The Looming Supreme Court Showdown Over Sanctuary Cities

The legal battle over immigration, federalism, and executive power heats up.


The Trump administration has claimed the unilateral authority to withhold federal funding from sanctuary cities, jurisdictions whose officials refuse to participate in the enforcement of federal immigration laws. In a flawed ruling issued this week, the U.S. Court of Appeals for the 2nd Circuit gave its blessing to the administration's constitutionally defective behavior.

The case is New York v. Department of Justice. It centers on the Trump administration's 2017 rule setting new conditions on all applicants to the Edward Byrne Memorial Justice Assistance Grant Program, a federal funding scheme passed by Congress that annually provides more than $250 million to state and local law enforcement.

"So-called 'sanctuary' policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes," declared then–Attorney General Jeff Sessions when he announced the new rule. "From now on, the [Justice] Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities."

The 2nd Circuit found nothing wrong with that. "There is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws," the court said. Fortunately for the Trump administration, the 2nd Circuit found a way to silence its disquiet by interpreting the federal statute authorizing the Byrne grants in a manner that, in the court's words, "confers considerable authority on the attorney general."

There are two big problems with the 2nd Circuit's approach. First, the federal spending power is located in Article I, the section of the Constitution that spells out the powers of Congress. The powers of the executive branch are enumerated separately in Article II. So the attorney general has no independent authority to dictate the terms of federal spending. To hold otherwise is to greenlight a violation of the constitutional separation of powers.

Second, the 2nd Circuit's judgment runs afoul of Supreme Court precedent. In Pennhurst State School and Hospital v. Halderman (1981), the Court held that Congress must "speak with a clear voice" when it exercises its spending power. "If Congress intends to impose a condition on the grant of federal moneys," the Court said, "it must do so unambiguously." The federal statute authorizing the Byrne grants makes no mention of any immigration-related conditions.

The 2nd Circuit's judgment also stands in stark contrast to that of the U.S. Court of Appeals for the 7th Circuit, which also reviewed the administration's actions on this front and reached a very different conclusion. "The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement," the 7th Circuit observed in Chicago v. Sessions (2018). "But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds….It falls to us, the judiciary, as the remaining branch of government, to act as a check on such usurpation of power."

A circuit split as glaring as that may well attract the attention of the Supreme Court. In the meantime, another sanctuary cities case is already knocking on the justices' courtroom door.

At issue in United States v. California is the Trump administration's 2018 lawsuit against the Golden State over the California Values Act of 2017. Among other things, that law prohibits state and local police from assisting federal immigration authorities in various ways, such as "detaining an individual on the basis of a [federal immigration] hold request"; "transfer[ring] an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination"; and "providing information" to federal immigration authorities "regarding a person's release date…or other information unless that information is available to the public, or is in response to a notification request from immigration authorities in accordance with" California law.

The administration thinks those state instructions to state officials illegally "undermine federal immigration enforcement," and in November it filed a petition asking the Supreme Court to take up the case. The administration should probably be more careful about what it wishes for. As I've previously written, "if the Supreme Court does agree to hear the case, the justices may well take the opposite view. Indeed, if the Court follows a precedent authored by the late Justice Antonin Scalia, the Trump administration is likely to lose."

That precedent is Printz v. United States (1997). At issue was a provision of the 1993 Brady Handgun Violence Prevention Act that required local police to help enforce federal gun control law. "The Federal Government may neither issue directives requiring the States to address particular problems," declared Justice Scalia's majority opinion, "nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."

The same 10th Amendment principles that make it unconstitutional for the feds to commandeer the states into enforcing federal gun control regulations also make it unconstitutional for the feds to commandeer the states into enforcing federal immigration regulations.

Each of these sanctuary city cases raises important constitutional questions. Eventually, the Supreme Court will need to come to grips with one or more of them.

NEXT: Rand Paul Says Trump Is Backing Surveillance Reform

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  1. “First, the federal spending power is located in Article I, the section of the Constitution that spells out the powers of Congress. The powers of the executive branch are enumerated separately in Article II. So the attorney general has no independent authority to dictate the terms of federal spending. To hold otherwise is to greenlight a violation of the constitutional separation of powers.”

