media coverage show The incoming Trump administration is trying to put pressure on sanctuary cities by withholding federal funds from them unless they agree to help the federal government deport illegal immigrants. If the new administration attempts to do so, it could rekindle the legal battles that occurred during President Trump’s previous term. At the time, the administration attempted to put pressure on sanctuary cities by denying them various law enforcement and other subsidies appropriated by Congress. These efforts resulted in extensive litigation, with Trump losing most of the cases in decisions handed down by both liberal and conservative judges. We investigated related cases and their impact. 2019 Texas Law Review article.
The first Trump administration lost most of these cases because it violated constitutional limits on executive power over federal powers and budgets. Thanks to a series of Supreme Court decisions, most of them written by conservative justices, the federal government can’t simply order state and local governments to help enforce federal laws. Current Supreme Court precedent suggests that financial incentives may be sought to secure such assistance. However, such conditions for federal grants must, among other things, 1) be clearly articulated and enacted by Congress (the executive branch cannot create its own grant terms); 2) the grant in question 3) must be related to the purpose of the money (e.g., health care or education cannot be conditioned on immigration enforcement), and 3) cannot be “coercive.”
Virtually all of President Trump’s first-term efforts to put pressure on sanctuary jurisdiction violated one or more of these constitutional constraints. For more information, my article. It remains to be seen whether his second term efforts will be even more successful. But at the very least, any effort to withhold all or nearly all subsidies from sanctuary jurisdictions is likely to violate nexus requirements and vague rules against apparent coercion. That would be the case even if a new Republican-controlled Congress enacted such sweeping conditions into law. Such laws may satisfy the need for parliamentary approval, but they cannot circumvent restrictions on relevance and enforceability.
as I emphasized In various writings from the first Trump administration, the issues at stake here go far beyond immigration policy. If the administration were able to create its own new conditions for federal aid to state and local governments, it would severely undermine the separation of powers and allow the executive branch to usurp spending authority from Congress. Furthermore, given the dependence of state and local governments on federal funds, a large club has been created that the executive branch can use to coerce states and local governments on a wide range of issues, thereby reducing federalism. It will seriously jeopardize it. Conservatives who support such coercion by a Republican administration are unlikely to be satisfied when the same means are used by a Democratic president to force support for left-wing policies.
For those keeping score, I made a similar point In defense of conservative “gun sanctuaries” that refuse to help the federal government enforce some federal gun regulations.
