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Trump and Jeff Sessions Suffer Yet Another Defeat in Chicago Sanctuary City Case

The ruling is notable in underscoring how the Supreme Court's sports-betting decision in Murphy v. NCAA helps sanctuary cities.

Seal of the City of Chicago.Seal of the City of Chicago.

In a ruling issued yesterday, the Trump administration and Attorney General Jeff Sessions suffered yet another setback in their legal battle against Chicago's "sanctuary city" policies. Last year, Attorney General Jeff Sessions sought to cut Byrne Memorial Justice Assistance Grant funds to state and local governments that fail to meet three conditions:

1. Prove compliance with federal law that bars cities or states from restricting communications between their employees and 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.

In a detailed opinion, federal Judge Harry D. Leinenweber, ruled that all three conditions are unconstitutional. He invalidated the second and third requirements because they were never authorized by Congress, which under the Constitution, is the only branch of government with the power to impose conditions on federal grants to state governments. That part of the decision largely follows his September 2017 ruling issuing a preliminary injunction against these two requirements. That ruling was later upheld by the US Court of Appeals for the Seventh Circuit in April of this year. Yesterday's decision largely makes the September ruling permanent, by issuing a final decision against against these two conditions. However, the injunction against the Sessions conditions is now limited to the City of Chicago, rather than nationwide (the appropriateness of a nationwide injunction in this case is scheduled to be considered by the en banc Seventh Circuit).

More significant is Judge Leineweber's ruling against the first condition, which mandates compliance with 8 U.S.C. Section 1373, a controversial federal law mandating that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual." In his September 2017 decision, Judge Leinenweber refused to issue a preliminary injunction against this condition, because he concluded that it was authorized by Congress, and that Section 1373 was not unconstitutional in and of itself. Yesterday, however, he reversed that stance, in light of the Supreme Court's recent decision in recent decision in Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act, a federal law barring states that previously prohibited sports gambling from passing laws "authorizing" it. The Court ruled that PASPA violates the anti-commandeering rule of the Tenth Amendment, which prevents the federal government from coercing state and local governments, including for the purpose of helping to enforce federal law. Judge Leinenweber's opinion offers the most detailed judicial analysis yet, of how Murphy (combined with previous Supreme Court anti-commandeering decisions) dooms Section 1373. Here is an excerpt:

First, Section 1373 supplants local control of local officers; the statute precludes Chicago, and localities like it, from limiting the amount of paid time its employees use to communicate with [federal immigration enforcers]. This weighs heavily on the constitutionality analysis. A state's ability to control its officers and employees lies at the heart of state sovereignty. "To say that the Federal Government cannot control the State, but can control all of its officers, is to say nothing of significance. Indeed, it merits the description 'empty formalistic reasoning of the highest order.'" Printz [v. United States], 521 U.S. at 931 (citation omitted). Adding credence to this constitutional objection is the fact that the information at issue is state-owned and only accessible to city employees in their official capacities...

Rather than requiring state employees to share immigration information with federal authorities, Section 1373 prohibits state policymakers from preventing their employees from sharing... Yet as Murphy demonstrates, this draftsmanship does not diminish the infringement on state sovereignty.....

Second, the statute indirectly constrains local rule-making by precluding city lawmakers from passing laws, like the Welcoming City Ordinance, that institute locally-preferred policies which run counter to Section 1373. This was the concern squarely addressed in Murphy, where the Court observed that a "more direct affront to state sovereignty is not easy to imagine" than in a federal law that "dictates what a state legislature may and may not do..."

Third, Section 1373 redistributes local decision-making power by stripping it from local policymakers and installing it instead in line-level employees who may decide whether or not to communicate with INS. This effects a federally-imposed restructuring of power within state government....

Finally, because Section 1373 eliminates the City's ability to control its employees' communications with INS, the statute prevents Chicago from extricating itself from federal immigration enforcement. Section 1373 thus impermissibly forecloses New York [v. United State]'s "critical alternative": the option of non-participation in a federal program.

