Federalism

Trump Suffers Another Defeat in Philadelphia Sanctuary City Case

The ruling is the latest in long line of defeats for the administration's efforts to cut federal grants to sanctuary jurisdictions. It breaks new ground by showing how the recent Supreme Court ruling in Murphy v. NCAA helps sanctuary cities.

|The Volokh Conspiracy |

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."

The Sessions policy imposes three conditions on state and local governments receiving federal Edward Byrne Memorial Justice Assistant Grant funds:

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.

NEXT: In Jordan, Labor Unions and Businesses Have Joined Forces to Fight an Unpopular Tax Bill

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Is the National Minimum Drinking Age similarly constitutional? What about EMTALA as applied to government hospitals?

    1. Aren’t those laws authorized by Congress?

      1. Yes, but the article above implies that even if Congress authorized Trump’s actions verbatim, it would still violate the Constitution.

        1. ARWP,
          Is that correct? I did not see that implication in the OP. Can you cite to the part of Somin’s words that suggest what you say?

          1. “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”

            If it violates the 10th Amendment, it would do so whether the conditions were imposed by Congress or the Trump Administration.

        2. It might, existing precedent on the matter is inconclusive.

          For instance, the Byrne grants aren’t that much money, so they probably won’t fall afoul of NIFB’s “coercion” condition.

          The only way to find out is to first convince Congress to actually impose the condition stated on those particular funds. Then we might get to find out!

      2. Who gave Congress the power to control spending anyway?!

    2. My understanding is that requirement is linked to receiving highway funds. The state could forgo the funds if they choose, but it’s a lot of money.

      1. And the requirements discussed above are linked to receiving law enforcement grants. What’s the difference?

        1. The city claims to be in full compliance with the conditions on law enforcement grants, as Congress passed the. Session disagrees.

        2. The difference is Congress passed the conditions of the drinking law which is legal.

          Sessions (i.e. Trump) imposed the conditions of the sanctuary law which is not authorized.

          BIG difference.

          1. Congress passed 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.

            1. Can you point to where Congress made any particular grant dependent on compliance with those plain terms?

              It’s not enough to say “Congress passed a law saying X” and “Congress passed a grant for Y” to then conclude that the money in Y is conditioned on X. They’ve got to explicitly condition the particular grant on the particular compliance.

  2. Gun grabbers are going to HATE these rulings.

    Why should a state be required to expend any resources reaching out to any federal databases to restrict gun purchases? Calling ICE requires fewer resources than checking a database, after all.

    1. In order to get your scenario going, first you need some sort of gun confiscation to pass. And then you need Congress to pass it as a broad but vague mandate.

      Your fantasies are pretty specific!

      1. They could simply ignore current gun control laws. Background checks can be stopped as there is no justification, apparently, to make states expend any resources to do much of anything.

      2. Is that why the WaPost ran a piece saying this could easily impact gun laws?

    2. As a gun owner and advocate of tighter gun restrictions I’m not sure what your point is and why its relevant to this topic.

      1. What restrictions are you in favor or?

        1. Lok at regexp’s prior posts, he/she calls an AR-15 a “machine gun.” What kind of gun owner is that?

      2. NRA has 58% approvals. these “gun owners” who advocate tighter restrictions turn out not to be gun owners. I met on gal who said she was a gun owner who said she opposed Heller — I asked her what kind of gun she had, she said she had a glock. lol

  3. Cities like Philly are worse than prostitutes.

    Want your own immigration policy, take a stand, refuse the money too.

    1. Wow.. Philly hate, women hate, and ignorance of federal law all in one post.

      Good Job!

      1. The irrational hatred for sex workers on the right certainly is suggestive though.

        1. Public displays of hatred =/= hatred.

          Ask Pres. Trump. Or Stormy Daniels. Or David Vitter. Or Rudy Guiliani. Or Jon Stanard. Or . . .

        2. “irrational hatred for sex workers ”

          Yes, only the “right” look down on prostitutes. LOL

          Every liberal looks forward to their children becoming prostitutes. Wait, that probably is true.

