The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


My new "The Hill" Op Ed on Federalism and the Legal Battle Over Sanctuary Cities

The various lawsuits pitting the Trump administration against sanctuary jurisdictions has important implications for constitutional federalism that go beyond immigration policy.


The Hill recently published my new op ed on federalism and the legal battles between the Trump and administration and various sanctuary jurisdictions. Here is an excerpt:

Over the last year, President Trump and Attorney General Jeff Sessions have waged an ongoing series of legal battles against "sanctuary" jurisdictions — cities… and states that refuse to aid federal government efforts to deport undocumented immigrants….

If the administration prevails, it will be a major blow to state and local autonomy in our constitutional system. Both left and right have good reason to fear such an outcome….

Only Congress has the power to spend money or impose conditions on federal grants to states. And Congress never passed any laws mandating that recipients of grants must meet the conditions Trump and Sessions seek to impose.

That's why the executive order and the Sessions policy have suffered a series of embarrassing defeats in federal court at the hands of both Republican and Democratic judges.

If the administration wins these cases on appeal, it will set a dangerous precedent going far beyond the specific issue of sanctuary cities. If the president can unilaterally add new conditions to one federal grant program, he can do the same with others.

Since there is a vast array of federal grants, that would give the executive a massive club to coerce states and localities on a wide range of issues….

The sanctuary cases represent a political role reversal: Liberal sanctuary jurisdictions are relying on federalism arguments traditionally associated with conservatives.

Right-wing defenders of the administration are arguing for sweeping notions of federal power, including by relying on a broad interpretation of Arizona v. United States, a ruling conservatives condemned at the time it came down.

Yet in a deeply divided nation, both left and right have much to gain from imposing tighter limits on federal power and allowing diversity to flourish at the state and local levels.