Posted By: Paola Pescador, Hugo Polanco, Nicole Prefontaine, Selene Presseller, Marla Reed, and Britney Rossi
On January 31, 2017, the City and County of San Francisco filed suit seeking injunctive and declaratory relief against the United States and President Trump in response to Executive Order 13768, entitled “Enhancing Public Safety in the Interior of the United States.” The three-part complaint contends, first, that San Francisco complies with the requirements of 8 U.S.C. § 1373; second, that 8 U.S.C. § 1373(a) is unconstitutional; and third, that Executive Order 13768 is unconstitutional by way of violating the Tenth Amendment. This discussion analyzes the merits of San Francisco’s case and the likelihood of its success.
Sanctuary Cities and 8 U.S.C. § 1373
The provisions of 8 U.S.C. § 1373 are intended to facilitate communication between federal, state, and local governments and the Immigration and Naturalization Service. The statute prohibits local and state governments from adopting laws restricting communication with the Immigration & Customs Enforcement (ICE). There is an obligation for federal, state, and local governments to respond to any inquiries made by the Immigration and Naturalization Service regarding verification or status information of citizenship of any individual within a given jurisdiction. A sanctuary city is “a city that limits its cooperation with the national government in order to help people who are in the country illegally avoid detention.” The provisions of 8 U.S.C. § 1373 only prohibit state and local laws that place restrictions on communication with ICE about verification of citizenship or immigration status. Notably, many self-proclaimed sanctuary jurisdictions, such as San Francisco, state that their policies are not in conflict with the communication requirements of 8 U.S.C. § 1373, thereby allegedly immunizing their jurisdiction from President Trump’s threat.
Executive Order 13768
In his Executive Order 13768, entitled Enhancing Public Safety in the Interior of the United States, section 9(a), President Trump orders, “…that jurisdictions that willfully refuse to comply with 8 U.S.C. § 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Thus, Executive Order 13768 seeks to eliminate federal funds from jurisdictions that withhold or refuse to share information with federal authorities regarding the immigration status of its residents. This provision is part of a plan that claims to further the public safety, national security, and faithful execution of the immigration laws of the United States. Further provisions of his executive order are summarized here.
It is important to highlight that 8 U.S.C. § 1373 only requires the sharing of information. It does not, however, require the detention of undocumented immigrants. As an unwritten policy, local law enforcement officials previously instituted a “courtesy hold” on undocumented immigrants after their sentence had been completed until ICE agents could transfer the individuals. The constitutionality of this practice was recently challenged in the state of Arizona. Maricopa County Sheriff Paul Penzone announced that he would be ending the long-standing policy and would no longer be holding undocumented immigrants beyond the time they would otherwise be released. If it is determined that Executive Order 13768 is asking for local law enforcement to hold undocumented immigrants, President Trump is asking the states to engage in illegal conduct.
Is President Trump’s Threat Unconstitutional Based on Coercion?
In his proposal, President Trump states that he will cancel all federal funding to sanctuary cities. One key factor considering the constitutionality and legality of President Trump’s threat is determining whether or not the threat to cancel federal funding to sanctuary cities is coercive to the states. The following cases illustrate that the Federal Government may not coerce states into adopting federally demanded policies, specifically by use of federal funding restrictions. Because of this, President Trump is at least as restricted as Congress is in coercing states’ compliance.
Steward Machine Co. v. Davis considered the constitutionality of the unemployment compensation provision of the Social Security Act. The Court upheld the Act, citing to the difference between coercion and encouragement. The Court found the tax program was meant to induce state participation to promote the general welfare. The Act was held to be constitutional because the tax was so related to the conduct it was meant to encourage.
In the case of South Dakota v. Dole, the state of South Dakota challenged the constitutionality of Congress’ withholding of federal funds from states whose legal drinking age was not in compliance with federal policy. The Court held that the federal spending restriction was constitutional. The Court established a four-point framework to analyze the constitutionality of spending restrictions:
The exercise of the spending power must be in pursuit of the general welfare;
In instances where Congress desires to condition the states’ receipt of federal funds, it must do so unambiguously;
Conditions on federal grants may be illegitimate if they are unrelated to the federal interest in particular national projects or programs; and
Constitutional provisions may provide an independent bar to the conditional grant of federal funds.
The Dole court found that the legal drinking age policy was in furtherance of the general welfare. Further, the Court deemed the potential loss a 5% loss of federal highway funds from noncompliance was a minimal total value as to not rise to the level of coercion.
In National Federation of Independent Business v. Sebelius, the Supreme Court held that states could opt out of the Affordable Care Act’s Medicaid expansion. The Act stipulated that if a state did not comply with the Act’s new coverage requirement, it would lose not only the federal funding associated with those new requirements, but all of its federal Medicaid funding. The Court held that the federal government could not change the conditions of a grant program in a way that threatened to cut funding either for that particular program or other independent programs solely based on noncompliance by the states. Furthermore, the Court held that only offering states the options of compliance or noncompliance constituted undue Congressional influence over the states.
