Can A City Refuse Land-Use Permits Because it Doesn’t Like the Federal Policies the Property Will be Used to Implement?

Posted in: Constitutional Law

Controversial immigration policies that originate in D.C. and that are enforced throughout the country by the Immigration and Customs Enforcement (ICE) agency continue to generate tremendous friction between the federal government, on the on hand, and the state and local governments, on the other. In my last column I wrote about a recent decision from the U.S. Court of Appeals for the Second Circuit involving a challenge brought by “sanctuary” states and cities—that is, jurisdictions that do not want to assist federal authorities in immigration enforcement—to contest the way the federal Department of Justice administers certain federal grants.

As I have explained in many previous writings, putting aside requirements that stem from funding agreements between the states and federal authorities, states don’t have to assist if they would rather not. Indeed, a crucial legal line that runs through many modern federal-state disputes is that between non-assistance and affirmative interference. Properly and narrowly understood, the decision of sanctuary jurisdictions to decline to provide certain kinds of enforcement help to federal immigration authorities should be, as I have written in several previous columns (including this one), protected by the so-called anti-commandeering principle reflected in New York v. United States and Printz v. United States, recently reaffirmed by the Supreme Court in Murphy v. NCAA. But even under the broadest readings of New York and Printz, state and local authorities have no right to interfere with federal immigration enforcement by, for example, harboring individuals sought by federal authorities, impeding access to such individuals by federal officials, or providing false information to the feds.

But impermissible state or local interference can take more subtle forms too. Case in point: a high-profile political battle being waged in the California Central Valley farming community of McFarland. According to recent reports from the New York Times, two state prison facilities, which had been privately operated by a company called the GEO group, are now closing, threatening the community with substantial economic harm. GEO proposed to convert the two prison facilities into detention centers operated under a contract with ICE—a “plan that city leaders said could provide this impoverished town with a financial lifeline.”

But McFarland, which was featured in the 2015 Kevin Costner 2015, McFarland, USA, happens to be home to a very large population of undocumented persons—some private estimates suggest that up to half of the town’s 15,000 residents are undocumented—“the very kind of people,” the New York Times story observed, “who might be housed” in the type of ICE facilities GEO has in mind.

As a result, there have been large protests by townspeople in opposition to GEO’s proposal concerning use of the old prison facilities, a proposal that must be approved by the city’s planning commission to move forward.

In the midst of this political turmoil, the mayor, Manuel Cantu, resigned last month, a day after the planning commission rejected GEO’s requested approval. According to Mayor Cantu, “[w]ithout GEO, we can’t guarantee we can pay for law enforcement, fire or other services.” He predicted the closure of the prison, without a replacement like the one GEO urges, will be “devastating” for a small city whose budget deficit is already half a million dollars.

And yet, according to the news accounts, he apparently felt that city government should do whatever the residents preferred: “If the residents don’t want [detention facilities] because of their fear of ICE or whatever, the city belongs to the residents.”

There are so many important angles worth considering on a story like this. One, certainly, involves the tragic plight of small Central Valley farming communities like McFarland. Another involves the interesting political participation and clout of persons who are not even allowed to vote. Yet a third involves the policy wisdom of the state and federal governments contracting with private companies (like GEO) to operate prisons and detention facilities. (A rethinking of the privatization of prison operations in California may have led to the closure of the McFarland GEO prisons in the first place.)

But still another take involves whether Mayor Cantu was right in suggesting that because “the city belongs to the residents,” the city can and should reject GEO’s proposals on account of popular opposition to the federal government with which GEO is working.

As a constitutional matter, this proposition is likely not very valid. It is true, of course, that state and local governments have tremendous control over their own land use decisions; but such latitude does not permit local governments to obstruct federal operations, even operations that are controversial.

The basic test as stated in modern Supreme Court cases as to whether a local government decision permitted to stand is whether “under the circumstances of [a] particular case, [the challenged local action] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” And “[w]hat [constitutes] a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.”

