Trump’s order won’t survive courts

Late last month, President Trump signed an executive order entitled, “Enhancing Public Safety in the Interior of the United States.” Put simply, President Trump’s executive order purports to strip federal grants from cities that prohibit the sharing of immigration information with federal immigration authorities. However, there are a couple of problems here.

The first problem: the Constitution. The Tenth Amendment limits the federal government’s powers. In short, the federal government cannot force the states to implement federal laws. This concept is also known as the “anti-commandeering principle.” However, it’s important to understand that, although the federal government cannot force a state (or a city) to implement a federal regulatory scheme, Congress can use its spending powers to entice states to cooperate. This is known as “pulling the purse strings.” Think of it like training your dog. You can’t kick the dog, that’s animal abuse. But you can use bacon to tempt it into performing tricks. Congress uses the same concept, only the bacon is green and is used to fund police departments.

However, the anti-commandeering principle limits what the federal government can do with its spending powers. Think of that same dog again. Let’s say you have one piece of bacon. You show the dog the bacon and tell the dog to roll over. Once the dog rolls over, you give the dog the bacon. After that, the bacon is gone. If you then give the dog a new command, and it doesn’t comply, you can’t then reach inside the dog’s mouth and get your bacon back.

In 2012, the Supreme Court decided the constitutionality of the Affordable Care Act in a case called National Federation of Independent Business v. Sebelius. One issue was whether Congress could punish states that did not participate in the new program by taking away their existing Medicaid funding. Chief Justice John Roberts said that Congress went too far. The court reasoned that federal grant programs are essentially contracts. Once the state meets the requirements for the federal money, the money must be distributed. The federal government can’t go back and change the rules later. A deal is a deal. On that basis alone, the Trump administration’s threats to strip federal funding rest on pretty shaky ground.

There is another problem with the executive order: the way it’s written. Instead of describing the specific conduct that the Trump administration wants to sanction, the order conditions the penalty on violation of section 1373 of Title VIII, the law that prohibits government officials from obstructing the flow of immigration information. But it’s not even clear that most “sanctuary cities” are in violation of section 1373.

In 2009, Los Angeles was sued for violation of section 1373. At the time, Los Angeles had a city ordinance preventing police officers from asking anyone about their immigration status. The plaintiff argued that this was an unlawful restriction on the sending of information. The California Appellate Court disagreed. The court found a distinction between sending information and obtaining information. Los Angeles wasn’t blocking the federal government from obtaining information, so the court reasoned it wasn’t violating the law, even if it wasn’t sending the federal government that information. In other words, Los Angeles wouldn’t even qualify as a sanctuary city under the Trump administration’s order. It’s not hard to imagine many cities doing the same.

Many legal experts agree that the order probably won’t survive a constitutional analysis. Given the resources at the federal government’s disposal, it’s perplexing that the administration left its order so vulnerable to attack.

Christopher Knight is a litigation attorney in Detroit and graduate of the University of Virginia School of Law.