    This is a kindergartner’s understanding of constitutional law. The executive carries out the provisions of the law, and if the law puts conditions on the disbursement of funds, guess who verifies and enforces compliance?

    1. Courts.

      1. Yes, courts enforce the law. *facepalm*

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

        1. Alphabet troll is such a stooge.

    2. That’s addressed in the next paragraph. The law put no immigration-related conditions on the disbursement of funds.

      1. Don’t baffle them with facts.

        1. It isnt a fact that is relevant. because it did include a general legal clause, just not specifically immigration. And we all know how Chevron is currently treated.

      2. But it did have a clause regarding enforcement of laws in general. last I looked immigration laws were still laws.

        1. Cities and states on this issue are violating the US Constitution and federal law.

          As of 1808, Congress has the enumerated power to regulate immigration (Article I, Section 9, Clause 1).

          Aiding and abetting criminals who are violating immigration law is a crime itself.

          1. Operation Paper Clip. When they wanted to bring in all the top NAZIs to the states, the Federal Government ignored all immigration laws including those pertaining to criminals, which most NAZIs were. They brought them in here by the hundreds, including Von Braun who used slave labor, that were worked and starved death to build his rockets, V-1 and V-2 that killed many thousands, and gave them instant citizenship status so that they could easily travel to intelligence safe houses in West Germany.
            One of Von Braun’s NAZI associates was even promoted to head a US corporation.
            It is also against the constitution to spy on US citizens. NSA does it on mass, KGB soviet style, Bush the consummate liar denied it and the Justice department could care less.
            It is also against the law to militarily attack countries that pose no threat to the US. The federal government, as in Vietnam, fabricated false evidence as a pretext to invade Iraq. It was called a war crime against humanity when Germany did the same to Poland.
            The Federal government does not care about the laws, laws are for naive little people.


  2. In a flawed ruling issued this week, the U.S. Court of Appeals for the 2nd Circuit gave its blessing to the administration’s constitutionally defective behavior.

    Well, shit. For a second there I thought you might be talking about the Byrne JAG Program itself as being constitutionally defective. But before you talk about the constitutionality of the federal government threatening to withhold funds unless the recipient state complies with certain federal mandates, it might be helpful to review the procedure whereby we got ourselves a national speed limit.

    1. Following “Printz,” the national speed limit law, which, IIRC, included penalties (in the way of withholding federal funds) for States who didn’t enforce the law, IMO, would not pass muster. The Feds could, perhaps, enjoin federal marshals to enforce speed laws, but they could not force to the States to do so.

      1. The sanctuary laws often direct their members to directly interfere with legal federal procedures.

        1. Yeah. I have a problem with the State forbidding the local police from enforcing the law, but, in the end, since local governments, who control local police, are subject to State laws, I don’t see any way around for local communities. There might be, in certain jurisdictions, a way to challenge the their authority over local police (I don’t know), but that is a State issue.

          As far as “interference,” well. that isn’t as clear. There is no law which, for instance, requires me to report a traffic violation which I witness.

          I DO have a problem with the State controlling the actions of private employers, however.

  3. I have an entirely different take. I say that any circuit split like this, or even any non-unanimous judicial decision, means the law at issue is unclear and must be discarded in its entirety.

    If learned judges can’t agree on what a law means, how are ordinary people, or even wise government bureaucrats, supposed to know better? Ipso fact, QED, bzzzz! away she goes down the bitbucket.

    1. Courts also disagree as to the meaning of constitutional provisions. Should the constitution be discarded in its entirety?

    2. Awesome! But no…. sadly. You are responsible for following the law, even if you can’t find two people who agree to what exactly that means.

      Now shut up and pay your taxes, plebe. And you’d best make sure you overpay just a bit. Nobody can agree as to what the tax code means, not even the people running the IRS.

      (says the guy who is still bitter that he had a 5 year fight with the IRS over a filing that literally was identical to the example in the IRS guide books. Even when I brought in a copy of their own manual, it took another year to resolve. And that fight was over a grand total of $443. Nobody thought I actually owed it… the dispute was literally over exactly how to write it down. And once we’d have an agreement, the next guy would come along and we’d have to start all over again. So, yeah… I understand your sentiment about tossing laws that are ambiguous.)