Judge Leinweber also offers a thorough rebuttal to arguments advanced by the administration to the effect that the anti-commandeering rule does not apply to federal mandates that merely require "information-sharing." He concludes that "[a] federal need for state information does not automatically free the federal government of the sometimes laborious requirement to acquire that information by constitutional means." I previously criticized the information-sharing argument myself here.

Yesterday's decision using Murphy to invalidate Section 1373 follows a similar ruling by a federal district court in Philadephia, and also one in California concluding that "Section 1373 does just what Murphy proscribes," in a case involving a Trump administration challenge to California's "sanctuary state" laws. But the Chicago ruling is particularly significant because of the thoroughness and sophistication of Judge Leinenweber's ruling, and because he had previously refused to strike down Section 1373, prior to Murphy. I explained in greater detail how the Murphy decision helps sanctuary cities here, here, and here.

The administration has also suffered a long series of defeats on nearly all the federalism issues at stake in its other efforts to target sanctuary policies. These rulings have come at the hands of both Democratic and Republican-appointed judges. The latter include Judge Leinenweber, who is a Republican appointed by Ronald Reagan. These cases are significant not only for their impact on immigration policy, but because of their implications for constitutional federalism more generally. Should the administration prevail, it would give the executive branch the power to impose other spending conditions that were not authorized by Congress and the ability to coerce state and local governments on a wide range of other issues.

UPDATE: Reason's Scott Shackleford has a post discussing this ruling here. He too considers the impact of Murphy.

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  • Michael Ejercito||

    So that Dear Colleague Letter was unconstituional?

  • Purple Martin||

    No. Why might you think so?

  • Michael Ejercito||

    The anti-commandeering principle.

  • Brett Bellmore||

    So, it's "commandeering" to deny states the power to order their employees to not even voluntarily talk to the feds? That seems to carry the anti-commandeering principle a bit far, doesn't the "command" in commandeer have something like its normal meaning?

  • nystateofmind||

    Congratulations on your successful twist! It is commandeering under its normal meaning for the federal government to require states to have to order their employees to voluntarily talk to the feds, which is what that condition requires. Even if that condition is found to be unconstitutional after the inevitable appeal(s), nothing prohibits states from passing a law that requires public employees to talk to the feds.

  • James Pollock||

    In a non-commandeering structure, the states direct the state's employees, and determine which conditions are best for the state's residents.

    In a commandeering structure, the feds direct the state's employees, and determine which conditions are best for the state's residents.

    It's positively AMAZING to watch anti-federal-government-type folks tie themselves up in knots complaining that the federal government can't just demand what they want from the states.

  • M.L.||

    But the feds are in no way directing the state's employees under Sec. 1373. It is true they are restricting what the state's or municipality's ability to direct their employees, though.

    As I've commented before, the case against Sec. 1373 itself does appear strong under the logic of Murphy. What people don't seem to appreciate is that this seems to represent a fairly radical pro-states rights/federalism shift in jurisprudence, I think. And the crazy part? The left is leading the charge. At first I thought it doesn't matter, because there's no consistency or integrity. But by the time Trump replaces RBG, I think there will be some folks dumbfounded and wondering how they got to where they are.

  • WJack||

    Another victory for globalists, patriots weep.

  • regexp||

    Another victory for globalists, racists weep.

    Fixed that for you.

  • Jmaie||

    Racists and people who think that immigration should be a controlled process regardless of the race/ethnicity of the individuals in question.

    Name calling doesn't garner much respect at this site, you'll do better with reasoned arguments. But of course I'm not telling you anything you don't know already, so perhaps I'm wasting my time.

  • Rev. Arthur L. Kirkland||

    The libertarian position -- opposing authoritarian, intolerant, restrictive immigration policies and practices -- should be respected at this site, but cruel and bigoted immigration actions have plenty of fans here. Why do so many authoritarian right-wingers frequent this ostensibly libertarian forum? Did the libertarians leave because they tired of the wingnut polemics?

  • Sarcastr0||

    Repurposing all the old Shadowy Jewish Bankers Control All conspiracies to be about globalists is efficient use of scanty mental resources!

  • JonFrum||

    For decades, the federal government has been threatening states with denial of federal funds - like highway funds - if they didn't do what Washington wanted. This big stick has been used constantly over much of my lifetime. Now, suddenly, this is unconstitutional?

