Sanctuary Cities

Trump Administration Files New Lawsuits Against Sanctuary Jurisdictions

The new lawsuits against the state of New Jersey and King County, Washington have many of the same constitutional flaws as the administration's other efforts to to target sanctuary cities.

|The Volokh Conspiracy |

On Monday, Attorney General William Barr announced that the Trump administration is filing new lawsuits challenging sanctuary policies in New Jersey and King County, Washington (which includes the City of Seattle). For the most part, these lawsuits are based on some of the same flawed constitutional reasoning that has caused the administration to lose a long series of other cases against sanctuary cities and states. The administration's position is premised on the idea that the federal government can force states and localities to assist in enforcing federal laws, even when the former would prefer not to do so. This runs directly into the Supreme Court's anti-commandeering precedents holding that the Tenth Amendment forbids such federal coercion of states.  If the federal government wants to enforce federal law against private parties, it must either use its own resources to do so, or secure the voluntary cooperation of the states.

The lawsuit against New Jersey targets a state policy limiting the range of information that state and local law enforcement agencies are permitted to provide to federal immigration enforcement officials. The administration argues that this violates various federal immigration laws that supposedly require states to turn over information about aliens potentially sought for deportation by federal authorities. Even if the laws in question do say that, that just means they themselves are themselves unconstitutional, because they commandeer state governments to help enforce federal law.

That is exactly what several federal courts have already concluded in previous sanctuary city cases in which the Trump administration tried to rely on 8 U.S.C. Section 1373, 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."

Because of Section 1373's indirect nature, the issue of its constitutionality was once a close call. But in the wake of the Supreme Court's 2018 decision in Murphy v. NCAA, the issue became a fairly simple one, for reasons I summarized here. Since Murphy  was decided, multiple lower courts have uniformly either ruled that Section 1373 is unconstitutional, or interpreted it very narrowly to avoid causing constitutional problems by interfering with state autonomy. I went over these cases in detail in my recent Texas Law Review article on Trump-era sanctuary city litigation. The same fate likely awaits the Trump administration's attempt to force New Jersey to do its bidding in this case.

Interestingly, the Justice Department's complaint against New Jersey, barely even attempts to rely on Section 1373, even though it is the federal statute most directly on point. That may be because so many court decisions have recently ruled that Section 1373 is unconstitutional. They instead cite various other federal laws, such as 8 USC Section 1226 and 8 USC Section 1231. The obvious flaw in this strategy is that neither of these laws actually imposes any information-sharing mandates on state and local governments, or even any other kinds of mandates. Both give states the option of helping federal deportation efforts, and even of asking for federal assistance in removing aliens the states themselves want to see gone. For example Section 1231 allows state officials to request the removal of nonviolent criminal aliens serving sentences in state custody if, among other things, they determine that "the removal is appropriate and in the best interest of the State." But the states are not required to make such requests, and nothing in Section 1231 requires them to turn over information to the feds if they do not want to.

At the very least, Sections 1226 and 1231 are ambiguous about whether they impose any information-sharing duties on states. And, where that is the case, courts will generally interpret statutes in ways that avoid constitutional problems. That means avoiding any theory that allows the federal government to coerce states into turning over information against their will. If courts find that 1226 and 1231 do somehow require information-sharing, they should consign these laws to the same fate as Section 1373 has lately undergone.

The federal argument also claims that New Jersey's information-sharing restrictions violate the doctrine of "intergovernmental immunity" which bars state laws that "regulate the United States directly or discriminate against the Federal Government or those with whom it deals." The claim here is that New Jersey is "discriminating" against the federal government because it doesn't similarly restrict information-sharing with other federal and state law enforcement agencies. If adopted by the courts, this kind of argument would completely demolish the anti-commandeering principle. Any state refusal to help enforce any federal law can be described as "discrimination," so long as the state in question continues to cooperate with federal or other states' law enforcement efforts on other issues.

Moreover, as I explained here, the idea that there is "discrimination" here overlooks the ways in which federal immigration enforcement is fundamentally different from other government and private activities with which states might choose to cooperate. he concept of discrimination implies treating similarly situated entities differently. But there is no private-sector analogue to immigration enforcement because because no private entity has the legal right to deport people, forcibly separate families, and confine people in cages. Immigration enforcement is also fundamentally different from other federal or state law enforcement operations because of series of dubious double standards insulate it from most of the constitutional safeguards that protect suspects in virtually every other area of law.

The King County, Washington lawsuit is somewhat more complicated. It challenges the County's policy of refusing to let Immigration and Customs Enforcement use the municipal airport for flights that deport immigrants. There are some complexities here related to federal aviation law, which I will leave to those more expert on the subject than I am. But the commandeering and intergovernmental immunity issues are basically similar to those in the New Jersey case. Here too, the federal government is claiming the right to coerce state and local governments into helping enforce federal law, and also claiming that refusal to help qualifies as "discrimination" against the federal government. And these claims have all the same flaws as they did in other cases where the federal government has made them.

In October, the federal government asked the Supreme Court to take the California "sanctuary state" case, which raises much the same issue as the New Jersey case. The Trump administration lost on this issue in the lower courts (at the hands of both Republican and Democratic-appointed judges), and I doubt that the Supreme Court will overturn those rulings. But, obviously, if it does, that would have major implications for the New Jersey litigation  and other similar cases.

If the administration somehow manages to win these cases, it would set a dangerous precedent that goes far beyond immigration policy, creating a road map for federal coercion of states and local governments that can be used on many issues. Those on the right who now cheer Trump's efforts to coerce sanctuary cities may not be so happy when future Democratic presidents use similar tactics on issues such as gun control, education, or  the "Green New Deal." Particularly in our highly polarized era, Americans with a wide range of ideological commitments have good reason to support strong judicial enforcement of constitutional limits on federal power over state and local governments.

 

NEXT: Andrew Yang, Who Wanted Libertarians in His Coalition and Opposed Cancel Culture, Exits the Democratic Race

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  1. There is no reason for these lawsuits, no governmental purpose being served, just cruelty and racism.