    3. Agree as long as you are including the vague language of the appropriation as well.

  4. At issue in Printz was a law that stated that local police, when notified of a proposed transfer from a firearms dealer, needed to “make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law.”

    Does Trump administration policy require local police to undertake their own investigation, or just to hold on to illegal aliens until the feds can take them into custody?

  5. There’s a lot to chew on here. Among those interesting tidbits is the notion that if you were to take any of these actions as a private individual or group, you’d run afoul of federal law and be thrown in jail for it.

    That law is also contested, but as it stands right now, state sovereignty is the only thing keeping these local officials out of jail, should the Feds so desire.

    I find it odd that the state should have such powers of defiance while us mere citizens risk prison for merely handing out a meal to these same folk. Heck, if you handed out a home-cooked meal in many of these sanctuary cities you’d go to jail for a plethora of violations of local laws regarding the contents of the meal, how it was prepared and by whom and where the distribution is being done.

  6. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds….It falls to us, the judiciary, as the remaining branch of government, to act as a check on such usurpation of power.

    If the courts were to enforce such standards of Congressional authority on a consistent basis, I’d say they had a strong argument. But, the courts have pretty consistently greenlighted the imposition of conditions by the Executive. Pretending that, all of a sudden, in just this one instance, it’s somehow a problem smacks of judicial usurpation. If judges want to make policy, have at it, I say. Step down from the bench and run for office.

    1. imposition of conditions by the Executive

      Doesn’t that describe pretty much everything the Executive Branch Regulatory State does?

  7. “The Federal Government may neither issue directives requiring the States to address particular problems,” declared Justice Scalia’s majority opinion, “nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”

    Hmmm…I have distinct childhood memories of National Guardsmen enforcing federally mandated school admission policies on local officials at gunpoint….

    1. The Guard also acted to BAR the admission of those same students, whilst under State control.

      1. In the integration of the University of Arkansas, the Governor used National Guard troops and state police to block integration orders, so Eisenhower sent in the 101st Airborne, federal troops.

        1. Eisenhower used federal troops to integrate the schools not National Guard troops.

          1. That would appear to reinforce my point.

            1. Yes it does.

          2. I stand corrected. I thought I had heard he nationalized the guard troops and then deployed them … I was probably thinking of some other incident.

            1. He did both. He nationalized the guard to neutralize them and sent in the 101st to make sure the remained neutral (and to counter the state police, which he had no authority over).

            2. I was also mistaken it wasn’t University of Arkansas it was a high school in Little Rock.

              1. So, I was wrong, somewhat. And correct, somewhat, and wrong, and…. well. Yeah. My memory isn’t what it used to be. Or maybe never was.

  8. I am pumped that the aunborn are getting their own Sanctuary Cities now. Couple that with the thousands of 2A sanctuaries, we are getting somewhere. Sadly, we will probably soon need some 1A sanctuaries.

    1. The 1A and 2A sanctuary jurisdictions have constitutional protections on their side of the argument.

      Immigration is an enumerated power of Congress as of 1808.

  9. An appeals court just ruled against Trump’s “Return to Mexico” policy. I’m sure this is going to the Supreme Court.

    Illegal crossings have plummeted since May of 2019 by 75%, and the “Return to Mexico” policy of Central American asylum seekers is a big part of the reason why. It’s a big deterrent.

    Incidentally, even if the Supreme Court upheld this ruling (or refused to hear it), I don’t see why it would impact the safe third country agreements Trump entered into with El Salvador, Guatemala, and Honduras. After all, our safe third country agreement with Canada has been in effect for decades. I’m sure it’s survived court scrutiny before–from people who didn’t want to be sent back to the U.S. for whatever reason.

  10. The precedent set by the Obamacare cases before SCOTUS established precedent that the Executive can direct money without explicit direction from Congress if the administration thinks the policy goal is really really important.

  11. “The federal statute authorizing the Byrne grants makes no mention of any immigration-related conditions.”

