I attended a protest in Miami on Friday. The crowd was upset that Miami-Dade Mayor Carlos Gimenez ordered Miami authorities to cooperate with the federal government and the INS and comply with federal immigration detention policies.
Prior to this, Miami was deemed to be a "sanctuary city" – or a city where the local authorities refused to comply with federal immigration law.
It got some thinking, how does this all work? Can Trump command cities to enforce immigration law, if they don't want to? Can he just withhold federal funds to coerce them?
The federal government has limited powers. Where it has constitutional authority or power, it can not compel the state or local governments to cooperate. If the federal government wants to pass a law against possession or sale of marijuana, Colorado can say "lol, no." Of course, the state and local governments certainly have the right to enforce federal law, but it would violate the Constitution to try and compel that compliance.
In Prigg v. Pennsylvania, 41 U.S. 539 (1842) the Supreme Court held that a Pennsylvania law prohibiting the extradition of runaway slaves violated Article VI, Section 2 of the Constitution — the Supremacy Clause. However, the federal government could not compel Pennsylvania authorities to participate in recapturing escaped slaves. If the Feds wanted to go slave-catching, they could, and Pennsylvania couldn't get in the way.
In New York v. United States, 505 U.S. 144 (1992), the Supreme Court clarified that the feds could not commandeer state governments to enforce federal rules. In that case, the Low-Level Radioactive Waste Policy Amendments Act gave states the choice between complying with federal regulations or they had to "take title" to the radioactive waste. Since Congress could not independently do either of those things, they could not force states to make a decision between the two.
In Printz v. United States, 521 U.S. 898 (1997) the Supreme Court looked at the Brady Bill – where it required local law enforcement to take part in a federal background check program. This was held to unconstitutionally force local governments to administer a federal regulation – again, unconstitutional (under the 10th Amendment).
National Federation of Independent Business v. Sebelius, 567 U.S. 1 (2012), the Court held that the federal government could not use the threat of withholding Medicaid funding from states refusing to expand Medicaid.
You see a pattern here? So, Trump can say that he wants to round-up illegal immigrants all over the country, but he's going to need police to do that. He has his own. He has INS agents, and homeland security, and even shitty little TSA agents. But, he can't tell Massachusetts to call out all the stateys to start conducting raids.
Trump could try to withhold funds from municipalities that refuse to play along. But, as discussed above, doing that could be unconstitutionally coercive. But, he does have a way — he could authorize new funds to incentivize states and cities to start rounding up immigrants.
This is what Congress did when it passed The National Minimum Drinking Age Act of 1984 (23 U.S.C. § 158). When it passed that Act, it offered federal highway funds to the states, but states got 5% less if they didn't restrict alcohol sales to adults over the age of 21. South Dakota sued, but in South Dakota v. Dole, 483 U.S. 203 (1987) the Supreme Court allowed this kind of coercion. It held that Congress can offer money to the states, and condition receipt of the federal funds on conditions that the Feds could not forcibly impose. Essentially, the Feds can buy what they may not take.
So, I would think that at best Trump will have to launch some new federal funds program, with the condition that the city help him round-up illegal immigrants and enforce federal law. This is going to need Congress to come up with money to dangle in front of municipalities. It is going to need to be enough money to make the resistant cities think twice about it. And, for the cities that say "we don't give a shit," he's gonna be out of luck.
(Photos courtesy of Carlos Miller of Photography Is Not A Crime)
Marc Randazza is the national president of the First Amendment Lawyers Association
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