As discussed in the recent report, Sanctuary, Safety and Community: Tools for Welcoming and Protecting Immigrants Through Local Democracy (published jointly by Demos and LatinoJustice PRLDEF), threats to retract funding from “sanctuary” jurisdictions are overblown and should be resisted. The Tenth Amendment of the U.S. Constitution provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., Am. X. Supreme Court cases clearly demonstrate that under the Tenth Amendment, the federal government may not coerce state and local governments to enforce federal law through threats to withdraw federal funding, unless the funding is explicitly conditioned on assisting with federal immigration law enforcement – and minimal, if any, federal funding is conditioned on immigration law enforcement. The major applicable cases include:
- National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), which prohibited funding conditions so coercive that they amount to a “gun to the head” of a state or local government, at 2602; and articulated that if conditions on some funds “take the form of threats to terminate other significant, independent grants, the conditions are properly viewed as [unconstitutional] means of pressuring the State to accept policy changes.” Id. at 2604.
- New York v. United States, 505 U.S. 144, 167 (1992), which held that spending “conditions must (among other requirements) bear some relationship to the purpose of federal spending.” The New York case also held that “the federal government cannot compel the states to enact or administer a federal regulatory program.” Id. at 188.
- In Printz v. United States, 521 U.S. 898, 935 (1997), an opinion authored by the late conservative Justice Antonin Scalia, the Court added that the federal government cannot compel state employees to participate in the administration of a federally-enacted regulatory scheme.
- The Fourth Circuit, which covers Maryland, has articulated these same rules. Maryland v. EPA, 530 F. 2d 215, 226 (4th Cir. 1975).
- Cities and counties may also raise Tenth Amendment claims. Lomont v. O’Neill, 285 F.3d 9, 13 (D.C. Cir. 2002); and in the case of sanctuary cities, they have done so. City of New York v. United States, 179 F.3d 29 (2d Cir. 1999), cert. denied, 528 U.S. 1115 (2000); Complaint, City and County of San Francisco v. Trump, No. 3:17-cv-00485 (N.D. Cal. 2017).
There are, of course, limits to states’ rights, such as when states violate fundamental constitutional rights. To be clear, we believe in a principled federalism based on the goal of an inclusive democracy. Yet even conservative constitutional experts agree that under the Constitution, very few if any federal funds can be cut off because of a jurisdiction’s refusal to enforce federal civil immigration law.
Professor Ilya Somin of the Cato Institute summarized the law as follows:
Few if any federal grants to state and local governments are conditioned on cooperation with federal deportation efforts. The Supreme Court has long ruled that conditions on federal grants to state and local governments are not enforceable unless they are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” In ambiguous cases, courts must assume that state and local governments are not required to meet the condition in question. In sum, the Trump administration can’t cut off any federal grants to sanctuary cities unless it can show that those grants were clearly conditioned on cooperation with federal deportation policies.
Accordingly, the threats of withdrawing federal funds in President Trump’s January 25 Executive Order are overblown and do not preclude state and local policies limiting participation in federal immigration enforcement. Moreover, even the language of the Executive Order is limited by saying that “[i]t is the policy of the executive branch to... [e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.”
There are only two federal statutes that restrict the parameters of state and local sanctuary policies, and neither preclude policies such as the Maryland Trust Act. These two statutes (8 U.S.C. §1644 and 8 U.S.C. §1373) only address information-sharing with the federal government. They do not prohibit limits on collecting immigration status information, or shielding such information through privacy protections such that it is not accessible to all state and local employees. Numerous “sanctuary” policies are not preempted or precluded by these statutes.
- Sanctuary policies are needed to protect the most fundamental values of American communities, and to protect jurisdictions against liability for violations of Due Process and Equal Protection that are likely to occur when state or local police, or other state and local institutions such as schools, participate in federal civil immigration law enforcement.
- Notwithstanding the Trump Administration’s efforts to threaten “sanctuary” policies, there are numerous legal and policy reasons for state and local jurisdictions to adopt them and resist the threats that federal funding may be retracted.