Federalism when it works for them: Why liberals are wrong about sanctuary cities
New York City Mayor Bill de Blasio at St. Patrick

Why liberals are dead wrong about sanctuary cities

Posted December 02, 2016 06:00 AM by Daniel Horowitz New York City Mayor Bill de Blasio at St. Patrick
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When it comes to nullifying federal immigration statutes, the most foundational powers of a national government, liberals suddenly develop an affinity for localism. With Trump promising to finally crack down on sanctuary cities, liberals are now fanning the flames for nullification and disobedience. In fact, they are somehow trying to suggest that it is arduous or unconstitutional for the federal government to punish sanctuary cities. As always, liberals have the Constitution exactly backwards.

FOLLOW Amber Philips, a writer for the Washington Post, penned a piece examining (and advocating for) “why Donald Trump may not be able to close sanctuary cities.” Citing “immigration experts,” she asserts that Trump will be confronted with “constitutional, geographic and even legal challenges.”

First, she notes that most sanctuary cities are geographically in blue states where state governments won’t cut off funding to those localities. But conservatives, for the most part, are not counting on states to do it. Rather they are asking Congress and the Department of Justice to crack down on those lawless cities — two entities that have jurisdiction over immigration in all 50 states.

So why can’t Congress simply cut off funds?

Philips suggests that GOP leaders might not be so excited about the proposal. Well, Ms. Philips, you just discovered America. Yes, GOP leaders stink. They couldn’t care less about national sovereignty. There’s nothing new there. While they are likely to be an obstacle against many sweeping reforms, including on the topic of immigration, it is very unlikely they will fight against one of Trump’s biggest mandates. The sitting party in control almost always defers to the president (when he is of the same party) regarding his key agenda items, unless they are clearly unpopular. With regards to stopping sanctuary cities, the public overwhelmingly favors national sovereignty and the rule of law.

Philips goes on to suggest the DOJ might sue in the courts to get sanctuary cities to comply with immigration officials. She knocks down that option but rightly noting that the courts are certainly unreliable for conservatives. But that is exactly the point. The courts will never be an easier route than Congress, which is why we don’t need to grovel to the lawless courts to respect the Constitution. Congress can simply pass a law or include those provisions in must-pass budget bills.

So it's now unconstitutional for the federal government to defend national sovereignty?

Next, Philips quotes law professors saying that somehow even Congress can’t force states to cooperate with federal immigration officials because it is unconstitutional. So while the unelected branch of the federal government can crush the states on internal issues that are manifestly within the purview of the state — and evidently there is nothing states can do to fight back — these same scholars believe that states can thwart a foundational enumerated federal power and that there is nothing the stronger legislative and executive branches can do about it.

Opponents of punishing sanctuary cities cite past court cases where the courts have limited the power of the federal government to place conditions on grants to the states in order to induce them to accept specific policies. For example the court has ruled that the conditions must be unambiguous “so that states can knowingly decide whether or not to accept those funds.” [1] Moreover, the condition must not be “so coercive as to pass the point at which pressure turns into compulsion” akin to “a gun to the head.” [2][3]

However, the comparison to these court cases doesn’t get off the ground. Although this point requires an article in itself, here are some key points:

In South Dakota v. Dole, the federal government was leveraging an enumerated spending power to induce states into raising their minimum age for alcohol assumption, a power that does not belong to the federal government and should be left to the states. In Pennhurst, the federal government was forcing states into a costly and burdensome disability program full of extra costs and regulations. In the case involving Medicaid expansion (NFIB v. Sebelius), the federal government was placing a massive unfunded liability on the states — which accounts for the single-largest expenditure for a state. These are instances when it is appropriate, within certain limits, for states to tell the federal government to get off their lawns.

Immigration, on the other hand, is one of the most foundational enumerated powers and responsibilities of the federal government to the entire union of states. [4] The federal government has the right to send out agents anywhere at any time to apprehend and deport illegal aliens. Furthermore, the federal government isn’t foisting upon the states implementation of a cumbersome, officious, and costly spending or regulatory regime. All they are asking for is the minimum cooperation needed for the federal government to protect the sovereignty and security of all the states, which merely requires states to communicate with ICE and detain illegal immigrants in jail until they are picked up by the feds. At the very least, they are asking that states don’t take active steps to undermine, thwart, and downright prohibit police from cooperating with ICE, as required by law [8 U.S.C. 1373]. There is no practical way for the federal government to exercise this solemn responsibility if states are active accomplices to the assault on the national sovereignty. [5]

Federalism flipped upside down, inside out

Finally, Amber Philips suggests that this entire priority of cracking down on sanctuary cities is somehow an anathema to the typical conservative preference for state and local control.

