Trump's Unconstitutional Plan to Withhold all Federal Funding From Sanctuary Cities and States

The plan violates multiple constituitonal provisions and goes against Supreme Court precedent. If somehow allowed to stand, it would gravely imperil federalism and the separation of powers.

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Donald Trump recently announced he plans to withhold all federal funds to sanctuary jurisdictions which restrict assistance to federal immigration deportation efforts, beginning February 1:

President Donald Trump said Tuesday that starting Feb. 1 he will deny federal funding to any states that are home to local governments resisting his administration's immigration policies, expanding on previous threats to cut off resources to the so-called sanctuary cities themselves.

Such an action could have far-reaching impacts across the U.S., potentially even in places that aren't particularly friendly to noncitizens.

This plan is blatantly unconstitutional, violating both federalism and the separation of powers. Courts have repeatedly struck down similar Trump efforts during both his first term and the current one. See my analysis of recent court decisions on these issues here, here, and here. See also my Texas Law Review article surveying and assessing litigation arising from Trump's first-term attacks on sanctuary jurisdictions. There and in other writings, I also explain why immigration sanctuaries (and conservative gun sanctuaries) are beneficial, and help protect our constitutional system.

Courts have repeatedly ruled that Trump cannot withhold funds from sanctuary jurisdictions because Congress, not the president, determines federal spending and attached conditions, and because even congressionally authorized conditions are subject to constitutional constraints, including that they cannot be coercive, and that they must be related to the purposes of the grants.

Trump's most recent plan is even more blatantly unconstitutional than most of his previous efforts, because it appears to cover all federal grants to sanctuary jurisdictions, not just some subset of them. Thus, it would be an even bigger usurpation of congressional power, and even more obviously coercive and violative of the relatedness requirement. If Trump goes forward with it, I hope and expect courts will rule against him.

Conservatives and others who may be inclined to support Trump on this should ask whether they would want the next Democratic president to be able to use similar tactics to pressure red states into adopting left-wing policies on gun control, transgender rights, environmental policy, and any number of other issues. And, for those keeping score, I have repeatedly made similar points about the Biden Administration's (less extensive, but still unconstitutional) attempts to pressure conservative "gun sanctuary" jurisdictions (most recently here).

There are good reasons to cut a variety of federal grants to state and local governments, in order to reduce dependence and incentivize competition for "foot voters." But that cannot and should not be accomplished by executive usurpation of congressional power, and the use of grants to coerce states and localities into doing the president's bidding.

 

Comments

[ReaderY]

We haven’t yet reached the point where Trump will simply send in ICE to shoot judges who try to interfere with him. But we are moving in that direction at a faster pace than before. The pretense of legality and compliance is starting to crack.

[Dr. Ed 2]

Would it be a bad thing if you did?

[Roger S]

The sanctuary jurisdictions are the ones violating the law. Somin is trying to help lawbreakers in order to achieve his political goal of importing millions of undesirable foreigners.

[bobsnort]

Which law, exactly, do you think the sanctuary jurisdictions are violating?

Please keep in mind that no jurisdiction is legally obligated to cooperate with federal investigations.

[Roger S]

Even if that is true, the sanctuary cities are facilitating foreigners illegally being in the USA and evading federal authorities. Plus, places like Minnesota are stealing a lot of tax money to fund the foreigners.

[bobsnort]

1. It is true.
2. The states' decision to not cooperate with federal investigation does not justify violating the constitution by withholding state funds allocated by Congress.
3. No, Minnesota is not stealing money.
4. Even if Minnesota was stealing money, that does not justify violating the constitution by withholding state funds allocated by Congress.

I get the impression that you really don't care about the Constitution.

[Roger S]

I get the impression that you do not care about the USA. You and Somin want to destroy the USA by importing millions of crooks from Somalia and elsewhere. Trump is actually trying to do something to correct the situation.

[ReaderY]

To destroy the US constitution is to destroy the United States. I get the impression you would be willing to destroy the United States in order to save it.

Open immigration may be bad policy. But does not destroy the United States. This country had open immigration for roughly its first century and a half. Not only did it survive, it did fine. Saying having a policy you disagree with would destroy the United States is way-over-the-top hyperbole.

