The GOP’s unconstitutional plan to conscript local police into Trump’s deportation squads

Turns out no one actually cares about states’ rights.

AP Photo/Kathy Willens
AP Photo/Kathy Willens

Remember the Tenth Amendment?

The Constitution’s vague nod to states’ rights was a staple of Republican rhetoric for much of the Obama presidency, with many Republicans claiming that pretty much anything Obama supported violated this amendment. At its peak, “tentherism” seeped so deeply into the GOP’s bones that the party’s House leadership embraced a radical reading of the Constitution that individual GOP candidates used to argue Social Security or Medicare is unconstitutional (although, in fairness, it is far from clear that they understood the implications of their words at the time).

But all of that deep concern for the constitutional balance between federal and state power has fallen by the wayside, now that Republicans are set to control all three branches of the federal government. In a speech on the Senate floor last week, Sen. Pat Toomey (R-PA) urged his colleagues to pass the so called “Stop Dangerous Sanctuary Cities Act,” a plan to effectively conscript state and local police into President-elect Trump’s plans to crack down on undocumented immigrants.

The Senate previously split almost entirely on party lines in a vote on whether to advance Toomey’s bill, with nearly every Republican voting for the bill and nearly every Democrat opposing it.


The primary limit on Trump’s ability to harass and deport immigrants is the fact that the federal government only has limited resources. As a Justice Department memo explained, “there are approximately 11.3 million undocumented aliens in the country,” but the federal government only “has the resources to remove fewer than 400,000 such aliens each year.” Congress could conceivably appropriate more resources for this purpose, but that would require spending more money. And it would also require Republicans in Congress to take full responsibility for what Trump winds up doing with that funding.

Under the Supreme Court’s “anti-commandeering doctrine,” moreover, the federal government cannot simply order a state’s police force to participate in a federal program — such as an immigration crackdown. State and local officials may voluntarily decide to join such efforts, but it must be their own choice.

What the federal government may do, however, is offer state and local governments a financial incentive to participate in a federal program. Medicaid, for example, largely functions as a network of federal grants Congress offers to state governments if those governments agree to set up a health care system to provide care to low-income individuals. States are free to take the money or to reject it, but if they take the money they must comply with certain conditions laid out by the federal government.

There are limits, however, on Congress’ ability to place conditions on such grants. Among them, the Supreme Court explained in South Dakota v. Dole that conditions on federal spending “might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’” That is, if Congress seeks to impose a condition on federal spending that is completely irrelevant to the purpose of the spending, courts will look upon that condition with skepticism.

Which brings us back to Toomey’s bill.

Toomey’s legislation would prohibit cities from receiving certain grants, including Community Development Block Grants, if the city’s police has a policy of not cooperating with certain federal efforts to round up immigrants. These grants fund a diverse range of programs, many of which have little, if anything, to do with immigration. In Philadelphia, for example, which Toomey represents, these grants paid for a litter removal program and they contributed to an effort to renovate 12 storefronts.


Admittedly, the Supreme Court has typically been very permissive of congressional efforts to place conditions on federal grants. The Dole case, for example, involved a law that tied a portion of federal highway funds to states raising their drinking age to 21. The Court upheld this law, reasoning that highway funds exist to promote “safe interstate travel,” and a higher drinking age would reduce drunk driving.

Toomey might argue that a similar logic applies here. Perhaps it is okay to link anti-littering grants to an immigration crackdown because some immigrants litter.

That argument, however, would render the rule announced in Dole a virtual nullity. Toomey could also argue that an immigration crackdown can be tied to highway funds, because immigrants drive. Or that it can be tied to Medicaid funds, because immigrants need health care. Or that it can be tied to a program funding local parks, because immigrants may like to sit under trees. Indeed, it’s unclear if there’s really any limit on Congress’ ability to link funds to an immigration crackdown if this logic is drawn out to extremes.

Toomey’s bill, in other words, is exactly the sort of thing Republicans would have flipped out about if Obama had proposed similar legislation linking federal funds to something almost entirely unrelated. It’s almost as if all that rhetoric about the Tenth Amendment was just bad faith posturing seeking to undermine a Democratic president.