Another Day, Another Unconstitutional Proposal From Newt Gingrich — This Time On Immigration

Few candidates in modern American history have shown deeper contempt for the Constitution than GOP presidential frontrunner Newt Gingrich. He began his campaign with an appeal to tentherism — the radical belief that most of the last 100 years violates the Constitution. Gingrich believes that he can simply ignore court decisions that he disagrees with, and he promised a campaign of intimidation against judges who don’t share his views. More recently, Gingrich proposed an unconstitutional plan to require all recipients of federal aid to submit to drug tests.

So it should come as little surprise that Gingrich has stumbled onto yet another policy proposal — this one on immigration — that completely ignores a potential president’s obligation to respect the Constitution:

Gingrich also said he will push to withhold federal funds from “sanctuary cities,” or places that openly don’t monitor residents for undocumented workers.

“We should have every state enforcing the law and, in fact, I would propose cutting off all federal funds to any city that declares itself a ‘sanctuary city,’ ” he said.

Cutting off all federal funds to a city for refusing to implement a particular immigration policy is not constitutional. Although the federal government has broad authority to offer money to state or local governments if those states agree to comply with certain conditions, this power is not limitless.

In its landmark decision in South Dakota v. Dole, the Supreme Court explained that “conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’” In other words, the government cannot threaten to take away funding because a local government refuses to comply with some requirement that has nothing to do with the purpose of the funding itself. If Congress wants to take away Medicaid funding from states that don’t maintain safe hospitals, that is acceptable because hospital safety is directly related to providing adequate health care under Medicaid. But if Congress tried to take away Medicaid funds unless a state required children to wear school uniforms, that would be unconstitutional because Medicaid has nothing to do with what children wear to school.

While there are likely some federal grants that are sufficiently related to immigration that Congress could pass a law stripping those funds from localities that refuse to step up immigration enforcement, a blanket removal of all federal funds almost certainly violates the Constitution. Indeed, if Gingrich has even a passing familiarity with the law governing federal grants, he probably recognized this fact immediately.

It is deeply ironic that the man who began his campaign by professing his undying love for states rights would happily run roughshod over that position to score cheap points against immigrants. Tenthers have long complained that states should be completely free to defy conditions on federal grants and keep the funding anyway — indeed, this is one of the very claims that dozens of Republican officials are pushing in their Supreme Court challenge to the Affordable Care Act. Ultimately, however, Gingrich has made it perfectly clear that he doesn’t really care if his proposal is constitutional or not. If the courts strike it down, he thinks he can just ignore them.