  4. The real question, though, is that if Congress expressly conditioned certain federal grants on compliance with Section 1373, would that be Constitutional. I don’t think that has been answered yet.

    1. I believe it has. Congress set can conditions for giving money to the states. If the various law enforcement grants had expressly had this condition to begin with I’m pretty sure it would be constitutional. Any other view would mean that Congress could not give money to the states with any conditions, including how to use it.

    2. I think it has, for example in the national drinking age case. It’s just that certain open borders zealots, and other sufferers of Trump derangement syndrome, some of whom sit on federal court benches, refuse to acknowledge this.

      1. It looks to me like this case makes a distinction due to the lack of explicit Congressional direction.

      2. I think ML’s point was, “If a highly trained and educated federal judge rules against Trump, it must be due to (a) Trump derangement syndrome, (b) the judge is actually and idiot, or (c) some combination of A and B.”

        Whatever the explanation; it’s definitely not due to, “After careful consideration, it actually does violate some aspect(s) of the Constitution.”

        Cuz that would imply good faith on the part of the judiciary. And in Trump’s all-out assault against the judiciary (media, etc), good faith is NEVER assumed.

        1. The leftist judiciary does not act in good faith, as it’s shown time and time again. There’s no way you can think that the 2nd Amendment’s explicit prohibition on infringing on the right to keep and bear arms allows may-issue carry laws while thinking the 14th Amendment’s penumbras and emanations give a right to have gay buttsex and abortions and still be acting in good faith.

        2. That is far from correct, santamonica. I assume there are many sound rulings against Trump. In this case, however, it appears judges have simply avoided this particular question, as it is obvious that Congress can explicitly put certain conditions on funds. The first ruling by Judge Orrick in particular was a farce.

          1. as it is obvious

            Usually a sign you’re legal cast isn’t actually about what the law is, but what you’re sure it should be.

            Also, the number of judges ruling against this is quite large for all of them to just be acting to spite Trump, no?

            Who knows what’ll happen with the SCOTUS, but the people stomping their foot that this isn’t a legitimate legal position tell more about their own agenda than these judges.

            1. What’s this, mindless disagreement free of any substantive argument? Usually a sign you’re reading a Sarcastro post. Please, try to understand before responding. Bored Lawyer raised an issue which, if you’ll read my posts below, this court has avoided answering in both rulings. On another issue, I think the court may be right. And no, it is actually obvious that Congress can put conditions on funds, see South Dakota v Dole, and there are limits and criteria to that.

              1. You’ve shown you can craft a quite impressive substantive argument elsewhere.

                But In this case, however, it appears judges have simply avoided this particular question, as it is obvious that Congress can explicitly put certain conditions on funds. is not a substantive argument, it’s just ipse dixit.

                1. What matters is with the broad strategy the Trump administration is taking, he has net wins. Losing 8 out of eleven types of immigration changes means more limits than before — which is good.

                  that is what is driving the left nuts.

    3. You’re right that it hasn’t been answered yet, but existing doctrine suggests that

      (A) The “certain Federal grant” would have to have some nexus connecting it to the aims of ?1373. I don’t see Congress could condition receiving an NIH grant to study cancer on immigration conditions.

      At least there’s sort of a nexus argument for the Byrne grants.

      (B) The amount of money could not be coercive under Doe and NIFB.

  5. Wait a minute, Philadelphia is the city of *brotherly* love, yet the city seal has two chicks on it.

    1. (I hope I haven’t misgendered them)

  6. If it’s unconstitutional “commandeering” for the executive branch to condition federal funding on proof of compliance with immigration law, and it’s also an improper executive usurpation of the legislature’s power of the purse, then surely it’s also unconstitutional to condition schools’ receipt of federal funding on compliance with Title IX’s requirements (commandeering) and the host of Dear Colleague letters and the like through which the executive branch has implemented and repeatedly revised them (usurpation).

    This is a short-term loss for the Trump administration, but may well be better for conservatism in the long run, if the outcome of these cases is to give teeth to the prohibition on coercive conditional federal grants, and to force Congress to increase its funding for federal immigration authorities to fill in the gap.

