1/29/2017
High Court Precedent May Limit Trump’s ‘Sanctuary City’ Order - WSJ
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U.S.
High Court Precedent May Limit
Trump’s ‘Sanctuary City’ Order
Supreme Court has ruled Constitution forbids federal government from using funds to
‘coerce’ states
Demonstrators in New Haven, Conn., protest against President Donald J. Trump's policies on immigration and sanctuary
cities. PHOTO: CATHERINE AVALONE/ASSOCIATED PRESS
By JOE PALAZZOLO
Jan. 29, 2017 10:29 a.m. ET
A thicket of U.S. Supreme Court rulings could limit the reach of the executive order
issued by President Donald Trump last week meant to prod “sanctuary cities” into
helping the federal government enforce immigration law.
Some local and state officials, including in New York, have promised to fight the order,
which says cities that fail to turn over information about illegal immigrants “are not
eligible to receive federal grants.”
Legal experts said the Supreme Court has given them many tools for resistance.
The court has ruled that the U.S. Constitution bars the federal government from
commandeering state officials or using federal funds to “coerce” states into doing the
bidding of Washington.
As recently as 2012, the court held that the federal government couldn’t expel states
from Medicaid if they refused to expand eligibility for the federal-state health program,
curtailing a key provision of the Affordable Care Act.
“If the denial of Medicaid funding alone was coercive, the denial of all federal funding of
any kind for refusing to cooperate in enforcement of immigration law must be coercive,”
said Dale Carpenter, a constitutional law professor at Southern Methodist University.
The federal government can withhold a grant from a city or state, but it must do so for
reasons related to that grant’s purpose, legal experts said. For example, the Trump
administration likely couldn’t deny grants for highways to a city for defying Mr. Trump’s
executive order on immigration, because the two are unconnected, said Michael
McConnell, a former federal appeals judge who now teaches at Stanford Law School.
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1/29/2017
High Court Precedent May Limit Trump’s ‘Sanctuary City’ Order - WSJ
The rules have some flexibility, legal experts said. The U.S. Supreme Court said in a 1987
case that the federal government could withhold highway funding from states that
refused to raise their minimum drinking age to 21 years, reasoning that the funding and
the condition both promoted highway safety.
Jonathan Adler, a professor at Case Western Reserve University School of Law, said the
Constitution permits the U.S. government to ensure that “federal money is not
undermining the purposes for which that money is allocated in the first place.”
The Supreme Court has also likened federal-state grant laws to contracts: They are valid
only if the state knowingly and voluntarily accepts the terms. Some legal experts
interpret that to mean that conditions on federal grants have to be spelled out in the
text of a law passed by Congress, while others say cities and states could be put on notice
with federal regulations.
Regardless, said Ilya Somin, a constitutional law professor at George Mason University’s
Antonin Scalia Law School, “the president can’t impose additional conditions on its
own.”
Other experts, however, said Mr. Trump’s order bypasses trip wires set down by the
Supreme Court, because it demands only information from cities in return for federal
money, not action.
David Rivkin, a lawyer at law firm BakerHosteler who served in the Reagan and George
H.W. Bush administrations, pointed to a 2000 U.S. Supreme Court case involving a
federal law that imposed restrictions on the disclosure by states of drivers’ personal
information.
In upholding the law, the court noted approvingly that it didn’t “require state officials to
assist in the enforcement of federal statutes regulating private individuals.”
Mr. Rivkin said Mr. Trump’s order, likewise, passes muster because “it’s not telling city
officials to carry out any particular actions.”
Write to Joe Palazzolo at [email protected]
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