The Volokh Conspiracy
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Yesterday, federal district judge Michael Baylson issued a decision striking down the Attorney General Jeff Sessions' policy of withholding federal grants to the City of Philadelphia unless city complies with three conditions related to helping the federal government deport undocumented immigrants. The ruling is the latest in a long line of judicial decisions against the Trump administration's attempts to impose new conditions on federal grants to "sanctuary cities"—jurisdictions that refuse to cooperate with federal deportation efforts. The US Court of Appeals for the Seventh Circuit upheld another trial court ruling against the same Sessions policy in April. Much of yesterday's opinion simply follows Judge Baylson's earlier November 2017 ruling issuing a preliminary injunction against the Sessions policy. The new decisionconverts the earlier one into a final judgment against the administration.
But Judge Baylson's latest ruling does break new ground on one important issue: it holds that Murphy v. NCAA, the Supreme Court's recent sports gambling decision, makes 8 U.S.C. Section 1373 unconstitutional. Section 1373 is a controversial federal law mandating that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual."
1. Prove compliance with Section 1373.
2. Allow Department of Homeland Security officials access into any detention facility to determine the immigration status of any aliens being held.
3. Give DHS 48 hours' notice before a jail or prison releases a person when DHS has sent over a detention request, so the feds can arrange to take custody of the alien after he or she is released.
With respect to the second and third conditions, Judge Baylson's new opinion simply applies his earlier decision concluding that these requirements are unconstitutional because they were never authorized by Congress. Only Congress has the power to spend money, and authorize the imposition of conditions on federal grants to state and local governments. This is an important constitutional principle, because it prevents the executive from usurping the power of the purse from the legislature, and then using it to force state and local governments to do his bidding on a variety of issues. Conservatives who may be happy to see such pressure deployed against sanctuary cities are likely to regret their enthusiasm if a liberal Democratic president uses the same tactic to force states to increase gun control, adopt a "common core" curriculum, or pursue liberal policies on transgender bathroom accommodations. In the long run, both left and right have much to gain from enforcing constitutional limits on federal power in this field.
Judge Baylson's new decision reaffirms his earlier ruling that the Section 1373 condition is not authorized by Congress. But he also now rules against the Section 1373 condition on the ground that Section 1373 is unconstitutional because it violates the Tenth Amendment's ban on federal "commandeering" of state and local governments. In doing so, he relied heavily the Supreme Court's recent decision in Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act, a federal law barring states that previously prohibited sports gambling from passing laws "authorizing" it. As Baylson explains, the same principle that invalidated PASPA also dooms Section 1373:
8 U.S.C. §§ 1373(a) and 1373(b) by their plain terms prevent "Federal, State, or local government entit[ies] or official[s] from" engaging in certain activities. These provisions closely parallel the anti-authorization condition in PASPA which was at issue in Murphy. Specifically, the PASPA provision violated the Tenth Amendment because it "unequivocally dictates what a state legislature may and may not do." Murphy, 138 S.Ct. at 1478. Sections 1373(a) and (b) do the same, by prohibiting certain conduct of government entities or officials.
I think this is basically correct, though I would caution that this phrasing should not be interpreted as concluding that the federal government may never prohibit any conduct by state and local officials. As Baylson explains later in his opinion, the federal government can still restrict state and local officials when their conduct conflicts with federal laws regulating "private actors." It can also bar them from adopting policies that are unconstitutional, such as engaging in unconstitutional discrimination or violating the Bill of Rights. But what it cannot do is dragoon state and local governments into using their resources to help enforce federal laws. It cannot do that by simply ordering them to do so (as in the Supreme Court case of Printz v. United States, which struck down a statute requiring state officials to help enforce a federal gun control law) and it cannot do it circuitously, as with Section 1373.
I previously explained how Murphy helps sanctuary cities here and here. Like a number of other legal commentators, such as Garrett Epps, Mark Joseph Stern, and Rick Hills, I think it is especially relevant to the longstanding dispute over the constitutionality of Section 1373. In my view, Section 1373 was unconstitutional even under pre-Murphy Supreme Court precedent. But the issue was a difficult one that divided lower courts. Murphy significantly strengthens the constitutional case against Section 1373.
Yesterday's ruling is not the end of the legal battles over Sessions' policy and sanctuary cities more generally. The Trump administration is likely to appeal the decision, and litigation over a variety of sanctuary city issues also continues in other federal courts. But Judge Baylson's decision is yet another setback for the Trump administration, and an indication that Murphy v. NCAA may doom Section 1373.
UPDATE: I should note that Judge Baylson also ruled that the Sessions policy violates the Administrative Procedure Act. I will leave that aspect of the case to the administrative law experts.