    1. Are you supporting completely open borders, no vetting for criminality, disease, etc.? No deportation of criminals here illegally? What’s your proposal?

      1. That’s not what the lawsuits are about. The lawsuits are about trying to force state’s to give up privileges to the federal government.

        There are things the feds can compel the states to do. There are things they can’t.

        One of those is directing how states set their law-enforcement priorities. The other is whether or state agencies cooperate with the federal government in realms where the federal government can only *request*, not compel, cooperation – such as the requests to hold prisoners for a few days past their release dates so federal immigration officers *maybe, might, possibly* come around and pick up the dude for immigration violations. While footing the bill for the extra incarceration – Uncle Sam will gladly pay you Tuesday for services rendered today.

        Now, you can be full opposition to ‘open borders, no vetting for criminality, disease, etc’ while still opposing federal power grabs as the worse evil.

        1. IOW you believe the State(s) can violate US law regarding immigration?

          Yet the Constitution is clear that the federal government has the power of immigration, not the State(s).

          Also, if the State(s) can violate immigration law with State (county, city) sanctuary city laws then the State(s) could also violate immigration law by banning illegal foreign nationals from their State(s).

    2. The King County lawsuit includes a perfectly reasonable justification for the lawsuit. It’s much more expensive to for the federal government to deport people from Tacoma when they have to fly them out of Yakima instead of Seattle. It’s actually easier on the detainees as well, so I doubt cruelty or racism is playing much of a part.

      Are you suggesting that no person, ever, should be able to be deported once they make it to America? Because that seems kind of silly.

      1. There is no governmental interest in sending ICE into cities to arrest undocumented immigrants. They are not a threat to public safety. They are not a drain on the public disc. If they were, it would be the municipalities who were harmed. And the municipalities obviously do not believe that that is the case.

        1. You are a liar and an idiot. Don’t you read the news???

          1. Why are you like this?

            1. “The 21-year-old undocumented immigrant accused of sexually assaulting and killing a 92-year-old woman while she walked near her home pleaded not guilty in a New York courtroom on Thursday.

              Authorities allege Reeaz Khan assaulted Maria Fuertes in the early morning hours of Jan.6”

              He had been arrested previously for an assault. NYPD refused to hold him when ICE issued a detained. He was released, and went on to sexually assault and kill this woman. (He admitted to the sexual assault.)

              1. “They are not a threat to public safety.”

                Ha, ha, ha, ha ha,

                1. Why not just deport everyone, then, since even native-born white Christian males sometimes commit crimes?

                  1. Because actual US citizens have a right to be here, crime or not. Illegal aliens don’t.

                    1. Where does that come from? Exile is Constitutionally forbidden?

                    2. I don’t know why you’re suddenly using the “it has to be stated in the Constitution or else it isn’t a thing” argument, but it’s kind of definitional in citizenship. The only people who live in “exile” are those who choose not to return and stand trial (McAfee, Snowden).

                2. All you’ve shown is that an indeterminate % of unauthorized immigrants commit violent crime. That’s not news. It would be news if they didn’t. What you haven’t shown is that they commit violent crime at a higher rate than any other group.

                  It’s a fact that men commit violent crime at a considerably higher rate than unauthorized immigrants do. If your concern is reducing violent crime, it’s men you should want out. Why aren’t you shouting on the internet at people who don’t support restricting entry to women?

                  1. I don’t know why you think illegal immigrants have to commit crime at higher rates in order to justify deportation, but the illegal immigrant crime rate should be near zero because there shouldn’t be illegal immigrants here. That’s the whole point.

                    1. By “rate” do you mean “absolute number of”?

                  2. You make a lot of stupid sophist arguments. Illegals need to go. That you can’t see that makes you a punchline to a joke.

              2. Turning an anecdote into something true for the entire group has ever been the tool of the bigot.

                1. Don’t call me a bigot, it’s an example. There is widespread crime perpetrated by illegal immigrants, and all I am saying is through the criminals out. If you cared, didn’t live in a bias confirmation news bubble, you’d see that this is going on all over the country, in drug dealing, human trafficking, organized crime, and so on.

                  Captcrisis said it’s not happening. So, I offered an example from last month.

                  And Leo, I made no assertion regarding “that they commit violent crime at a higher rate than any other group.” Don’t put arguments in my mouth!

                  We haven’t even discussed prosecutors charging criminals with lesser crimes to allow them to avoid deportation, which is also widespread, and unfair to those here legally!

                  1. Don’t call me a bigot, it’s an example.

                    400 people in the United States were murdered yesterday. 400 people will be murdered today. Fixating on one death because you don’t like the color or the nationality of the person who committed a single outlying murder doesn’t help anyone. It just proves you are a bigot and a racist.

                    1. 400 people in the United States were murdered yesterday…

                      400 * 365 = 146,000 murders projected this year?

                      FBI Crime in the United States for 2018: “the estimated number of murders in the nation was 16,214.”

                      I suspect the 400 murders a day is bullshit. Return it where you got it.

                    2. Fixating on one death because you don’t like the color or the nationality of the person who

                      allegedly

                      committed a single outlying murder doesn’t help anyone.

                    3. “Allegedly” – ha! He confessed to the sexual assault, then she died. His brother turned him in. Pretty obvious.

                      I’m not fixating. I don’t care what his race or nationality is (in fact, I don’t know); I care that he’s an illegal immigrant with a criminal record who was captured for the first crime, released and went on to murder.

                  2. I said you’re using the tool of a bigot.

                    If you don’t want to be so associated, then make a real argument not anecdote-cum-pedantry. That’s at best bluster and at worst an argument from emotion meant to inflame more than convince.

                    Which is, as I said, the tool of the bigot and demagogue, and I think not of anyone with whom you would want to be associated. Which speaks well of you; so lay off that stuff.

                  3. I never said you asserted unauthorized immigrants commit violent crime at any particular rate. I just implied that without such an assertion, and the data to back it up, your anecdotes are only trivially significant.