    1. Except it won’t give any such teeth, because liberal judges will find a way to distinguish those cases when they come up.

      1. I think the big question is whether Justice Kennedy will be retiring in time for Trump to pick his successor. If so, I’m more comfortable with accepting some losses on narrow policy issues in the interests of laying out a legal framework supporting a longer-term restructuring of federal government, so it becomes more directly involved in policing immigration and less involved in purely domestic issues.

        1. I’m praying for RBG to kick the bucket soon.

          1. ARWP: “…praying for RBG to kick the bucket…”

            Oh dear G*d! You want to lose the most interesting member of the bench?!?!

            It’s bad enough Scalia’s gone!

          2. I don’t pray for people to die, I’d be perfectly content with her retiring.

            If the two of them, Kennedy and Ginsberg, both leave while Trump is President, and with a Republican Senate, it’s going to be vastly entertaining.

      2. Sadly, this is completely correct. The very same judges who are stretching like Inspector Gadget to reach these conclusions, do the same thing to legitimize laughably illegitimate actions that align with their ideology, such as the dear colleague transgender bathroom letter.

  7. The withholding of federal funds has been a club held over the heads of states for decades – when did things change?

    1. The only thing that changes is that Congress did not actually put this particular club in Session’s hands, and the court says that he can’t wield it without their explicit permission.

      1. Lets wait and see what SCOTUS says. The extent of Session’s authority is disputed

  8. So those Dear Colleague letters regarding Title IX exceed the President’s authority.

  9. It appears Somin does not even have a rudimentary understanding of some of the rulings he is writing about.

    “Judge Baylson’s new decision reaffirms his earlier ruling that the Section 1373 condition is not authorized by Congress. ”

    Said earlier ruling ruled no such thing. In 132 pages of opinion, Judge Baylson opted to avoid the question:

    “”[T]he Court acknowledges that Congress has prohibited state or local governments restricting communications about aliens to the federal government. Although the Court declines to rule whether a certification condition is applicable, the record of the case clearly shows, giving due credibility to the testimony about the City’s practices, that Philadelphia is in “substantial compliance” with all of these DOJ conditions.”

    1. Likewise, in the instant ruling, the court again did not rule that the Section 1373 condition was not authorized by Congress.

      In fact, the court admits that it was indeed authorized!! Only, the condition is unconstitutional, because Section 1373 itself is unconstitutional:

      “Because the JAG Byrne Program requires compliance with an unconstitutional statute (in this case, Section 1373) in order to receive grant funds, the Certification Condition is itself unconstitutional.”

      You have to wonder what is going on with Somin. His writings are filled with self-referential links, erroneous statements, and specious reasoning, which together appear like some desperate attempt to show that he was right all along (when he wasn’t), all while boosting his web presence rankings with links.

  10. “But what it cannot do is dragoon state and local governments into using their resources to help enforce federal laws.”

    But Section 1373 does no such thing. There is no provision which requires state or local governments to so much as lift a finger. It merely bars them from prohibiting law enforcement officials from cooperating with immigration authorities.

    Nonetheless, the case against Section 1373’s constitutionality does appear strong at first glance under Murphy. Murphy looks to be quite an expansion of the anti-commandeering doctrine, which as I understood it was previously more focused on actual commandeering of state resources. Now, it is more of a general prohibition on telling the states what they can or cannot do.

    By ruling on these grounds, the court sidestepped the spending clause issue. If Congress had simply dropped the text of Section 1373 into the spending legislation as a condition — rather than merely referencing it as a separate statute which may not stand up to scrutiny on its own — then the spending condition would have been perfectly constitutional.

  11. our borders should be open. our houses should be open. only then are we free.
    laws are for the little people.
    let them eat cake.

  12. The judge appears to be over-reaching to the degree that he allows states to penalize officials for merely reporting violations of Federal law to Federal law enforcement.

    State officials have the same right to report violations of Federal law as do ordinary citizens.

  13. What matters is with the broad strategy the Trump administration is taking, he has net wins. Losing eight out of eleven types of immigration changes and winning three of them, means more limits than before — which is good.

    that is what is driving the left nuts.

Please to post comments

Comments are closed.