“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.” ~ Joseph Story on why the Constitution grants federal government control over immigration.
Well, it appears that we will have a government shutdown after all. No, not the closure of 17 percent of the federal bureaucracies due to a funding lapse, but the violation of separation of powers and national sovereignty. The federal judiciary has become so supreme that a district judge has now been given the power to greenlight sanctuary cities.
Yesterday, Judge William Orrick of the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction on President Trump’s executive order cutting off funds to sanctuary cities. Section 9a of the January 25 order directed the DOJ to “ensure that jurisdictions that willfully refuse to comply” with federal law requiring them to cooperate with ICE agents (8 U.S.C. 1373) be denied federal grant funds.
Citing bogus claims of federalism and the 10th Amendment, the judge ruled that it is “unconstitutionally coercive” to threaten law-breaking jurisdictions with funding cuts outside of three DOJ grant programs directly linked to cooperating with immigration authorities. While the judgment was on behalf of the city of San Francisco and Santa Clara County, the judge applied his ruling nationwide, as if he stands atop the food chain of federal powers.
A number of observations are in order:
As we’ve explained before in this space:
“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. 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.”
Taken to its logical conclusion, the judge’s ruling would mean that a state which opposes a given military conflict can block the deployment of national guard troops within its jurisdiction and the federal government would not have the ability to cut off funding!
On a final note, 8 U.S.C. 1373 was enacted as part of the 1996 Welfare Reform Act to ensure that illegal aliens don’t benefit from public assistance. By definition, any grant program, not just law enforcement programs, would benefit illegal aliens were they to be funneled equally to jurisdictions saturated with illegal aliens. Thus, the federal condition of the executive order is not extraneous to the policy goals of the underlying grant as they would be if, say, the federal government would cut off transportation funding to a state for implementing an undesirable social policy related to gender-neutral bathrooms. In this case, the law is designed to target the recipients of benefits, not a social behavior.
Even this rogue judge made it clear that Congress has the power to punish sanctuary cities. And frankly, Congress doesn’t need permission from a district court, which is an institution created by Congress. Now that Republicans have caved on the border wall, Planned Parenthood, and defunding refugee resettlement, they have nowhere to run or hide. Everyone hates sanctuary cities. This is their issue to run on. They must immediately pass a budget bill out of the House defunding sanctuary cities. This will not only keep us safe and protect our sovereignty, it will solve the real systemic government shutdown – the stolen sovereignty perpetrated by the judiciary.
If Democrats want to shut down the government in order to fund those who break our sovereignty and threaten our security, let them stand before the American people and defend the ultimate shutdown of our government.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.
Congress owes it to the states to protect them from a lawless judiciary.