You would overthrow the US Constitution over a mere policy.

[Roger S]

Trump is not violating the Constitution. He has been careful to accept court resolutions of constitutional matters.

No, the USA did not have open immigration. There were many rules on who could become an immigrant. Only in the Biden administration were millions of illegals allowed to stay with impunity.

[thesafesurfer]

The anti-American judicial tyrants MAKE IT ILLEGAL TO STOP FRAUD.
Judges invalidate the sentences of individuals convicted of fraud as well. How much money are judges making from their part in this corrupt bargain? Judges make it as difficult as possible to deport illegal immigrants committing unrelenting fraud on American taxpayers, the illegal immigrants funnel funds to their judicial accomplices. The judges try to smuggle them out of courthouses under the nose of ICE.

We already know that universities and colleges are fleecing the tax payers for hundreds of billions of dollars in student loan fraud, research grant fraud, and a dozen other schemes.

[bobsnort]

I don't know why you're writing about fraud. This article has nothing to do with fraud. But since it interests you so much, I wonder why you think Trump pardoned convicted fraudsters Trevor Milton, Charles Scott, George Santos, Chengpeng Zhao, among others.

[Roger S]

Yes, the article is about Somin wanting to protect foreigners who are here illegally, violating federal rules, and defrauding taxpayers. He has grand theories about how it will somehow be better if the USA is flooding with fraudsters from Somalia and elsewhere.

[ReaderY]

The AI is spouting gibberish again. Somebody hit reset.

[Roger S]

As usual, Somin tries to find obscure legal justifications for replacing Americans with Third World parasites.

[ReaderY]

This “parasite” business sounds remarkably like the way Hitler and Company described Jews, doesn’t it?

What we really need to get rid of are unAmerican Nazi swine like yourself who who seek to destroy this country with their “parasite” and “replacement” garbage.

You aren’t an American. Don’t try to bullshit us that that you are. Your garbage has nothing to do with America. Stop trying to parasite on us and replace us. Stop projecting what you yourselves are trying to do to us onto whoever you think is weaker.

[Roger S]

Hitler. Nazi. Just keep saying those words when you have no argument.

[ReaderY]

And don’t let the door slam on your way out! Leaving this country and going home to where you belong would be the best thing you could possibly do for us.

[F.D. Wolf]

The dangerous, unhinged neo-Confederate rhetoric from Democrat officials in "sanctuary" jurisdictions, fully endorsed by Somin, has reached a fever pitch that makes the Dixiecrats of the 1950s and 1960s look reserved in comparison. The chief difference between the Confederate Democrats of 1860 and the neo-Confederate Democrats of today is that the Democrats of 1860 weren't simultaneously begging for federal dollars while they were denouncing federal law. (1830, 1860, 1960, or 2026, it's always the same political party ripping the nation apart).

Firstly, I will note that the last legal word on this topic, decided after the publication of Somin's Texas Law Review article, was New York v. Department of Justice, 951 F.3d 84 (2d. Cir. 2020), which upheld the Justice Department's ability to restrict grants to "sanctuary" jurisdictions, creating a circuit split on the issue. The Supreme Court did not get a chance to resolve this split because soon thereafter, Biden became President and resumed handing out grant money like candy again.

I suspect much of the Bluesky commentariat here has no idea how the federal grant process (or much of anything else) actually works. It is foolish to denounce any restrictions on grants as "blatantly unconstitutional" before seeing any actual details of those restrictions, because different grant programs are governed by different statutes which contain different language. Essentially, Congress says something like, "Here's $50 billion in grant money for state and local governments to [fight terrorism, interdict drugs, or whatever]." Governments then apply for these grants, spelling out exactly how much money they want, exactly how they plan to spend it, etc. There will be periodic accounting and re-certification requirements.

But the main thrust is this. Who administers the grant programs? Who makes the decisions to approve or reject applications? Who determines whether the grantees are meeting their requirements, laid out in statute and the applications themselves? The Executive does. The President does.

This time the issue will reach the Supreme Court, and while every grant program has its own statutory particularities, I am fairly confident the Supreme Court will uphold the general principal that the Executive is in charge of the grant programs and has substantial (though not unlimited) discretion in how they are administered.