Starving Sanctuary Cities

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?

6 comments… add one
  • TarsTarkas Link

    I can already predict the NYT’s opinion on this: The legacy of the Supreme Court, and the personal integrity of Chief Justice Roberts, rides on the correct interpretation of this case (hint, if they find against Orange Man Bad, it’s the right call).

    It’s very frustrating when the law is constantly being interpreted differently depending on whose ox is being gored or who is in power. The law is the law as written, not stretched into an interpretive pretzel. If you don’t like it, repeal it or replace it, and if you can’t do that, win elections so you can. Don’t keep running crying to the black robes to make them impose law you lack the votes or the courage or the persuasion to write and pass.

  • PD Shaw Link

    The law is bi-partan legislation from 1996 that sought to prevent state and local governments from barring their officials from communicating or cooperating with INS. There is legislative history that this was intended to be used to preclude funding non-cooperative agencies.

    The Byrne Fund was created in 2006 as part of the Violence
    Against Women Act, and which provide flexible spending based upon state and local law enforcement needs. The enabling law required applicants to certify to various things, including they will comply with all other applicable federal laws. The Attorney General is directed to administer the fund with various conditions imposed by statute.

    The Obama administration appears be the first to have directed applicants for Byrne Funds to examine their compliance with the 1996 law as one of the “other applicable federal laws.” AG Lynch clarified that the 1996 law didn’t contain affirmative requirements to do something, just an affirmative requirement not to prohibit something.

    The sequence here matters I believe. The laws and ordinances passed by state/local government to bar cooperation with IMS have arisen in the last ten years in the face of federal law to the contrary. The opposing view appears to that the 1996 law is unconstitutional as a form of improper commandeering. The feds can’t control how the money they hand-out is spent.

    Take the King’s shilling and you dance to the King’s tune.

  • steve Link

    “Take the King’s shilling and you dance to the King’s tune.”

    Suppose you are New York or Illinois and for every dollar you send to the federal government they send back less than a dollar. Shouldn’t the folks paying the bills call the tune?

    “The law is the law as written,”

    Not even remotely true. The law is whatever the people in power decide to enforce. So in matters where ideology matters, SCOTUS will almost always favor the GOP. When a federal law that has something to do with guns is ignored by conservative states, the Trump DOJ will ignore it. Yet, let a city decide that its own best interests are served by not holding prisoners indefinitely, and paying for that, until the Feds show up, and they get labeled a sanctuary city and the GOP will go after that city.


  • bob sykes Link

    Nullification was at the heart of the Articles of Confederation, and the new Constitution explicitly forbad it (Article VI?). You cannot have an effective central government if states and localities can veto federal rules and laws. Denial of funds to renegade states and cities is the least action that should be taken. The arrest and imprisionment of the guilty state and local officials is required.

    If you disagree, then states and cities are free to impose not only segregation but actual slavery on blacks, to deny the right of women to vote or own property, to impose some state religion in the public schools, to outlaw abortion and contraception, to regulate publishers as to content… Do you hear me now?

  • Yes, that would be Article VI:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

  • To expand on my point, I don’t think this is a cut-and-dried issue. There are issues of supremacy, preemption, and commandeering all contending in it. I’m also skeptical whether the finding in Printz v. United States, which would support the jurisdictions’ position, applies to immigration law.

    That’s why I ask what the law is.

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