refused to expand the program in accordance with the federal edict, federal “economic dragooning” of the states is unconstitutional because it “leaves the States with no real option but to acquiesce.”

    So? I’m sure the ruling applies strictly to that circumstance and not the hundred other ways the Fed do exactly this.

    1. Agreed. The ruling more or less said that generally Federal government threats of that nature was inconsequential. The Medicaid threat, given the size of Medicaid in each state’s budget, was a consequential threat.

      I’m a bit surprised Damon is so willing to claim “[t]he federal courts clearly support the states”.

  9. As the Supreme Court ruled in 2012 when it voided the Obamacare Medicaid expansion, which would have cut off all Medicaid funding for any state that refused to expand the program in accordance with the federal edict, federal “economic dragooning” of the states is unconstitutional because it “leaves the States with no real option but to acquiesce.”

    It’s still ok to deny transportation funding unless a state raises its drinking age though, right?

  10. First rule of politics is find someone to blame.

    That’s all the sanctuary city debate is, the feds passing blame to someone else because they can’t do their own damn job. It’s almost like they’re saying, “There’d be no illegal immigrants if it weren’t for those meddling sanctuary cities”.

    1. That and sanctuary cities think they can just flaunt federal immigration law and still get federal money.

      I bet funding gets cut. Its actually working great that these large lefty cities need federal funding and are violating federal law. Makes it easier just to cut the funds for budget 2018.

  11. I posted the link in another thread, but it seems more fitting here. Pretty good explanation of the topic from a constitutional perspective.

    http://tenthamendmentcenter.co…..stitution/

  12. As the late Justice Antonin Scalia observed in his 2007 majority opinion in Printz v. United States, “the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”

    More like Antonin Cucklia, am I right?

      1. Was that a federal regulatory program or a supreme court decision?

  13. Trump single-handedly discredited and diminished the office of the presidency. This is a very good thing for libertarians – proves the country can survive and THRIVE despite atrocious leadership. The danger is that the other branches take the opportunity to overreach – e.g. the military, judiciary, congress or press. They say, “Trump is out of control! Give us more POWER!” Haha no – they all need to be reined in proportionately. Then suddenly one day the government disappears into thin air!

    Then the judiciary stepped in with words like ‘dragoon’ and we got scared and thought, “This judiciary is so smart and has such an amazing vocabulary – surely they will protect us from the evil Der Drumpf!”

    1. Trump single-handedly discredited and diminished the office of the presidency. This is a very good thing for libertarians – proves the country can survive and THRIVE despite atrocious leadership.

      Few Americans see it this way. Most will see him as an aberration that will be gone in four years, only to (hopefully) be replaced by The Right Person. Honestly, I haven’t even really seen much on the left in the way of questioning the power of the Executive– or the federal government in general, except in ways that often appear unintentional or accidental. I haven’t seen any evidence that a real re-ordering of thought is taking place.

      In fact, from what I can see, individual freedom is now held in even greater contempt by the left, because they see Trump as a byproduct of individual freedom. Had those flyover losers just listened to their betters instead of all that internet fake news which came from having too many choices in our information sources, we wouldn’t be in this mess.

      1. Oh absolutely. Libertarians should be rejoicing with Trump – he vindicates what we’ve been saying all along, which is that government is a scam and we don’t need it. Instead we say stupid things like, “Trump shouldn’t fire Sessions because ‘rule of law’ and ‘convention’ and blah blah.” No – it would have been spectacular! The Dept of Justice would have stumbled and yet the country would have gotten along just fine.

        I feel we’re blowing this opportunity – I was banned 5 months ago for pointing this out. (Of course they don’t give a reason for banning you, so who knows.)

        1. Instead we say stupid things

          Who is this we?

        2. he vindicates what we’ve been saying all along, which is that government is a scam and we don’t need it.

          But preaching that to your 22-member choir isn’t exactly shaking things up.

        3. he vindicates what we’ve been saying all along, which is that government is a scam and we don’t need it

          Not remotely. In fact, quite the opposite. He vindicates that the substantially institutionalized and embedded nature of the Federal Government means that the office of the Presidency, regardless of its occupant, ultimately has little impact on the Swamp. It could be argued that he proves that the Swamp wins all, regardless of who tries to take charge of it.

          1. Trumpkin tears – I had forgotten how sweet!

            1. In exactly what way does Trump’s holding of the office of the Presidency prove that “government is a scam”?

              In no way. Trump’s actions may cause one to reflect on the power of the Presidency, but he in no way invalidates the existence of Government.

  14. “As for the Trump administration’s various threats to withhold, terminate, or “claw-back” federal funding for sanctuary cities, those threats would also violate the Constitution if the federal government carried them out. As the Supreme Court ruled in 2012 when it voided the Obamacare Medicaid expansion, which would have cut off all Medicaid funding for any state that refused to expand the program in accordance with the federal edict, federal “economic dragooning” of the states is unconstitutional because it “leaves the States with no real option but to acquiesce.”

    Of course if Madison were here, he would point out the federal government never had any legitimate Constitutional authority to enact programs like Medicaid in the first place or indeed just about anything else that the current federal government would be withholding from sanctuary cities.

  15. The case for sanctuary cities is pure Madison. Because the federal government has no delegated power to commandeer state officials and force them to carry out federal schemes, state and local officials in sanctuary jurisdictions are simply reaffirming their basic 10th Amendment right to refuse to do Washington’s bidding.

    Sanctuary cities are illegal:
    1907. Title 8, U.S.C. 1324(a) Offenses

    Harboring — Subsection 1324(a)(1)(A)(iii) makes it an offense for any person who — 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.

    Encouraging/Inducing — Subsection 1324(a)(1)(A)(iv) makes it an offense for any person who — 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.

    Conspiracy/Aiding or Abetting — Subsection 1324(a)(1)(A)(v) expressly makes it an offense to engage in a conspiracy to commit or aid or abet the commission of the foregoing offenses.

  16. Cities are not States. The author conflates two entirely different political entities.

    1. Good point. Cities are entirely at the will of the law of the states that created them in the first place. I am not aware if any state court decision has ever addressed the question whether a given city has the power under the state’s municipal law to affirmatively refuse to cooperate with federal law enforcement actions.

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