  • James Pollock||

    "For decades, the federal government has been..."

    Here's the deal: Our government is intentionally divided into separate, competing sections, each with their own bailiwick and Constitutional commands to stay out of the others'.
    Congress is given the power to spend the federal government's money. So, if Congress writes a law that says "federal highway dollars get cut if a state says 18-year-olds can drink alcohol", then it's Constitutional. Congress gets to decide when and how much when the federal government spends money.
    If Congress writes a law that says "states get money to help fight crime", and then the President comes along and says "states that don't fight crime the way I want to fight crime don't get any money", that's unconstitutional because the President doesn't get to decide that. If the President wants to impose such restrictions, he has to go to Congress and ask them, nicely, to change the law for him.

  • SDN||

    Well, actually, unless Congress specifies how "fight crime" is defined, the President DOES get to decide that. If Congress is too lazy, or too cowardly, to fulfill its' duties, and throws it to the Executive, you need to talk to them.

  • Procyon Mustelid||

    Eh, not necessarily. Usually Congress specifies that the President or a particular Presidential Underling (i.e. Secretary of Whatever) gets to decide how "fight crime" is defined, and that's why the executive branch gets to define it when Congress doesn't. But if Congress doesn't delegate that definition to them, I'm not sure there's any inherent freestanding authority for the Presidwnt to do so.

  • DASGUY||

    Why do they have these grants in the first place? The Federal Government should just stay out of funding State programs. Let the States decide what needs to be done. If they want to help immigrants, let them afford the costs.

  • James Pollock||

    " If they want to help immigrants, let them afford the costs."

    That would be a fairly straightforward violation of federal law, but sure, let them do that.
    The federal government can discriminate in favor of immigrants because the Constitution gives the federal government the power to control naturalization. The states are denied this power. The Constitution goes on to guarantee equal treatment from the government for everyone, and has done so since 1868.

    The federal government has intentionally chosen to keep enforcement of immigration far, far below the levels needed to handle the actual load of illegal entrants and visa-overstayers. The states are required to provide services to them, but they have no Constitutional power to address their immigration status. This leaves the state with a practical choice... leave crime involving illegals unaddressed, or attempt to locate and apprehend the felons among them. This effort requires cooperation of witnesses and victims, which means you have to give them a reason to trust the police. THAT'S what "sanctuary cities" are actually about.

    Anti-immigrant hero Sheriff Joe tried a different approach: He just didn't bother investigating crimes where the victims were or might have been illegal immigrants. As a result, of course, his jurisdiction is now notably free of unlawful immigrants...

  • Jmaie||

    "THAT'S what "sanctuary cities" are actually about."

    For some, sure. For others it's an opportunity for political virtue signalling. #resistance and all that. Personally I agree with the former but detest the latter. YMMV.

  • bernard11||

    The term "virtue signaling" needs to be driven out of intelligent discourse.

    How can you possibly tell whether someone is "virtue signaling" or doing so thing they think is worthwhile in its own right?

  • James Pollock||

    If they're doing something that you, personally, detest, it's "virtue signaling", and if it's something that you, personally, support, it's "just being a decent human being".

  • iowantwo||

    People know what I think. Just for agreeing with President Trump, they know I'm a racist, bigot, misogynist, irredeemable deplorable, and a dozen other blatant character flaws. Telling that someone is virtue signalling is easy, by comparison.

  • Sarcastr0||

    People are unthinkingly reductive about you, and it sucks. Therefore, it is good to commit the exact same sin about other people.

    So every time I hear someone talk about virtue signalling I should just hear 'my spite about liberals being dicks to me?'

  • Rev. Arthur L. Kirkland||

    You are not necessarily a racist, a bigot, a misogynist, or irredeemably deplorable, iowantwo. Perhaps you merely appease bigotry and boorishness for paltry, perceived partisan advantage favoring conservative backwardness and bigotry.

    But it is one or the other. No exceptions.

    Carry on, clingers.

  • regexp||

    Anti-immigrant hero Sheriff Joe tried a different approach: He just didn't bother investigating crimes where the victims were or might have been illegal immigrants. As a result, of course, his jurisdiction is now notably free of unlawful immigrants...

