'Making Federalism Great Again'—My Forthcoming Texas Law Review Article on the Litigation Generated by Trump's Assault on Sanctuary Cities

My newly posted article explains how the administration's efforts have had the unintended effect of strengthening judicial protection for state autonomy.

My forthcoming Texas Law Review article, "Making Federalism Great Again: How the Trump Administration's Attack on Sanctuary Cities Unintentionally Strengthened Judicial Protection for State Autonomy," is now available for download on SSRN. Here is the abstract:

"Sanctuary cities" - jurisdictions that refuse to assist federal government attempts to deport undocumented immigrants - have become a major focus of political conflict over immigration policy. The Trump administration's efforts to punish sanctuary jurisdictions have led to multiple legal battles over constitutional federalism.

The administration's crackdown on sanctuary jurisdictions has helped make federalism great again. It achieved this unintended outcome by generating a series of court decisions protecting state and local governments against federal coercion, and by leading many on the political left to take a more favorable view of judicial enforcement of constitutional limits on federal power.

This is the first academic article to attempt a comprehensive evaluation of the federalism issues at stake in the Trump-era litigation on sanctuary cities. The article assesses the three main sets of sanctuary cases that have arisen during the Trump administration: legal challenges to Trump's January 2017 executive order targeting sanctuary cities, challenges to the Justice Department's July 2017 policy of conditioning federal law enforcement grants on state and local government cooperation with efforts to deport undocumented immigrants, and the administration's lawsuit against California's "sanctuary state" law. So far, at least, all three have led to notable victories for advocates of constitutional limits on federal power.

The sanctuary litigation has also produced a noteworthy reversal of the usual ideological valence of judicial enforcement of federalism, with progressive "blue" jurisdictions relying on legal doctrines traditionally associated with the political right. Whether this helps trigger a more lasting shift in attitudes towards federalism remains to be seen.

New sanctuary city decisions continue to come down so quickly that this draft does not include the two most recent decisions, one of which was issued only last week. But I plan to incorporate them - and any subsequent rulings - in the final version of the article, which will be published later this year.

I summarized the big-picture issues at stake in the sanctuary cases in this op ed for The Hill, published last year.

Comments

[ME2R]

No need to read it. Let me summarize everyone of Somin's posts. Orange Man bad (whatever actions he takes are illegal/immoral even if a prior President did same or worse), open borders wonderful, American taxpayers owe the world total support (food, housing, medical, security). In Somin's world Americans would be slaves - we would have no rights to our country, our property, our labor.

[regexp]

And your entire comment can be summarized as:

DERP

[Last of the Shitlords]

No, his post is spot on. You're just a piece of shit who is too stupid to understand the obvious.

[Alpheus W Drinkwater]

"Editor's Note: We invite comments and request that they be civil and on-topic."

[JesseAz]

Why did you post this on the second uncivil comment and not the first?

[Last of the Shitlords]

I wondered the same thing.

[Alpheus W Drinkwater]

Because there is a difference between calling a post stupid and referring to the poster as a piece of shit. A critical difference, I would say.

[Sarcastr0]

FWIW 'Orange Man bad' is a lame-ass meme that's basically warmed over objectivism.

'You can't actually believe what you say - I'll bet you're not sentient' is definitely a normal reaction.

[JesseAz]

You really do say stupid shit.

[Rev. Arthur L. Kirkland]

Law professor goes again the Conspiratorial grain by posting libertarian content, in this case with respect to immigration.

Disaffected right-wingers and bigoted malcontents object.

A spirited meeting of Libertarians For Authoritarian, Bigoted, Cruel Immigration Policies and Practices develops.

This occurs at a blog ostensibly designed to make movement conservatism more palatable beyond the right-wing fringe and, in particular, among the liberal-libertarian-academic mainstream.

At least this is great entertainment.

[ActualRightWingPatriot]

These people want to forfeit our sovereignty to third worlders so they can feel better about themselves.

[Sarcastr0]

At least you acknowledge they're people.

When ActRight has been outflanked...

[Smooth Like a Rhapsody]

We need to declare a moratorium already on "Making X Great Again" catchphrases and titles.

[bernard11]

I agree.

Tell it to Trump and his followers. Lose the hats.

[Eddy]

Hat speech isn't free speech.

[Kevin Smith]

Make Free Speech Great Again

[bernard11]

I thought Trump gave away the hats. You have to pay?

[MKE]

Interesting point of view, and completely valid, if only the President's policies weren't completely and unambiguously authorized by the statutes and constitution. But, like the judicial farce that took place in the travel case(s), correction will have to wait for S. Ct. intervention.

