Over the last year, President TrumpDonald TrumpCapitol fencing starts coming down after 'Justice for J6' rally Netanyahu suggests Biden fell asleep in meeting with Israeli PM Aides try to keep Biden away from unscripted events or long interviews, book claims MORE and Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsOvernight Hillicon Valley — Apple issues security update against spyware vulnerability Stanford professors ask DOJ to stop looking for Chinese spies at universities in US Overnight Energy & Environment — Democrats detail clean electricity program MORE have waged an ongoing series of legal battles against “sanctuary” jurisdictions — cities, such as Seattle, and states that refuse to aid federal government efforts to deport undocumented immigrants.
Sessions’ recently filed lawsuit targeting California’s sanctuary policies is just the latest iteration in this fight.
If the administration prevails, it will be a major blow to state and local autonomy in our constitutional system. Both left and right have good reason to fear such an outcome.
Trump issued an executive order last January pulling virtually all federal grants from cities and states that violate 8 USC Section 1373, a federal law barring cities or states from forbidding their employees to divulge information to federal immigration enforcers about the citizenship status of people within their jurisdiction.
In July, Sessions announced a policy under which the Justice Department would deny Edward Byrne Memorial Justice Assistance Grants (approximately $275 million in 2016) to states and localities unless they meet three conditions: complying with Section 1373, giving the Department of Homeland Security (DHS) access to state detention facilities and giving DHS 48 hours notice of the release of any person whom DHS had asked the state to detain.
The main constitutional flaw in both policies is simple: Only Congress has the power to spend money or impose conditions on federal grants to states. And Congress never passed any laws mandating that recipients of grants must meet the conditions Trump and Sessions seek to impose.
That’s why the executive order and the Sessions policy have suffered a series of embarrassing defeats in federal court at the hands of both Republican and Democratic judges.
If the administration wins these cases on appeal, it will set a dangerous precedent going far beyond the specific issue of sanctuary cities. If the president can unilaterally add new conditions to one federal grant program, he can do the same with others.
Since there is a vast array of federal grants, that would give the executive a massive club to coerce states and localities on a wide range of issues. Conservatives may cheer when the current administration uses this tool against sanctuary cities, but will likely regret their enthusiasm if a liberal Democratic president uses the same tactic to force states to pursue left-wing policies.
Section 1373 is likely unconstitutional even aside from its use as a grant condition. The Supreme Court has repeatedly ruled that the federal government may not “commandeer” state and local officials by compelling them to enforce federal law.
Section 1373 attempts to circumvent this prohibition by forbidding higher-level state officials from mandating that lower-level ones refuse to help enforce federal policy.
But, as Justice Antonin Scalia explained in Printz v. United States, the purpose of the anti-commandeering doctrine is the “[p]reservation of the States as… autonomous political entities.” That autonomy is undermined if the federal government can take away the states’ power to decide what their officials may do on the job.
If the courts ultimately uphold Section 1373, Congress could use similar tactics to compel state cooperation on a variety of other issues.
The Sessions lawsuit against California’s sanctuary laws raises tougher issues than the conditional spending cases. One of the laws in question restricts government information-sharing with DHS. Its fate likely rests on the constitutionality of Section 1373.
The suit also challenges California Assembly Bill 103, which requires state inspections of facilities in California, where immigrants are detained by federal agents.
California surely has the right to inspect its own state and local government facilities, especially since there is a history of abusive treatment of detained immigrants. The case of privately owned detention facilities is tougher.
Finally, Sessions' lawsuit targets Assembly Bill 450, which forbids private employers from cooperation with federal Immigrations and Customs Enforcement raids unless such cooperation is mandated by a court order or a specific federal law.
Sessions might prevail on these issues by claiming that the relevant state statutes are “preempted” by federal law. In Arizona v. United States (2012), the Supreme Court ruled that federal immigration laws often override state law even where there is no direct conflict.
But the Arizona decision also includes relevant language limiting the scope of preemption. A broad interpretation of preemption could limit state autonomy on many issues going beyond immigration policy.
The sanctuary cases represent a political role reversal: Liberal sanctuary jurisdictions are relying on federalism arguments traditionally associated with conservatives.
Right-wing defenders of the administration are arguing for sweeping notions of federal power, including by relying on a broad interpretation of Arizona v. United States, a ruling conservatives condemned at the time it came down.
Ilya Somin is a law professor at George Mason University, and an adjunct scholar at the Cato Institute. He is the author of "Democracy and Political Ignorance: Why Smaller Government is Smarter."