Constitutional Litigation on ‘Sanctuary’ Order Won’t Stop Donald Trump

I hate to be the bearer of bad news, but Donald Trump’s executive order this week cutting federal funding to sanctuary cities might be unconstitutional.  New York’s Mayor de Blasio has already threatened suit.

One objection is that Trump cannot demand that state and local officials be used to enforce federal law.  That would be what’s called ‘commandeering’.  The late Justice Antonin Scalia articulated the anti-commandeering doctrine in the 1997 case Printz v. United States.  People on our side of the ledger have cited the doctrine to prevent the federal government from commandeering state employees to implement Obamacare.  But now the shoe is on the other foot, and Trump’s order raises state’s rights and federalism issues.
 
Another problem is that the federal government cannot place conditions on federal grants unless Congress explicitly states those conditions in a statute.  Few, if any, federal grants are expressly conditioned on the statute outlawing sanctuary cities. For presidents to make up new conditions on their own and impose them on states without congressional authorization raises separation of powers issues.
 
We may like Trump’s order, but imagine these powers in the hands of your worst political enemy.   What if a future President Michelle Obama tried to force state employees to implement federal transgender rules in schools, or lose all their federal education funding?
 
I am not deciding the case here tonight, merely flagging the issue for you.  I’ll put the link the wrap-up if you want to explore the subtleties and nuances further.
 
Whatever fate the sanctuary order meets, it will likely not be the end of the story.  I anticipate Trump would find with some other way to deal with sanctuary cities – perhaps slow-walking grant applications without giving a reason, or cutting sanctuary cities out of his infrastructure plans.  I don’t know precisely what he would do, but I do know Trump is a fighter and not likely to give up after the first round.  The cities might end up regretting raising constitutional objections to Trump’s first order.  They may like the actions that follow even less.
 
Meanwhile, a sharp reader sent in an interesting footnote to last week’s Constitution Minute regarding the controversy over a statue of Chief Justice Roger Taney who wrote the Dred Scott decision. The footnote bears on current events.  It turns out that President Andrew Jackson first nominated Taney to be Secretary of the Treasury.  The Senate rejected him, so Jackson nominated him for Associate Justice of the Supreme Court.  The opposition party responded by blocking the vote and moving to abolish the seat entirely.  The seat was held open for a year and was eventually filled by someone else.  Another seat came up when Chief Justice John Marshall died.  Again, Taney was nominated, this time for Chief Justice, and both seats were filled on March 15, 1836.
 
The reader asks: What if the Senate rejected Jeff Sessions for Attorney General?  Would Trump nominate him to the Supreme Court?  This little footnote to the Taney story shows how messy the nominations process can be. 

Links

“Why Trump’s executive order on sanctuary cities is unconstitutional”
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/26/constitutional-problems-with-trumps-executive-order-on-sanctuary-cities/?utm_term=.e73f9c8fb3bf&wpisrc=nl_volokh&wpmm=1

NYC Mayor de Blasio threatens suit over Trump's sanctuary cities order
http://www.politico.com/states/new-york/city-hall/story/2017/01/de-blasio-response-sanctuary-cities-exec-order-109048

Printz v. United States (U.S. Supreme Court, 1997)

Taney story
- https://en.wikipedia.org/wiki/Roger_B._Taney
- https://en.wikipedia.org/wiki/Philip_Pendleton_Barbour#United_States_Supreme_Court_appointment