                    And by the way, I’m generally fine with deporting violently criminal non-citizens. Just not at the cost abrogating sanctuary city protection would inflict on immigrants who have committed no crime, violent or otherwise, other than coming here in search of a better life for their families.

                    1. Who have committed no crime except the one you want them to get away with, IOW?

                      That doesn’t strike me as a very principled stance, unless you just think local governments should be able to negate any federal law they don’t like.

                    2. Who? Documented immigrants, naturalized citizens, even 2d and 3d generation citizens, to name a few, who live in justifiable fear of being profiled, harassed, detained and/or sometimes deported, or of loved ones being subjected to same, or who feel unsafe to report crimes or otherwise engage government services, lest such engagement alert ICE agents to troll for their or their loves ones’ presence.

                    3. Look, I know plenty of documented immigrants and naturalized citizens, being married to an immigrant. Not one of them lives in fear.

                      Why? Because they’re all legal, and can prove it.

                      This idea that Americans and legal aliens live in fear of ICE is a total fraud. To believe it you have to not know any legal aliens or naturalized citizens.

                    4. My spouse (unmarried but co-habitating) of 19 yrs is also an immigrant. Through her I know more immigrants than I can count. And that’s in addition to living in Los Angeles, where seemingly every other person you meet is an immigrant.

                      With that feeble appeal to authority disposed of, I’ll see and raise your anecdotes. I do in fact know several legal immigrants who live in fear of ICE. Apparently it isn’t exactly a “total fraud.”

                      Would you like to tell me next that young black men don’t live in fear of being pulled over by cops?

                2. Nice strawman Sacastr0.

                  The detainers are for criminal illegal foreigners that have already been arrested (most convicted) of crimes.

                  Why do you protect criminal illegal foreigners over US citizens and legal foreigners?

                  1. I don’t.
                    Read the comment thread again. It’s not about the detainers.

                    The arguments on here about illegals remain irrational and bad. It’s not elevating them above legal immigrants and citizens to not that the pleasure taken in performative cruelty against them is disgusting.

          2. Do you read the news of studies which refute your position?

            1. There is no news that refutes my position.

            2. Don’t feed the troll.

              1. captcrisis, I am no troll. You, on the other hand, ….

                You almost never post anything of substance or that is substantiated.

                1. I mean, you just admitted he properly pegged you as a troll so that’s at least one substantive comment.

                  1. Technically, ThePublius only admitted to being pegged as a troll. Not “properly” pegged.

                    1. Got me there, Brett. I misread.

        2. Apprehending dangerous criminals wherever they hide or are harbored by others, is certainly a duty of ICE. A better way to approach this, however, is for ICE to find a single illegal immigrant in Seattle who has been ‘aided’ by the authorities and then charge such authorities with harboring a fugitive. Tie them up in legal knots, and bankrupt their city fighting lawsuits.

          Frankly, I’m surprised this hasn’t been tried.

          1. I think most of us who simply want illegal immigrants deported hope that things never degenerate to the point that we have to punish US citizens and increase their tax burden to force them into compliance with the law.

        3. Allow me to introduce you to the US Constitution. In which the federal government has control over immigration matters. Including illegals, who are not ‘immigrants’.

          1. As I recall, the Constitution only specifies control over naturalization.

            1. Immigration being a subset of that. Which is generally understood without question. So let’s not play any Pedo Jeffy style semantically games.

              1. Immigration is NOT a subset of naturalization. One can easily immigrate and never be naturalized.

                1. One can also be naturalized without ever immigrating.

                2. You can’t have a rule of naturalization without rule of immigration. It’s definitional. You can’t decide who is and isn’t a citizen or how they become one if you can’t control who enters. Otherwise, everyone else decides and there’s no such thing as a country.

                  1. Yes you can. For much of our country’s early history we had a naturalization rule without an immigration rule. We’ve also naturalized people who never immigrated on multiple occasions.

                3. For the purpose four constitution, it is. This isn’t in question. So don waste my time again with your sophistry.

            2. It’s much more complex than that. The federal government has this power via the Supreme Court.

              http://hrlibrary.umn.edu/immigrationlaw/chapter2.html

        4. “There is no governmental interest in sending ICE into cities to arrest undocumented immigrants.”

          Which has nothing to do with the King County lawsuit. The illegal aliens in the King County lawsuit are already in a government detention center and have already been ordered to be deported. So, again, are you suggesting that no person, ever, should be able to be deported once they make it to America? Because that seems kind of silly.

          1. They were in detention for no other reason than they were brown skinned and were not lucky enough to get a job at a Trump property or maybe William Barr’s country club. They were not a threat to public safety. They were not a drain on the public fisc.

            If they had actually done something that made them a threat then of course in a proper case deportation can be ordered and the order must be enforced.

            1. Come on, at least try to be serious. They could have been as brown skinned as my wife, who isn’t working at a Trump property either, and not been deported if they’d been here legally in the first place.

              You don’t like having immigration laws, we get that. That doesn’t make enforcing the law illegitimate.

              1. Deportation of non citizens still requires due process. Wong Yang Sung v McGrath. There was none here.

                1. There WAS due process in this case. Why do you pivot to this instead of either defending your position or conceding it?

            2. “They were in detention for no other reason than they were brown skinned and were not lucky enough to get a job at a Trump property or maybe William Barr’s country club.”

              Thank you for confirming that you are not a serious person and have nothing of value to add to the conversation. It will save everyone time if you just admit that right off the bat next time.

        5. Right.

          There is absolutely no government interest in having a government agency, the IMMIGRATION AND CUSTOMS ENFORCEMENT, actually, you know, enforcing immigration law on illegal aliens.

          How stupid are you?

      2. Seattle-Tacoma International Airport would seems to be just as, if not more, convenient than the municipal airport in Seattle (Boeing Field).

    3. Is there a government purpose behind racist affirmative action or is that just a racist giveaway to get votes?

  2. “confine people in cages”

    Screw you, Ilya, you partisan hack!

