The executive order is under litigation – but how worried should cities be that the president will actually take away money from sanctuary jurisdictions in the near future?
Five days after assuming office, President Donald Trump signed an executive order threatening to take away federal funding from so-called sanctuary jurisdictions. The executive order leaves it to the Secretary of Homeland Security to define “sanctuary jurisdictions.” Unsurprisingly, a number of cities and counties have sued the president over this executive order, including Santa Clara County, San Francisco and Richmond, California, Seattle, and Lawrence and Chelsea, Massachusetts.
By mid-April, a court will likely grant or deny a preliminary injunction in the Santa Clara County case. We know the legal allegations the cities and counties have made against the president, and the president has responded to the Santa Clara County and San Francisco lawsuits.
All of the complaints make different arguments and frame the legal issues slightly differently. Here are the three main arguments:
1) Spending Clause
The U.S. Constitution’s Spending Clause allows Congress to place conditions on federal money local governments receive. The local governments argue that Spending Clause authority resides with Congress – not with the president. Even if Congress had the authority to take away federal funding from sanctuary jurisdictions per the Spending Clause, the president lacks the same authority as a matter of separation of powers.
The Supreme Court has ruled that conditioning the receipt of federal funds may not be coercive, and that the conditions must be stated unambiguously and relate to the federal interest in the grant program. The local governments suing President Trump argue that these requirements are not met.
In NFIB v. Sibelius (2012), Chief Justice John Roberts famously described the Affordable Care Act’s requirement to withhold all Medicaid funding if states refused to agree to the Medicaid expansion as a coercive “gun to the head.” In that case, states stood to lose more than 10 percent of their overall budget by not agreeing to the Medicaid expansion. Santa Clara County, for example, claims it will lose 15 percent of its budget if it loses all federal funding.
The Supreme Court has stated that when Congress, using its spending power, imposes conditions on the receipt of federal funds, it must do so “unambiguously.” None of the federal funding local governments receive requires them to participate in enforcing federal immigration laws.
Likewise, the Supreme Court has held that the conditions Congress places on federal grants must be “germane” or “related to” the federal interest in the grant program. The local governments argue that enforcing federal immigration laws does not relate to federal interests in federal funding they receive for infrastructure, health care, education, etc.
2) Fourth and Tenth Amendments
The sanctuary jurisdictions executive order states that the attorney general may take “appropriate enforcement action” against any entity which has in effect a “statute, policy or practice that prevents or hinders the enforcement of federal law.” This language – and the fact that the executive order reestablished Secure Communities and requires the Secretary of Homeland Security to publish a weekly list of jurisdictions that don’t honor Immigration and Customs Enforcement (ICE) detainers – has lead local governments to conclude that the executive order requires local governments to comply with ICE detainers.
In their lawsuits, the local governments claim that complying with ICE detainers violates the Tenth and Fourth Amendments.
When someone is arrested, ICE receives their fingerprints and may request through an ICE detainer that a local government hold the person so that ICE can pick them up and deport them. Numerous courts have held that complying with ICE detainers violates the Fourth Amendment because such detainers are rearrests not supported by a warrant.
Following the sanctuary jurisdictions executive order, Miami-Dade County decided to comply with ICE detainers and was sued. A judge ruled that Miami-Dade County lacks the power under the Tenth Amendment, which reserves powers not delegated to the federal government to the state, to comply with warrantless ICE detainers. Enforcing federal immigration law is the sole responsibility of the federal government.
3) 8 U.S.C. 1373
The sanctuary jurisdictions executive order requires local governments to comply with 8 U.S.C. 1373. This statute bars prohibitions on government entities from maintaining or sharing citizenship or immigration status information.
The local governments suing in this case note that 8 U.S.C. 1373 does not require them to collect information about immigration status. They do not collect this information and are therefore in compliance with 8 U.S.C. 1373, they argue.
San Francisco argues that it complies with 8 U.S.C. 1373 but that the statute violates the Tenth Amendment. The Supreme Court has interpreted the Tenth Amendment to contain an anti-commandeering requirement wherein local governments cannot be required “to enact or administer a federal regulatory program.”
President Trump’s response to the Santa Clara County and San Francisco complaints should alleviate any fears that the president intends to take away any money from sanctuary jurisdictions any time soon. The administration’s response to the Santa Clara County complaint describes five steps which would have to occur before any local government will be deprived of federal funds (none of which have yet occurred):
(1) the Attorney General and the Secretary of Homeland Security must determine exactly what constitutes “willful refusal to comply with 8 U.S.C. § 1373;” (2) the Secretary must identify any state or local governments that constitute “sanctuary jurisdictions” and make formal designations to that effect; (3) the Secretary and the Attorney General must decide which federal funding sources are “necessary for law enforcement purposes;” (4) the Secretary and the Attorney General must then determine how to “ensure” that sanctuary jurisdictions are ineligible to receive the relevant grant funds; and (5) the Secretary and the Attorney General must determine how to implement those actions “consistent with law.”
A few aspects of the administration’s response to the Santa Clara County and San Francisco complaints are noteworthy.
First, both responses avoid defending the constitutional claims; instead, the administration argues that, because no federal funding has been taken away from either local government, the cases aren’t yet ready to be reviewed by a court.
Second, the administration disavows the notion that all federal funding can be taken away from sanctuary jurisdictions. More specifically, in the Santa Clara County complaint, the administration argues that only jurisdictions that “willfully refuse to comply” with 8 U.S.C. 1373 become “not eligible to receive Federal grants.” But as Santa Clara County points out in its response, “it is telling that the administration neither identifies a single grant that imposes that condition nor addresses the numerous bills to do so that Congress considered and rejected.”
Finally, both administration responses conspicuously avoid any acknowledgement that the executive order may require local governments to comply with warrantless ICE detainers.
About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.