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Is it Unconstitutional for States to "Discriminate" Against the Federal Government?

This is one of the questions that may well arise in Jeff Sessions' new lawsuit against California's sanctuary laws.


The Supremacy Clause of the Constitution requires state and local governments to obey federal law, so long as that law is within the constitutional scope of federal power. But is it unconstitutional for states to "discriminate" against the federal government by denying it assistance that may be available to private parties and state officials—even in cases where there is no specific federal law forbidding that discrimination? This issue is likely to come up in Attorney General Jeff Sessions' recently filed lawsuit against against California's sanctuary laws. One of them (HB 103) requires the state to inspect federal immigration detention facilities on its territory, even though other detention facilities are not subject to the same inspection regime. Another (SB 54) forbids state and local officials from sharing information with federal immigration officials, even though they are not categorically forbidden frm sharing it with other entities. The third (AB 450) forbids voluntary employer cooperation with federal Immigration and Customs Enforcement raids seeking to round up undocumented immigrants. Each can potentially be characterized as "discriminating" against federal agencies, even though there is no federal law specifically barring this kind of discrimination.

In a thoughtful recent post commenting on my own previous post on the Sessions lawsuit, New York University law professor Roderick Hills argues that the constitution restricts state discrimination against the federal government, though he also concludes that the boundaries of this rule are unclear, since it must be balanced against "state autonomy." Rick himself concludes that anti-discrimination rule should be applied "narrowly," and state autonomy "broadly."

In my view, there is no such antidiscrimination principle in the Constitution. There is nothing to that effect in the text of the Constitution. The Supremacy Clause only requires the states (and others) to obey federal law. It does not require them to help enforce it or to give the federal government the same services and assistance available to private parties or to state and local officials.

Nor are there any Supreme Court cases mandating such nondiscrimination [but see UPDATE below]. Rick cites Davis v. Michigan Department of the Treasury (1989) as a possible counterexample. But Davis does not forbid all state laws singling out the federal government in some way; it and other similar cases merely forbid discriminatory state taxation of federal officials and federal government agencies. When the states impose discriminatory taxes on the feds, they go far beyond merely denying them assistance or services. They directly seize federal assets, or those of federal employees, thus potentially making it impossible for the federal government to use its own resources to enforce federal law on the state's territory. As Chief Justice John Marshall famously put it in McCulloch v. Maryland—the best-known case restricting state taxation of federal instrumentalities—"the power to tax is the power to destroy." By contrast, discriminatory denial of services and assistance (whether that of the state governments or private entities) does not and cannot "destroy" the federal government. It just forces it to rely on its own resources to do its work.

The latter is perfectly permissible for states to do. Indeed, the idea that states have a right to deny the use of their resources to the federal government, is at the heart of the Supreme Court's anti-commandeering cases, which deny Congress the power to compel states to help enforce federal law. As Justice Antonin Scalia explained in Printz v. United States, the purpose of the anti-commandeering doctrine is the "[p]reservation of the States as independent and autonomous political entities." Control over state and local resources is, obviously, at the heart of that independence and autonomy. Ditto for the state's power to regulate private parties within its territory, except when specifically barred by federal law or by the Constitution.

AB 103, the detention inspection bill, is a closer case than the other two sanctuary laws because it involves actual state intrusion on federally-run detention facilities, not just denial of state or private assistance. But unlike discriminatory taxes, the inspections do not seize federal assets or prevent the federal government from using the facilities in question. The inspections only pose a threat to federal operations if the inspectors find that the feds are abusing detainees or otherwise violating the law. And that in no way impedes the legitimate exercise of federal power, because federal officials have no right to engage in such illegal behavior in the first place.

Moreover, many of the detention facilities in question are actually state and local government property being used by the feds. With respect to those facilities, AB 103 is just a restriction imposed by the state on federal use of state property. The state could simply pass a law categorically banning the use of state and local facilities for federal immigration detention. If so, it can also take the less extreme step of conditioning federal use of those facilities on submission to inspection by state officials.

Even if the Constitution does restrict state discrimination against the federal government, Rick Hills suggests that laws targeting federal agencies may not be truly discriminatory if the targeting is based on something genuinely distinctive about the federal activities in question, rather than hostility to the federal government, as such. For example, he notes that AB 103 might not qualify as unconstitutional discrimination if "there [is] some reason to believe that facilities are more likely to abuse their inmates after they enter into an intergovernmental service agreement with the feds." There is in fact ample reason to believe exactly that. ICE is notorious for turning a blind eye to large-scale abuse of immigrants in its detention facilities, including sexual abuse by federal agents themselves. The agency also engages in such cruel and potentially unconstitutional detention policies as separating small children from their parents, while the latter petition for asylum in the United States. The state therefore has good reason to subject ICE-run facilities to special scrutiny that might not be necessary for other types of detention facilities.

