If you consider yourself a “conservative” who believes in upholding the Constitution, you should celebrate at least one aspect of the injunction a federal judge slapped on Pres. Trump’s “sanctuary city” executive order.
Many conservatives have already expressed outrage at the injunction issued by U.S. District Judge William Orrick Tuesday, citing the decision as another example of liberal judicial activism. In fact, at least one aspect of his ruling counts as a victory for the Constitution.
The challenge to the EO brought by Santa Clara County and San Francisco, California, addressed a number of issues, and the legal framework surrounding the order has multiple layers. Instead of trying to unravel the entire thing, I want to simply focus on one constitutional issue raised by the plaintiffs – the Tenth Amendment ramifications of the executive order.
Santa Clara County and the city of San Fransisco argued that withholding all federal funding to punish them for their refusal to cooperate with federal immigration enforcement would violate a well-established legal principle known as the anti-commandeering doctrine. It remains unclear if the EO would go that far, practically speaking. Nevertheless, the judge felt that the language in the order was vague enough to support such a conclusion. His handling of the constitutional issues that broad-based defunding of sanctuary cities would create affirmed an important Tenth Amendment principle and is worth highlighting.
Since 1842, the Supreme Court has held that the federal government cannot force states (or their political subdivisions) to utilize their personnel and resources to implement federal programs or enforce federal laws. The principle rests on the Tenth Amendment and the resulting separation of powers between state and federal governments. The anti-commandeering doctrine was most succinctly articulated in Printz v. U.S.
The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
In a nutshell, the federal government has the ultimate responsibility to enforce federal law. State and local government can assist with that enforcement, but the federal government cannot compel them to do so. The Court has long held that using the threat of withholding funding in a coercive manner violates the anti-commandeering doctrine. This was specifically applied in the Obamacare case when Judge Roberts held that the feds could not coerce states into expanding Medicaid under the Affordable Care Act by threatening to withdraw current Medicaid funding.
As part of his ruling, Orrick applied the anti-commandeering doctrine to the Trump EO. He first summed up the plaintiffs’ argument.
“The Counties have demonstrated that their sanctuary policies reflect their local judgment of what policies and practices are most effective for maintaining public safety and community health. Because they argue that the Executive Order seeks to undermine this judgment by attempting to compel them to change their policies and enforce the Federal government’s immigration laws in violation of the Tenth Amendment, their claims implicate a constitutional interest.”
The judge then asserted that their constitutional arguments would likely prevail.
The Counties argue that Section 9(a) violates the Tenth Amendment because it attempts to conscript states and local jurisdictions into carrying out federal immigration law. The Counties are likely to succeed on this claim as well. ‘The Federal Government may not compel the States to enact or administer a federal regulatory program,’ New York, 505 U.S. at 188. ‘The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.’ Printz v. United States, 521 U.S. 898, 935 (1997). ‘That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.'”
Notice the judge quotes directly from Printz. He also cited Sebelius (the Obamacare case) in his discussion. This aspect of the Orrick’s decision was a strong affirmation of the Tenth Amendment and the anti-commandeering doctrine that flows from it.
By reaffirming this important legal principle, Orrick empowers state and local governments. The anti-commandeering doctrine provides a court-approved tool states can use to resist federal actions. You may not like cities and states refusing to cooperate with federal immigration enforcement, but you should not base your constitutional principles on individual policies. Consider this: a state can apply this exact same legal reasoning to create a “sanctuary” for guns by refusing to cooperate with enforcement of federal gun control. Undoubtedly, the same people throwing a fit about Orrick’s injunction on Trump’s sanctuary city EO would throw a major party if a judge made the exact ruling supporting a state taking on federal gun control.
This demonstrates a sad reality. The vast majority of Americans care more about advancing their individual policy preference than they do about consistently supporting constitutional principles.
Sadly, many so-called constitutionalists, conservatives and libertarians will fight this ruling tooth-and-nail. They had better watch what they wish for. If the court should ultimately erode the anti-commandeering doctrine, they will lose the most effective tool they have to resist federal power.
You can download and read the entire judicial order here: Order-Granting-Motions-to-Enjoin-9-a-of-Exec-O