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.

Comments

[Brett Bellmore]

" cities... and states that refuse to aid federal government efforts to deport undocumented immigrants...."

Just a reminder: At this point, California has moved from "refusing to aid", to "actively obstructing", by making it a crime for private entities to voluntarily cooperate with the federal government, and not permitting it's own employees to freely communicate with the federal government even on their own time.

If this were just about "refusal to aid", it wouldn't be any big deal, but we passed that line some time ago. California is edging into open rebellion.

[Longtobefree]

California cannot edge into open rebellion; they have strict gun control laws.

[Michael Ejercito]

That must be how California disarmed the Crips and the Bloods.

[Bored Lawyer]

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.

So this is not really a federalism issue. It is a division of powers among the federal branches issue. if Congress approriates moneys for a purpose, the Executive cannot add more conditions than Congress imposed. That is true whether the recipient is a State, a municipality or an individual.

[Michael Ejercito]

So the infamous Dear Colleague Letter of 2011 was unconstitutional?

[Longtobefree]

just not binding.

[PoxOnBothYourHouses]

I'm not sure he stated that right. There is Federal power over the state /if/ the state accepted a grant that explicitly stated that a condition for it is to help the Feds. Otherwise, I think not. And most grants don't mention this, so Trump can't impose the requirement.

I agree with Brett that California has gone beyond this, to try to neutralize Federal power by outlawing the cooperation of private citizens (violating both Federal supremacy and citizens' 1A rights). I think it's basically a kind of virtue signaling to the base, and I imagine SCOTUS will slap it down.

[Brett Bellmore]

IIRC, at least some of the grants in question actually ARE legislatively conditioned on cooperation with federal law enforcement.

[FlameCCT]

However the Executive does have discretion over who does/does not receive appropriated money especially when a State, municipality, or individual lies on their application or misuses federal funds. I would note that the Obama admin stopped appropriated funding from Texas and border programs.

[Bored Lawyer]

That's the function of the Executive. If Congress says, to get the money, you have to meet conditions A, B and C, then the Executive legitimately should verify that someone asking for the money meets conditions A, B and C. And if they are lying, to deny them the money (and maybe prosecute them for fraud).

But that has nothing to do with adding conditions that Congress did not pass into law.

[Brett Bellmore]

But, if Congress allocates enough money to give 20 applicants funding, and 30 applicants meet conditions A, B, and C, then nothing says the executive has to flip a coin to see which 10 of them get bupkis, instead of adding informal condition D.

[Emotional Opposition Animal]

relying on a broad interpretation of Arizona v. United States, a ruling conservatives condemned at the time it came down.

So conservatives are supposed to argue with one hand tied behind their backs -- if a ruling comes down that they generally disagreed with, but has some implications that support their position, they can't cite it. Very convenient.

Frankly it's not very broad interpretation to say that if the Supremacy Clause prevents a state from passing laws that support enforcement of federal law, then it also prevents a state from passing a law to obstruct enforcement of the same federal law.

[Brett Bellmore]

My criticism of Arizona v United States, was that the supremacy clause makes enacted law the supreme law of the land, and nothing Arizona was doing ran afoul of statutory law.

Arizona was grossly in violation of executive branch policy. But in violation of executive branch policy which itself violated statutory law.

In a just world, it would have been Arizona invoking the supremacy clause, not the federal government.

[swood1000]

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.

But look, the federal government is supposed to control immigration, right? Is it nevertheless part of legitimate states' rights for individual states to try to increase their congressional representation (thereby decreasing the representation of other states) by attracting illegal immigrants and then defending them against deportation? Is Ilya arguing that this is really just a local matter that the other states have no interest in? This has to go into the same category as the assertion made by some that biological sex is a social construct and that this distinction doesn't exist in reality. One is left just wondering at what tries to pass as a rational position.

[Sarcastr0]

Is it part of the legitimate dialogue to make up imaginary agendas, and then argue that this imaginary agenda means you're the one with the rational position?

[swood1000]

What is the imaginary agenda?

[swood1000]

By "imaginary agenda" are you referring to the person shown on this short clip?