    I seriously doubt any statute passed makes any mention of abiding by existing laws because it’s such common fucking sense that even the racist, bigoted lessers who came before us were smart enough to understand.

  12. 200228 edited short version 200227 president vs criminal sanctuary practices

    1. All Elective, Appointive, Administrative government employees have sworn Oaths requiring them to uphold and support the United Sates Constitution. The Oath is the 1 thing enables Individuals to be government employees.

    2. All government employees who aid and abet illegal aliens with or without the mantel of fraud they call ‘sanctuary’ join with – become 1 with the illegal alien criminals, which is RICO.

    3. The chief law enforcement officer in America, Trump, is Constitutionally Mandated to arrest all criminal activity. All criminal activity includes all violations of the immigration Laws.

    4. There is no provision for avoiding compliance with the American Immigration Laws; therefore,
    all illegal entry is Felony Trespass.

    which includes all illegal alien criminals claiming to be refugees : political – violence – economic there is no immigration provision authorizing NON compliance with the Immigration Laws; therefore,
    all illegal entry is Felony Trespass.

    5. There is no special status of being refugee that authorizes refusing to comply with the immigration law as they are written
    Refusal to comply with the immigration law is a fraud on its face that is NOT supported by Law.

    6. Being criminal violations of Federal Law All sanctuary claims : things are Criminal Fraud – RICO.

    7. All illegal aliens are felons because they planned to and then entered America which is RICO in action.

    + 500 Million people who meet the definite of refugee live south of the Mexican/American border are left out by ‘refugee’ advocates who selectively and viciously Do Not apply refugee status to anyone EXCEPT their illegal alien criminal henchwomen in country ‘or illegally scheduled to be brought in’ country … and,

    their immoral, selectively vicious, refugee fraud excludes all + 4 billion refugee class Humans living in the Old World.

    8. Billions of so called ‘Refugees’ WORLD WIDE, establish there is, as a matter of Law, no such creature : status as ‘Refugee’
    there are only illegal alien criminals invading our Land for what THEY PERCEIVE to be their personal political gain : unjust enrichment… the same reasons for which all crime is committed –

    when illegal alien criminals become more than 1/13th of any decade’s average yearly total lawful immigration, then, ALL illegal’s are waging the war crime nominated as a ‘soft invasion’.

    It is Trumps duty to immediately arrest and civil forfeiture every participating government Elective, Appointive, Administrative, deep state government employee involved in the ongoing refugee sanctuary Fraud;

    Mueller them all @ their arrest, then like the Mueller gang, over charge them – over prosecute them – provide them each 1 over worked [assistance less] Public Defender – deny them bail for being the Habitual Criminals, apply Mueller’s typical forever prosecutions and incarceration sequences… Just like they do to us.

    We can force Trump to enforce America’s Laws against the elective, appointive, administrative, deep state government employees who are using their public positions, public offices, Public man hours, Public Resources, Public Campaigns to :
    A] aid – abet – protect illegal aliens with public and private funds to underpin their Greater sanctuary Frauds;

    B] violate their Oath of Office by operating ‘their’ RICO criminal sanctuary Frauds;

    C] obstructing justice : the operation of Law by Giving Aid and Comfort to the enemy in time of War… the illegal alien criminal trespassing ‘soft invaders’ wage a War : acts of War by their undeclared illegal alien ‘soft invasion’.

    If we look for a historic guide it is the Visigoths ‘soft invasion’ of Rome causing the fall of Rome;

    We can force Trump to enforce the Law on all colluding government employees and their illegal alien criminal henchwomen who are aiding and abetting the ‘soft invasion’ of America by :

    [I] Write a letter telling Trump to arrest and Mueller them all for waging : aiding and abetting the current, ongoing, ‘soft invasion’ of America – violating their Oaths of Office – theft of public funds, resources, woman hours, public/private spaces/places… and

    such acts actively obstruct : prevent the operation of Law as part of ‘their’ effort to breakdown societal order – the American economy – the basic concepts and precepts of American Government by Law;

    [II] actually mail a paper letter copy to Trump, c/o the office of the President of the United States; then,

    [III] email copies to your county commissioners : sheriff : District attorney, your State House Rep : Senator : Attorney General, your Federal House Rep : Senators : Attorney General; and, each member of the your state and the federal supreme court [or, when you can’t email use snail mail]

    The end of the above trump motivational letter should read something Like :

    Or, No 2020 Votes for you !

