The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday, Attorney General William Barr announced that the Trump administration is filing new lawsuits challenging sanctuary policies in New Jersey and King County, Washington (which includes the City of Seattle). For the most part, these lawsuits are based on some of the same flawed constitutional reasoning that has caused the administration to lose a long series of other cases against sanctuary cities and states. The administration's position is premised on the idea that the federal government can force states and localities to assist in enforcing federal laws, even when the former would prefer not to do so. This runs directly into the Supreme Court's anti-commandeering precedents holding that the Tenth Amendment forbids such federal coercion of states. If the federal government wants to enforce federal law against private parties, it must either use its own resources to do so, or secure the voluntary cooperation of the states.
The lawsuit against New Jersey targets a state policy limiting the range of information that state and local law enforcement agencies are permitted to provide to federal immigration enforcement officials. The administration argues that this violates various federal immigration laws that supposedly require states to turn over information about aliens potentially sought for deportation by federal authorities. Even if the laws in question do say that, that just means they themselves are themselves unconstitutional, because they commandeer state governments to help enforce federal law.
That is exactly what several federal courts have already concluded in previous sanctuary city cases in which the Trump administration tried to rely on 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."
Because of Section 1373's indirect nature, the issue of its constitutionality was once a close call. But in the wake of the Supreme Court's 2018 decision in Murphy v. NCAA, the issue became a fairly simple one, for reasons I summarized here. Since Murphy was decided, 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. I went over these cases in detail in my recent Texas Law Review article on Trump-era sanctuary city litigation. The same fate likely awaits the Trump administration's attempt to force New Jersey to do its bidding in this case.
Interestingly, the Justice Department's complaint against New Jersey, barely even attempts to rely on Section 1373, even though it is the federal statute most directly on point. That may be because so many court decisions have recently ruled that Section 1373 is unconstitutional. They instead cite various other federal laws, such as 8 USC Section 1226 and 8 USC Section 1231. The obvious flaw in this strategy is that neither of these laws actually imposes any information-sharing mandates on state and local governments, or even any other kinds of mandates. Both give states the option of helping federal deportation efforts, and even of asking for federal assistance in removing aliens the states themselves want to see gone. For example Section 1231 allows state officials to request the removal of nonviolent criminal aliens serving sentences in state custody if, among other things, they determine that "the removal is appropriate and in the best interest of the State." But the states are not required to make such requests, and nothing in Section 1231 requires them to turn over information to the feds if they do not want to.
At the very least, Sections 1226 and 1231 are ambiguous about whether they impose any information-sharing duties on states. And, where that is the case, courts will generally interpret statutes in ways that avoid constitutional problems. That means avoiding any theory that allows the federal government to coerce states into turning over information against their will. If courts find that 1226 and 1231 do somehow require information-sharing, they should consign these laws to the same fate as Section 1373 has lately undergone.
The federal argument also claims that New Jersey's information-sharing restrictions violate 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." The claim here is that New Jersey is "discriminating" against the federal government because it doesn't similarly restrict information-sharing with other federal and state law enforcement agencies. If adopted by the courts, this kind of argument would completely demolish the anti-commandeering principle. Any state refusal to help enforce any federal law can be described as "discrimination," so long as the state in question continues to cooperate with federal or other states' law enforcement efforts on other issues.
Moreover, as I explained here, the idea that there is "discrimination" here overlooks the ways in which federal immigration enforcement is fundamentally different from other government and private activities with which states might choose to cooperate. he concept of discrimination implies treating similarly situated entities differently. But there is no private-sector analogue to immigration enforcement because because no private entity has the legal right to deport people, forcibly separate families, and confine people in cages. Immigration enforcement is also fundamentally different from other federal or state law enforcement operations because of series of dubious double standards insulate it from most of the constitutional safeguards that protect suspects in virtually every other area of law.
The King County, Washington lawsuit is somewhat more complicated. It challenges the County's policy of refusing to let Immigration and Customs Enforcement use the municipal airport for flights that deport immigrants. There are some complexities here related to federal aviation law, which I will leave to those more expert on the subject than I am. But the commandeering and intergovernmental immunity issues are basically similar to those in the New Jersey case. Here too, the federal government is claiming the right to coerce state and local governments into helping enforce federal law, and also claiming that refusal to help qualifies as "discrimination" against the federal government. And these claims have all the same flaws as they did in other cases where the federal government has made them.
In October, the federal government asked the Supreme Court to take the California "sanctuary state" case, which raises much the same issue as the New Jersey case. The Trump administration lost on this issue in the lower courts (at the hands of both Republican and Democratic-appointed judges), and I doubt that the Supreme Court will overturn those rulings. But, obviously, if it does, that would have major implications for the New Jersey litigation and other similar cases.
If the administration somehow manages to win these cases, 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 many issues. Those on the right who now 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 the "Green New Deal." Particularly in our highly polarized era, Americans with a wide range of ideological commitments have good reason to support strong judicial enforcement of constitutional limits on federal power over state and local governments.