[Sarcastr0]

It's funny because you can't see the part where you made anything up because you've convinced yourself so hard.

'states to try to increase their congressional representation by attracting illegal immigrants and then defending them against deportation.' Seems pulled right out of your hat to me.

[swood1000]

'states to try to increase their congressional representation by attracting illegal immigrants and then defending them against deportation.' Seems pulled right out of your hat to me.

I see. You're saying that it's illegitimate to suggest that among the inducements for establishing themselves as a sanctuary state might be a desire to increase their political power in Congress. Is that because we must assume that an increase in its representation is irrelevant to California? It's just something that they don't think about, much less become motivated by? And to say that the Democrats believe that illegal immigrants from Mexico would tend to vote Democrat, and that this at all figures into their thinking on the matter, is a most scurrilous calumny? Are you shocked, shocked at the audacity and callousness I have shown by making such an unwarranted assumption?

[Sarcastr0]

'suggest' 'among the inducements' 'might' 'figures into their thinking'

Not quite the sweeping pronouncement of truth you started with.
Yeah, I see your sudden backpedaling. Even you don't seem very convinced when called out.

Speculate yourself into the Democrats having an illegitimate agenda all you want, there are lots of other possible reasons that happen follow what these politicians actually say.

[swood1000]

Speculate yourself into the Democrats having an illegitimate agenda all you want

I feel ashamed of myself for questioning their motivations. Of course they would have no political objectives.

[Sarcastr0]

You're acting like I'm assuming pure motivations. I'm not. I'm just against assuming corruption and going from there.
And you go further than that, assuming as true a specific agenda that is convenient to your own policy preferences.

You're taking no evidence but just 'reasoning about human nature and incentives' and bootstrapping yourself into a narrative where all actions you disagree with stem from selfish and corrupt motives.

That kind of evidence-unneeded self-validating cycle is not well-suited to healthy evaluations of evidence - it's good only for demonizing your opposition as illegitimate and making you feel righteous for opposing them.

And it's not even needed - there are fine policy reasons for opposing California's policy without deciding it must be because of an unspoken agenda to use illegals to swell your census footprint.

[swood1000]

You're acting like I'm assuming pure motivations. I'm not. I'm just against assuming corruption and going from there.

Look, I'm having a great deal of difficulty taking this seriously. Even those who are also motivated by a desire to help the downtrodden know that the only way they can be successful in this is by maintaining and increasing their political power in Congress, and providing a sanctuary for (i.e., attracting and then resisting the deportation of) people whose presence here will increase their congressional representation seems to kill two birds with one stone. Furthermore, this increase in political power will also redound to the benefit of numerous other political causes which matter to them and is therefore desirable for those reasons. I don't think that this can be questioned by any serious person. Do you question it?

My only point is that the other states have an interest in this activity and California can't claim that it is a local matter only.

[Longtobefree]

The best option is elimination of all federal grants, and the federal bureaucracy that administers them. Let the states impose their own taxes to fund what they feel is appropriate.

In this specific case, the feds are using the wrong approach. Rather than fiddle with grant funding, the DOJ should just file criminal charges against the officials implementing the obstruction, based on a conspiracy to obstruct justice. A couple of US marshals hooking and booking a mayor or governor should sort it out.

[WJack]

Somin and others here seem to be unacquainted with the more brutal aspects of the role of diversity in world history. Desperate struggles between ethnic, tribal, racial and religious groups resulting in ruthless slaughter, not decades of tranquility, are the historical norm. This country has not been (ask the American Indians) and is not likely to be (see the daily news) a long term exception to the rule.

[Rev. Arthur L. Kirkland]

America has encountered know-nothing intolerance -- often related to immigration, skin color, or religion -- in successive waves throughout our history. Targets have included the Irish, blacks, eastern Europeans, gays, Catholics, women, Jews, Italians, Hispanics, and others.

But backwardness and intolerance have been demonstrated to be bad bets in America over all but the shortest terms, and this latest batch of bigots seems nothing special.

Choose reason. Every time. And science, tolerance, education, inclusivity, and progress. Avoid ignorance, superstition, bigotry, and backwardness.

