Sanctions for Sanctuaries

Anyone who is in the United States illegally is subject to deportation,” then-candidate Donald J. Trump said during a campaign trail speech on immigration. Within one week of taking office, President Trump took the first steps towards fulfilling this campaign promise, signing an executive order titled “Enhancing Public Safety in the Interior of the United States.” The order laid out the new President’s stance on illegal immigration, calling for harsher measures and larger amounts of deportations. The order was met with shock, grief, and outrage by the left and human rights observers, particularly because the order stated that federal funding would be cut off from any and all sanctuary jurisdictions. President Trump’s executive order threatening to cut federal funding from sanctuary cities went against judicial and constitutional precedent, and if he defunds sanctuary cities too drastically, it should be ruled unconstitutional.

The term “sanctuary city” first came into use during 2008, when the United States Immigration and Customs Enforcement (ICE) agency, a division of Homeland Security, introduced the Secure Communities policy. Under this policy, whenever a person was brought into a jail of any level to be fingerprinted, the fingerprints would be sent to ICE, who would then ask the local officials to detain anyone whose fingerprints matched those of a possible undocumented immigrant, even if they had not been charged with a crime. Many cities and counties refused to comply, and began to call themselves “sanctuaries.” The term gained more and more use since this date, particularly throughout the election season. With Trump’s recent order condemning sanctuary cities and threatening to cut their funding, sanctuary cities have once again been brought back into the forefront of public discourse.

Today, the term “sanctuary cities” can take on a variety of meanings, from Los Angeles’ plan to offer free legal aid to undocumented immigrants facing deportation, to Boston Mayor Marty Walsh publicly saying that if necessary he will “use City Hall itself to shelter and protect them from persecution.” In the broadest and most basic sense, a sanctuary jurisdiction is a municipality which offers some sort of protection for undocumented immigrants against deportation.

In the context of Trump’s executive order, a sanctuary city is one that violates the standards set by 8 U.S.C. 1373, which states, “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

President Trump’s executive order, however, unequivocally rejects the notion of sanctuary cities, stating that they have “caused immeasurable harm to the American people and to the very fabric of our Republic.” Trump has repeatedly professed his opinion towards many predominantly Hispanic immigrants, marked by his now infamous rallying cry: “They’re bringing drugs. They’re bringing crime. They’re rapists.” In his executive order, however, he tackles the issue the wrong way, and proceeds to step out of the constitutional bounds of his power.

If a law must be specifically passed in order to condition funds, the President, or the chief enforcer of the law, certainly cannot create his own conditions, as it is unquestionably out of the scope of his power to do so.

The President bases his threat to cut federal funding to sanctuary cities on the fact that they are not following 8 U.S.C. 1373, a federal law. Longstanding judicial precedent, however, dictates that the federal government, though its law is supreme, cannot force the states to enforce laws passed by Congress. The rulings of Prigg v. Pennsylvania, New York v. United States, and Printz v. United States all reinforce this interpretation, and places the burden upon the federal government to uphold the law. President Trump’s order, therefore, was signed with the intent to pressure states that do not comply with 8 U.S.C. 1373 into enforcing this federal law by threatening to cut off non-mandated funding.

In doing so, however, President Trump ignores a key aspect behind the established theory of the disbursement of federal dollars to states. Judicial precedent dictates that when federal funds are given to states, it is essentially likened to creating a contract. If there are particular stipulations or terms that the federal government wishes to impose upon these funds being given, they must be unambiguously stated within the text of the bill disbursing the funds, so that the state may be able to decide whether or not to accept the funds. Here, this is simply not the case. While there is legislation that grants federal funds to the states in the areas of immigration, very few, if any, (according to a 2016 Inspector General report) are conditioned upon compliance with 8 U.S.C. 1373. Most importantly, however, conditions cannot be retroactively added to federal funds, unless, as set by the precedent in South Dakota v. Dole, the amount of funding at risk is so much as to turn pressure into compulsion. If a law must be specifically passed in order to condition funds, the President, or the chief enforcer of the law, certainly cannot create his own conditions, as it is unquestionably out of the scope of his power to do so. If President Trump wants to condition federal funds upon a state’s compliance with 8 U.S.C. 1373, he must go through Congress.

And even if President Trump does convince Congress to pass legislation conditioning federal funds, the standards set by South Dakota v. Dole restrict the amount of funding that can be called into question. In this case, Congress passed legislation that would retroactively condition five percent of federal highway funds on whether or not states conformed to the national drinking age, or 21 years old. In the end, the court sided with the United States, saying that because the legislation was in pursuit of “the general welfare” and the amount of funding taken away was so small, it was within the limits of their spending clause power to do so. However, the decision did set a precedent for the future, stating in the holding that the conditions placed on funding by the federal government must not be “coercive as to pass the point at which ‘pressure turns into compulsion.'”

Donald Trump has extensively used executive orders within his first weeks in office to try to fulfill his myriad campaign promises. Whether by placing travel bans, ordering the border wall to be built, or threatening cuts in federal funding to be made to sanctuary cities, he has time and time again “delivered” upon his promises, even many of the most controversial among them. If the President continues to pursue the promises he made in his “Contract with the American Voter” and attempts to cancel federal funding to sanctuary cities, he will likely hit some constitutional and legal roadblocks. Either way, as with any new executive, it is the duty of the American people to analyze the President’s every action. Hopefully, with a continually watchful eye, justice may be upheld throughout the next four years.