    Just by looking at a map this is demonstratively false. If you are going to insist on lying - at least try a little harder.

  • Procyon Mustelid||

    I thought the part you bolded was sarcasm.

  • bernard11||

    The grants are for a variety of law enforcement related purposes. They are not intended to help immigrants.

  • James Pollock||

    There is a realization that the illegal immigrant problem is caused by the federal government exclusively, but costs of illegal immigration fall to the states... The illegal immigrants' minor children, for example, get educated, and crimes against them get investigated by local police agencies, and so on.

  • bernard11||

    costs of illegal immigration fall to the states... The illegal immigrants' minor children, for example, get educated, and crimes against them get investigated by local police agencies, and so on.

    That applies equally to everyone else. And the benefits also fall to the states. Or at least those residents who want their crops picked, golf courses tended to, homes cleaned, etc.

  • JesseAz||

    Remember how smug Ilya got when hawaii and California blocked the "travel ban" and then how Ilya wept at the USSC....

    This ruling is another of the but trump rulings. We literally had Obama issuing funding threats through dear colleague and memorandum and not one iota of outrage from the judiciary. Yet now... But trump. It's tiring.

    Look you can be against the feds being coercive with Federal funding. Lord knows I am. I think our spending is ass backwards. I believe the states should have higher spending levels than the feds. But at least be consistent and not simply go for the but trump angle.

  • Sarcastr0||

    See, this is how the pros do it - don't even bother to engage with the substance of the decision.

    Just say 'this is tribalism from the OP and judge because Trump is involved and everything is tribal now' and then talk about how sad you are about the already proven tribalist nature of everything.

  • James Pollock||

    Come on. There has been extensive tribalism for at least a couple of decades, with both sides just about equivalent in power overall but with certain areas much more one-sided. Partisans are so used to "OMG, can you BELIEVE what their guy just did!" in response to partisan activities that today, they can't hear the difference between the people who are just whining because someone of the other partisan choice did something, and people who are actually horrified by what "that idiot" just did. It's a boy-calling-wolf situation... the partisans have settled into a pattern of yelling "wolf!" every twenty minutes or so, so that the other brand of partisans no longer hear any cries of "wolf", and now there's... not a wolf, more a bull in a China shop... and nobody hears anything. Hmmm. That metaphor didn't really hold up very well.

    There are times when I'll complain that Republicans are being all Republican-y, because they annoy me just slightly more than the D's. But Trump annoys me because he doesn't take the Presidency of the United States very seriously, and he figures he can just wing it and then tell people what a great job he did, and then "his side" has to take his side because they're on his side, and...

  • Sarcastr0||

    When your tribalism is so advanced that you knee-jerk dismiss literally everything that goes against your tribe as arising purely from tribalism...you've created a closed circle. You've cut out everything. Philosophy, legal analysis, conversation, other people.
    Because what's the point? Either they agree with you or they're propagandists for the Other Side.

    That tribalism isn't the usual sadly ubiquitous kind. At that point, you've reduced the splendor of the world to black and white ashes.

    Helluva thing to see.

  • James Pollock||

    "When your tribalism is so advanced that you knee-jerk dismiss literally everything that goes against your tribe as arising purely from tribalism...you've created a closed circle."

    Is this another way of saying "when facts don't matter, facts don't matter"? Because that's where we are. All of our Presidents have lied about something-or-other (maybe not Carter, and see what that did for HIM) But the guy we got now lies reflexively about EVERYTHING, even things that are easily checked... but anyone who WOULD check MUST be one of THEM, and NOT one of us.

    I'm skeptical of everyone, and that colors my world. Still, I'm amazed that the Trump fanboys STILL have ANY capacity for self-delusion, at the rate they're using it.

  • Sarcastr0||

    It's saying what a helluva thing it is to see facts not mattering in actual operation, especially from someone as smart as Jesse.

    This particular issue is not about Trump (though yeah his needless and obvious lying is a whole 'nother thing), it's about a growing number of his supporters who have cut themselves off from discourse.

