The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In April, the US Court of Appeals for the Ninth Circuit ruled against the Trump administration on most of the issues involved in its lawsuit challenging California's "sanctuary state" law, which restricts state and private cooperation with federal efforts to deport undocumented immigrants. The ruling was one of a long series of defeats in court for the administration's efforts to crack down on sanctuary jurisdictions and force them to help the federal government against their will. Recently, the Trump administration asked the Supreme Court to take the case and reverse key parts of the Ninth Circuit ruling.
For reasons I summarized here and here, the California case raises more difficult issues than the other sanctuary cases do, though I still believe California ultimately deserves to prevail on all the major issues at stake. But the administration's cert petition focuses on Senate Bill 54, the least vulnerable of California's three "sanctuary state" laws. That law restricts state and local officials from sharing information about immigrants within the state, with federal immigration-enforcement agencies.
The constitutionality of SB 54 may have been a closer issue back when the administration first filed its lawsuit against California in March 2018. But California's position was greatly strengthened by the Supreme Court's May 2018 ruling in Murphy v. NCAA.
Longstanding Supreme Court Tenth Amendment precedents forbid federal "commandeering" of state and local government officials by compelling them to help enforce federal law. But the Trump administration argues that SB 54 is preempted by 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." Before Murphy, it was possible to argue that Section 1373 doesn't violate the anti-commandeering rule, because it does not directly order states to cooperate with the federal government, but "merely" bars them from ordering their employees not to cooperate. As I see it, that distinction was always ultimately specious (see here and here). But the issue was not a simple one, and lower courts were divided on the subject. Murphy, however, decisively undercut the standard rationale for Section 1373. I explained why in an article published soon after the Supreme Court issued its decision:
Murphy struck down a provision of the federal Professional and Amateur Sports Protection Act (PASPA), which mandates that states may not "sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting. A coalition of sports leagues, including the National Collegiate Athletic Association, the National Basketball Association, the National Football League, and Major League Baseball, filed a lawsuit challenging two New Jersey state laws. The sports leagues argued New Jersey's 2012 and 2014 laws, which partially repealed a prior prohibition on sports gambling within the state, qualified as "authorization" of sports betting and thus violated PASPA….
Like PASPA, Section 1373 is an attempt to circumvent the anti-commandeering rule's strictures against federal mandates coercing states into helping to enforce federal law or enact a state law. Instead of directly ordering states to ban sports gambling, PASPA forbids states from repealing a prohibition of it in ways that "authorize" the activity under state law. But the Supreme Court saw through this subterfuge and struck down PASPA, because it violated the anti-commandeering rule by putting state legislatures "under the direct control of Congress" and issuing "direct orders to state legislatures."
Section 1373 suffers from much the same flaw. Instead of directly ordering states and localities to divulge information to federal officials, it "merely" bars them from issuing orders to their subordinates forbidding such disclosure. But the practical effect is that states must comply with federal dictates.
Like PASPA, Section 1373 is an "order" to state and local officials; it undermines states' control over their governmental machinery and partially transfers it to the federal government. In this case, federal law prevents states and localities from directing their law enforcement officials to pursue state and local priorities rather than assist federal immigration enforcers. As legal scholar Garrett Epps puts it, "the federal government can't order the states to dance to its tune; according to Murphy, it can't tell the states they may not decide not to dance to the federal tune either. No double-negative tricks now!" Murphy undercuts Section 1373 in much the same way as it doomed PASPA.
Since Murphy came down, multiple lower courts have uniformly either ruled that Section 1373 is unconstitutional, or interpreted it very narrowly to avoid causing constitutional problems by interfering with state autonomy, as the lower court rulings in the California case did.
The administration claims that the anti-commandeering rule does not apply to Section 1373 because it only pressures states to share information. But there is no information-sharing exception to the Tenth Amendment, and creating one would set a dangerous precedent.
The administration also argues that SB 54 is preempted by other federal immigration laws, and that it violates the doctrine of "intergovernmental immunity," which bars state laws that "regulate the United States directly or discriminate against the Federal Government or those with whom it deals." But if any other federal law bars SB 54, it too would violate the anti-commandeering principle, in much the same way as Section 1373 does. And intergovernmental immunity only applies in cases of discrimination, where state law treats the federal government and its agents worse than other similarly situated parties. SB 54 and other sanctuary laws do not discriminate against the federal government for the simple reason that there is no private-sector analogue to federal immigration enforcement:
The concept of discrimination implies treating similarly situated entities differently. For example, a state government discriminates against entities that deal with the federal government if it imposes special restrictions on firms that rent cars to federal agencies that don't apply to those that rent the same kinds of vehicles to private parties. But there is no true private counterpart to people who assist federal immigration raids, because no private entity has the legal right to deport people, forcibly separate families, and confine people in cages. These are the kinds of things that occur when federal officials apprehend suspected undocumented immigrants…
If—as the administration argues—the doctrine of intergovernmental immunity prevents states from refusing to cooperate with federal immigration-enforcement officials because they still sometimes cooperate with federal officials on other—very different—issues, and with officials from other states, that would undermine the entire anti-commandeering principle. States would be unable to withhold assistance from the federal government on any law-enforcement issue so long as they cooperated with them (or with other states) on anything else.
While some important constitutional issues split judges along ideological lines, the sanctuary jurisdiction cases—so far—have not been among them. So far, the administration has lost nearly all of these cases, sustaining defeats at the hands of both Republican and Democratic-appointed judges. The one noteworthy exception was a case with very unusual facts. Despite the liberal reputation of the Ninth Circuit, both Judge Milan Smith, author of the Ninth Circuit ruling, and the author of the district court opinion it largely affirmed, are conservative GOP appointees. These and other conservative judges ruled against the administration in sanctuary cases because doing so was required by federalism precedents long championed by conservative jurists, including Supreme Court justices such as Antonin Scalia and Clarence Thomas. Ironically, those precedents are now being used by "blue" jurisdictions against a GOP administration, despite the fact that many liberals viewed them with suspicion when the cases in question were first decided. The situation is partly a case of opportunistic "fair weather federalism," but may also reflect a genuine shift in left-of-center attitudes towards constitutional limits on federal power.
Hopefully, the Supreme Court will reinforce this growing judicial consensus by either rejecting the administration's petition, or taking the case and upholding the Ninth Circuit. If the administration manages to prevail, it would set a dangerous precedent that goes far beyond immigration policy, creating a road map for federal coercion of states and local governments that can be used on a wide range of other issues. Conservatives who may cheer Trump's efforts to coerce sanctuary cities may not be so happy when future Democratic presidents use similar tactics on issues such as gun control, education, or environmental enforcement. Particularly in our highly polarized era, Americans with a wide range of ideological commitments have good reason to support rigorous enforcement of constitutional federalism.
NOTE: For those interested, I have discussed the issues at stake in the "sanctuary state" case and other Trump-era sanctuary jurisdiction litigation in much greater detail in my recent Texas Law Review article on this subject.