The amusing thing about San Francisco v. Trump, a federal appeals court decision that just struck down President Donald Trump’s effort to punish so-called “sanctuary cities,” is that Trump’s own Justice Department didn’t even attempt to defend the executive order at issue in the case.
Much of Chief Judge Sidney Thomas’ opinion for the United States Court of Appeals for the Ninth Circuit, which was handed down on Wednesday, rejects the Justice Department’s argument that Trump’s sweeping attack on pro-immigrant cities does not actually do what Trump says that it does. The Justice Department appears to have recognized that the executive order Trump actually signed is legally indefensible.
And it’s not hard to guess why. Trump’s spent his presidency at war with the Constitution, but he’s most often at war with the parts of the Constitution that liberals admire.
In retrospect, the doomed lawsuits challenging Trump’s Muslim Ban never stood much of a chance in the Supreme Court. Sure, the ban is unconstitutional — almost comically so — but Chief Justice John Roberts and Justice Samuel Alito were both chosen by President George W. Bush because they were likely to uphold Bush’s own efforts to violate the Constitution in the name of “national security.” Neil Gorsuch was a Bush administration lawyer who defended Bush’s detention of suspected terrorists at Guantanamo Bay. Justice Clarence Thomas is Justice Clarence Thomas.
Looking back on it, the only realistic chance of finding a fifth vote to strike down the Muslim Ban rested with retired Justice Anthony Kennedy, and Kennedy spent his final term on the Court in a kind of senior slump, passively acquiescing in the decisions of his more conservative colleagues.
But San Francisco is a very different case than Hawaii. The problem with Trump’s attack on so-called “sanctuary cities” is that it violates the parts of the Constitution that conservatives admire. Indeed, one of the seminal cases standing in Trump’s way was authored by Federalist Society Saint Antonin Scalia.
What is a “sanctuary city?”
The federal government employs surprisingly few law enforcement officers. It’s preeminent law enforcement agency, the FBI, employed just over 13,000 agents in 2016 — less than half the number of uniformed officers employed solely by the New York Police Department. Immigrant and Customs Enforcement (ICE) had about 12,000 agents in 2016, and Customs and Border Protection added just under 20,000.
That’s it, in a nation of over 325 million people.
The result is that, even with maximal effort, the federal government can only remove a fraction of the undocumented immigrants living in the United States today. The Obama administration estimated that, out of the “approximately 11.3 million undocumented aliens in the country,” Congress only appropriated enough resources “to remove fewer than 400,000 such aliens each year.”
But what if Trump could tap into the over 1 million officers employed by state and local police forces throughout the country? If he could conscript these officers into a war on immigrants, Trump would have an army at his disposal, poised to round up countless undocumented immigrants and potentially harass the remainder out of the country.
But there’s a reason Trump cannot simply do this: The “anti-commandeering doctrine,” which provides that the federal government cannot order state and local governments to enforce federal laws. As Justice Scalia wrote in Printz v. United States, “the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”
The phrase “sanctuary city” is a pejorative term that describes pro-immigrant cities that take advantage of Scalia’s decision in Printz. “Sanctuary” jurisdictions, in effect, tell the federal government that if it wants to round up undocumented immigrants within that jurisdiction, it will have to do so itself. Local police can’t prevent ICE agents from rounding up immigrant families, but the local government can order those police not to assist in these roundups.
Trump’s executive order
If not for decisions like Printz, Trump would be in a very strong position. There is a federal law already on the books, 8 U.S.C. § 1373, which prohibits state and local governments from restricting “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.” This law doesn’t exactly dragoon local police into Trump’s deportation squads, but it does allow individual law enforcement officers to inform the federal government when those officers encounter an undocumented immigrant.
Except that this law is unconstitutional, and it is unconstitutional entirely because of Scalia’s decision in Printz. Printz forbids the federal government from issuing “directives requiring the States to address particular problems,” and that’s exactly what § 1373 does.
Unable to order state and local police forces to do his bidding, Trump’s executive order takes a more indirect approach. It provides that the Attorney General and Secretary of Homeland Security “to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”
If Trump can’t order so-called sanctuary jurisdictions to do his bidding, he will starve them for funds until they cry “uncle.”
But the thrust of Chief Judge Thomas’ San Francisco opinion is that Trump cannot do this either. “If it were to enforce the Executive Order,” Thomas writes, “the Executive would assert a power that belongs solely to Congress by withdrawing funds in the absence of congressional authorization.” Congress authorized certain grants to state and local governments. It did not say that so-called “sanctuary cities” are ineligible for those grants. So the president cannot simply refuse to distribute money that Congress told the Executive Branch to distribute.
This decision is well-grounded in Supreme Court precedent. As the Court held in South Dakota v. Dole, Congress may place conditions on federal grants, but “if Congress desires to condition the States’ receipt of federal funds, it ‘must do so unambiguously . . ., enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.'” There is no unambiguous statutory language permitting Trump to withdraw funds from states or cities that will not assist him in rounding up immigrants.
This clear statement rule, it should be noted, is also favored by the Supreme Court’s conservatives. The last time the Court invoked it was Justice Samuel Alito’s opinion in Arlington Central School District v. Murphy, which held that the Individuals with Disabilities Education Act does not clearly state that successful plaintiffs may “recover fees for services rendered by experts in IDEA actions.” Three liberal justices dissented from Alito’s opinion, while a fourth, Justice Ruth Bader Ginsburg, wrote a separate opinion disagreeing with Alito’s use of the “clear notice” rule.
So the litigants challenging Trump’s sanctuary cities policy have good reason for optimism that they will prevail in the Supreme Court, even if Judge Brett Kavanaugh is confirmed and the Court takes a hard right turn. As a practical matter, the problem with Trump’s executive order isn’t that it violates the Constitution — the Muslim Ban decision shows the Roberts Court won’t let something as silly as the Bill of Rights interfere with Trump’s policies.
The problem with Trump’s order is that it is at odds with the parts of the Constitution that justices like Roberts, Scalia, and Alito like.