[Last of the Shitlords]

Trump is going easy on them. All these subversives should rightly be perp walked out by the feds and locked up.

[Armchair Lawyer]

So, it's an interesting dichotomy. On one end, "nullification" is illegal. The states cannot "nullify" federal law because they deem it unacceptable. On the other end, the federal government cannot conscript state and local authorities towards their own purposes. And while federalism is admirable, in the area of immigration law, given open borders between the states, we can't really have one state with one set of immigration laws, and a second state with a different set.

What sanctuary cities do, is they take a long standing cooperation between state and federal law enforcement, in regards to immigration, and they turn it on its head, eliminating that cooperation by state and/or local law. It doesn't "quite" nullify federal law. But it comes pretty close. Sometimes, there are areas where state and local law enforcement and political appointees work actively AGAINST enforcement of federal law.

The best parallels here are the Nullification Crisis of 1832. If the sanctuary cities refuse to be reasonable in the application of immigration law, then additional federal resources are needed to ensure immigration law is followed, in the absence of reasonable local enforcement. Preferably, an accomidation would be made. In the absence of such, unfortunately enforced federal enforcement in those areas which don't help with local enforcement is needed.

[AmosArch]

Yep, this isn't just sitting around. Organizations like Californian authorities actively hide and shuffle around criminal illegals to thwart federal agents yet this is somehow okay and one clerk not issuing gay marriage licenses is not in the land of Somin federalism.

[ActualRightWingPatriot]

That's because killing babies and gay buttsex are the holy grail to leftists.

[Alpheus W Drinkwater]

Don't forget turning over our country to third worlders, and brainwashing everyone into accepting our leftist ideology. "Our main weapon is fear...fear and surprise. Our two main weapons are..."

[JesseAz]

They also want everyone to participate in the forced make believe that women can be men and vice versa.

[Alpheus W Drinkwater]

"Amongst our weaponry. are such diverse elements as..."

[Mike Hansberry]

Adding to armchair's comment.

While the fed gov cannot commandeer the states to do its bidding, the sanctuary states are walking a fine line between doing nothing and actively aiding and abetting those here illegally by granting drivers licenses and other legal benefits.

So while there ought be no argument on the commandeering issue, perhaps some focus on what the sanctuary states are actually doing (as opposed to refusal to act) would provide reason enough for the withholding of funds.

[Armchair Lawyer]

Such withholding of funds, while being the "softer" option, is ultimately likely illegal. It would be a better option, but unless written into specific laws, it probably won't work.

What is legal is direct federal enforcement of the laws. At a lessor level, that would imply increased sweeps from ICE in those states which actively don't cooperate. At a greater level, that may imply federalization of the National Guard in order to enforce federal law.

It is undesirable. However, if the wake of active resistance by state and local authorities, it may be the only legal option.

[Sarcastr0]

You keep advocating for the national guard being mobilized.

[Last of the Shitlords]

Good idea. Some cities in CA might require martial law soon.

[wreckinball]

I wonder how long the federal gov't would tolerate a state that declares itself a sanctuary from gay marriage.

About a second. So lets take it easy on the states rights arguments when it comes to immigration enforcement , a clear federal duty.

Marriage not so clear.

[bernard11]

Every state is a sanctuary from gay marriage. Not a single state requires you to enter into one.

[Rev. Arthur L. Kirkland]

I have concluded that some of these yahoos are dumb enough to believe it will become compulsory.

[M.L.]

The funding conditions would not be illegal at all, not even close -- but they do need to be enacted by Congress, not the President.

[Brett Bellmore]

As far as I can tell, they were, with that clause about complying with all applicable federal laws.

[Cthulunotmyfriend]

I'm all for State's rights. Like declaring Sanctuary cities. And that goes for resisting federal gun control if that state sees fit. Hell, in Alaska, those people literally need to be armed for bear.
Or legalizing weed. Or right to work. Or no national rent control. Or gay marriage. Or, he'll I don't know, but you get the point... I thought we were a libertarian platform. Though I agree that some of us can be overly partisan, like ME2R points out. I also do not like The Orange Hate cult leader, but that doesn't mean I oppose all the policies being implemented by our currently mostly Republican administration. I just want them to stay out of my business.

[wreckinball]

"I thought we were a libertarian platform."

In name only. Only a few and not this guy. Stossel is the only reliable libertarian on the site. The rest are just lefties disguised as libertarians

[Sarcastr0]

If one wants to see the actual valence of a libertarian, check how they brand all those who fail their purity test.