Or become accustomed to being a loser in America.

[WJack]

Once upon a time this country was postured to absorb mass arrivals and the consequent diversity. That time, it should be obvious to all who have looked at TV news, or a newspaper, is long past. Continued mass immigration can only exacerbate the ongoing struggle among dissimilar groups for their "fair share." Judeo ? Christian, Western Culture is probably the only culture that likely will continue to provide progressives with "safe space" ? best adjust hopes accordingly.

[Sarcastr0]

For all the protests that liberals are purposefully conflating illegal immigration with legal immigration, there sure are a lot of people on the right going full nativist!

I, for one, have enough faith in America's identity and appeal (which is both broader and narrower than your dog-whistley 'Judeo?Christian, Western Culture') that I don't think it's going to be conquered by it's 13% immigrant population, many of whom are Latin-American Catholics.

[M.L.]

In your opinion, what percentage might be the upper limit on the level of foreign born population that can be sustained in America alongside successful assimilation and societal unity and cohesion?

Keep in mind, by all accounts, the project of assimilation and social cohesion is currently a massive failure. But let's stipulate that there are other factors, and fantasize that things could be different somehow, if everyone was pulling in the same direction, or if we had a different immigration system that might select for those desiring to assimilate into American culture. So your answer can be partly theoretical and counterfactual.

By the way, it is now over 14% of the U.S. population that is foreign born (this is up from 4.7% in just a few decades ago -- 1970). This is nearing an all-time high and will soon surpass the previous high water mark of 14.8%, which happened in 1890 at a time when every relevant circumstance couldn't be more different than it is today -- vast stretches of land still largely undeveloped, growing industries brimming with demand and opportunity for more labor.

[Sarcastr0]

I'm not going to play some speculative line-drawing game with you. No one has any idea, so it'd just be based entirely on emotion. Is there some limit? No doubt. Which is why I'm not for open borders.

I'll met your ipse-dixit about 'diversity bad' with my own: America's pluralistic society is actually a massive success. We integrate our various points of views and cultures way better than Europe, and have become much stronger and more robust for it.

[M.L.]

Fair enough, but you don't have much pertinent to contribute to the specific discussion, then.

You have suggested that a certain level of immigration is . . . acceptable, or at least not a grave mistake (no mention of whether it's really for the best). But we're well past that certain level now, and on a trajectory to go much farther.

Nice that you have "faith in America's identity and appeal," though. What is America's identity and appeal in your view?

[Sarcastr0]

You don't bring any more to the conversation than I do. We're just clarifying one another's axioms about America.

You're just meeting my faith with your fear and lack of faith. You don't believe in America's exceptional strength and appeal in a multicultural world, I do.

we're well past that certain level now, and on a trajectory to go much farther.
How is your nativism any less an article of faith than mine?

[Sarcastr0]

You don't bring any more to the conversation than I do. We're just clarifying one another's axioms about America.

You're just meeting my faith with your fear and lack of faith. You don't believe in America's exceptional strength and appeal in a multicultural world, I do.

we're well past that certain level now, and on a trajectory to go much farther.
How is your nativism any less an article of faith than mine?

[M.L.]

I've offered relevant facts and analysis. Like the fact that we're approaching record levels, and that the previous record high was under extremely different circumstances. The division and animosity within the country along cultural and other lines seems apparent, but one could write many books on that.

You've agreed with me that there is some upper limit on reasonable immigration levels. So you have "fear and lack of faith" just the same as I do, though I would call it elementary reasoning and common sense rather than sounding like Darth Vader.

But back to the Q . . . What is America's identity and appeal in your view?

[M.L.]

I've offered relevant facts and analysis. Like the fact that we're approaching record levels, and that the previous record high was under extremely different circumstances. The division and animosity within the country along cultural and other lines seems apparent, but one could write many books on that.

You've agreed with me that there is some upper limit on reasonable immigration levels. So you have "fear and lack of faith" just the same as I do, though I would call it elementary reasoning and common sense rather than sounding like Darth Vader.

But back to the Q . . . What is America's identity and appeal in your view?

