Donald Trump

Trump's Executive Order on Sanctuary Cities Flunks the Constitutional Test

Why the Trump administration lost in federal court.

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Gage Skidmore/ Flickr.com

A federal judge in California recently declared President Donald Trump's executive order denying federal funding to so-called sanctuary cities to be unconstitutional. According to the opinion of U.S. District Judge William Orrick in Santa Clara v. Trump, and the related case of San Francisco v. Trump, the president's order violates multiple constitutional strictures, including the 10th Amendment and the separation of powers.

In a new op-ed for The Orange County Register, I explain why the judge got it right. Trump's executive order clearly violates the Constitution in several ways. Here's a portion of my argument:

The Trump administration may not want to hear it, but sanctuary cities are protected by both the Constitution and Supreme Court precedent. For starters, as the late Justice Antonin Scalia explained in Printz v. United States (1997), "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."

In other words, Trump's executive order flunks the 10th Amendment test that Scalia spelled out in Printz. State and local officials have every right to refuse to enforce federal immigration laws….

Trump's executive order [also] flunks the text of the Constitution itself, which, as Judge Orrick points out, "vests the spending powers in Congress, not the President."

Open your copy of the Constitution. You will find that the federal spending power is located in Article I, Section 8, which deals with the limited and enumerated powers of Congress. The limited and enumerated powers of the president are spelled out in Article II.

What this means is that Trump's executive order on sanctuary cities seeks to usurp a core congressional function. That makes it an unconstitutional violation of the separation of powers.

Read the whole thing here.

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  1. And yet in1986 the Federal Highway Administration withheld highway funds from Nevada when it posted a 70MPH speed limit in defiance of the national speed limit.

      1. Root calls it a nudge not coercion, but I don’t see the difference.

    1. Ooooh that’s a hard one. The feds did not tell the states to spend money or enact laws. They merely said “we collected all this nice tax money and will only give it out under specific circumstances.”

      It’s a perfect example of how easy it is to route around inconvenient legal language. You’d have to warp the legal language of the Constitution pretty severely to close that loophole. The only real check on such shenanigans is to prevent the tax collection in the first place. The only real way to enforce such checks is make it easy for plain people to sue governments for violating the Constitution. If politicians are involved in anything, and have control over purse strings, favors, subsidies, taxes, or anything else which people want, then the corruption will be unbounded.

      1. It was telling states to enforce on their own roads a law that was enacted at the federal level, and punishing states that refused.

        1. What I’m saying is we seem to be applying the 10th Amendment rather inconsistently. (I’ll admit that I don’t know if the original national speed limit law included language instructing the NHA to withhold funds, but if it didn’t, it seems like the second part of the judge’s reasoning here is also haphazardly applied.)

        2. From what I’ve read, in all the cases where Highway funding was withheld (Motorcycle Helmets, Speed Limits and Alcohol restrictions) the legislation passed called for withholding the money, which may be what the judge was going off of here.

  2. Sanctuary cities are illegal by multiple clauses of:
    8 U.S. Code ? 1324 – Bringing in and harboring certain aliens

    The Mayors should be prosecuted.

    1. Damn right they should be prosecuted. The treasonous city council for my municipality voted 5-2 in favor of turning Spokane not a sanctuary city. Ideally, all five of them should be strong up in front of city hall, as a warning to any who would follow them.

  3. In other words, Trump’s executive order flunks the 10th Amendment test that Scalia spelled out in Printz. State and local officials have every right to refuse to enforce federal immigration laws?.

    No doubt. Those cities, also, have no right to grant money that they have to apply for and can be turned down for.

    It is baffling to see Reason demanding MORE spending.

    Open your copy of the Constitution. You will find that the federal spending power is located in Article I, Section 8, which deals with the limited and enumerated powers of Congress. The limited and enumerated powers of the president are spelled out in Article II.

    Congress left the issuing of grants to the DOJ. They just funded them.

  4. Immigration into the USA is illegal.

    Knowingly allowing illegal immigrants to work is illegal.

    Aiding and abetting criminal conduct is illegal.

    Local, state, and federal law enforcement are charged with enforcing US laws.

    What constitutional position does a city who refuses to enforce US law have again?

  5. Cut off all federal slush funds to states and lower taxes.

    Win-win-win for Libertarians.

    1. These programs should be cut out entirely, to be sure, but it is atrocious that the Trump Administration would threaten to take this funding from good city governments trying to help people who have done no wrong except crossing an imaginary line. The least we can hope for is that these cities get priority funding status until we can get rid of the laws that make it illegal to cross imaginary lines, then we can worry about cutting the funding.

      1. good city governments trying to help people who have done no wrong except crossing an imaginary line.

        AHAHAHHHAHAH! Fuck off, slaver.

      2. Please stop using that “imaginary line” canard. It is incredibly stupid when speaking of lines that have real world legal consequences such as which state’s laws have jurisdiction and one that delineate who has property rights. You do no favirs to property rights when you argue that “imaginary lines” are inherently illegitimate.

      3. I was hoping that by using the phrasing “to be sure… but… good city governments” that my above would be obviously sarcasm meant to mock Reason and their penchant for mealy-mouthed weasel-worded arguments along with their penchant to want more immigrants at any cost.

  6. What Constitutional authority does the Congress have to take money from me at gunpoint and give it to San Francisco for any purpose? Oh yeah, I keep forgetting: the FYTW clause.

    1. You were born on this side of an imaginary line, so it’s okay.

    2. My taxes are simply withheld from may payheck or added to the total at the register. No wonder you’re libertarians with all these firearms being shoved in your faces all the time. Perhaps you should figure out how to get on the gun-free plan. Maybe try Turbotax?

    3. Article I Section 8 grants the Congress authority to tax and spend. It particularly includes the power to lay and collect taxes, which would necessarily mean taking them by force if you refuse to pay…

  7. “””the Federal Government may neither issue directives requiring the States to address particular problems,””

    Like the drinking age?

    1. Or speed limits or seat belts.

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