    You have lots of complaints. But you never offer ANY solutions to this border and immigration mess we face.

    Don’t you have ANY compassion for the victims of criminal illegal immigrants?

    I support the federal government’s efforts at securing our borders, and administering immigration law. States and cities that thwart this are WRONG and must be held accountable.

    New York has lost Global Entry and other TTPs. I hope the next step is to cancel and deny new passports to residents of these rogue municipalities.

    1. Frankly any jurisdiction that gives out ID’s to illegals ought to not have those recognized for identification purposes outside of that jurisdiction. Want to buy booze in another state and have a NY ID? Can’t really guarantee its a legit governmental record. Same with any use for federal purposes. I would go as far as saying you can’t even use it to get on a plane or train traveling interstate.

      1. I’m on board for that, and they’re already starting to implement it: Such jurisdictions no longer qualify for the TSA’s expedited travel programs, due to refusing to share the information necessary to vet applicants.

        I could see the Real ID act being amended to exclude any ID available to illegal aliens. Mind, I’m not at all happy with the Real ID act in regards to it being required for air travel; I don’t think it makes such travel any safer, really.

        1. Such jurisdictions no longer qualify for the TSA’s expedited travel programs, due to refusing to share the information necessary to vet applicants.

          Sure. That’s the reason. Open wider. There’s a lot more for you to swallow.

          1. Brett’s the first one to actually seem to believe that excuse.

            Information about illegals is so clearly not related to background checks for regular world travelers I’m kind of impressed at his mental flexibility.

            1. It’s not terribly complicated. Being an illegal immigrant is illegal. You’re not supposed to pass the background check if you’re known to be doing something illegal.

              The fact that you don’t want immigration laws enforced doesn’t make violating them legal.

              1. “It’s not terribly complicated. Being an illegal immigrant is illegal. You’re not supposed to pass the background check if you’re known to be doing something illegal.”

                So, obviously, being from New York is also illegal, and that’s why nobody from New York can pass the background check while they’re from New York.

                They should change their official state of residence to, I don’t know, Florida maybe.

                1. No, they can’t pass the background check if they’re from New York because New York refuses to cooperate with conducting the background check, due to their desire that certain criminals not be identified.

            2. Sarcast0 and Bernard, Brett is right. For example. The federal government has frozen enrollment and will not be renewing membership in Global Entry and other TTPs for New York State residents, due to that state granting driver’s licenses to illegal immigrants, and not sharing licensee info with the feds.

              https://www.cnn.com/2020/02/07/politics/global-entry-new-york-chad-wolf/index.html

              Cuomo is meeting Trump on this topic, so I assume he’s taking it seriously.

              1. You misunderstand; we all know the story. We all know the Feds ridiculous excuse. But a moment’s thought and logic and you can see there’s no causal connection there. No one believes it’s actually anything more than retaliation.

                Except Brett. And maybe you.

                1. No, Sarcastro. You don’t like immigration laws, which is your right. So you don’t want violation of them to be treated as a violation of the law. Again, it’s your right to want this, the only problem is that you seem to think wanting it constitutes some sort of argument that enforcement of these laws is illegitimate.

                  The expedited travel clearance is only available to people with clean criminal records. Being an illegal immigrant is a crime, so no illegal immigrant qualifies, LEGALLY, for that expedited service.

                  That’s true regardless of whether you think crossing our border without permission shouldn’t be illegal.

                  1. Brett, the number of illegals going on regular international trips with NY passports is going to be vanishingly small.

                    Rationalizing this hard is just humiliating yourself.

                    I’m also not for open borders. You keep making that mistake just because I think your arguments for mass deportations even if it means throwing out federalism and ignoring due process are ridiculous.

                    1. FWIW the Real ID Act was ALWAYS about illegal immigration as much as it was about security. Its sponsors were pretty explicit about that and they did not include among acceptable supporting documents anything that would allow an undocumented immigrant to apply for a federally compliant ID.

                      It’s a bad law, but I am not sure the action against NY is in any way inconsistent with it.

                    2. The licenses N.Y. gives to undocumented immigrants don’t purport to be REAL ID Act IDs.

                  2. “No, Sarcastro. You don’t like immigration laws, which is your right. So you don’t want violation of them to be treated as a violation of the law. Again, it’s your right to want this, the only problem is that you seem to think wanting it constitutes some sort of argument that enforcement of these laws is illegitimate.”

                    What’s illegitimate is the partial enforcement of these laws.

                    Jaywalking is illegal. And speeding is, too. Now, if we took about 5% of the people caught doing one of these things, and decided to make everyone else stop doing them by summarily executing them on the street where and when caught, would you argue that this was effective law enforcement?

          2. Yeah, I do realize that a Democratic administration, not caring whether the vetting actually worked, and being inclined to let a heavily Democratic state do whatever it wants, wouldn’t have taken this action.

            It’s none the less true that the expedited travel programs depend on having access to state level criminal databases, in order to verify you as ‘trustworthy’ in advance, and NY is denying them access to those databases in order to obstruct identifying criminal aliens.

            So it’s a valid action, just a valid action a Democrat wouldn’t have taken.

          3. Brett, do you also believe Trump fired Comey because Comey was unfair to Hillary?

            1. I believe he fired Comey because Comey was insubordinate.

              1. I believe he fired Comey because Comey was loyal to the United States first, and Trump second, which Trump considers to be the incorrect order.

                1. Stupid Pollock is a delusional idiot if he believes that.

                2. Comey was going around telling Trump, and various members of Congress, that Trump was not under investigation. (He publicly stated that during his Congressional testimony.) Trump gave him a direct order to say it publicly. He refused, apparently because he liked keeping the rumors to the contrary alive.

                  That’s insubordination, and a proper cause for firing.

                  1. That’s an interesting theory. Too bad Trump didn’t think of it when he was giving all sorts of other reasons, including highly inculpating ones, immediately after the firing.

