Sanc­tu­ary cities and the rule of law

The Washington Times Weekly - - Commentary - By Andrew P. Napoli­tano

Ear­lier this week, the Trump Depart­ment of Jus­tice (DOJ) told the mayor of Chicago that it would cease fund­ing grants to the Chicago Po­lice Depart­ment that had been ap­proved in the Obama ad­min­is­tra­tion be­cause Chicago city of­fi­cials were not co­op­er­at­ing with fed­eral im­mi­gra­tion of­fi­cials.

The DOJ con­tended that Chicago of­fi­cials were con­tribut­ing to law­less­ness by re­fus­ing to in­form the feds of the where­abouts of un­doc­u­mented for­eign-born peo­ple, thereby cre­at­ing what the feds de­ri­sively call a “sanc­tu­ary city,” and Chicago of­fi­cials have ar­gued that their po­lice of­fi­cers and cler­i­cal folks are not ob­li­gated to work for the feds. Who is cor­rect? The con­cept of a sanc­tu­ary city does not mean it is a place where fed­eral law is un­en­forced by the feds. Rather, it is a place where lo­cal au­thor­i­ties have elected not to spend their tax dol­lars help­ing the feds to en­force fed­eral law. The term “sanc­tu­ary city” is not a le­gal term but a po­lit­i­cal one. The Trump ad­min­is­tra­tion has used the term to char­ac­ter­ize the gov­ern­ments of towns and cities that have cre­ated safe havens for those who have over­stayed their visas by re­fus­ing to tell the feds who these folks are and where they can be found.

Can lo­cal au­thor­i­ties refuse to help the feds en­force fed­eral law? In a word, yes. There is no le­gal obli­ga­tion on the part of lo­cal au­thor­i­ties to help the feds with man­power or re­sources or data to en­force fed­eral law within the ju­ris­dic­tion of those lo­cal au­thor­i­ties.

Dur­ing the Clin­ton ad­min­is­tra­tion, when Congress passed leg­is­la­tion that di­rected lo­cal law en­force­ment to en­force a fed­eral gun reg­is­tra­tion scheme, the Supreme Court in­val­i­dated the statute. It ruled that the feds can­not com­man­deer lo­cal and state of­fi­cials and com­pel them to en­force fed­eral laws; the feds can en­force their own laws.

The fed­eral com­pul­sion, the court held, vi­o­lated the Guar­an­tee Clause of the Con­sti­tu­tion, which guar­an­tees a rep­re­sen­ta­tive form of govern­ment in ev­ery state. If the feds could en­ter a state and nul­lify the will of elected state of­fi­cials not to spend state tax dol­lars, that would un­con­sti­tu­tion­ally im­pair rep­re­sen­ta­tive govern­ment in those states.

Can the feds with­hold fed­eral funds from cities that refuse to co­op­er­ate in the en­force­ment of fed­eral law? Yes and no. In the post-World War II era, Congress be­gan pur­chas­ing state com­pli­ance with its wishes in ar­eas that the Con­sti­tu­tion did not per­mit it to reg­u­late. Stated dif­fer­ently, since Congress can spend money on any mat­ter it wishes, as long as it is ar­guably for the gen­eral wel­fare, but it can­not reg­u­late for the gen­eral wel­fare, it has used its power of the purse as a way around the con­sti­tu­tional lim­i­ta­tions on its reg­u­la­tory pow­ers. This is le­gal­ized bribery of the states. In the Rea­gan ad­min­is­tra­tion, Congress of­fered hun­dreds of mil­lions of dol­lars to the states to repave fed­eral high­ways if the states low­ered their max­i­mum speed lim­its to 55 miles per hour. South Dakota ob­jected. Its govern­ment wanted the fed­eral cash for the high­way repaving but did not want to lower its speed lim­its.

The Supreme Court ruled in fa­vor of the feds. It held that South Dakota is free to re­ject fed­eral dol­lars, but if it ac­cepts them, it must ac­cept the strings that ac­com­pany them, as long as those strings are clearly spelled out be­fore the cash flows and ra­tio­nally re­lated to the ex­pen­di­ture of the fed­eral funds. Be­cause repaving high­ways and the max­i­mum speeds that ve­hi­cles would travel on them were ra­tio­nally re­lated, South Dakota had to choose be­tween its cher­ished lib­eral speed lim­its and fed­eral cash. No sur­prise, it chose the cash.

Now back to sanc­tu­ary cities. When the Obama ad­min­is­tra­tion of­fered Chicago and other cities cash to pur­chase new po­lice com­mu­ni­ca­tion equip­ment, it at­tached strings to those of­fers — but com­pli­ance with fed­eral im­mi­gra­tion au­thor­i­ties was not among them. Chicago’s com­plaints about DOJ threats are con­sti­tu­tion­ally sound be­cause fed­eral strings can be im­posed only by Congress and they can­not be im­posed retroac­tively.

Thus, fed­eral funds awarded in the Obama ad­min­is­tra­tion with­out the string of co­op­er­a­tion with im­mi­gra­tion au­thor­i­ties at­tached may not be in­ter­fered with by the Trump ad­min­is­tra­tion. If the feds do with­hold com­mit­ted funds that lack a co­op­er­a­tion con­di­tion at­tached, a court will in­val­i­date that with­hold­ing.

Is the re­fusal to co­op­er­ate with the feds a form of nul­li­fi­ca­tion? In a word, yes. Fed­eral law is su­pe­rior to lo­cal law in ar­eas that are pri­mar­ily or ex­clu­sively fed­eral, and im­mi­gra­tion is un­am­bigu­ously fed­eral. Yet hav­ing pock­ets through­out the coun­try with­out lo­cal co­op­er­a­tion with the feds fos­ters what the courts have called “lab­o­ra­to­ries of democ­racy.”

Stated dif­fer­ently, if the lo­cal govern­ment in Man­hat­tan or Chicago or Seat­tle ag­gres­sively pro­tects un­doc­u­mented im­mi­grants who live there in re­turn for the pur­chas­ing power and cul­tural di­ver­sity that im­mi­grants bring, that may re­lieve so­cial and le­gal pres­sure on gov­ern­ments else­where and will be a so­cial ex­per­i­ment — a lab­o­ra­tory of democ­racy — wor­thy of cul­tural and po­lit­i­cal scru­tiny and per­haps even in­dif­fer­ence when it comes to the feds.

Many Trump sup­port­ers see in the pres­i­dent a cham­pion who will rid the coun­try of those they see as un­law­fully here, and they also see in lib­eral big-city may­ors politi­cians pan­der­ing to in­ter­est groups. But there is a rich his­tory to fed­er­al­ism, and there are two sides to its coin. The rich his­tory is that of state and lo­cal re­sis­tance to the tyranny of the ma­jor­ity in Wash­ing­ton — a re­sis­tance as old as the coun­try it­self. The re­fusal of Mas­sachusetts au­thor­i­ties to co­op­er­ate with the feds in the en­force­ment of the fed­eral Fugi­tive Slave Act comes to mind.

The other side of the coin is un­think­able to my con­ser­va­tive brethren. If Hil­lary Clin­ton had been elected pres­i­dent along with a Demo­cratic Congress, and it had of­fered state and lo­cal gov­ern­ments fed­eral funds with strings at­tached re­quir­ing cities to make abor­tions avail­able on de­mand, they all would be whistling a very dif­fer­ent and very fed­er­al­ism-based tune. Andrew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of nine books on the U.S. Con­sti­tu­tion.

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