Here is where liberals have no understanding of our Constitution and republican form of government. We have a dual track system: states and the national government. Then there are three branches of the federal government, each with distinct roles, powers, and responsibilities. While there have always been and will always be gray areas of jurisdiction and/or disagreements over jurisdiction and policies, most of the basic powers are incontrovertibly vested in one of the branches. Conservatives are not “pro-states” or “anti-federal government” or pro-Congress and anti-courts. Conservatives are for keeping what is rightfully vested to the federal government in federal hands and what is rightfully vested in the hands of state governments in state hands.

When it comes to immigration — who gets to enter or remain in the country — power, beyond a shadow of a doubt, is given over exclusively to the United States Congress, which represents the sovereignty of the whole federal union. [6] Just like the federal government has absolutely no legal right to nullify local zoning decisions, something the Obama administration had done, states have no right to nullify immigration law, which stems from an unambiguous enumerated power of Congress.

Liberals might disagree vehemently with Trump’s immigration policies. They might want an unlimited number of illegal aliens, Muslim immigrants, and refugees. They have the right to hold that view and advocate strongly for their convictions. But none of them can say with a straight face that federal immigration law and national sovereignty is unconstitutional. Nobody has the right to enter this country without the consent of the people, as reflected through congressional statutes. The framers vested the power over immigration in the hands of the federal government precisely for the purpose of precluding the sanctuary city mindset.

Roger Sherman, among the greatest of all the Founders, noted during the House debate on the Naturalization Act of 1790 that “it was intended by the Convention, who framed the Constitution, that Congress should have the power of naturalization, in order to prevent particular States receiving citizens, and forcing them upon others who would not have received them in any other manner.” Sherman was emphatic that federal control was designed to “guard against an improper mode of naturalization,” and prevent individual states from flooding the country with immigrants based on “easier terms.” [7]

Thus, states have absolutely no right to disobey the most foundational sovereignty laws of the nation. If liberals in blue states disagree with these policies, they must win congressional and presidential elections.

But don’t conservatives want states to ignore federal usurpations?

While I have encouraged states to fight back against the tyranny emanating from the federal judiciary, I have never advocated that states nullify statutes duly passed by Congress. Moreover, once again, the devil is in the details of the particular issue and how it relates to the Constitution. It is settled law that states have plenary power over marriage, legislative districts, and methods and procedures of elections. The federal judiciary has no right to nullify state laws in those spheres of policy. If they do so, states have the right to interpret the Constitution as they clearly understand it. After all, state officials swear the same oath to uphold the federal constitution as federal judges do.

Contrast those issues to sanctuary cities and immigration law and there are no similarities to be observed. While individual states and cities might be repulsed by certain immigration laws, they cannot suggest that those laws are unconstitutional.

Yet, ironically, the Left somehow believes that when states like Arizona affirm, defend, augment, or enable implementation of federal immigration law, they are interfering with federal power. But states like California openly nullifying immigration law is just fine and even a righteous exercise of conscience-based decision-making.

We have a very polarized and diverse country that has boiled over into widespread acrimony in recent years. However, if we respected the constitutional processes of law-making even as we disagree on individual policies, it would go a long way in healing the divide. This is not a matter of whether states should predominate or whether the Feds should rule; whether Congress should reclaim more power or whether the other branches should remain strong. This is an issue of constitutional supremacy. We all must follow the rules of the Constitution in pursuing our diverse policy ideas. Process matters. And in the case of loosening our immigration laws, there is only one legitimate process to pursue: getting Congress to pass amnesty. Until then, liberals have no one to blame but themselves.


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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.

[1] Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981).

[2] South Dakota v. Dole, 483 U.S. 211 (1987).

[3] National Federation of Independent Business v. Sebelius, 567 US ___ (2012), 132 S.Ct 2566 (slip. op. at 51):

[4] Art. IV, § 4. “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion.”

[5] Incidentally, this is the quintessentially appropriate case to apply the “Necessary and Proper Clause.” The Left often uses it to expand Congress’ enumerated powers beyond recognition, but in this case it would support the conditioning of grants to states in order to sustain an existing enumerated power. 

[6] Article I Section 8 of the Constitution grants Congress the plenary power over immigration. Even the Supreme Court has held that the formation of immigration policy “is entrusted exclusive to Congress,” and that “[t]he plenary authority of Congress over aliens . . . is not open to question.” Galvan v. Press, 347 U.S. 522, 531 (1954); Kleindienst v. Mandel, 408 U.S. 753, 766-67 (1972); Fiallo v. Bell, 430 U.S. 787, 792 (1977); INS v. Chadha, 462 U.S. 919, 940-41 (1983).

[7] Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56. Justice Joseph Story echoed these same sentiments in 1833 in his Commentaries on the Constitution. “If aliens might be admitted indiscriminately to enjoy all the rights of citizens at the will of a single state, the Union might itself be endangered by an influx of foreigners, hostile to its institutions, ignorant of its powers, and incapable of a due estimate of its privileges,” wrote Story.