Trump's Plans to Coerce Sanctuary Cities Likely to Run Afoul of the Constitution—Again

Media reports indicate the incoming Trump administration plans to try to pressure sanctuary cities by withholding federal funds unless they agree to help the federal government deport undocumented immigrants.  If the new administration tries to do this, it might reprise legal battles that occurred during Trump’s previous term in office. At that time, the administration tried to pressure sanctuary cities by denying them a variety of law enforcement and other grants allocated by Congress. These efforts resulted in extensive litigation, with Trump losing the vast majority of the cases, in decisions handed down by both liberal and conservative judges. I surveyed the relevant cases and their implications in a 2019 Texas Law Review article.

The first Trump administration lost most of these cases because it ran afoul of constitutional limits on federal power and on executive power over the budget. Thanks to a series of Supreme Court decisions (most written by conservative justices), the federal government cannot simply commandeer state and local authorities into helping enforce federal law. Under current Supreme Court precedent, it can try to use financial incentives to secure such assistance. But any such conditions on federal grants must, among other things, 1) be enacted clearly indicated by Congress (the executive cannot make up its own grant conditions), 2) be related to the purposes of the grant in question (e.g.—grant for health care or education cannot be conditioned on immigration enforcement), and 3) not be “coercive.”

Virtually all of Trump’s first-term efforts to pressure sanctuary jurisdictions ran afoul of one or more of these constitutional constraints. I went over the details in my article. Whether his second-term efforts fare any better remains to be seen. But, at the very least, any effort to withhold all or nearly all grants from sanctuary jurisdictions is likely to violate the relatedness requirement and the admittedly vague rules against coercion. That would be true even if the new Republican-controlled Congress enacts such sweeping conditions by legislation. Such legislation could satisfy the need for congressional authorization, but not get around restrictions on relatedness and coercion.

As I emphasized in various writings during the first Trump administration, the issues at stake here go far beyond immigration policy. If the administration can make up its own new conditions for federal grants to state and local governments, it would severely undermine the separation of powers, allowing the executive to usurp Congress’s spending power. In addition, given the dependence of state and local governments on federal funds, it would create a massive club that the executive could use to coerce states and localities on a vast range of issues, thereby gravely imperiling federalism. Conservatives who support such coercion when a GOP administration does it are unlikely to be happy when the same tools are utilized by a Democratic president to compel support for left-wing policies.

And for those keeping score, I have made similar points in defense of conservative “gun sanctuaries,” which refuse to help the federal government enforce some federal gun laws.

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