        2. NM learned that lesson when all federal government agencies would not allow NM drivers licenses to be used as valid ID for entry. It was a pain in the ass for travelers as they had to use passport, government ID, etc. nor were they allowed in secured facilities (military bases, federal buildings, etc.) for deliveries, meetings, etc.

          NM finally got the message and made changes in the drivers license issued to people authorized in the US (citizens, legal foreigners) and illegal foreigners.

    2. Sorry but just like Obama couldn’t force states to expand their medicare programs, Trump can’t force states to enforce federal immigration policy. It has nothing to do with wanting or not wanting border control.

      1. How is Trump trying to force King County to enforce federal immigration policy?

        1. He’s not. But he is trying to force them to let the feds use their airport for the purposes of deportation. They are totally free to refuse to comply with that if they wish. Feds can’t force them.

          1. Then why does the Executive Order say that the private FBOs that King County is trying to prevent from servicing the private contractors that the federal government has hired still have to service federal government airplanes?

            1. Not sure what you are talking about. Isn’t an FBO just a reception area for private aircraft? I’m also not familiar with that executive order since it isn’t detailed in the above article and I didn’t see a link to it.

              1. The executive order is an exhibit to the complaint, which is linked in the paragraph about the King County lawsuit (at the word “lawsuit”). The FBOs appear to be the private companies that provide refueling and other associated services to airplanes.

          2. Can he force them to let the feds use the roadways? Because I’m not seeing any principled difference between a state trying to deny the federal government and its contractors use of airports, and denying them use of roads.

            We’re well into nullification act territory here, and approaching outright insurrection.

            1. He doesn’t have to. Every U.S. citizen has the right to travel. No one can be barred from using public roads if they are properly registered and licensed if driving. However that right doesn’t extend to air travel by evidence of the “no fly” list.

              1. Yeah, and I object to the “no fly” list, on multiple levels. We should treat air travel like ground travel.

                It wasn’t cavity searches and “no fly” lists that prevented 9-11 from being replicated. It was fliers becoming aware that being hijacked could mean your plane being kamakazee’d into some building. As soon as that news got out, the tactic stopped working, which is why flight 93 crashed in a farm field instead of D.C.

          3. Wanna bet?

            They could revoke their FAA license if they wished for not complying with any number of rules.

            They could decertify the ATC system.

            Nice airport ya got there. Be a real shame if anything happened to it.

            1. SCOTUS may have a problem with that similar to how they had a problem with the way the ACA tried to force the states to expand medicare.

          4. “In order to prevent state and local governments from undoing federal deregulation by enacting their own regulations, the Airline Deregulation Act (“ADA”) provides that a “political subdivision of a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1). This provision bars local governments from prohibiting or restricting particular types of air transportation, whether directly or as an indirect effect of other regulations.”

            1. 1) a state does not own the airspace above itself. On the other hand, it does own it’s own government institutions and information.

              2) has that provision of law been tested for constitutionality? Courts don’t look to laws in determining constitutionality, they follow the constitutional precedents about the laws.

              1. Let me ask you a question: does the airport in question take federal funds? Is its control tower operated by the FAA? And so on….

                1. None of that allows you to federalize or commandeer the rest of the airport.

                  Sheesh. Federalizing airports even as you rage about the size of government.

                  1. Seriously, we’re approaching insurrection at this point.

                    States pretty unambiguously own state roads, though not federal highways. Can a state enact a law forbidding ICE from driving on state roads? Can a local government enact a law forbidding ICE from driving on side streets?

                    How is this different? The federal government isn’t commandeering the airport, they’re just claiming the right to use it on the same basis as anybody else.

                    1. That’s have a bit more bite if you haven’t been posting about an upcoming insurrection due to the dusky hordes for years.

                      Camp of Saints isn’t prophetic or predictive; it’s just racist.

                2. It’d be pretty unusual for the FAA to maintain a control tower at a municipal airport, particularly when they maintain one at a nearby international airport.

          5. Yeah sorry, can’t get on board with the airport thing. I would think it was so heavily federally regulated and actually is interstate commerce that there could be no discrimination against carrying anything that is allowed by the feds

            Sorry, this should fail as fast as saying they can’t drive on state roads.

    3. I would be thrilled if the elected officials behind this sanctuary crap were arrested and perpetrators walked into federal custody.

      Maybe prison sentences would change their tune. And that includes members of my local city council.

      1. Arrested for what? They are under no obligation to enforce federal law, and passing a law/issuing an executive order that is preempted by federal law is certainly not an arrestable offense.

        1. Title 8, U.S.C. § 1324(a)

          1. King County is neither bringing in nor harboring any illegal aliens.

            1. Bringing in? Maybe not. Harboring? I wouldn’t bet they aren’t.

              18 U.S. Code § 1071. Concealing person from arrest

              “Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, shall be fined under this title or imprisoned not more than one year, or both; except that if the warrant or process issued on a charge of felony, or after conviction of such person of any offense, the punishment shall be a fine under this title, or imprisonment for not more than five years, or both.”

              I think it’s pretty clear that many “sanctuary” jurisdictions are indeed violating this law.

              1. I think it’s pretty clear they aren’t.

                1. A “detainer” qualifies as “a warrant or process” under the terms of this law.

                  By not merely failing to inform ICE, but actively prohibiting informing ICE, these jurisdictions are indeed “concealing” these people.

                  No, they’re absolutely violating this law.

                  1. No, certain people in particular situations may be, but state and local governments are not obligated to enforce federal laws. Letting someone out of prison without informing the federal government is not concealing them. It’s kind of the opposite.

                    And many of the sanctuary city laws depend on not asking about citizenship in the first place, leaving nothing for them to report.

                    1. But when they get a detainer, and not only don’t detain, but make a point of helping the illegal alien escape capture, they certainly are violating this law.

                    2. If they go out of their way to assist the suspected illegal alien evade capture, then yes, there’s a good chance they might be breaking the law. But that’s not what’s happening in most cases.