    The only thing that will stop us from forcing Trump to IMMEDIATELY arrest the entire band of de Facto Elective – appointive – administrative – Deep State government employee Traitors IS

    YOU ! You NOT sending a couple of letters and 31 or so emails = you Not Participating = YOU DOING NOTHING.

    While you tell everyone what you are doing and why, tell them they should do it too.

    The government employees who have and are aiding and abetting the illegal alien sanctuary Frauds know they are in violation of their Oaths of Office; so,

    they also know that they do not have the REQUIRED status to file to run for a public office : to campaign for a public office – if elected, to deliver a valid Oath of employment as required to be a government employee; therefore,
    showing up as an election related candidate is Fraud by compounding usurpation of status – authority to act : participate in the elective process leading to an endless list of High Crimes and Misdemeanors; which
    whole mess, exposes the ‘oath less’ government employee actors as the Habitual [ruthless] Hate America to Destruction Anti-Government by Law Criminal, RICO, Organized Crime Family they are.

    WE all know that if Trump does not enforce the law against the RICO government employee band of illegal alien criminal aiding and abetting henchmen; then, it BECOMES the clear and present : Mandatory PUBLIC DUTY of the Schumer – Schiff – Pelosi – deep state gang to Impeach Trump for grossly negligent refusing to carry out the lawful Duties of the Executive : violation of His Oath of office : attendant High crimes and misdemeanors.

  13. “The legal battle over immigration…”

    Nope. No problem with legal immigrants. The big problem is with illegal migrants and the cities that want to protect their illegal status. Regardless of country of origin, they should be returned to their home country. There are over 200 countries on the planet. If the desire is to illegally migrate then move to one of those.

  14. I’d be interested to see the actual law authorizing the spending. If it’s anything like the “public charge” law, it would be one that turned over all the power to the executive branch: “here’s some money for x, y, and z; you figure out the proper details on how to to spend it.”

    See U. S. C. §1182(a)(4)(A):

    (4) Public charge
    (A) In general

    Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

    (B) Factors to be taken into account
    (i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s—
    (I) age;
    (II) health;
    (III) family status;
    (IV) assets, resources, and financial status; and
    (V) education and skills.

    The LAW AS WRITTEN leaves the decision up to the Attorney General. No specific rules. The Attorney General can make those decisions based on pretty much anything he wants-and can make different decisions under the same circumstance, just because he changed his mind–so long as he can properly say that he considered the statutory factors. Which is why even the 9th Circuit ruled against plaintiffs trying to stop implementation of the new rules: it’s pretty clear that Congress had full intention to allow the executive to make up the rules as they went along, based on the AG’s opinion at any given moment. Or at least that Congress couldn’t be bother with details and tossed the whole mess over the wall hoping that their guy in the WH would do the right thing and that it would always be their guy in the WH and never any other.

  15. I wonder what the courts would say if we were talking about terrorists instead of illegal aliens.

  16. There is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws.

    This is the crux of the matter, and why I think the actions of states like CA, NY, NJ and cities like Chicage, LA are wrong. Sorry states, but if you don’t like the strings attached to Fed money, then don’t take the money. Period.

    This case involves a political dispute over policy. This should not even get to SCOTUS. But it will.

  17. The Executive branch needs some serious neutering and a leash.

    1. Is it asking too much that the states and municipalities that are accepting federal tax dollars use that money to protect US citizens and legal residents? They should be doing that regardless of the money but instead, they want to advance their political careers by pretending that releasing criminals that shouldn’t be here in the first place, and telling the public that their communities are safer. FBI statistics show that 44 percent will recidivate within the first year of release, over 60 percent in two years and 80 percent in three years. Unfortunately, the major media refuses to report these crimes. Set up a Google Alert for “illegal alien”, “undocumented immigrant” and you’ll be stunned at what you see every day.

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