Returning to the United States from a family vacation abroad recently, I jealously watched some of my fellow travelers zip through immigration and customs as my party trudged slowly along in the queue to the kiosks. What was so special about those flyers?
The answer, I soon learned, was that the line-skippers had successfully enrolled in one of the U.S. Department of Homeland Security (DHS)’s Trusted Traveler programs. Like TSA Pre-check for outbound domestic flights, Trusted Traveler permits those arriving international passengers who have passed the required screening to receive expedited scrutiny. Contemplating some upcoming foreign travel, I considered enrolling as a Trusted Traveler.
Unfortunately for me, however, I live in New York State. Earlier this month, the Acting Secretary of DHS announced that New York residents would no longer be permitted to enroll in or renew their expiring enrollments in its Trusted Traveler programs. The move followed up on President Trump’s State of the Union address, in which he condemned New York and other so-called “sanctuary” jurisdictions for failing to provide federal immigration authorities full disclosure of driver records.
Why does New York State deny access? As Governor Andrew Cuomo has explained, many undocumented immigrants in the state will drive regardless of whether they are licensed; for public safety, New York wants to provide all drivers with an incentive to obtain a license; undocumented immigrants will be reluctant to apply for driver’s licenses if they fear that information they provide the state will be used against them by federal immigration authorities; thus, to reassure undocumented immigrants that obtaining a state driver’s license will benefit them, the state does not share license data with the federal government absent a court order.
That logic is easy enough to follow, but why has DHS moved to exclude New Yorkers from the Trusted Traveler programs? The Secretary’s announcement of the new policy asserts that the federal government needs state Department of Motor Vehicle (DMV) records to validate eligibility for Trusted Traveler status. New York has questioned that rationale. After all, a great many residents of New York City do not drive and thus do not even have a driver’s license (and thus have no records with the state DMV); yet they have heretofore been eligible to apply for a Trusted Traveler program.
Accordingly, a lawsuit filed last week by New York’s Attorney General Letitia James alleges that the Trump administration is punishing New Yorkers in an illicit attempt to coerce the state into changing its policy of granting driver’s licenses to undocumented immigrants and not voluntarily sharing information with federal immigrations officials.
The lawsuit could soon become moot. Last week, Governor Cuomo offered to allow DHS access to New York DMV records for Trusted Traveler applicants but not more broadly. He then met with President Trump in an effort to reach a negotiated resolution to the conflict. They did not resolve it but agreed to talk again this week.
New Yorkers hoping to retain or apply for Trusted Traveler status no doubt hope for a quick agreement, which would moot the state’s lawsuit. Yet whether or not the courts ultimately rule on the case, it raises a number of important legal questions that have broader importance. In the balance of this column, I address two such questions of federalism and one of standing.
New York’s lawsuit alleges that the new policy violates a federal statute and federal regulations. It also contends that the process used and justification offered for the new policy violate basic principles of regularity mandated by administrative law. These are all potentially winning claims, but I shall set them aside to focus on New York’s constitutional claims.
Two of the constitutional claims arise under the Tenth Amendment, which protects what are sometimes called “states’ rights.” First, New York alleges that DHS has violated the “equal sovereignty of the states.”
What’s that? It refers to a principle announced by a 5-4 conservative majority in the 2013 case of Shelby County v. Holder. There, in an opinion by Chief Justice John Roberts, the Court invalidated Section 4 of the Voting Rights, which identified specific state and local governments for special scrutiny before they could adopt changes to their voting laws with a potential racially disparate effect. Although the Court did not categorically forbid Congress from treating some states differently from others, it held that Congress needed a good reason to do so but that in simply re-issuing a fifty-year-old coverage provision Congress had failed to demonstrate one.
The equal sovereignty principle might seem sensible, but the Supreme Court simply invented it in the Shelby County case. And there are sound reasons to doubt the wisdom of the principle. In a large diverse country, there will frequently be state and local differences that justify different approaches, as University of Chicago Law Professor Eric Posner explained: “Nearly all laws affect different states differently. Disaster-relief laws benefit disaster-prone states at the expense of disaster-free states. Pollution-control laws burden industrial states. Progressive taxes burden states where the rich are concentrated.”
