Trump’s push to make city cops into stooges for ICE suffers strange, messy courtroom defeat

TIRED: The Tenth Amendment is bad. WIRED: The Tenth Amendment is actually good.

Attorney General Jeff Sessions applauds as US President Donald Trump gives a speech in March. CREDIT: MANDEL NGAN/AFP/Getty Images
Attorney General Jeff Sessions applauds as US President Donald Trump gives a speech in March. CREDIT: MANDEL NGAN/AFP/Getty Images

Cities and states can refuse to answer questions from federal immigration officials, a federal judge ruled Friday in a decision that boosts resistance to Attorney General Jeff Sessions and President Donald Trump’s crusade against immigrants — and illustrates the contortionist flexibility of the law.

The ruling is another setback for the Trump-Sessions war on undocumented migrants that was central to the president’s campaign message. The City of Chicago’s 2012 “Welcoming City Ordinance” codified a three-decade effort to ensure that undocumented residents would not be so fearful of police that they refuse to cooperate in crime-fighting efforts. Sessions has tried to bar any city or state that maintains such policies from receiving federal law enforcement dollars, on the grounds that those policies exceed the Constitution’s limits on states’ rights. Friday’s ruling says he’s wrong.

This latest defeat for Sessions is also the broadest yet. An earlier ruling from the same court, upheld on appeal, had erased Washington’s ability to gain forced entry to the city’s jails.

The spring ruling only took Chicago’s side on two out of the three conditions Sessions and Trump have attached to a federal policing grant program, known as the Byrne Justice Assistance Grant system. A third condition that predates the current administration was left standing. Cities and states could not order their cops to ignore federal immigration cops’ requests for information, the judge found at that time. The Clinton-era immigration law underlying that third condition was, as of April, presumed to be rock-solid on constitutional terms.


What a difference a few months make. Suddenly, that solidity is gone. The law is the law, except when it isn’t anymore.

Trump and Sessions’ newest headache originates with gambling on sports, of all things. In its May decision to strike down federal restrictions on state sports-betting laws, the Supreme Court changed a quarter-century of precedent that had put a strange, tautological hole in the Tenth Amendment’s restrictions on the federal government’s authority over state and local actors. Until the sports-betting case, the courts had allowed the feds to command state actors so long as they made the commands in a kind of pig latin. It was okay to prohibit a state from prohibiting its employees from doing something, so long as you didn’t order the state to order its employees to do that same thing. Simple!

And stupid. After the Murphy v. NCAA ruling that permitted states to repeal existing bans on sports wagering if they chose, many legal observers noted that the same logic could destroy the provision of a 1996 immigration law on which the original, pre-Trump conditions of Byrne grant dollars rested. Given the chance to re-examine the question after SCOTUS made that change, Judge Harry Leinenweber ruled Friday that the Murphy logic applies to the immigration policy landscape, too. If the feds can’t prohibit you from repealing your own laws, Leinenweber wrote, neither can they prohibit you from prohibiting your cops from answering federal immigration officials’ questions.

Sessions’ team had offered a handful of technical arguments it hoped would rescue its steamroller campaign for mass deportations from the legal gallows of the sports-betting decision. Chicago was free to just not ask for Byrne money, they said, and besides, the dispute at issue is a tentative withholding of the city’s 2017 grant, not a final decision from the Department of Justice — and thus, not a matter for the courts, yet, at all. Leinenweber laughed off those contentions, noting that Chicago was challenging the 1996 law’s provisions directly, not just as a condition of optional grant-seeking activity, and that Sessions’ attachment of the new conditions was final even if his decision on Chicago’s money was still technically pending.


But these details are all, at bottom, distractions from the major takeaway from Friday’s ruling: The law is a joke, badly told and constantly subject to not just minor revision but wholesale triple-backflip reversal. The joke plays even worse when filtered through the lenses of partisanship and history. Less than a decade ago, it was Republicans and the far right who worshiped at the Tenth Amendment’s altar, claiming that everything from Obamacare to the New Deal had violated the Constitution’s controls on federal-state relationships. A few years later, those same “Tenthers” insistedmostly incorrectly, the courts held — that the provision protected Arizona’s ill-fated and openly racist “papers, please” law, SB 1070.

Now, the same constitutional language that was invoked by Jefferson Davis fans to attack the country’s first black president turns out to be useful to the most significant progressive bulwark against Trump’s xenophobic cruelty.