On Sanctuary Cities, It's Trump vs. the 10th Amendment

The anticommandeering doctrine stands in the way of Trump’s immigration crackdown.

Over the past three months, the Trump administration has filed lawsuits against Los Angeles, Illinois, Colorado, New York state, New York City, and other places for the express purpose of forcing them to abolish their "sanctuary city" policies and start aiding the feds in rounding up undocumented immigrants and enforcing federal immigration laws.

But unless the U.S. Supreme Court rapidly overturns several of its own precedents, including a recent one from 2018, all of these cases will be constitutional losers for President Donald Trump. Why? Here is how the late conservative legal hero and long-serving Supreme Court Justice Antonin Scalia once spelled it out.

"The Federal Government may neither issue directives requiring the States to address particular problems," Scalia wrote for the Court's majority in Printz v. United States (1997), "nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."

At issue in Printz was the Brady Handgun Violence Prevention Act of 1993, which, among other things, required state and local police to help the feds enforce federal gun control laws. However, Scalia held, such "federal commandeering of state governments" violated the constitutional principles of federalism secured by the 10th Amendment. Scalia's ruling in Printz was recently reaffirmed and expanded by the Supreme Court in Murphy v. National Collegiate Athletic Association (2018), which struck down a federal law that prohibited states from legalizing sports gambling.

At the time it was decided, Printz was widely criticized by liberals, who objected to the idea of state and local officials stymying a federal gun control scheme. Now, the same anticommandeering doctrine that led to a "conservative" result in Printz is standing in the way of Trump's immigration crackdown.

According to Trump's Justice Department, sanctuary city policies, such as when local police are generally forbidden from notifying the feds about a noncitizen's custody status or release date from custody, "reflect an intentional effort to obstruct federal law enforcement."

But federal agents still retain their own independent authority to enforce federal immigration law inside of sanctuary states and cities, just as federal authorities retain the independent authority to enforce other federal laws in states and cities. The key point under Printz is that it is unconstitutional for the feds to compel local officials to lend them a helping hand in carrying out the enforcement of federal law.

Because these sanctuary cases all feature the federal government in direct and open conflict with a state or city, one or more of them will probably end up before the Supreme Court in due time. Perhaps it will be United States v. Illinois.

Last week, Judge Lindsay Jenkins of the U.S. District Court for the Northern District of Illinois Eastern Division ruled that the Prairie State's various sanctuary laws were safeguarded from the Trump administration's lawsuit by the anticommandeering principle embraced in Printz, Murphy, and related precedents. "The Sanctuary Policies reflect [Illinois'] decision to not participate in enforcing civil immigration law—a decision protected by the Tenth Amendment and not preempted by" the Immigration and Nationality Act, the judge wrote.

I expect a majority of the Supreme Court to adopt the same position if or when the opportunity arises. If it is unconstitutional for the feds to mandate local cooperation in enforcing federal gun control, it is unconstitutional for the feds to mandate local cooperation in enforcing federal immigration control. The national policies under dispute may be different, but the underlying constitutional issue is the same.

As long as Printz remains good law, Trump's efforts to override the actions of sanctuary states and cities will be thwarted by Scalia's judgment.