On Thursday, about eight hours after Republicans roundly denounced Trump for reducing a media personality to a facelift, House Republicans tried to fix that legal wrinkle for the president.
They voted to make clear his administration has the power to withhold certain law enforcement grants as punishment for sanctuary cities protecting certain people who are in the country illegally.
“It's a simple principle that if you're going to receive taxpayer dollars from the federal government to keep people safe that you've got to follow the law and keep them safe,” said Rep. Bob Goodlatte (R-Va.), chairman of the House's judiciary committee.
The House passed it almost entirely along party lines. If this bill passes the Republican Senate, Congress will have given the president a legal tool no president has had before to try to force sanctuary cities to hand over those in the country illegally.
Notice we still said “to try to.” Beyond withholding money and hoping the cities cave, the president doesn't have much leverage to force these communities to hand over people in the country illegally. And a federal court just ruled that method unconstitutional (which is why Congress is stepping in).
Sanctuary cities have become the most high-profile method of resistance to the Trump administration. Dozens of cities and counties have said they won't oblige every federal government request to turn over immigrants in the country illegally (though almost all make exceptions for those charged with violent crimes).
Most of these communities are run by Democrats, fully aware that cracking down on those in the country illegally is central to Trump's identity as a politician. California is even considering becoming the first sanctuary state, which would be a giant middle finger to the Trump administration.
The Justice Department recently tried to withhold an estimated $1 billion worth of law enforcement grants from two sanctuary communities in California. But a U.S. District Court judge ruled in April that the federal government cannot legally withhold those federal grants without writing into the grant that this can be taken away for being a sanctuary city.
Constitutional scholars like Ilya Somin at George Mason University have long argued that the Trump administration would lose a legal battle like this. You can't cut off funding for sanctuary cities willy-nilly, he said, because the Supreme Court has ruled you can't slap conditions on federal grants without explicitly telling states about the conditions.
The bill the House of Representatives passed Thursday attempts to specify that when it comes to these specific grants, the president can withhold them from a city specifically because it's a sanctuary city. Basically, the bill says: Consider yourself warned, sanctuary cities. This could cost you financially.
But even if this bill passes the Republican Senate (a very big “if” given Senate Democrats can filibuster it) and gets signed by Trump, he still legally may not be in the clear to pressure sanctuary cities, Somin said in an interview Thursday.
The Supreme Court has made clear that federal grants have to very clear which grants can be withheld, and Somin thinks opponents could argue the wording in the bill is too vague.
Some anti-illegal-immigration experts think if this doesn't work, the Trump administration could just take these cities to court. Jessica Vaughan, the director of policy studies at the conservative-leaning Center for Immigration Studies, said the Trump administration could ask a federal judge for an injunction demanding these sanctuary cities hand over any immigrants the federal government wants to deport. They could argue it's technically against the law to shield some immigrants from deportation.
That's never been tried before, though, and it risks bringing the courts into yet another legal battle the Trump administration might lose — and one with which Congress can't really help him out.
Constitutional scholars warn that telling cities and states what to do in their communities could steamroll over their constitutional right to govern themselves.
Ironically, a recent Supreme Court ruling against Obamacare reinforced this principle. The justices argued it's unconstitutional for the federal government to be a “gun to the head” of state and local governments. (States can pass their own laws stopping sanctuary cities, like Texas recently did. Though that, too, is getting challenged in federal court.)
And of course, sanctuary cities could always just go without the grant the federal government holds.
Put another way: Trump is one-third of the way toward getting a tool that may or may not help him enforce one of his core campaign promises. Tweeting didn't stop House Republicans from voting on a bill so critical to his agenda, but Trump certainly isn't helping himself by stealing headlines away from one of his few policy victories with Congress.
This story originally misstated what the likely legal case could be against this legislation. It's that the legislation might not state clearly enough which law enforcement grants are being withheld, not whether the federal grants that could be withheld are "substantially related" to sanctuary cities. (Though the Supreme Court requires that, too.)