    I'm actually a soft touch - I'm not as skeptical of other people as I should probably be. Humans have biases, and will reflexively tune lots of seemingly rational stuff, skepticism included, to align with their baser instincts. The healthy thing is to recognize that and call it out in yourself.
    It's worse to deny it, but that's a thing as well.
    But to say 'yeah, I'm super proud of how I disbelieve everything anyone not of my side says?' That's actively feeding reality into an engine that produces only self-righteousness.

  • steeltown lad||

    So as you are psychoanalyzing Trump supporters for whom facts don't matter and who have "cut themselves off from discourse" are you being supportive of, or critical of, a fellow who just stated as fact that Trump "lies reflexively about EVERYTHING"? Is that a true statement? Does it add to the flow of discourse? Or is it "feeding reality into an engine that produces only self-righteousness"?

  • Sarcastr0||

    I responded to that bit by noting that we're not talking about Trump, did you miss that?

    Are you really whattabouting Jesse's comment? I don't know James Pollock's deal, but he's not exactly a liberal bastion. And nothing he says makes Jesse's complete lack of analysis any less tragic.

  • steeltown lad||

    You were talking about Trump supporters who have "cut themselves off from discourse"., while responding to a fellow who stated that Trump "reflexively lies about EVERYTHING", which sort of exemplifies a "complete lack of analysis." So again, were you criticizing the comment that you were responding to, or supporting it? Decide.

  • bernard11||

    OK. Almost everything.

    More important, he doesn't care. He will never say something that is true if he doesn't like it.

    IOW, He lies whenever it suits him, which is pretty close to "everything."

  • steeltown lad||

    Let's have a Two Minute Hate.

  • Sarcastr0||

    OK, if you're going to insist we cannot criticize one person for something without stopping and weighing whether every reply is guilty of the same thing.

    Do you really think JP assumes literally everything Trump says is a lie? Or is he making a perhaps exaggerated observation that may or may not imply prejudging.

    On the other hand, Jesse's comment explicitly and sincerely engaged in prejudging so hard it ended the entire analysis.

    Yeah, I think I'm still coming down on Jesse's comment betraying something much, much worse than Pollock's caps lock internet hyperbole.

  • bernard11||

    So as you are psychoanalyzing Trump supporters for whom facts don't matter and who have "cut themselves off from discourse" are you being supportive of, or critical of, a fellow who just stated as fact that Trump "lies reflexively about EVERYTHING"?

    No psychoanalysis is needed. Just plain facts. Trump effectively does lie about everything, in the sense that he pays no attention whatsoever to the accuracy of his statements. Telling the truth is of no consequence to him.

    If Trump supporters refuse to understand that then they deserve a bit of criticism. But, hey, "Emails!!!" Right?

  • NOVA Lawyer||

    bernard11 makes the important point: The truth is irrelevant to Trump's pronouncements and sense of the world.

    Trump has taken the Rovian "when we act, we create our own reality" to pathological levels. Republicans have been tilling and fertilizing the land for just this sort of misogynistic, bigoted huckster with an authoritarian fixation to take over their party for decades.

  • AmosArch||

    So states and cities have the right to freely obstruct access as much as they want to prevent the enforcement whatever federal laws they want? Requiring your employees to stonewall federal agents is not actively obstructing federal law? Wow Alabama and Kansas better be taking notes once a Democratic President wants to roll in to make sure the next 'equal pay' or transgender bathroom law is being enforced.

  • James Pollock||

    "So states and cities have the right to freely obstruct access as much as they want to prevent the enforcement whatever federal laws they want?"

    No, in much the same way that Lawrence v. Texas and gay marriage didn't mean that actual right wing patriots can now have as much sex as they want with 12-year-old boys.

    What actually happened was a re-affirmation that if Congress wants to cut off federal funding in states that don't do things they way they like, they can but the President can't retroactively place conditions on spending that was already authorized.

    Try this spin:
    It also means that if an anti-gun nutjob wins the Presidency, and tries to order your Sheriff to provide a list of all the gun-owners in the county, the Sheriff can say "Nope!"

  • ||

    Liberals support flooding America with tens of millions of low IQ, illiterate third worlders for the votes.

  • James Pollock||

    "Liberals support flooding America with tens of millions of low IQ, illiterate third worlders"

    Whereas right-wingers prefer catering to the low-IQ illiterates already here.