                    3. Ordering employees not to let ICE know they’re held or being released, despite detainer orders, IS concealing them.

                      And when this is official policy, the people responsible for the policy are implicated, not just the people carrying the policy out.

                    4. No it isn’t. They aren’t hiding the suspected illegal alien, they are just letting him go. They aren’t misleading the federal government about the whereabouts of the suspected illegal alien, they are just not telling ICE when they let him go.

        2. Ever hear of obstruction of governmental authority?

          Didn’t think so.

          1. Don’t think there’s a federal law of the sort. There are some state laws but they deal with the use of force, violence or intimidation. That wouldn’t cover simply refusing to cooperate.

          2. obstruction of governmental authority

            Is that kind of like wasting government time and paper? It’s all there in 21B/6.

        3. I don’t think it will happen for this, but I’d like to see a few arrests for violations of 18 U.S.C. § 241 for groups and local government officials conspiring against speech rights, assembly rights, and gun rights.

          Barr might want to issue a warning against these states engaging in a conspiracy to silence individuals who intend to freely communicate with ICE agents.

      2. “I would be thrilled if the elected officials behind this sanctuary crap were arrested and perpetrators walked into federal custody.”

        You WANT to give them huge section 1983 payouts?

        1. I want all the traitors locked up, where they belong.

          1. Ah. So you disapprove of our Constitutional system, then?

    4. It appears Prof. Somin is disliked by the right-wing bigots attracted to this blog by the other contributors.

      1. Back to form. Call people bigots if they do not agree with you.

        You really are a piece of shit.

        1. Lucky for you that you are a conservative; otherwise language like that would invoke the Volokh Conspiracy Board of Censors.

          1. How you remain unmurdered is truly mystery.

            1. Prof. Volokh doesn’t kill anyone. He just bans people who make fun of conservatives, or censors people who aren’t conservative.

            2. I seriously doubt he’s anything like this in person. He’s probably very polite while asking if you want fries with that.

  3. There’s a difference between
    1. telling your employees that they don’t have to comply with federal requests if they don’t want to versus
    2. ordering your employees not to comply with federal requests and saying you’ll fire and/or imprison them if they dare help out at all.

    One is fine. The other starts to look like obstruction of federal law.

    1. Let’s put this in a different context.

      You’re an employee at a local business. You notice a lot of bad shenanagins going down. It looks like the Boss’s kid is using the business to sell heroin. But the boss has a “drug friendly” attitude, and tells you “if you tell the cops about it, I’ll fire you”

      Does he have that right? Is that right?

      Replace that with workplace violations at a large corporation. Same situation?

      1. What “bad shenanigans” are going on here exactly? Be specific.

        1. Umm. If you read the next sentence…

          Anyway.

          1. Is this guy new? He’s certainly an idiot.

            1. Captcrisis was commenting at VC when you were just a dingleberry in your Shitparents’ eye.

              1. Even worse. Stupid progtards are stupid. Not even smart enough to commit suicide

                1. Smart enough to stomp the clingers in the culture war and trigger the Conspirators, which is enough.

          2. ? Were these people selling heroin? That’s certainly not in the news reports.

            1. I don’t have enough time to play reading comprehension teacher for you.

              1. I daresay you’re having a comprehension problem as well. I agree it’s ambiguous, but re-read and try and parse captcrisis’ “here” differently.

                1. Your alternative read just turns the question into yet another cute playing-dumb exercise, perfected by those who engage in the — what did you call it? — “mental flexibility” to pretend that being in the country illegally is not… well, you know, illegal.

                  1. 1) Looked to me like cpt was pointing back to the OP, and asking how the heroin hypothetical was germane.
                    2) Lots of things are technically illegal. The issue is the resources, ignoring of process, and cruelty some on here advocate for in response. Marijuana use is also illegal, but I’d wager most on here area against the war on drugs. Doesn’t take much mental flexibility to realize that justice and good policy do not lie in maximum enforcement of the law, and that those that say it does are usually in service of some other agenda and want the government to help them with it.

                    1. 1. That’s quite the divining exercise when the language he quoted and asked about was from the immediate parent, not the OP. It’s almost like you’re trying too hard.

                      2. Then the intellectually honest response is “I understand there’s a law on the books that’s brazenly being broken, but don’t think the Feds should be enforcing that particular law,” not “what exactly is illegal here?”

                    2. 1. Good thing I said ‘I agree it’s ambiguous’ up top, then!

                      2. It’s not being brazenly broken, unless you want to argue that it’s a moral outrage that not every jaywalker is being arrested.
                      The mental gymnastics people go through on this issue is impressive. Are deportations down? Then the law is being enforced at it’s usual level.

        2. Sexual impositions, rape, you know, all that MeToo stuff. Don’t report that stuff either, I guess. The sanctuary cities are sanctimonious shitholes.

          1. Sheriff Joe was WAY ahead of you. He just stopped investigating these kinds of crimes when they were reported by brown people.

    2. If local and state governments retaliate against employees for communicating with ICE, that would seem to be a clear cut first amendment violation. Governments can’t punish speech.

      1. That’s not exactly true. In the context of their jobs, governments have quite a bit of control about what their employees can and can’t say.

        1. It’s not exactly false either. They can take some employment-related actions for on-the-job incidents if they want to defend them in court. Beyond that they get further and further into civil-rights violation territory. Maybe even conspiracy against civil rights territory.

    3. Bingo! The sanctuary jurisdictions would have a stronger position if they’d stopped at 1. But, no, they had to go on to 2, ordering their employees to actively obstruct the federal government.

      Ilya puts a lot of weight on the Trump administration losing in lower courts. Care to bet he’s going to lose at the Supreme court?

      1. Your conclusion that sanctuary jurisdictions are “ordering their employees to actively obstruct the federal government” begs the question.

        If not complying with federal requests is a constitutionally protected right, then I don’t see why it makes a difference if the refusal to comply is voluntary made by a state employee or mandated per state law.