[Sarcastr0]

What facts and analysis did you bring? You just said 'nuh-uh.' Record levels does not have anything to say about your artificial question of where the line is, is it not?
And pointing to division and animosity when your side are the anti-immigration yahoos is bootstrapping yourself into proof. You continue to have nothing.

As do I, but I'm not trying to grasp at straws and call it an argument. You're arguing from emotion and despite your vehemence otherwise your proof is irrelevancies.

[Sarcastr0]

To turn to brighter things, America's identity is not something one can easily distill. But it's faith in the individual, voluntary community, truth, the concept that an American can look sound or think like almost anyone, and in prosperity. There are countless examples of how America is very appealing even to hardcore anti-individualists or those whose faith insists they look beyond this world.

Communism didn't shake us (though our fear of it did). The USSR tried their best, but the citizens of their autocracy could not avoid the allure of our blue-jeans and whiskey...and what they stood for. Communist China has had to moderate it's command economy, and still they love our movies with those individualistic capitalistic heroes.

The superpowers of Europe have become more American over time, not the reverse.

And you think some Latin-American Catholics are how we go down? Dude, they've already bought in to 3/4 of it!

[M.L.]

It's obvious we're just about due for an immigration pullback. That's why a slew of polls show some 80 percent of voters favor reducing immigration levels. Highest support for this comes from African Americans and Hispanic Americans. We can talk about history, last time we reached this high water mark we reduced immigration for sound reasons. We can talk about economics and the decades of flat wages for working and middle classes. We can talk about social and cultural divisions, the breakdown of communities, the drastic inequality that marks opinions on immigration (the well-off stand to benefit from that which harms the country generally, and are insulated from any harm). The political dynamics wherein such well-off folks, and corporate special interests, wield outsized influence, and the Democrat party wants more votes and socialism. And so on and so on.

You are simply willfully blind to any reason or facts on the issue. Choosing instead to spin fantastical straw men about the country "going down" and being "conquered."

[Sarcastr0]

Your thesis has switched from 'this is unsustainable for our culture' to 'this is unpopular, and therefore bad.'

Your retreat to argument ad populari is noted.

You're argument comes not from facts but from assertion that this much immigration will bring badness. You keep stomping your foot and crying 'reason!' but I've yet to see any that doesn't underscore how your thesis is supported only by inchoate concerns.

To once again repeat, my thesis is no better supported, but by optimism.

[M.L.]

Arguments from history, arguments from economics, social and cultural arguments, political arguments . . . all given here in as much detail as a single sentence can provide . . . and all wasted on you, going right over your head with no hope of a substantive response.

[Rev. Arthur L. Kirkland]

Our nation has been strong enough to withstand the revisions of American culture occasioned by egg rolls, lasagne, Jameson, bagels, sushi, collard greens, the Friday fish fry, pad thai, falafel, and lutefisk. I imagine this evolution occurred despite the rantings of the backward and bigoted.

Some people -- probably the same caliber of people who put mayonnaise in barbecue sauce -- seem to figure America has weakened to a point at which it must surrender to the intolerant, frightened, and ignorant voices among us rather than to continue along its great arc of progress.

Those people are losers.

I am confident America is to continue to improve without flattering insularity.

[M.L.]

Don't worry Arthur -- We won't surrender to intolerant, ignorant voices such as your own, who espouse racial divisions and animosity at every opportunity and without cause.

[Rev. Arthur L. Kirkland]

I expect you will continue to have liberal-libertarian progress shoved down your conservative throat, as has occurred in America throughout my lifetime.

Right-wing goobers have been losing so badly in America on dozens of issues -- from prayer in school to abortion, gay marriage to environmental protection, abusive policing to miscegenation, creationism in science classes to race-targeting voter suppression, treatment of women to treatment of agnostics and atheists -- that whimpering inconsequentially and talking about militias and 'Second Amendment solutions' are about all they have left.

Carry on, clingers.

[M.L.]

None of your non-sequiturs make any sense Arthur, but at least you've got less racist identity politics in this one. I expect the U.S. will preserve its experiment in liberty for some time to come, and will come to ignore your hateful racial politics and open borders extremism as necessary to do so.