  • ||

    Most of the low-IQ illiterates are Democrat voters in the inner cities.

  • James Pollock||

    So all you have left are the closeted homosexuals who loudly protest how not gay they are?

  • M.L.||

    So -- Is Prof. Somin finally acknowledging that the Sec. 1373 condition was authorized by Congress?

    Somin's initial position, which read like a college student's strained ideological political advocacy, was that the condition was not authorized. Since then, Somin has grossly mischaracterized multiple rulings on the matter, suggesting that his position was adopted, when it was not.

    Anyway, here we are. Takeaways are very interesting. First as I noted above, this is a very pro-states rights, federalist view of things which is being championed by . . . not who you might expect.

    Second -- It's very interesting to note that Congress has full authority to do what is being prevented here. They just have to do it in a slightly different form. In the spending legislation, if Congress had simply dropped the text of Sec. 1373 into the spending legislation as a funding condition, then this would be constitutional under a "coercion" funding condition analysis. But ... because they only cross referenced it, now its no good because the statute is no good as a stand alone. IS there a form over substance problem here?? Would it make a difference if the cross reference was specific rather than the general "applicable federal laws"?

  • ReaderY||

    I think there is a potential weakness in one aspect of the court's opinion. The district court dodn't address the case-or-controversy aspect of the standing requirement.

    In particular, the City of Chicago surf to enjoin enforcement of Section 1373 on 10th Amendment grounds. As the District Court notes, because it is a duly enacted statute, the Federal government can require compliance with it as a condition of receiving a federal grant, unlike the other conditions which the Attorney General simply made up on his own. And the federal government's Spending Clause power gives it the ability to impose conditions on grants that would otherwise violate the 10th Amendment.The City therefore sought to enjoin Section 1373 as a general statute, separately from the grant.

    But in order to do this, the City has to show that the Federal Government is attempting to enforce Section 1373 by unconstitutional means, that is, by some means other than withholding grant funds (which is permissable.)

    But not only has the City not shown this, it never even alleged it in its complaint. It's complaint was entirely about the grant. The complaint alleges Section 1373 is unconstutional. But without alleging that Section 1373 has caused it or is imminently likely to cause it a concrete injury, this is not enough to allege a case or controversy under Article III.

    The judge seems to have simply missed this omission.

  • ReaderY||

    If the United States enforces Section 1373 solely through withholding grant funds, nothing unconstitutional has occurred and there is no basis for enjoining it. Only if the United States attempts to enforce Section 1373 in some other more direct manner that's outside its Spending Clause Power is there a constitutional problem or basis for enjoining it. The City has neither alleged nor shown that this has ever occurred.

  • bernard11||

    If the United States enforces Section 1373 solely through withholding grant funds, nothing unconstitutional has occurred and there is no basis for enjoining it.

    Excuse me. What entities the government to withhold grant funds as a way to enforce Section 1373?

    Only if the United States attempts to enforce Section 1373 in some other more direct manner that's outside its Spending Clause Power

    The spending clause gives the power to spend or not to Congress, not the President. "The United States" has no power under the clause. Congress does.

  • M.L.||

    Bernard,

    As Somin noted above, the judge concluded that Congress had placed, or authorized, the first condition on the disbursement of funds under these particular programs.

    And Congress (not the President) has the authority to do that. Congress routinely uses federal funds to incentivize the states to do things, which Congress could never simply command them to do. For example, in Murphy, let's say Congress offered a grant program for the rehabilitation of gambling addicts, and conditioned the funds on complying with the rules at issue in Murphy -- that would be constitutional, but a blanket directive is not.

    In this case, some judges are concluding that Section 1373 is unconstitutional by itself, because Congress exceeded its authority in telling the states what they can and cannot do. Therefore, the reasoning goes, this statute is void and Congress cannot condition funds on compliance with an unconstitutional statute. But if Congress had simply conditioned the funds on complying with the particular rules of Sec 1373, that would be perfectly acceptable. I'm persuaded by the argument that Sec 1373 is unconstitutional itself, but does that necessarily mean that it is unconstitutional as a spending condition? Can a statute be unconstitutional on its face but constitutional "as applied"? Or, can the terms of the statute be reasonably incorporated and read into the spending legislation such that the statute itself is irrelevant to the issue at hand? Not sure.