Lots on here (even a few actual Conspirators) are maybe not libertarian and yet distinctly not on the left, wreckinball.

[wreckinball]

Its just a test whether you are for liberty, even for those who say or do things you don't like. They are for less government lower taxes and regulations. The libertarians here are just for legalizing drugs and no borders. Once you venture beyond that they are basically leftists.

But we can play the game.

[Sarcastr0]

Everything not libertarian is leftist?

[Krayt]

Hell, in Alaska, those people literally need to be armed for bear.

You haven't lived until you've gone fishing in the deep nowheres of Alaska with a nun and a priest, both of whom were packin' heat.

[Lester224]

This site is a magnet for social conservatives pretending to be libertarian.

[ActualRightWingPatriot]

Because we recognize that liberty is ordered freedom. As long as you believe in giving "marriage" licenses to sexual deviants, you are ultimately supporting an end to liberty.

[LiborCon]

"Conservatives who may cheer the Trump administration's efforts to pressure sanctuary cities would not be happy if a liberal Democratic president adopts similar tactics to force states and localities to adopt progressive policies on gun control?"

When one side cheers an abuse of power to further their own goals, they're short sighted in failing to anticipate how that abuse (now an expansion) will be a potent weapon against them in the future.

[Last of the Shitlords]

One thing is in violation of constitutional federal law. The other would be a blatant violation of 2A.

[LiborCon]

Thank God you made that distinction. When you violate the law, it's important to know exactly how you're violating it. So you can determine how much you're not going to give a shit about it.

[wreckinball]

Well 2A does state congress shall make no law so criticizing those that now are making such laws is not really the same. Cut your losses on this one.

[ActualRightWingPatriot]

Leftists don't care about "precedent." They'll stop at nothing to further their sick ideas anyway.

[nystateofmind]

Gun Control has 2nd Amendment issues. A better comparison would be declaring climate change a national emergency and forcing states and localities to adopt zero carbon emission policies.

[Red Rocks White Privilege]

That's assuming gun control laws will even be respected at the state level. Rural, Democrat-voting counties in New Mexico are basically telling the governor and Democrat reps in the state house to fuck off with their gun control proposals.

When you pander exclusively to the sensibilities of soft urban liberals, don't be surprised when people who aren't that particular demographic decide that you don't actually represent them and subsequently refuse to respect your authority.

[Brett Bellmore]

This is not making federalism great again, because it is limited to policies the left approves of, and the duration of Trump's Presidency.

I pretty much guarantee that, if any state attempts to be a anti-sanctuary for illegal aliens, the tune will change instantly, and we'll be talking about nullification, and the supremacy clause, and how states aren't allowed to have their own immigration policies.

In the end it's just more TrumpLaw, and nothing more.

[Krayt]

It's well known the sides flip on this issue and the joys of federal enforced uniformity vs. 50 states experimenting.

[wreckinball]

Many would be surprised to note that the CRA is written race and gender neutral. Its only enforced one way however.

So it only addresses cases where blacks are discriminated against not the reverse.

Look around society. Black on white discrimination much more prevalent. And its not dog whistles.It just normalized.

Somehow Affirmative Action is still practiced. Also, note that federal contracts provide preference to women and minority owned businesses.

How nice if you are white and male and own a businesses. When we bid on a recent job we couldn't find the special "white male privilege" rates for the goods and services we needed to do the job.

[wreckinball]

Great, pretty soon you can be writing the same article in regards to 2A sanctuary cities. Because we can pick and choose right?

I really want to move to an IRS sanctuary city.

[jubulent]

The left loves to engage in these "heads I win, tails you lose" arguments. The heads advocates get excited when the coin comes up heads. For the left justification to uphold or overturn a decision is far less important than the result.

The left doesn't care about federalism - or any other legal theory - unless it helps them win the case. Today they are Federalists tomorrow they will be anti-Federalists.

If you really believe the left is turning towards Federalism, particularly in light of current Presidential candidates, I have a bridge you might be interested in.

[wreckinball]

Agree, they don't care about process at all. Any means necessary. And unlike the typical "Reason" contention that everything is "both sides" this really is one side.

The election is a prime example:

Step 1 lobby electors to be unfaithful.
Step 2 discuss using the 25th amendment in appropriately
Step 3 investigate a theory of Russian interference that was made up by the DNC
Step 4 investigate everyone Trump has ever known in an attempt to flip someone on him

This is not Nixon and Watergate as some are fond to compare to. There was an actual crime there. Here there is just a guy they want to get out of office by any means possible.

