States' rights or feds' call: Case history that could defend or destroy sanctuary cities
In a Feb. 8 speech to the MCCA (Major Cities Chiefs Association), President Trump mentioned several of his executive priorities related to law enforcement, including the executive order restricting travel from seven predominantly Muslim countries, and his plan to build a wall on the border with Mexico—he affirmed that he “wasn’t kidding” about that.
However, Trump failed to mention another campaign promise that was central to his platform: withholding federal funding from hundreds of sanctuary cities and government jurisdictions. Trump signed an executive order on Jan. 25 that was supposed to do just that. The fact that he didn’t mention it in front of the MCCA could mean that the issue is on the back burner, or simply that he felt uncomfortable mentioning it in front of the association of law enforcement officials, many of whom lead police organizations in sanctuary cities.
In any case, recent media coverage has focused on the travel restrictions, but the sanctuary city issue could soon lead to another high-profile court battle.
Critics of the executive order say there is case history that could potentially prohibit Trump from successfully defunding sanctuary cities, pertaining to the separation of powers between states and the federal government. Trump and others say such an order is Constitutionally sound.
These two editorials offer differing opinions on whether the order could pass legal muster.
Can Trump cut off funds for sanctuary cities? The Constitution says yes. (David Rivkin and Elizabeth Price Foley for the Los Angeles Times)
Why Trump’s executive order on sanctuary cities is unconstitutional (Ilya Somin for The Washington Post)
This post provides a brief summary of some of the Supreme Court cases cited in both editorials, which could supply legal precedent supporting the constitutionality, or unconstitutionality, of the order. These cases have to do with the separation of powers between the states and the federal government, and whether the federal government can limit funding to encourage (some might say force) states to comply with federal law. This is by no means a comprehensive list.
When Congress passed the National Minimum Drinking Age Act in 1984, it required states to either enforce a legal drinking age of 21, or lose 5 percent of federal funding for highways. At the time, the state of South Dakota had a long-standing drinking age of 19 for beer that contained up to 3.2% alcohol. The state brought a constitutional challenge against Secretary of Transportation Elizabeth Dole, arguing that the law violated Tenth Amendment protections for states and the notion of dual sovereignty.
The Court ruled 7-2 in favor of Dole in this case. In the majority opinion, Judge William Hubbs Rehnquist determined that the 5 percent penalty was insignificant enough to constitute an incentive for states to enforce the law, rather than forcing them to comply. Rehnquist set out a five-part test in his opinion for determining whether the federal government was overstepping its boundaries by making federal funding contingent on whether the states enforced federal law. The following test could possibly be applied to determining the constitutionality of limiting funding to sanctuary cities:
a) Does the exercise of federal power “support the general welfare”? (In the case of South Dakota v. Dole, Rehnquist considered it did, because the 5 percent taken from highway funding related to the “interstate problem, resulting from the incentive, created by differing state drinking ages, for young persons to combine drinking and driving.”
b) Is the condition unambiguous?
c) Does the condition have a federal interest in national projects or programs?
d) Is the condition constitutional in itself?
e) Is the condition overly coercive? (Rehnquist believed it was not, since the penalty, although it would cost South Dakota $615 million, only amounted to 0.19 percent of states’ total budgets.)
New York v. United States (1992)
In 1985, Congress passed the Low-Level Radioactive Waste Policy Amendments Act, which required all states to join a regional waste compact and either create a disposal site in their own state, or find some other way of disposing of waste. (At the time, only three states had their own disposal sites.) Under the act, the federal government gave each state 7 years to provide access to active sites.
The government encouraged states to comply by allowing the states with disposal sites to refuse access to other states, or to impose a surcharge for the use of their disposal sites, which would be returned when those states complied with the terms of the law. Once the seven years were up, the states without disposal sites would be forced to either take title to their own radioactive waste or pay damages to in-state waste generators.
New York did not meet the 7-year deadline, and sued the federal government, arguing that the act violated the Tenth Amendment principle of state sovereignty, and the separation of powers between states and the federal government. The Supreme Court ruled 6-3 in favor of New York.
Justice Sandra Day O’Connor wrote the majority opinion. She agreed with part of the act’s incentives, but argued that the third incentive—requiring states to pay damages to waste generators—was unconstitutional. She argued that the Congress could not issue orders to state officials under the Tenth Amendment, and that states were not required to give up their sovereignty, even though the Radioactive Waste Act was the result of a compromise between the states.
Printz v. United States (1997)
Originally, the Gun Control Act of 1968 prohibited felons, fugitives, mentally ill individuals and non-citizens in the U.S. illegally. In 1993, Congress took the act’s enforcement a step further, voting to amend the act to mandate background checks for would be gun-owners—the Brady Handgun Violence Prevention Act. The background checks would be conducted through a federal system set to be implemented in 1998.
In the interim period before the law took effect, people trying to purchase guns would have to fill out a “Brady Form”—giving their personal information, identification and a sworn statement. Gun sellers and distributors were also required to notify local law enforcement of the user’s place of residence and provide a copy of the form. These interim provisions were central to the controversy surrounding Printz v. United States.
Two chief law enforcement officers, Jay Printz and Richard Mack, made the case that they could not, as state officers, be forced to carry out federal law. The Supreme Court agreed, ruling 5-4 in favor of the plaintiff. Justice Antonin Scalia emphasized the principle of “dual sovereignty,” or separation of powers between the federal government and the states, thus determining that Congress could not force state and local officials to conduct background checks.
Reno v. Condon stemmed from the Driver’s Privacy Protection Act of 1994, which contradicted with South Carolina law about disclosing drivers’ personal information. The Act restricted the states’ ability to disclose drivers’ information without their permission. South Carolina, on the other hand, argued that the act violated the principles of federalism—the Constitutional separation of powers between the states and the federal government.
The Supreme Court unanimously ruled in favor of federal Attorney General Janet Reno, over Charlie Condon, the attorney general of South Carolina. The court decided that the act did not violate constitutional principles of federalism, because it applied to interstate commerce, which could be regulated by Congress under the Commerce Clause. Because the act did not require state officials to enforce it, it did not violate the Tenth Amendment, and was therefore consistent with the findings of the New York and Printz cases.
Other cases of note:
Pennhurst State Sch. & Hosp. v. Alderman (1981)
Davis v. Monroe County Bd. of Ed. (1999)
Arizona v. United States (2012)
Additional Sources:
https://www.openthebooks.com/assets/1/7/Oversight_FederalFundingofAmericasSanctuaryCities.pdf