        1. No, my conclusion that they’re doing that is based on actually reading California law on the topic. California absolutely went over the line from not helping, to ordering active obstruction.

          For instance, they ordered that private employers, if notified that the ICE were interested in their workforce, had to warn said workforce. That’s active obstruction.

          1. With reasoning like that, we could save a lot of money and replace the judiciary with Brett.

  4. “Here too, the federal government is claiming the right to coerce state and local governments into helping enforce federal law, and also claiming that refusal to help qualifies as “discrimination” against the federal government.”

    I’m not sure that’s right in the King County case. Based on the complaint, my understanding is that the FBOs that provided the actual services to the ICE were private parties, not members of the state or local governments. The ICE’s contractors are also private parties, and the complaint alleges that King County is discriminating against them based on their association with the federal government, not the federal government itself.

    Also, the Executive Order at issue exempts the federal government’s planes from the prohibition, which suggests that King County agrees that it cannot order the FBOs to refuse to service to planes owned and operated by the federal government.

  5. The civil rights angle on this is what going to get traction. The practice of prosecutorial discretion to avoid convictions which lead to deportation, will be found as an unequal application of the law.

    1. And what does that tell you of the government who gives legal privileges to illegals over its own citizens? Screw you taxpaying citizen. Juan Valdez who came here in violation of our immigration laws then broke some more laws is going to get preferential treatment while you go to jail.

      1. We already know they don’t like Americans.

      2. Natural segue for a riff about how white males are the persecuted Americans and Democrats are the real racists.

  6. “The new lawsuits against the state of New Jersey and King County, Washington have many of the same constitutional laws as the administration’s other efforts to to target sanctuary cities.”

    Constitutional flaws, perhaps?

    1. Down in the article it is “flaws” not “laws”. People get excited and post before proofreading when they mount their favorite hobby horse and set off to joust with their most hated windmill. It’s really embarrassing when it’s in the lede by a professional. Makes me feel less embareassed when i do it in my mere comments.

  7. Hope liberals like this assertion of states rights when some Southern or Midwest state says enough is enough to murdering babies, outlaws it, then tells a federal court that finds there is a “right” to murder an unborn baby to go screw itself. Something makes me think the left isn’t going to be so much for the same constitutional principles they like when it comes to making sure illegal criminal aliens don’t get deported.

    1. Don’t think liberals liked it when it worked against them in the ACA SCOTUS case.

  8. Can’t the feds just arrest the city mayor or council or whatever for conspiracy to violate immigration laws?

    1. Not enforcing federal law does not equal violating federal law. If they actually violated a constitutional federal law then yes, they could. You can’t arrest them for not enforcing another jurisdictions laws.

      1. There’s a difference between “not enforcing” and “actively interfering with”

        1. Yes but refusing to do something isn’t exactly “active”.

          1. Ordering somebody to refrain from voluntarily cooperating is exactly doing something active.

            1. I disagree. That’s like the brain telling the arm not to do something. The only way for the state government to not comply with something is for the head of that government to instruct the employees to not comply. How else would the state government set policy except by orders from the top? It would be just like if a state governor ordered his state police to not enforce a federal bump stock ban or a federal law banning the sale of marijuana. Could you imagine if every police officer in California got to make his own decision on whether he was going to enforce federal marijuana laws or not? It would be chaos.

              1. Literally, every police officer in California, just like any regular citizen, gets to make their own decision on whether to drop a dime on some pot dealer.

                We’re not talking about enforcing federal law here, which would be a non-comandeering issue. We’re talking about people being ordered to actively obstruct federal law, and not voluntarily cooperate. For instance, California literally ordered private employers to warn their employees if ICE made any inquiries.

              2. Wait….I think one problem here is that state authorities will penalize or prosecute employees who comply with federal law, passed by Congress. That is a very different proposition than merely telling a state employee not to comply.

                1. Why is it a different proposition?

            2. Nonfeasance versus malfeasance are pretty easy lines to draw at law.

  9. Typo in the sentence under the Title: “many of the same constitutional *laws*”

  10. Lets pose a different situation for Ilya.

    Let’s take a state…say Texas.

    And they pass a law that bans any state or local election official from passing on any election information to the federal government, especially regarding voter suppression.

    Would that law be legal? Why or why not?

    1. Seems Constitutional to me although it wouldn’t prevent the feds from coming in and seizing those records via subpoenas or similar.

      1. OK, lets say the feds get a subpoena to seize the records. They crash in the doors. Records aren’t there. They ask where the records are. The employee says “I can’t tell you, it’s illegal in this state for me to cooperate in any way with federal employees”.

        What next?

        1. Oh, maybe:

          This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

  11. “…The new lawsuits against the state of New Jersey and King County, Washington have many of the same constitutional laws as the administration’s other efforts to to target sanctuary cities….”

    I do not understand this sentence. Did you mean that the new lawsuits are *targeting* many of the same laws…? Or something else entirely???

    1. Think it is supposed to be “constitutional flaws”…

      1. I like it the way it is, though: Ironically more accurate.

      2. D,
        That makes sense. Thanks.

  12. I don’t like what my state (NJ) is doing. And I think the Sanctuary movement is misguided, and wrong.

    With that being said, what stops the Court from saying?: You know what, this anti-commandeering thing is an established precedent. So you cannot compel the state/jurisdiction to enforce federal law with state resources. Sorry Feds. But you can put your people there at Federal expense and nail the illegal aliens yourselves, and the States may not impede you in this task. But the other questions raised in these lawsuits are just not justiciable, because these are political questions to be resolved at the ballot box, and by legislators.

    1. I’m not sure how, “Can states order people not to voluntarily cooperate with federal law enforcement?” is a political question.

      1. Is that actually the crux of the argument? If so, then I misunderstood what the central questions actually were, and of course you are correct. I cannot see how it would be legal to penalize or criminally prosecute a state employee for compliance with a federal law. That leads to anarchy.

        1. If a state has a Constitutional right to not cooperate with the federal government in enforcing federal law, why wouldn’t the Constitution also protect the state when it requires its employees not to cooperate?

