Ilya Shapiro

Yesterday, a federal judge in San Francisco blocked President
Trump’s executive order on “sanctuary
cities” because it undermines federalism and the separation
of powers. (Read the 49-page opinion.) So this is just the latest
example of an executive action whose policy reach exceeds the
president’s constitutional grasp, right? Or, as the White
House argued, it’s judicial activism, with plaintiffs
shopping for friendly judges who will stymie this president?

Well, not so fast. While a broad reading of the executive
order—one that purports to give sweeping authority to
withhold and even “claw back” funds of all sorts from
states and cities that don’t comply with federal
bidding—is indeed a constitutional dead letter (for reasons
Ilya Somin explains), that’s not how the
executive branch itself has understood or implemented the

This seems to be all just
one more episode of Trumpian signaling or, as the court narrated,
using a ‘bully pulpit to highlight a changed approach to
immigration enforcement’ in the future.

The Justice Department’s lawyers themselves had explained
that neither San Francisco nor Santa Clara, the municipal
plaintiffs here, faced any sort of enforcement action, and I
haven’t been able to find evidence that any federal funds
anywhere in the country have been threatened. That could be because
federal officials are still crossing their Ts and dotting their Is
as they prepare to freeze and reverse transfers, but the more
likely scenario is that this is all just one more episode of
Trumpian signaling or, as the court narrated, using a
“‘bully pulpit’ to highlight a changed approach
to immigration enforcement” in the future.

This Just Tells Officials to Enforce Existing

Let me explain. The relevant part of the January 25 executive
order, section 9(a), reads as follows: “In furtherance of
this policy, the Attorney General and the Secretary [of Homeland
Security], in their discretion and to the extent consistent with
law, shall ensure 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

In turn, Section 1373 provides that state and local governments
“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

In other words, the executive order directs the relevant
officials to make sure that recipients of federal funds fully
comply with the immigration-enforcement strings attached to their
funding, most notably by not preventing their agents from
communicating with federal authorities. It doesn’t create any
new law or regulation and indeed cautions the executive
subordinates to stay within existing legal bounds.

As Judge William Orrick himself wrote, “this injunction does nothing more
than implement the effect of the Government’s flawed
interpretation of the Order. It does not affect the ability of the
Attorney General or the Secretary to enforce existing conditions of
federal grants or 8 U.S.C. 1373, nor does it impact the
Secretary’s ability to develop regulations or other guidance
defining what a sanctuary jurisdiction is or designating a
jurisdiction as such. It does prohibit the Government from
exercising Section 9(a) in a way that violates the

So the court is still allowing the administration to proceed
with the executive order but directing it to stay within existing
constitutional bounds—which it didn’t claim to be

This Is Basically Just Enforcing Existing

Now, there’s an open question as to whether Section 1373
is itself unconstitutional “commandeering” of state
officials (as Josh Blackman details). That is, while the
federal government cannot force state officials to enforce federal
law, is it constitutionally proper for it to tell states and cities
that they can’t direct their officials not to exchange
information with federal authorities? (Sorry for the double
negative, but that’s what the issue actually is.)

The district court is silent on that issue, instead focusing on
a phantom menace of federalism violations, as well as a host of
procedural points relevant to a court’s pre-enforcement
review of government action.

Let me restate that. When you cut away the doctrinal
exegesis—which is fascinating, don’t get me
wrong—and technical legalese, we’re left where we
started: federal officials can enforce the executive order with
respect to grants of federal funds so long as they observe certain
constitutional niceties. As the sanctuary cities debate proceeds,
it’s important to remember what those niceties are:

  • Only Congress can attach new conditions onto federal funding,
    which the executive branch can then enforce;
  • The conditions must be unambiguous, so states and localities
    are on notice as to what they must do if they want the federal
  • The conditions must be germane to the purpose of the spending.
    Here, the funds conditioned on Section 1373 compliance must be
    related to immigration or law enforcement—so Medicaid or
    education grants, for example, can’t be threatened; and
  • The conditions can’t be coercive. Once a state has signed
    onto a program, Congress can’t later add new major strings
    that would transform the original program. This was the
    “undercard” ruling in NFIB v. Sebelius (the
    first Obamacare case, where the Supreme Court ruled 7-2 that the
    Affordable Care Act unconstitutionally threatened existing, not
    just new, Medicaid funds on new requirements).

In sum, whatever you think about President Trump’s
executive order or what local authorities should do if they
disagree with immigration law, Orrick’s ruling doesn’t
change anything. The real action will come when DOJ officials start
enforcing obscure provisions of existing funding programs, as well
as in new conditions buried in the appropriations riders on next
year’s DHS budget.

Not as sexy, I know, but this is law we’re talking

Ilya Shapiro
is a senior contributor to The Federalist. He is a senior fellow in
Constitutional Studies at the Cato Institute and Editor-in-Chief of
the Cato Supreme Court Review.

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