This post has been updated to reflect the court order.
The Justice Department threatened to cut off grant funding to eight cities on Friday — unless those cities provide more support to federal officials trying to crack down on undocumented immigrants. But DOJ’s threat is unconstitutional and is highly unlikely to survive a lawsuit.
In fact, the Justice Department’s threat against these eight cities appears to be so amateurish and so poorly aligned with longstanding Supreme Court precedent that it raises serious questions about whether the threat was properly vetted.
At issue is funding for so-called “sanctuary cities,” a term that’s often used for cities that choose not to cooperate with federal efforts to arrest immigrants.
Under the Supreme Court’s “anti-commandeering doctrine,” the feds cannot order a state or local government to participate in a federal program. Thus, while a state or municipality may voluntarily agree to have its police force participate in federal immigration enforcement, state and local governments also have an absolute right to refuse to do so.
However, the federal government is permitted to offer states or localities a financial incentive to participate in a federal program. So the feds can create a grant program, but only make the grant money available to states or cities that comply with certain conditions — which means Congress could hypothetically pass a law stating a city may only receive certain federal funds if it agrees to make its police force available for immigration enforcement.
But there are constitutional limits on the federal government’s ability to impose such conditions upon a federal grant program. Among other things, the Supreme Court explained in South Dakota v. Dole, “if Congress desires to condition the States’ receipt of federal funds, it ‘must do so unambiguously” in a way that enables “the States to exercise their choice knowingly, cognizant of the consequences of their participation.’”
In other words, federal officials cannot surprise states or localities with new conditions attached to an existing grant program. Any conditions for funding need to be “unambiguously” conveyed to grant recipients in the law authorizing the grant.
Which brings us back to DOJ’s threats against the eight sanctuary cities. The Justice Department specifically threatened to cut off funding under the Edward Byrne Memorial Justice Assistance Grant, which provides funding for law enforcement and similar state and local programs.
While the statute authorizing this grant contains a number of conditions that are imposed on grant recipients — for example, the cities receiving the funds are typically forbidden from spending the money on non-police vehicles, on real estate, or on “luxury items” — it is silent regarding any obligation to enforce federal immigration law.
Earlier this month, Attorney General Jeff Sessions pointed to a different source of law, a 1996 statute, which, he claims, imposes certain obligations regarding immigration enforcement on grant recipients. Specifically, that statute provides that local governments may not restrict “any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
So, for example, if a police officer encounters an undocumented immigrant, this statute purportedly prevents the police force from forbidding the officer from reporting that immigrant to federal officials.
But there are two problems with Sessions’ citation of this law that make his threat doubly unconstitutional.
The first is that the law, by its explicit terms, orders states and localities to manage their own employees in a certain way — which is almost certainly a violation of the anti-commandeering doctrine.
There is one dubiously reasoned court of appeals decision that suggests the anti-commandeering doctrine’s scope may be limited in this case. But even if it doesn’t apply here, there’s still nothing in the statute that provides so-called sanctuary cities with unambiguous notice that they could lose grant funds.
UPDATE (4:18 P.M.): A federal judge has blocked Sessions’ efforts.
BREAKING: US judge blocks Trump order to cut off funding to cities that limit cooperation with immigration authorities.
— The Associated Press (@AP) April 25, 2017
UPDATE (4:26 P.M.): The federal court’s order notes that the Trump administration’s attack on “sanctuary cities” suffers from various constitutional flaws. It imposes conditions on federal grant recipients without unambiguous legal authorization to do so, and it imposes conditions on those grant recipients that bear no relationship to the purpose of the grant. Both of these errors violate the Supreme Court’s holding in Dole.
Federal court in San Francisco slams admin's legally baseless threats vs. sanctuary cities, grants PI requested by SF and Santa Clara pic.twitter.com/VyfVGIebG2
— Omar C. Jadwat (@OmarJadwat) April 25, 2017