But the court hearing the sanctuary case need not address the difficult question of how much abusive ICE behavior is enough to justify special state scrutiny if it correctly rules that the Constitution does not include any general ban on state "discrimination" against federal officials. Alternatively, it can rule that the vast and unique power of the federal government ensures that federal agents are almost never genuinely analogous to private recipients of state services. Few if any private parties have the legal right to kill, deport, tax, and imprison people, as federal officials routinely do. The feds are inherently different from private entities—and, to a lesser degree, from state and local governments, which still lack many of the unique powers enjoyed by federal officials. There is—at least in most cases—no such thing as "discrimination" against federal officials. The essence of discrimination is treating essentially similar entities differently on the basis of arbitrary or irrelevant characteristics, such as race or sex. The feds are inherently different from you and me.

Discriminatory state denial of assistance to the feds is still illegal if there is a specific federal law banning it (assuming that law is otherwise within the scope of federal power). It is even more clearly illegal if the discrimination is intended to insulate the states' own violations of the Constitution from federal scrutiny—as when southern states sought to shield Jim Crow segregation laws. Actual state seizure of federal assets is often illegal even if not discriminatory. For example, states cannot use eminent domain to condemn federally owned property, even though it could condemn otherwise identical private property for the same purposes. But nothing in the Constitution bars the kind of "discrimination" at issue in Jeff Sessions' case against California.

UPDATE: Rick Hills responds to this post here. He cites North Dakota v. United States (1990), which holds that "State law may run afoul of the Supremacy Clause in two distinct ways: the law may regulate the Government directly or discriminate against it." It also notes that this rule applies to discrimination based on the "the object's status as a government contractor or supplier." I admit I should have taken account of this case and the precedents it builds on. My mistake.

However, these cases don't ultimately change the bottom-line conclusion on this issue. North Dakota does not say that all state discrimination against federal officials violates the Supremacy Clause. Rather, the Court indicates that "the question whether a state regulation discriminates against the Federal Government cannot be viewed in isolation. Rather, the entire regulatory system should be analyzed to determine whether it is discriminatory 'with regard to the economic burdens that result.'" Both North Dakota itself (which ultimately upheld the state regulation in question) and the precedents it cites address cases where the state either directly restricted the activities of federal officials or imposed discriminatory taxation on its private contractors or suppliers. They don't address merely withholding state services, or inspections (such as those in AB 450), that do not impose a significant "economic burden" except perhaps in cases where the inspection reveals illegal activities that the federal government has no right to engage in to begin with. It also does not extend to restrictions on private parties (such as the employers regulated by AB 103) who are not government contractors or suppliers.

Rick thinks it would be absurd to conclude that states can discriminatorily withhold services from federal officials:

Imagine that California barred federal employees from driving on state-owned roads: Is Ilya seriously contending that this selective prohibition would not violate the Supremacy clause? Or what about my original hypothetical: Suppose that state courthouses charged federal lawyers and law enforcement officers a special fee to enter state courthouses—or barred them altogether from entering. Will Ilya bite the bullet by re-affirming his position that the Supremacy clause "does not require [states] to help enforce [federal law] or to give the federal government the same services and assistance available to private parties"?

I will indeed bite this bullet! My reason is that the Constitution does not bar every conceivable hypothetical scenario where something bad might happen. It especially does not do so when there are ample alternative ways to prevent it. The federal government can easily prevent sweeping state restrictions on its agents' activities by passing laws banning them, denying federal highway funds, and so on. Moreover, states themselves are unlikely to want to sweepingly exclude all or most federal officials from their roads or other public property. On the other hand, it is desirable that the states retain the authority to engage in some discriminatory exclusion of federal officials in order to curb such abuses as ICE raiding state courthouses in order to seize suspected undocumented immigrants, thereby disrupting state legal proceedings, endangering state employees, and creating a disincentive for immigrants to testify in criminal cases. A state law barring ICE agents from entering state courthouses or subjecting them to special searches before doing so would be an entirely reasonable response to such activities. It's also worth noting that such an exclusion would not impose an "economic burden" of the sort at issue in the regulatory schemes considered by North Dakota v. United States and other similar cases.