This week’s proposal by President Trump that immigrants detained at the border be relocated to so-called “sanctuary” cities (which the federal government has previously defined as jurisdictions that refuse to assist in federal immigration enforcement), so that these cities will bear the costs of absorbing the detainees, is not the first time the federal government has considered punishing (as distinguished from simply withholding federal funding from) sanctuary jurisdictions. Less than a year ago, a provision in a House bill (that was never passed) said that if a state or political subdivision thereof makes a policy decision to decline to provide immigration information to the feds or to decline to honor federal detainer requests—the two characteristics of sanctuary jurisdictions that have given rise to legal disputes—then persons who are victims of certain crimes committed by any alien covered by a rebuffed detainer or information request can sue the relevant state/locality for money damages for any harm suffered.
The question whether states and localities can decide not to honor federal information or detainer requests has, as intimated above, generated a fair amount of litigation, the details of which I have discussed in several earlier columns, including here. Although the legal issues are complicated, the lower courts (rightly, I think) so far have ruled that while states cannot actively interfere with federal immigration enforcement (by, say, harboring undocumented persons, lying to the feds, impeding the movements of federal agents, deterring private persons from cooperating with federal officials, etc.), neither can the feds simply command the states to actively assist by providing information or prolonging state detentions. Drawing on and quoting from Printz v. United States in particular, these lower courts have reminded federal authorities that “[t]he 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.”
Printz itself was based almost entirely on New York v. United States, the seminal 1992 case laying out the so-called “anti-commandeering” principle and its theoretical foundations. In New York, the Court struck down a congressional law that instructed states to regulate nuclear waste generated within their borders according to certain federal objectives or else “take title” to the waste. Taking title is often a good thing (as when one gets a pink slip to a car or a deed to home), but taking title to nuclear waste isn’t desirable, because owning nuclear waste means primarily owning the liability for harm that such waste might cause. And the federal law in New York imposed liability on the state not because the state had done anything to create the waste, but because the state chose not to regulate persons within its borders according to federal preferences.
Five years later, the Printz Court applied and extended New York to protect not just state legislators but state executive officials, too. Printz involved a federal law that by its terms mandated local police officials, upon learning of a proposed sale of certain firearms, to “make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of [federal] law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General.” A majority of the justices held that such “commandeering” of local law enforcement personnel—telling local personnel what they what they must affirmatively do without giving states and localities any choice about whether to assist—violates the Tenth Amendment and the principles of state autonomy that it represents. Although there may have been plausible historical and structural arguments that state executive officials are distinguishable from state legislators in this realm, the Court saw no dispositive difference between these two classes of state officials for purposes of the anti-commandeering principle.
Last year’s House immigration proposal for sanctuary jurisdictions and this week’s suggestions by President Trump about relocating detainees to sanctuary cities resemble in key respects the “take title” provision struck down in the New York case. Just as in New York the federal government could not force defiant states to incur the costs of nuclear waste based on their lawful decision not to enact or administer federally preferred policies, so too the federal government cannot punish non-cooperating sanctuary states or cities by selectively imposing on them tort liability or social program costs relating to undocumented persons.
But do New York and Printz remain good law and apply to the current disputes today? I think so. The Court just last Term, in Murphy v. National Collegiate Athletic Association, emphatically (and by a 7-2 vote) affirmed and applied New York to strike down the Professional and Amateur Sports Protection Act of 1992, a law that mandated states to adopt policies prohibiting sports gambling in violation (according to the Court, at least) of the anti-commandeering principle.
The Murphy Court relied a lot on New York, but it also described and discussed Printz in ways strongly suggesting that it too remains good law. In Printz itself, the Court did intimate that the anti-commandeering rule might not apply to situations in which the federal government is simply asking states to provide information states already possess. Sanctuary jurisdictions often decline to provide information (in addition to declining to detain non-citizens), so some might argue that part of what sanctuary cities try to do should not be protected by the anti-commandeering principle.
