By Eddie Nasser*
In Executive Order No. 13768 issued January 25th, President Trump attempted to follow through on a major campaign promise to cut all federal funding from so-called “sanctuary cities.” Not only is the order bad policy, it also seems unlikely to withstand a challenge in court.
Section 9(a) of the order mandates that jurisdictions “that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” It directs that “the Attorney General and the [Secretary of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Section 1373 states that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
Within a week of the order’s signing, the City of San Francisco sued the administration in the Northern District of California. San Francisco stated three causes of action. First, it sought a declaration that the order complied with § 1373. Second, it asserted that § 1373 violated the Tenth Amendment and asked the court to invalidate the statute or enjoin the administration from its enforcement. Finally, San Francisco alleged that Section 9(a)’s conditioning of federal funds on compliance with § 1373 violated the Tenth Amendment. After the suit in California, the Lawyers’ Committee for Civil Rights and Economic Justice, a nonprofit advocacy group based in Boston, filed a similar suit in the District of Massachusetts on behalf of Massachusetts sanctuary cities Chelsea and Lawrence.
These suits promise to give the administration trouble. Both are wise to question the constitutionality of § 1373. In Printz v. United States, the Supreme Court held that the federal government could not compel state and local law enforcement officers to conduct background checks on gun purchasers as part of the implementation of the Brady gun control law. 521 U.S. 898, 925 (1997). The Court declared that “the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Id. at 935. Plaintiffs here allege that § 1373 requires exactly the kind of compelled implementation of a federal regulatory scheme that Printz prohibits.
If § 1373 runs afoul of Printz, the only legal basis for the Executive Order would be federal power under the Spending Clause. U.S. Const. art. I, § 8. When the Supreme Court ruled in 2012 that states could opt out of expanding Medicare under the Affordable Care Act, it issued clear guidance on what would be required for the withdrawal of existing federal funding. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2574 (2012). The Court outlined a three-part test. The federal government must give notice of the conditions of funding so that states and localities can choose to comply; there must be a connection between the funding in question and the conditions attached; and finally, even if such a connection exists, the conditions cannot be applied to funds that have been relied on for so long that the state or locality has no choice but to submit going forward. Id. Here, the order fails on all three prongs. The administration clearly did not give sufficient notice to the localities, the order does not indicate any specific constraints on which funding can or will be ceased, and the localities can show a sufficient a reliance interest such that compliance will be all but mandated.
Executive Order No. 13768 perfectly encapsulates the administration’s first month. The policy itself runs counter to strong evidence that granting sanctuary status promotes both public safety and health. Section 9(a) as drafted seems unlikely to withstand legal scrutiny, like another poorly executed and high profile mishap, and begs the question of why the administration insists on governing through unilateral action instead of the legislative process. President Trump’s sloppily drafted and hastily issued policies may already be alienating members of his own party, and his legal headaches are just beginning.
*Eddie is a 2L at HLS and an Online Editor for HLPR.