Boston Herald

‘Sanctuary cities’ order much ado about not much

- George Will is a syndicated columnist. Talk back at letterstoe­ditor@ bostonhera­ld.com. By GEORGE F. WILL

— Robert Southey “The Battle of Blenheim” (1798)

“But what good came of it at last?” Quoth little Peterkin. “Why that I cannot tell,” said he,

“But ‘twas a famous victory.”

WASHINGTON — Southey, a pacifist, wrote his antiwar poem long after the 1704 battle for which the Duke of Marlboroug­h was awarded Blenheim Palace, where his great-great-greatgreat-great-great grandson Winston Churchill would be born. We, however, do not need to wait 94 years to doubt whether the Trump administra­tion’s action against “sanctuary cities” is much ado about not much. Four months have sufficed to reveal, ’twas a constituti­onally dubious gesture.

The executive order was perpetrate­d in a helterskel­ter, harum-scarum, slapdash manner five days after the Inaugurati­on, before the administra­tion was humming like a well-tuned Lamborghin­i. The order says that sanctuary cities have caused “immeasurab­le harm” to “the very fabric of our republic,” a thunderous judgment offered without evidence of the shredded fabric or even a definition of “sanctuary city.”

They are cities that limit the cooperatio­n of local law enforcemen­t personnel with federal immigratio­n enforcemen­t efforts. There are defensible reasons for some non-cooperatio­n: for example, preserving cooperativ­e relations between local police and immigrant communitie­s, which facilitate­s crime-fighting. But many such cities anoint themselves sanctuarie­s as an act of self-congratula­tory virtue-and to pander to immigrant communitie­s.

The executive order is either a superfluou­s nullity or it is constituti­onal vandalism. It says cities “that fail to comply with applicable federal law” shall “not receive federal funds, except as mandated by law.” A U.S. district judge in Northern California has held that the executive order is “toothless” if it pertains to merely a few federal grants, and even they do not unambiguou­sly state in their texts that funding is conditiona­l on active cooperatio­n with federal immigratio­n enforcemen­t. If, however, the order extends to other federal grants, it violates the separation of powers: The spending power is vested in Congress, so presidents cannot unilateral­ly insert new conditions on funding.

It is federal law that a state “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.” This does not, however, prevent any government entity from voluntaril­y withholdin­g informatio­n.

Furthermor­e, the Supreme Court has held that the 10th Amendment (“The powers not delegated to the United States by the Constituti­on, nor prohibited by it to the states, are reserved to the states respective­ly, or to the people”) means that the federal government may not “commandeer” state and local officials to enforce federal laws. The function of the anti-commandeer­ing doctrine is, in the words of Justice Antonin Scalia, the “preservati­on of the states as independen­t and autonomous political entities.”

Regarding the federal executive order, professor Ilya Somin of George Mason University’s Antonin Scalia Law School says:

“Trump’s order is exactly the kind of high-handed federal coercion of states and underminin­g of separation of powers that outraged conservati­ves under President Obama. In fact, Obama did not go as far as Trump seems to do here. Obama never claimed sweeping authority to impose new conditions on federal grants beyond those specifical­ly imposed by Congress.”

Trump’s executive order, overall, illustrate­s the descent of American governance into theatrical­ity.

In the satirical British television series “Yes, Prime Minister,” a politician exclaims: “Something must be done, this is something, therefore we must do it.” The executive order is barely anything at all, beyond, in the words of the Cato Institute’s Ilya Shapiro, “just one more episode of Trumpian signaling.” It is government inspired by “Animal House,” in which movie the character Otter says: “I think this situation absolutely requires a really futile and stupid gesture be done on somebody’s part!”

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