          1. Because its employees are citizens with rights, in addition to being employees?

            At most the state might be able to prohibit cooperation while on the clock. It wouldn’t be able to prohibit a court employee, for instance, from calling ICE on their break, and warning them that somebody under a detainer was going to be released early.

            What they do on their own time is their own business.

            1. I think calling ICE while on break, or even at home, still falls within the employee’s job duties.

  13. Yesterday I saw you kissing tiny flowers
    But all that lives is born to die
    And so I say to you that nothing really matters
    And all you do is stand and cry
    Whoops – wrong thread.

  14. Agree that except for the use of the airport, where aviation law might introduce new approaches, there doesn’t seem to be much here that hasn’t been litigated in numerous prior lawsuit.

    The Supreme Court has generally upheld broad federal immigration powers, and has said that states cannot be forced to help the federal government but cannot obstruct it, and any conditioning of federal funds on cooperation must be explicitly made by Congress in a statute.

    It also seems clear the situation isn’t likely to change. A divided Congress means that each side can block the other’s proposed changes, leaving things as they are. The President can use the broad discretion Congress has given him, but the courts will rule against him when he attempts to go beyond that discretion.

    1. And similarly, courts will uphold state decisions not to cooperate, but will side with the federal government when state actions cross the line between non-cooperation and obstruction.

  15. I don’t recall Trump, when the Republicans still controlled the House, getting something like the following (properly “lawized” of course) slipped into a popular bill:

    The Executive shall deny federal grant payments to inferior governments for any purpose except Medicaid [insert other favored programs here] if the Executive branch determines that the recipient of any of these funds is failing to actively cooperate with federal law enforcement agencies.

    Why not? Were there not enough votes to get something like this through or did Trump just think the Republicans would control Congress forever?

    1. It needs to be understood that a majority, or at least large faction, of the Republican Congressional caucus, are hostile to immigration enforcement. They just are obligated to lie about it to the voters in order to keep their seats.

      So it becomes extremely hard to move through Congress laws helping immigration enforcement, even when a majority of Congress ran on doing exactly that.

      1. The fun part, though, is the partisans who’d like to pin 100% of the problem on one party, and ignore the other party’s complicity in creating and maintaining the problem.

        For example, while the dirty commie Kenyan Muslim was in the White House, he went to the Republican Congress and asked for authority to deport more people. The Republican Congress didn’t even bother to hold a hearing to consider the idea.

  16. Where does support for sanctuary principle stop?
    _ at a city that refuses to cooperate with feds on enforcing federal immigration law?
    _ at a state that refuses to cooperate with feds on enforcing federal marihuana prohibition?
    _ at a state that refuses to cooperate with feds on enforcing federal gun laws that conflict with the state constitution protection of the right of the citizens of the state to keep and bear arms for all traditional and lawful purposes?

    I am curious how far left support for sanctuary will go, given the last is a principle of my home state (Tennessee) which seems destined for collision with the threatened Reign of Emperor Bloomberg, who has bought and paid for the Democrats of Virginia.

    1. The reason you need sanctuary policies is because A) the feds won’t remove them, and B) the cities (and, to a lesser extent, the states) need to deal with them. You can’t deal with them if they’re afraid that any interaction with government gets them locked up.

      1. The reason you have sanctuary policies is that illegal immigrants count for purposes of apportionment, and allocating funds, while not being able to vote. So they artificially inflate the political power of the sanctuary jurisdictions.

        And they don’t even count as 3/5ths, they’re 5/5ths!

        1. “The reason you have sanctuary policies is that illegal immigrants count for purposes of apportionment, and allocating funds, while not being able to vote.”

          This is a stupid claim. It would only work if the illegals consumed zero local services… they didn’t need their fires put out by the fire department, didn’t need their crimes investigated by the police, and didn’t need their children educated by the schools.

  17. Violent criminals who are illegal aliens should be deported. Not protected from deportation by radical leftists and released onto the streets.

    That’s literally what this policy debate is about. For 95% of Americans this shouldn’t even be a question.

    1. Problem is, the federal government intentionally chose to under-enforce immigration, going all the way back to Reagan, and it was both parties who made this choice, so if you want to pin it all on the Democrats, save it. That’s BS. Nobody’s got clean hands.

      The federal government knew that millions were entering but capped deportations at around 400,000 per year, and continued to do so even as this number continued to be woefully inadequate to the need.
      The states and the cities have no mechanism to deal this. A substantial number of people here unlawfully, and only the federal government can deport them, and it chooses not to. So, the states and the cities have to deal with this population of unlawful residents. They could pretend they’re not there, but that doesn’t help. They could pretend that the feds are going to come and remove them all, but that doesn’t help, either. They have to actually deal with the people, and can’t pretend them away, no matter how much they might want to. They’re witnesses to crimes, victims of crimes, who tend to believe that showing up at the courthouse won’t turn out well for them. So you have to have a policy that reporting a crime won’t get you reported to ICE, or those crimes go unreported, and with no witnesses willing to show up, they’d go unprosecuted, too.

      Here’s how to tell if someone is serious about actually resolving the problem… do they start by saying “what we need is a huge increase in the number of people who can hear deportation hearings.” If not, their opinion on immigration issues may be safely ignored.

  18. “is premised on the idea that the federal government can force states and localities to assist in enforcing federal laws, even when the former would prefer not to do so.”

    No, it’s premised on the idea that state governments can’t ban the federal government from enforcing federal laws by forbidding them from entering certain jails, airports, courts, etc.

    1. That premise is incorrect.

  19. The federal government owns and operates an airport just outside of King County.

  20. If (part of a) state doesn’t want to help the feds, then an obvious solution seems to be for the feds to simply stop helping the area in question in response. No more information sharing, no more federal agencies (FBI, DEA, DHS, ICE, etc), and no more federal funds (federally backed student loans, subsidies, grants, etc.) for the sanctuary area.

    I’m not seeing why they won’t try that route first.

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