Jeff Sessions' attack on sanctuary cities is also an assault on federalism and separation of powers [updated with a response to Leah Litman]

Attorney General Jeff Sessions.

Attorney General Jeff Sessions recently announced a new Justice Department policy seeking to pull federal grants from "sanctuary cities" - jurisdictions that refuse to cooperate with some federal efforts to deport undocumented immigrants. Much like President Trump's earlier executive order targeting sanctuary cities, which was blocked by a federal court decision, the Justice Department's new policy is unconstitutional. If allowed to proceed, it would create a dangerous precedent for both federalism and separation of powers.

The new DOJ policy would deny federal Edward Byrne Memorial Justice Assistance Grants (approximately $275 million in 2016) to state and local governments unless they meet three conditions:

1. Prove compliance with federal law that bars cities or states from restricting communications between the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) about the immigration or citizenship status of a person in custody.

2. Allow DHS officials access into any detention facility to determine the immigration status of any aliens being held.

3. Give DHS 48 hours' notice before a jail or prison releases a person when DHS has sent over a detention request, so the feds can arrange to take custody of the alien after he or she is released.

The first requirement is similar to the demand in Trump's executive order requiring compliance with 8 U.S.C. Section 1373, the federal law that it references. The two other requirements potentially go beyond that order, though the order was broader in the sense that it applied to a much wider range of federal funds.

The major constitutional problem with all three requirements is exactly the same as the main flaw in the earlier order: Longstanding Supreme Court precedent indicates that only Congress can impose conditions on grants given to states and localities, and that those conditions must be "unambiguously" stated in the text of the law "so that the States can knowingly decide whether or not to accept those funds." Neither compliance with Section 1373 nor the other two conditions the DOJ seeks to impose are included in the authorizing legislation for the Byrne grants. Sessions and Trump may be at odds on other issues right now. But they are united in their desire to make up new grant conditions and impose them on states and localities after the fact.

Should the administration manage to get away with this, it will set a dangerous precedent that goes far beyond the relatively small Byrne program and the specific issue of sanctuary cities. If the president can unilaterally add new conditions to one federal grant program, he can do the same thing with others. This would give presidents a massive club to coerce state and local governments on a wide range of issues. That power might still be limited by the requirement that conditions be related to the purpose of the grant. But, given the existence of a vast array of federal grants for many different purposes, this would be only a modest constraint.

Some conservatives may cheer when the current administration uses this tool against sanctuary cities. But they are likely to regret their enthusiasm if a liberal Democratic president uses the same tactic to force states to increase gun control, adopt a "common core" curriculum, or pursue liberal policies on transgender bathroom accommodations.

Allowing the executive to impose its own after-the-fact grant conditions also threatens the separation of powers. It goes a long way towards taking control over spending away from Congress and transferring it to the president. This, of course, violates the text of Article I of the Constitution, which clearly gives the power of the purse to the legislature, not the executive.

As conservatives often pointed out during the Obama Administration, the modern executive has already appropriated far too much power that more properly belongs to Congress or the states. It is dangerous to let it seize even more. If the Justice Department proceeds with this policy, hopefully it will be challenged in court, and meet the same fate as the earlier executive order.

The need to prevent the executive from usurping Congress' spending authority and using it as a tool to coerce states and localities is yet another example of how both left and right can benefit from strong, consistent enforcement of constitutional limits on federal power. If more people learn that lesson, it may be one of the few positive legacies of this otherwise dismal period in American political history.

UPDATE: Leah Litman criticizes part of this post at the Take Care Blog. She argues that federal grant conditions need not always be unambiguously imposed in the text of the law because federal agencies tasked with enforcing grant condition statutes can issue regulations that recipients must comply with, even though the regulations are not in the text of the law. It is absolutely true that the federal agencies can issue enforcement regulations that are not themselves in the text of the law. Enforcement measures sometimes have to go beyond the laws they are meant to effectuate. The examples Litman cites clearly fall within this category. For example, she notes a regulation that forbids recipients of funds subject to Title VI's ban on racial and ethnic discrimination to "utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin." It is pretty obvious that this regulation is closely tailored to the law it is supposed to enforce. Indeed, the enforcement regulation closely mirrors Title VI's text banning "discrimination under federally assisted programs on ground of race, color, or national origin." It is hard to see how that language can be enforced without banning practices that "have the effect of defeating or substantially impairing" its objectives and practices that "have the effect" of subjecting individuals to discrimination on precisely those grounds that the law prohibits.

But, of course, agencies have the power to issue enforcement regulations only in so far as the regulations actually are necessary to enforce conditions spelled out by Congress. And those conditions, in turn, must be "unambiguous" and in the text of the statute, as the Supreme Court emphasized in the 1981 Pennhurst case, and reaffirmed in more recent decisions, such as Arlington Central School District v. Murphy (2006).

Litman also claims that "[a]gencies can impose conditions that reasonably interpret ambiguous statutes they've been empowered to administer." If the conditions in question are spending conditions, it is not the case that an ambiguity in the statute authorized by Congress can be fixed by a condition imposed by an agency. If the initial condition is itself ambiguous, then it cannot be imposed on a state or local government on pain of withholding federal funds.

Obviously, when Congress does impose a clear condition, there is sometimes room for disagreement over whether a particular enforcement regulation adopted by an agency goes beyond enforcing the congressional requirement and becomes a new condition of its own. But the fact that such borderline cases exist (as is true with almost any legal doctrine) does not mean that agencies are free to exploit ambiguities in statutes to impose conditions so long as those conditions are themselves "reasonable." And, as Litman recognizes, it also does not mean that they are free to add new conditions that are not authorized by any federal statute at all, which is the case with Sessions' new rules.