  • James Pollock||

    " Can a statute be unconstitutional on its face but constitutional 'as applied'?"

    That combination works out to "unconstitutional". That's why they can't save unconstitutional laws by just offering to let the one person who sued slide, while continuing to enforce the unconstitutional laws against others.

  • M.L.||

    That seems reasonable.

    But I don't know that a spending condition is unconstitutional just because it incorporates by reference a rule which by itself would violate anti-commandeering but which is perfectly acceptable as a spending condition.

    And ReaderY may have a point that there is no case or controversy over the anti-commandeering issue.

  • ReaderY||

    The opinion addressed standing solely by saying that the statute is a law "with which the City must comply."

    But it's been long and clearly established that, except in a few contexts like the First Amendment, the mere existence of a law that the plaintiff doesn't like, absent any injury inflicted on the plaintiff in an effort to enforce it, is insufficient to confer standing. Simply saying someone "must comply" doesn't create a case or controversy. Congress can decorate its statue books any way it wants, and its none of the courts' business if it does, unless the law is enforced.

    The situation is very similar to that with respect to the individual mandate in the AHCA. Absent any penalty (or tax) to enforce it, simply saying people ought to buy health insurance confers no standing on any plaintiff.

    Same here. As long as the United States keeps all enforcement to withholding grants, and never acts outside its Soending Clause powers, there is no constitutional case or controversy.

    There is an easy distinction between this case and one where the US drops enforcement against a plaintiff. Standing must be established as of the time a case has been filed. If established then, it remains. Here standing was never established at all. Except in the Spending Clause context, The City never alleged and never put in evidence, and the Judge never found, any fact other than it's a law on the books. It's hornbook law that more must be shown for standing to occur.

  • M.L.||

    Sounds right to me. The court is hereby reversed as to Count IV by the VC commentariat.

  • kramartini||

    Isn't it obstruction of justice to impede the reporting of a violation of Federal law?

  • Jerry N||

    I assume you are thinking of 18 USC 111: "(a)In General.—Whoever—
    (1)forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties;"

    Or maybe you have in mind the obstruction statute Donald Trump is sometimes accused of violating, 18 USC 1505: "Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law...."

    Neither one really works.

  • kramartini||

    The second one.

    Sanctuary laws threaten to legally sanction city or state officials who voluntarily report illegals to the Feds, thereby impeding administration of the immigration laws.

    No one can seriously believe that a city or state can lawfully retaliate against an official for reporting violations of Federal law, even when knowledge of the Federal violations was obtained in the course of the official's duties for the city or state.

  • James Pollock||

    "Sanctuary laws threaten to legally sanction city or state officials who voluntarily report illegals to the Feds, thereby impeding administration of the immigration laws."

    Assertion without any supporting evidence.

    Surely you agree that states may set the rules by which they determine who will and who will not be a state employee? (No, it isn't really that easy. But that's ultimately what it comes down to.)

  • kramartini||

    No employer can lawfully condition employment on suppression of evidence of illegal activity.

  • ReaderY||

    What about an employer who requires that employees direct inquiries from law enforcement or requests to inspect the premises without a search warrant to the management or the legal department? This is a very common requirement in companies today. Companies may also require employees to refuse requests to search absent a warrant.

    In your view, is this criminal obstruction of justice?

    And if it isn't - if we agree the Fourth Amendment empowers a private company to stand on its rights and insist that its its employees not permit inspections without a warrant - why can't a state stand on a different constitutional principle, the non-commandeering doctrine of the 10th Amendment, to reach the same result?

    I am trying to look at this fairly, based on a fair application of accepted constitutional principles, without worrying about the fact that the issue involved is highly controversial, political, moral and emotional. Both the City and the Administration are entitled to exercise the rights and powers the Constitution gives them, whether I think the end they are using them towards is right or wrong.

  • James Pollock||

    "No employer can lawfully condition employment on suppression of evidence of illegal activity."

    At will.

