Several cities and public universities have vowed to resist President-elect Donald Trump’s plan to deport undocumented criminals by doubling down on sanctuary policies. Trump has pledged to curtail federal funding for sanctuary providers. Activists, predictably, are crying foul, and some legal scholars have even claimed that such a response would be unconstitutional.
But whatever one thinks of Trump’s strategy, it almost certainly would pass muster at the Supreme Court.
Opponents point to New York v. United States (1992) and Printz v. United States (1997), in which the Court concluded that the federal government cannot conscript state or local officials to carry out federal law. It must enforce its own laws, using federal personnel. So when state or local police arrest immigrants who are present in the country illegally, they are under no obligation to deport them, as deportation is the responsibility of the federal government alone.
This “anti-commandeering” doctrine, however, doesn’t apply when Congress merely requests information.
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For example, in Reno v. Condon (2000), the court unanimously rejected an anti-commandeering challenge to the Driver’s Privacy Protection Act, which required states under certain circumstances to disclose some personal details about license holders. The court concluded that, because the DPPA requested information and “did not require state officials to assist in the enforcement of federal statutes,” it was consistent with the New York and Printz cases.
It follows that Congress can require state, local or university police to tell federal agents when they arrest an immigrant present in the country illegally.
Cities such as Los Angeles instruct city employees not to ask about immigration status, but they may still have access to that information.
Congress could specify that licenses issued to immigrants in the country illegally must include a distinguishing feature, or they won’t be accepted for federal purposes, such as TSA airport security. Congress already has enacted the Real ID Act, which mandates that driver’s licenses display certain details.
A separate constitutional doctrine, the anti-coercion doctrine, likewise won’t shield sanctuaries. It holds that while Congress may impose conditions on receipt of federal funds, it cannot coerce states into accepting those conditions.
In the 1980s, Congress passed a law withholding 5 percent of highway funds from any state that refused to adopt a minimum drinking age of 21. The Supreme Court, in South Dakota v. Dole (1987), upheld it. Because highway funds are expended — in part — to ensure safe travel, the court reasoned that raising the drinking age was “relevant to the federal interest in the project.” More significantly, withholding 5 percent of federal funds wasn’t coercive because while it represented a loss of $615 million dollars, it was only 0.19 percent of states’ total budgets.
By contrast, in NFIB v. Sebelius (2012), the Supreme Court found that Congress violated the anti-coercion doctrine. Specifically, in the Affordable Care Act, Congress withheld 100 percent of states’ Medicaid funding if they didn’t expand those programs. A court plurality characterized this as a coercive “gun to the head” because it involved a loss of over $233 billion dollars — more than 20 percent of states’ budgets.
Many federal programs provide billions to universities and state and local law enforcement. Provided the percentage withheld didn’t approach the 20 percent threshold, it should be constitutional.
Whatever one’s view of the best immigration policy, it should be uniform. Some have suggested that Congress should give sanctuary cities flexibility to report only those who’ve committed the most serious violent offenses. But precisely which criminals should be subject to deportation requires resolution by Congress, not each city or university.
The Constitution is clear that power to determine deportation policies belongs to Congress, not states, municipalities or universities.
David Rivkin and Elizabeth Price Foley practice appellate and constitutional law in Washington, D.C. Rivkin served at the Dept. of Justice and the White House Counsel’s office during the Reagan and George H.W. Bush administrations.