I don’t know what to think of the 2nd Circuit’s recent decision, allowing the Trump Administration to deny grant money to so-called “sanctuary cities”. What’s the law? The practice strikes me as an executive overreach but sometimes the scandal is what’s legal. The Congress has been abrogating its responsibilities, delegating them to the Executive Branch, for decades. I think that’s unconstitutional.
But I also have very strong feelings about nullification, whatever form it takes, and its modern day incarnation is sanctuary cities.
The editors of the Wall Street Journal support the decision:
Democratic states are refusing to cooperate with federal immigration enforcement, but then they complain that the Justice Department is using its legal authority to impose financial consequences for their resistance. Sorry, they can’t have it both ways, the Second Circuit Court of Appeals ruled on Wednesday.
The Justice Department under Jeff Sessions sought to condition Byrne Program grants for public safety to cooperation with federal immigration law. Congress in 2006 required states and cities to satisfy requirements “in such form as the Attorney General may require” and “shall issue.” States must also certify they will comply with all “applicable Federal laws.”
Mr. Sessions required grant applicants to comply with a federal immigration law that bars local governments from restricting communications about citizenship information with federal immigration authorities. He also required states and cities to give immigration officials, upon request, the release dates of incarcerated undocumented immigrants and access to them.
Sanctuary states refused and then sued to force the Trump Administration to pay up. They claimed Justice’s conditions violate the Administrative Procedure Act (APA) and Tenth Amendment’s anti-commandeering principle, which prohibits the federal government from compelling states to enact or administer a federal regulatory program.
The Third, Seventh and Ninth Circuits issued injunctions against Justice. So did federal judge Edgardo Ramos, who cited a sloppy Seventh Circuit decision that glazed over the plain language of the law. But he was reversed Wednesday by the Second Circuit three-judge panel, which upheld Justice’s authority to withhold funds from New York City and seven states.
“We conclude that the plain language of the relevant statutes authorizes the Attorney General to impose the challenged conditions,” Judge Reena Raggi wrote for the court. She explained that the Supreme Court has held, since Maryland tried to tax the Second Bank of the U.S. two centuries ago, that a “State may not pursue policies that undermine federal law.”
She added that Justice did not violate the APA because the Attorney General invoked rather than interpreted the plain text of federal immigration law. The APA applies only when a government agency is seeking to give new meaning to federal law.
As noted above, we now have different circuits deciding this issue in different directions. That means the case will go to the Supreme Court.
Don’t tell me about mercy, unAmerican, racist, etc. What’s the law?