In McFarland, preventing the federal government from accomplishing its objectives is precisely what (according to the news reports) the city seems to be trying to do. The clear implication from the interviews and statements from public officials there is that the electorate and the city would approve GEO’s land-use request except for the fact that residents don’t want ICE to be able to effectuate its policies.

As I noted in my introduction (and many times elsewhere), state and local governments cannot be forced to lend their personnel or resources to assist the federal government in enforcement of federal laws and policies because of the so-called anti-commandeering principle in the 10th Amendment. And there is a generic sense in which granting land-use approvals is “assisting.” But this kind of withholding of approvals by local government is not protected under the anti-commandeering rule. We can see why this is so by examining the seminal case of McCulloch v. Maryland.

In that famous ruling involving the Bank of the United States, Chief Justice John Marshall, writing for the Court, struck down a tax that Maryland had specifically imposed on the Baltimore branch of the federally chartered Bank entity, on the ground that Maryland could not impose taxes targeted against the federal government to deter unpopular federal operations, so long as those operations (in this case the Bank of the United States) were constitutionally permissible, no matter how politically controversial. In so doing, he observed that the “power to tax involves the power to destroy.” But the power to regulate, the power to zone, the power to employ and the power to dole out benefits also all involve such a power. Imagine that McCulloch had involved a state law that prohibited any private persons employed by the Bank of the United States from ever being eligible to attend public schools, be employed by state or local government or receive other public benefits in the state. Certainly Maryland could not attack the Bank indirectly by attacking its people/employees. And if a state can’t attack employees of the federal government, neither should it be free to attack contractors, which are in effect substitutes for federal employees themselves.

When state and local governments create policy discriminating against entities that do business with the feds, they are not simply withholding assistance to the feds, but instead are affirmatively trying to make it harder for the feds to find third parties to implement national programs.

More generally, I think whether we are talking free speech, presidential election reform or federal-state relations, we should always remember that the rules and doctrines we forge must apply equally well regardless of which political party or ideology is in control in the White House. Federalism doctrine, if it is to have integrity, should take federal supremacy just as seriously when the feds seek (whether wisely or not) to build walls as when they seek tear walls down, say, by promoting voting rights, ending racial segregation, or facilitating marriage equality.

Imagine, for example, that in 2010, when President Obama was still in office, a city’s townspeople opposed naturalization of more people to become United States citizens. And imagine that the city’s residents pressured the city’s land-use leadership into denying a federal contractor’s request to repurpose an existing property and its buildings so that they could be used to operate a learning facility dedicated to assisting persons who want to become citizens to prepare for the citizenship process and test. If the anti-federal-government motive of the voters (imputed to the city leaders) in such a scenario were clear, can anyone believe we would permit such defiance by local communities of federal policy? In this hypothetical, as in the McFarland scenario, the city could argue that is was merely withholding assistance (the granting of land-use permits), but no one could believe that defense would succeed.

There remains, of course, the question of proving the intent of the city government actors; a city can deny land-use permits for many reasons, and if those reasons have nothing to do with antagonism towards implementation of federal policies, then a city’s actions may be permissible, even if those actions have the incidental effect of making the accomplishment of federal objectives somewhat harder.

Proving intent is sometimes hard, and certainly courts are wary, as I have discussed, of finding impermissible intent on the part of the President and the federal executive administration. But federal courts historically have felt much more comfortable discerning improper intent by local government authorities, especially in the land-use arena. (A federal court telling a local zoning board it acted badly just isn’t the same thing as telling a coordinate federal branch the same thing.) And so, if after the administrative process has run its course and GEO is still denied the approvals it needs, if it and the federal government challenge McFarland in court (and they have already sued the State of California on some related matters), don’t be surprised if, regardless of how unwise or harsh many people feel ICE policies may be, that the feds have a winning legal argument.

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