[Eidde]

You seem not to be fully aware of how "reason" and "science" were invoked in defense of many of the types of intolerance you mention.

[DavidTaylor]

Is that supposed to be a good argument for rejecting reason and science?

[Rev. Arthur L. Kirkland]

I guess the argument is that 'creation science' invalidates science, or that calling a Regent or an Ave Maria an educational institution discredits education?

[Eidde]

"Is that supposed to be a good argument for rejecting reason and science?"

It means that not all who cry "science, science" will enter the paradise of evidence-based policymaking.

[DavidTaylor]

But does it also entail that those who cry "no science!" will enter that paradise? Your position on this seems a bit murky.

[Eidde]

Who are all these people saying "no science!"

[Stephen Lathrop]

The guy in charge of the EPA is one. That's way too many already.

[DavidTaylor]

Your question doesn't help to clarify your position, which seems to consist of

(1) Don't appeal to reason and science because they have been wrong before, and

(2) Not "all" who appeal to science are using evidence-based policy making.

My responses have been directed at seeking clarification: if not reason and science, then what?

[AmosArch]

Cracking down on active open obstruction of federal law enforcement on illegal alien murderers and rapists == government overreach on states and local rights.

Cake baking == one of the few fundamental human rights important enough to override libertarian concerns.

[Sarcastr0]

You certainly think cake baking is important enough to continue to caterwaul about it.

[Sarcastr0]

You certainly think cake baking is important enough to continue to caterwaul about it.

[WJack]

This country has no identity not grounded in Judeo ? Christian Western Culture. The deterioration of Judeo ? Christian moral restraints coupled with appeals to identity politics cannot be good for "America."

[Sarcastr0]

1. If the culture is so awesome, it should be able to handle some immigrants.
2. For many, JCWC is a fancy way of saying 'white.' Are you one of the many, and thus elide the importance of Africans, American Indians, and the like from American identity?
3. Moral restraint can come things other than Christianity/Judaism.

[ActualRightWingPatriot]

"Some" immigrants, yes. 50 million third world immigrants with low IQs from failed cultures? No.

[M.L.]

2. The "many" are virtually all leftist objectors. Which makes sense, since culture is not the same thing as race, and it is patently illogical, and even harmful and all around stupid to say otherwise.

[Sarcastr0]

Fair enough, though if it doesn't mean whatever Europeans brought in the 1600s or so, please explain what JCWC means to you.

[M.L.]

Culture isn't race.

[Sarcastr0]

So it's the culture that happened to be held by white people?

Are you being cagey, or am I being thick? Either way, I remain unconvinced by your distinction between race and culture until you give me more.

[Sarcastr0]

In other words, explain why you are not ActualRightWingPatriot

[ActualRightWingPatriot]

The American identity was one of white European culture. Period. Africans and American Indians certainly did contribute, but they did so within the framework of a virtuous white Protestant culture that enforced uniform moral standards on everyone.

[Stephen Lathrop]

And not just uniform moral standards. White European culture was so great that it also added non-uniform moral standards. That was the great contribution of Africans and American Indians?being on the receiving end of those non-uniform standards. Making America great again won't happen until we get back to full moral standards diversity.

[Rev. Arthur L. Kirkland]

You are welcome to believe that America's greatness relies on superstition.

I think that's silly.

Choose reason. Every time. Especially over sacred ignorance and dogmatic intolerance.

Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for backwardness, superstition, ignorance, and intolerance. By ostensible adulthood it is no excuse.

Choose reason. Be an adult.

[Harvey Mosley]

"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."

So when the SCOTUS rules in a manner that we disagree with we are required to ignore the ruling?

While I disagree with you on every single thing you write about immigration this is what I disagree with the most. Aren't we supposed to be a nation of laws? And when we disagree with a law we can seek redress of our grievances in court. If we lose in court we need to suck it up and accept that the ruling is now law. But you seem to be saying that if we disagree with a law and lose the court case that relying upon the ruling in other situations taints our argument in those other situations. That seems like an argument more suited for an elementary school playground than a discussion of the interpretation of federal law.