Based on the precedent cases, Executive Order 13768 appears to unconstitutionally coerce states to comply with a federal act. As seen in the Davis case, the states may be induced to participate in a program; however, as in the case at bar, states may not be forced to comply with federal regulation or be denied federal funding. Unlike in South Dakota v. Dole, Executive Order 13768 threatens to cut an amount of funding so great that it rises to the level of coercion. Furthermore, as per the Court in Sebelius, the federal government may not change the conditions of a grant program, here federal funding to states, in a manner by which non-compliance with the policies would strip the states of funding.
Is President Trump’s Threat within his Executive Powers?
Regardless of any coercive implications, the President’s power to issue an executive order must stem from an act of Congress or from the Constitution itself. There is neither an act of Congress, nor anything in the Constitution, that expressly or implicitly authorizes President Trump to cancel federal funding to sanctuary cities.
Presidential powers are not fixed, but fluctuate depending upon their alignment with the wishes of Congress, as asserted in Youngstown Sheet & Tube Co. v. Sawyer. Per Youngstown Sheet, whether President Trump has the power to cancel funding to sanctuary cities depends on which of the three categories this order falls under in relation to Congress’ stance on the subject:
In instances where the President acts pursuant to an express or implied authorization of Congress, his order represents a constitutional exercise of his power; or
In instances where the President acts in absence of either congressional approval or denial, he can only rely upon his own independent powers; congressional indifference can enable the President to make an executive order that is a constitutional exercise of his presidential power; or
In instances where the President makes an executive order that is incompatible with the expressed or implied will of Congress, his power at its lowest and he must only rely on the powers expressed in the Constitution minus any powers delegated to Congress.
Whether Congress has spoken on the present issue determines which category President Trump’s power to enact Executive Order 13768 falls into. Congress passed 8 U.S.C. § 1373 due to sanctuary cities’ refusal to comply with federal immigration law by providing illegal immigrants residence in their cities to help them avoid deportation. Congress explicitly did not add a provision imposing penalties for cities that did not comply with federal immigration law; they were silent on the matter. In fact, when a bill was proposed to expand § 1373 by imposing funding restrictions on jurisdictions refusing to comply with federal immigration law enforcement, the bill was expressly rejected by Congress. The omission of a penalty in 8 U.S.C. § 1373 by Congress indicates that President Trump’s executive order does not fall under category 1 or 2. Instead, since Executive Order 13768 conflicts with the implied will of Congress, it is a category 3 situation; therefore the President’s act can only be upheld if the power can be traced to the Constitution.
The President’s executive power can be derived from different sections of the Constitution and is well-explained in Justice Jackson’s Youngstown concurrence, which analyzed several provisions of Article II. First, Article II § 1 of the Constitution states, “the executive power shall be vested in a President.” Justice Jackson denies this is an unlimited grant of all possible executive power the government could possess because the Framers itemized the extent of this power, implying a limitation. Second, Article II § 2 of the Constitution also gives the President additional powers in the role as “commander in chief.” However, this power is not unlimited as it is also shared with Congress. Third, Article II § 3 states that the President “shall take care that the laws be faithfully executed.” Justice Jackson notes that this power is tempered by the need to conform to Constitutional protections. This points to executive power that is constrained by both the protection of the Constitution and by Congressional oversight.
Executive Order 13768, however, is not supported by his powers expressed in the Constitution; the power to cancel federal funding is reserved for Congress. Congress, not the executive branch, has the power to determine how federal funds will be spent. In Article I § 8 of the Constitution, Congress is granted exclusive spending power. There is nothing in the Constitution that permits the President to infringe on this power reserved for Congress. Further, Article II § 3 asserts that it is the President’s power to see that the laws are faithfully executed, which refutes the idea that he is to be a lawmaker (other than through his veto power). Therefore, since President Trump’s order cannot be supported by acts of Congress or the writings of the Constitution, Executive Order 13768 is not constitutional.
In Clinton v. City of New York, the Court considered the constitutionality of the Line Item Veto Act. The Act gave the President the ability to unilaterally amend or repeal certain provisions of statutes already passed by Congress. The Supreme Court found the Act to be unconstitutional because it violated the Presentment Clause (Article I, § 7), which provides the proper procedure for presenting, amending, and approving a bill. The Court held that by allowing the President the ability to cancel portions of the law, it would essentially be allowing him the power to amend the law. As the Court explained in Clinton, Congress has the ability to pass laws that provide federal funding to the states under Congress’ spending power and the President can approve or veto the bill. Therefore, in applying this to Executive Order 13768, President Trump cannot unilaterally cancel a funding provision, which Congress has already passed. Per Clinton, the President may not repeal or amend Congressional laws because this bypasses the Constitutional limitations of executive power.
Does the Threat Violate the Tenth Amendment?
President Trump’s threat to pull all federal funding from sanctuary cities likely violates the Tenth Amendment, which states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X.
In Printz v. United States, Congress enacted the Brady Act, which required state and local officials to perform background checks on firearm purchasers. Printz, a sheriff, along with the states Montana and Arizona, brought suit arguing that the Brady Act was unconstitutional because it compelled state and local officials to implement federal law. The Supreme Court found the Brady Act unconstitutional, holding that Congress cannot compel state and local officials to implement federal law because it would violate the idea of state sovereignty, which is inherent in the Tenth Amendment.