Yet if the equal sovereignty principle was casually and unjustifiably invented to serve conservative ends in Shelby County, that is all the more reason for liberal New York to invoke it against the Trump administration’s anti-immigrant policy. Turning a doctrine conceived by conservatives to liberal ends is what I have called “litigation jujitsu” because it redirects the adversary’s strength against the adversary. Given that liberal states will as often be aligned against a conservative federal government as vice-versa, federalism doctrines like equal state sovereignty provide especially fertile ground for such jujitsu, as Yale Law School Dean Heather Gerken has argued.
Thus, it is not surprising that New York’s second federalism argument also relies on a line of Supreme Court cases conceived originally for conservative ends. New York alleges: “The Tenth Amendment prohibits the federal government from coercing states to legislate or promote policies that capitulate to federal interests.” Although the complaint cites Shelby County in support of the equal sovereignty claim, it cites no authority for the anti-coercion principle. However, it could have done so—and presumably will do so should the case proceed further.
Fittingly, the leading case the state could have cited is the 1992 ruling captioned New York v. United States. There, New York successfully challenged an Act of Congress that directed the state to pass legislation implementing a federal mandate regarding the disposal of low-level radioactive waste. The so-called anti-commandeering doctrine announced in the 1992 case remains powerful. Less than two years ago, the Supreme Court applied it in Murphy v. NCAA to invalidate a federal law that told states how to regulate sports gambling.
To be sure, the anti-commandeering rule only forbids the federal government from engaging in “outright coercion” of the states. It allows various forms of incentives. Most potently, Congress can use its Spending Clause power to offer states money if they comply with conditions that the federal government could not mandate directly.
Yet even the power of conditional spending has limits. As the Supreme Court held with respect to Medicaid expansion in the 2012 Obamacare case, Congress may not use the spending power itself in a way that goes beyond persuasion into coercion. More to the present point, in the Trusted Traveler case, Congress did not authorize the withholding of federal funds and, in any event, New York appears to be correct that the Trump administration’s plan amounts to outright coercion. Accordingly, New York’s coercion claim looks solid.
Jujitsu, Hypocrisy, and Standing
The apparent solidity of New York’s federalism claims does not ensure their success. Litigation jujitsu always must contend with the risk of judicial hypocrisy. Lower court judges sympathetic to liberal causes may be eager to apply principles originally adopted by conservative justices but then, if and when the case reaches the Supreme Court, there remains the possibility that those justices will announce new and unexpected reasons why the principle that was broad enough to lead to conservative results in the earlier cases does not lead to liberal ones in the later ones.
(Litigation jujitsu and judicial hypocrisy can also work in the other direction as well, of course. When the Supreme Court was more liberal, its justices were capable of inventing distinctions to prevent principles that once supported liberal results from being used to support conservative ones.)
In addition to the risk of judicial hypocrisy, New York’s lawsuit could face procedural obstacles.
Beyond the statutory, administrative law, and federalism claims, New York’s complaint also includes a constitutional due process claim. The complaint alleges that “[t]he Trusted Traveler Ban targets all New York residents for discriminatory treatment with no rational basis.” If that sounds more like an equal protection violation than a due process violation, one must recall that the Constitution contains no express equal protection clause applicable to the federal government but that the Supreme Court has found that the Fifth Amendment’s Due Process Clause—which does limit the federal government—incorporates an equal protection principle.
Yet whether understood as a matter of equal protection, due process, or both, this aspect of New York’s complaint appears to raise a question of individual rights, not states’ rights. Although states have some so-called parens patriae power to sue on behalf of their citizens, the scope of that power is limited. Thus, there is some risk that a court could hold that New York lacks legal standing to bring the due process/equal protection claim.
Here, then, is some free and unsolicited legal advice for Attorney General James: If the case is not quickly settled or mooted, amend your complaint to add private plaintiffs—some New Yorkers who plan to apply for Trusted Traveler status and others who will be barred by the new policy from renewing their existing Trusted Traveler status. Such plaintiffs would clearly have standing to raise the due process/equal protection claim.
Moreover, the added private parties would also have standing to raise the federalism objection. In a unanimous 2011 decision in Bond v. United States, the Supreme Court reaffirmed the longstanding principle that individuals have legal standing to bring federalism claims. As the Court proclaimed by quoting the 1992 decision in New York v. United States, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”
Even rhetoric as powerful as that does not guarantee that New York and any newly added private plaintiffs will succeed in their litigation jujitsu, but it surely raises the stakes for any conservative justices tempted to respond with judicial hypocrisy.