[Krayt]

This may not be the right thread for this, but there was a disturbing thing this week for lovers of the idea it is wrong to use the power of government to hurt your political opponents.

Congress announced investigation into everything of Trump. Maybe they can find something to tag him with.

It was clear from the joy as the guy announced it that they had abandoned this principle and any need to tie it to probable criminality and warrants rather than a need to git 'im!

There was another second thing but it slips my mind at the moment. Both went flying by in NPR news.

[jubulent]

There appears to have been actual crimes committed in the 2006 election, but it was not the crime (or the perpetrator) the media and Democrats want to talk about.

[Sarcastr0]

'don't investigate without already having a crime!' 'Lock Her up!' all in one post.

[Brett Bellmore]

Well, in her case we DO already have the crime: A criminal FOIA evasion scheme. That was the original "break in" here, discovered when somebody tried to FOIA her emails, and found that there weren't any archived.

You can legally use a private email, even your own server, for non-secure governmental purposes, but only if you configure it to back up to the government system so that all the emails are retained.

Hillary's system, of course, was not set up to do that. In fact, not doing it was kind of the point of having her own server. It's certainly not the most convenient thing in the world to do.

Several other crimes were uncovered in the process of investigating this, such as using it for classified emails, and destruction of evidence under a preservation order. But that was the initial crime, and it's been known to have happened for several years.

[Sarcastr0]

Nope, still amusingly self-defeating to argue that the investigation of Trump is bad because Trump is not guilty, but of Hillary would be good because Hillary is guilty.

YOU have a crime in the Court of Brett. A set of facts and legal arguments we've gone over in the past, and requires a lot of speculation of how it musta been and how the law 'clearly' operates.

[jubulent]

Through the course of the various investigations we have learned that Hillary Clinton, or her campaign, conspired to violate FOIA, failed to properly handle classified material, conspired with foreign actors to influence the election, and knowingly presented false information as true to the FBI for the purposes of prompting law enforcement action.

We have also learned that whoever applied for the original FISA warrant against the Trump campaign materially misrepresented information in a FISA warrant, illegally surveilled at least one American citizen's phone records, illegally leaked surveillance material to the press, and engaged in a conspiracy to cover up such activities.

We have also learned that a member of the Trump transition team failed to file a couple of documents 15 years ago stating that he was working on behalf of a foreign entity.

One of these crimes has been prosecuted.

[awildseaking]

Restricting the federal government's ability to enforce immigration is not a victory for the Constitution or federal law. It's just procedural horseshit. States are not countries with independent militaries and immigration policies.

[Ohio Farmer]

Wake me up when Somin argues for overturning U.S. v. Arizona in the name of federalism.

[Brett Bellmore]

Exactly.

[M.L.]

+1

[Alpheus W Drinkwater]

Do you mean Arizona v US? Do you actually know Prof. Somin's position on this decision? He must support it, since he didn't argue against it in this post, right? You know what, never mind, go back to sleep.

[M.L.]

The Trump administration has put in a good effort to address the sanctuary city problem. Ultimately, only Congress has the power to do anything very significant about it, and they could easily end sanctuary cities if they wanted to, through funding conditions.

Some of the rulings against the Trump administration on this are only defensible under an extremely stringent, originalist view of state's rights, federalism and executive power. I'm happy about these rulings, even though I disagree with sanctuary city policy, and even though I recognize that the rules would never be and were never applied equally to liberal policies of say the Obama administration.

The rulings are extraordinary, first because any offenses were so mild and routine, the kind of actions that woudn't even register with anyone under Obama, as his critics like our D. Bernstein were focused on exponentially more egregious overreaches.

Second, the judges overreached, not Trump. Congress authorized the Sec 1373 condition -- even the Obama administration concluded that this was the case in 2016. The courts adopted some truly embarrassing reasoning on this.

At the end of the day, Trump is playing a winning hand regardless. Polls show that over 80% of Americans disagree with sanctuary city policies. I mean - What kind of absolute fool thinks that violent felons who are illegal immigrants should be released onto our streets, rather than deported? Only the extremely dangerous open borders left, that's who.

[TxJack 112]

While I disagreed with the decisions, I accept the premise of more state autonomy. My only question is how will the left react when the issue not immigration but gun control laws and states refuse to enforce them? I seriously doubt the left will still have a deep love for Federalism. The left only believes in states rights when it is politically beneficial.