David Rivkin and Elizabeth Price Foley made a very important argument against those who says President-elect Donald Trump cannot cut federal funding for sanctuary cities. Both agreed that Trump can do that legally.
It can be recalled that some cities and public universities have vowed to resist the plan to deport undocumented criminals by doubling down on sanctuary policies. In response, Trump has pledged to curtail federal funding for sanctuary providers. Activists, predictably, are crying foul, and some legal scholars, such as Harvard’s Noah Feldman, have even claimed that such a response would be unconstitutional.
But whatever one thinks about Trump’s strategy, Rivkin and Foley believed it certainly would pass muster at the Supreme Court.
Feldman and others point to New York v. United States (1992) and Printz v. United States (1997), in which the Supreme Court concluded that the federal government cannot conscript state or local officials to carry out federal law. The federal government 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 protect sanctuary cities or public universities — because it doesn't apply when Congress merely requests information. 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, consistent with the anti-commandeering doctrine, Congress can require state, local or university police to tell federal agents when they arrest an immigrant present in the country illegally.
It’s true that cities such as Los Angeles instruct city employees not to ask about immigration status, but they may still have access to that information. Under California law, for example, driver’s licenses issued to immigrants in the country illegally contain prominent distinguishing language stating, “federal limits apply.” Indeed, 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. This doctrine holds that while Congress may impose conditions on receipt of federal funds, it cannot coerce states into accepting those conditions.
It can be recalled that some cities and public universities have vowed to resist the plan to deport undocumented criminals by doubling down on sanctuary policies. In response, Trump has pledged to curtail federal funding for sanctuary providers. Activists, predictably, are crying foul, and some legal scholars, such as Harvard’s Noah Feldman, have even claimed that such a response would be unconstitutional.
But whatever one thinks about Trump’s strategy, Rivkin and Foley believed it certainly would pass muster at the Supreme Court.
Feldman and others point to New York v. United States (1992) and Printz v. United States (1997), in which the Supreme Court concluded that the federal government cannot conscript state or local officials to carry out federal law. The federal government 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 protect sanctuary cities or public universities — because it doesn't apply when Congress merely requests information. 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, consistent with the anti-commandeering doctrine, Congress can require state, local or university police to tell federal agents when they arrest an immigrant present in the country illegally.
It’s true that cities such as Los Angeles instruct city employees not to ask about immigration status, but they may still have access to that information. Under California law, for example, driver’s licenses issued to immigrants in the country illegally contain prominent distinguishing language stating, “federal limits apply.” Indeed, 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. This doctrine holds that while Congress may impose conditions on receipt of federal funds, it cannot coerce states into accepting those conditions.