  • Vindex||

    When Arizona tried to enforce immigration law/secure the border during the Obama administration they were prohibited from doing so because that is the purview of the Federal govt. So now during the Trump administration when the Federal govt tries to enforce Federal law in Illinois they are prohibited from doing so. Progressives win either way.

  • bernard11||

    No. They are not so prohibited.

    The feds can enforce away, but can't make the states cooperate.

  • James Pollock||

    "So now during the Trump administration when the Federal govt tries to enforce Federal law in Illinois"

    The federal government can enforce the federal law using federal agents.
    When they try to do it using state agents, it fails constitutional muster.

  • Bored Lawyer||

    The question, though, is what happens if Congress explicitly conditioned certain funds on compliance with federal law, such as 8 USC 1373. I don't think NCAA v. Murphy answers that. And I have a hard time seeing how that is "comandeering." You want federal money. you have to comply. If not, not.

  • bernard11||

    Do you see any limit on Congress' power to condition grants on compliance with some law?

    Suppose they passed a law saying that no state could receive emergency aid in case of a natural disaster unless it put the state police under the command of DOJ, to help enforce immigration laws. OK?

  • Bored Lawyer||

    Is it constitutional? Yes. Politically palatable, probably not.

    The Tenth Amendment deals with delegation of powers:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Nothing forces a state to take federal money. I don't see how putting conditions on federal money impinges on State power. State's have a choice -- take the money or not.

    That's the thing about freedom. Freedom means you get to make a choice -- not that you are free of the consequences of your choice. The First Amendment protects the right to spout racial hatred. It does not insulate the speaker from the social shunning that results.

  • Sarcastr0||

    I'm no small government conservative, but I don't think everything is waiveable upon condition of federal funds because Freedom.

  • M.L.||

    I don't think Bernard's example on immigration and disaster relief would be constitutional, because the condition has to be related to the purpose of the spending.

  • M.L.||

    Yes, Congress' funding conditions cannot be "coercive," and as I recall the conditions have to be related to the purpose of the grants, and so on. But there's absolutely no argument that the conditions here would surpass those limits.

    Rather, on the second and third conditions, Congress never authorized them. The executive can't make the conditions.

    On the first condition, Congress did authorize it. And it's not coercive. But the court is looking beyond the immediate facts and circumstances to note that Sec 1373 violates the "anti-commandeering" doctrine by itself. But anti-commandeering has nothing to do with spending conditions. It has to do with blanket commands from Congress.

  • Brett Bellmore||

    "Rather, on the second and third conditions, Congress never authorized them. The executive can't make the conditions."

    OTOH, where Congress sets up a program and appropriates money far short of what would be needed to make the grants to everyone who qualifies under Congress' conditions, isn't the executive unavoidably going to be setting some additional conditions, if only "wins a coin flip"?

  • M.L.||

    I suppose so. I wouldn't be surprised if agencies routinely make decisions or impose criteria that could be seen as "conditions" and this is merely a case of having special rules and double standards for Trump and particularly anything that goes against open borders lunacy.

  • James Pollock||

    " this is merely a case of having special rules and double standards for Trump"

    Sure. Deep State. sad.

    "particularly anything that goes against open borders lunacy."

    In actual fact, we've known for a couple of decades that the number of persons authorized to hold deportation hearings is grossly inadequate to handle the number of illegal immigrants already present in the country and the number of new arrivals. Yet, despite knowing this, Congress has not chosen to increase their number. In fact, the R's explicitly declined to even consider the possibility when Obama asked for authority to increase the number of deportation hearings.

  • bernard11||

    I thought you hated the idea of the executive exercising that sort of discretion.

    Not when it's used to punish your enemies, I guess.

    Anyway, I would think that the criteria used to allocate the money have to bear some relationship to the purpose of the appropriation. Using the disaster relief example, you might prioritize on the basis of how hard various areas were hit.

  • bernard11||

    On the first condition, Congress did authorize it.

    Does that mean the Administration has a blank check with respect to enforcement methods? I don't think so.

    The authorization did not, AFAIK, say the DOJ could withhold grants to those who do not do as the condition states.

    But there's absolutely no argument that the conditions here would surpass those limits.

    Why not?

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