In Reno v. Condon, the Supreme Court found that through the Commerce Clause, Congress can regulate a state’s activities so long as it does not require a state official to assist, enact, or regulate, federal statutes that govern private individuals. The Court found that federal regulation concerning the disclosure of the personal information obtained by a state agency does not violate the Tenth Amendment because Congress only attempted to regulate the disclosure of private individual’s information sold by states across state lines. Thus, Congress was not attempting to compel state legislatures to enact law nor attempting to require state officials to enforce the law.
If President Trump seeks to require state and local officials to implement and enforce federal law through Executive Order 13768, then his actions would be unconstitutional. As was the case with Congress’ actions in Printz, President Trump attempts to impede on state’s sovereignty by compelling states to strip protections they have afforded illegal immigrants. Unlike the Act at issue in Reno v. Condon, where the Court found that the federal government could regulate state activities without forcing state assistance, President Trump seeks to regulate state activities by forcing state assistance regarding undocumented immigrants. Furthermore, President Trump would also be interfering with the state’s police power by requiring states to enforce federal law. Generally, police power is reserved to the states. Here, state and local law enforcement would not only have to implement and enforce state and local laws, they would also have to implement and enforce federal law. This could hamper the state’s ability to govern because President Trump’s plan would likely divert the attention of state and local law enforcement to illegal immigration.
Precedent from New York v. United States also suggests that Executive Order 13768 is unconstitutional under the Tenth Amendment. New York involved a congressional statute aimed at regulating low-level radioactive waste. The statute employed three provisions: a tax refund that would be distributed among states that created their own facilities to deal with the waste, the allowance of states to charge a surcharge to out of state waste dumpers, and a requirement of states that refused to develop waste facilities to “take title” of the waste and become subject to direct federal regulation. The first two provisions were held to be constitutional because they gave the state viable choices in whether or not to act according to the provisions. The “take-title” provision, however, did not leave the states with any option or choice. In holding this provision unconstitutional, the Supreme Court read the provision to be “commandeering” of the states and causing displacement of political accountability. This violates the Tenth Amendment’s notions of state sovereignty.
The issues rendering the “take-title” provision unconstitutional appear in President Trump’s executive order that threatens to cut federal funding to sanctuary cities that do not comply with 8 U.S.C. § 1373. Executive Order 13768 removes any option or choice for states in their compliance, or non-compliance, with the order, echoing the commandeering found unconstitutional in New York. Moreover, displaced political accountability through local officials’ enforcement of the policy means that any political backlash would be felt at the expense of these local officials via elections. As a result, the threat to cut federal funding to sanctuary cities would present unconstitutional issues analogous to those of New York.
Four years after New York, Congress specifically attempted to avoid more issues of coercive penalties by deliberately omitting a penalty for noncompliance when it drafted 8 U.S.C. § 1373. Allowing Executive Order 13768 to build a penalty into 8 U.S.C. § 1373 would create a situation like that struck down in Pennhurst v. Alderman, where the Court held that legislation cannot impose specific, enforceable standards on states simply because they accept federal funding, a penalty that Congress did not intend within their statute.
San Francisco alleges many of the exact Tenth Amendment violations addressed in precedent cases. The Tenth Amendment violation count states that:
On its face, Section 1373 commandeers state and local governments in violation of the Tenth Amendment to the Constitution by, inter alia, regulating the ‘States in their sovereign capacity,’ Reno, 528 U.S. at 151, limiting state authority to regulate internal affairs and determine the duties and responsibilities of state employees, Gregory v. Ashcroft, 501 U.S. at 460, and ultimately forcing States to allow their employees to use state time and state resources to assist in the enforcement of federal statutes regulating private individuals, Reno, 528 U.S. at 151, and to provide information that belongs to the State and is available to them only in their official capacity, Printz, 521 U.S. at 932-33 & n.17.
In arguing its case, San Francisco relies heavily on the notion of state autonomy and the Tenth Amendment’s delegation of powers to states where they have not been explicitly given to the federal government, particularly that sovereignty extends to political subdivisions of the state, including cities and counties. The complaint directly accuses the funding restriction contemplated by President Trumps’s executive order of overstepping a line between “encouraging” states’ compliance and “coercing” it. Specifically, San Francisco cites Reno v. Condon, claiming that the Executive Order 13768 attempts to unconstitutionally regulate states “in their sovereign capacities”, and New York v. United States, in stating that the order does not “subject state governments to generally applicable laws”. San Francisco further cites Printz v. United States, stating that the federal government cannot regulate its “fellow governments in their capacities as governments”, illustrating strong values of state autonomy-based federalism. Printz, .
Based on the foregoing analysis, it does not appear that President Trump’s threat to cut federal funding to sanctuary cities is supported by the Constitution, Tenth Amendment, or precedent case law sources. The San Francisco case, along with an almost identical suit filed by the City of Seattle on March 29, 2017, will play out the issues described here.