I am not persuaded that information requests—at least the kind being fought over these days—fall outside the commandeering prohibition. In New York and Printz, and again in Murphy, the Court has made clear that one—if not the primary—value underlying the anti-commandeering rule is the promotion of political accountability: the rule prevents states from being improperly blamed for unpopular policies that in reality are dictated by federal actors. Like many other scholars I have generally been unconvinced by the accountability rationale, primarily because it fails to adequately explain why conditional funding and conditional preemption are permitted. But if accountability remains the (or even a) touchstone, this has implications for the current debate over sanctuary jurisdictions. Although some types of information demands might not implicate accountability concerns, the ones at issue in modern immigration battles do. Sanctuary jurisdictions generally explain their decisions to become sanctuaries by arguing not that they want necessarily to increase the number of undocumented persons locally or nationally, but that that all current residents are safer and healthier if undocumented residents already in these communities feel free to report crimes to police and to avail themselves of other public resources (e.g., health clinics and schools) without fear that local authorities are actively working in concert with the federal deportation efforts. If local officials are not able to publicly and credibly proclaim and publicize that they will not provide information (or other support) to federal authorities, undocumented persons may clam up or fail to seek health and education services (whether or not the undocumented persons know the details of any support the locals provide). The electorate may blame the resulting possible local increases in unsolved crime and public health problems on local officials rather than the federal officials making the demands. Or, at least, this corruption of accountability is as plausible as it was in New York and Printz. This fact will make it harder, though not necessarily impossible, for the Court to create a rigorous “information-demand exception” to Printz that might apply to sanctuary cities.
Then there is the question of a possible “immigration exception” to Printz. But remember that one feature of New York, and presumably Printz too, is that the anti-commandeering rule is absolute and not subject to balancing: As the Court reminded in Murphy: “‘[N]o Member of the Court has ever suggested’ that even ‘a particularly strong federal interest’ ‘would enable Congress to command a state government to enact state [legislation].’” An immigration exception would seem inconsistent with this categorical prohibition.
And, of course, more generally, Murphy’s forceful affirmation of anti-commandeering tenets generally suggests the Court will not be open to gimmicky ways of distinguishing New York or Printz. In this regard, it bears mention also that Murphy represents the first case in which the Court has applied the anti-commandeering principle to strike down a federal law that was not associated with progressive policies in the way environmental protection and gun control are, a fact that might portend the durability of the doctrine.
Even beyond the anti-commandeering cases, it bears noting that there are other parts of the Constitution that safeguard against federal punishment of particular states. One provision in the Constitution says that federal taxes cannot be targeted to impose higher liability on citizens based on the fact that they live in a particular state. And in the voting rights area, the Court has recently reminded that whenever the federal government differentiates between states for purposes of imposing burdens, there must be evidence-backed compelling reasons.
Of course, the federal government in practice might often be able to discriminate against some states for partisan reasons and get away with it. For example, some suspect that the president’s tax plan that reduces deductibility of state taxes was designed to punish Blue states, which as a group tend to have higher state tax rates. But proving impermissible intent is often difficult, as was illustrated by last year’s so-called travel ban case in which the Court upheld Executive Orders regulating entry into the country despite allegations of anti-Muslim motivation.
Importantly, however, that case involved only the rights on non-citizens, not (as the current dispute does) the rights of states. Moreover, by the time the travel ban case was decided by the Court, the executive orders had been through many iterations to the point that the disparate impact on Muslim-majority nations had significantly dissipated. By contrast, the policy being contemplated for rapid adoption today explicitly targets sanctuary jurisdictions—not just cities that are ostensibly chosen for other reasons but that happen to be sanctuary cities. For these reasons, the idea the president has been floating—that targets for special burdens those jurisdictions that have chosen to exercise their autonomy rights under the Constitution—would seem to be a tough sell, even in the eyes of a conservative Supreme Court that defers to the Executive branch in matters of foreign affairs.