The Volokh Conspiracy | Opinion
November 26, 2016 at 11:05 AM
President-elect Donald Trump has repeatedly promised to engage in large-scale deportation of undocumented immigrants. In order to accomplish that goal, he is likely to need the cooperation of state and local governments, as federal law enforcement personnel are extremely limited. But numerous cities have "sanctuary" policies under which they are committed to refusing cooperation with most federal deportation efforts. They include New York, Los Angeles, Chicago, Seattle, and other cities with large immigrant populations. Sanctuary cities refuse to facilitate deportation both because city leaders believe it to be harmful and unjust, and because local law enforcement officials have concluded that it poisons community relations and undermines efforts to combat violent crime. They also recognize that mass deportation would have severe economic costs.
Under the Constitution, state and local governments have every right to refuse to help enforce federal law. In cases like Printz v. United States (1997) and New York v. United States (1992), the Supreme Court has ruled that the Tenth Amendment forbids federal "commandeering" of state governments to help enforce federal law. Most of the support for this anti-commandeering principle came from conservative justices such as the late Antonin Scalia, who wrote the majority opinion in Printz.
Trump has said that he intends to break the resistance of sanctuary cities by cutting off all of their federal funding. The cities might continue resisting even if they do lose some federal funds. But Trump's threat is not as formidable as it might seem.
Few if any federal grants to state and local governments are conditioned on cooperation with federal deportation efforts. The Supreme Court has long ruled that conditions on federal grants to state and local governments are not enforceable unless they are "unambiguously" stated in the text of the law "so that the States can knowingly decide whether or not to accept those funds." In ambiguous cases, courts must assume that state and local governments are not required to meet the condition in question. In sum, the Trump administration can't cut off any federal grants to sanctuary cities unless it can show that those grants were clearly conditioned on cooperation with federal deportation policies.
The looming fight over sanctuary cities is an example of how federalism and constitutional limitations on federal power can sometimes protect vulnerable minorities – in this case undocumented immigrants. States and localities have a reputation for being enemies of minority rights, while the federal government is seen as their protector. That has often been true historically. But sometimes the situation is reversed – a pattern that has become more common in recent years.
Many deportation advocates claim it is essential to enforce the law against all violators. But the vast majority of Americans have violated the law at some point in their lives, and few truly believe that all lawbreaking should be punished, regardless of the nature of the law in question or the reason for the violation. And few have more defensible reasons for violating law than undocumented migrants whose only other option is a lifetime of Third World poverty and oppression. In any event, even if there is an obligation to enforce a particular law, it does not follow that the duty falls on state and local governments.
At this point, it is not yet clear how far Trump intends to push his deportation agenda. Election exit polls suggest that mass deportation is not a popular policy, with 70% of the public believing that undocumented migrants working in the US should be offered permanent residency, and only 25% indicating they should be deported. The spectacle of the federal government trying to deport large numbers of people in the face of local resistance is unlikely to make good PR for the Trump administration. Perhaps that will lead them to scale back their ambitions.
Should Trump choose to pursue a policy of mass deportation regardless of the potential downsides, sanctuary cities can refuse to cooperate with it. And they will have the Constitution on their side.
UPDATE: It is worth noting that if Congress were to pass a law stripping sanctuary cities of all their federal funding unless they help facilitate federal deportation efforts, it would be unconstitutional under the Supreme Court's decision striking down the Obamacare Medicaid expansion in NFIB v. Sebelius (2012), which forbids funding conditions so coercive that they amount to a "gun to the head" of a state or local government. While the exact limits of this principle are debatable, denying a state all federal grants for the purpose of compelling cooperation with federal deportation policy surely qualifies, if anything does. At the very least, that would be true for local governments that depend on federal funds for a substantial proportion of their budget.