The “debate” over sanctuary cities is over, and the Left has won. Unelected federal judges, who had no jurisdiction over immigration for 200 years, are declaring sanctuary cities the law of the land. Now a Chicago judge is saying that his ruling against cutting off grants to sanctuary cities is binding on the entire nation.
Last month, U.S. District Judge Harry Leinenweber, a Reagan appointee(!), sided with the city of Chicago and issued a preliminary injunction against the Department of Justice’s decision to cut off law enforcement grants to sanctuary cities. He said that it is an unconstitutional use of the spending power for the federal government to threaten states. Even more absurd, he applied his “veto” of the policy to the entire nation. Now that DOJ requested the injunction to apply only to Chicago pending the appeal to the Seventh Circuit Court of Appeals, Judge Leinenweber rejected the request.
Judge Leinenweber admitted that a nationwide injunction was an extraordinary measure, but said that nonetheless, “[T]his state of affairs flies in the face of the rule of law and the role of the courts to ensure the rule of law is enforced.”
Rule of law?! Are you kidding me?!
The law is now unconstitutional
It’s important to note that DOJ is not cutting off grants that are irrelevant to law enforcement, such as transportation or HUD funding. It is suspending only law enforcement grants. Everyone should agree that states have no entitlement to federal law enforcement grants and that the federal government can condition such grants on any appropriate cooperation with federal law enforcement on immigration.
Some pseudo-libertarians are trying to advance “federalism” arguments against punishing sanctuary cities. They are dead wrong. Cities like Chicago are taking 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.
Moreover, 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 would benefit illegal aliens were it to be funneled equally to jurisdictions saturated with illegal aliens. Thus, the federal conditions on the executive order are not extraneous to the policy goals of the underlying grant as they would be if, say, the federal government 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.
Therefore, Attorney General Sessions is following the law, while Chicago is disobeying the law. In today’s judicial autocracy, that means Chicago is right and Sessions is wrong.
District judges don’t set national policy
It’s also worth repeating that district judges have no power to veto national policies outside of granting relief to an individual plaintiff in his individual case or controversy. This is what distinguishes the judicial power from super-legislative and executive veto power that the judge-kings have grabbed for themselves.
What is so frustrating for conservatives is that President Trump appears finally to be making good on some of his campaign promises, yet the judicial tyranny, if left unchecked, will render these gains moot. Trump should be given credit for trying on immigration, but in order to make it stick, he must take this to the next level.
The president must demand that GOP leaders pass judicial reform and deny lower courts such power over immigration and/or get rid of their ability to issue nationwide injunctions, a practice that has no foundation in our history. In the meantime, he should demand that Congress codify his executive order by denying law enforcement grants to states that are sanctuaries in the December budget for FY 2018.
Sanctuary cities affect the entire country
Our Founders would never have tolerated lower court judges preventing the government from making laws to protect people from invaders. One of the indictments against King George was that he prevented governors from making necessary laws to keep out invading Indian tribes. Just this week, an illegal alien pleaded guilty to second-degree murder of a police officer last year in Johnson County, Kansas. Adrian Espinosa-Flores was intoxicated while driving on September 11, 2016, and killed a police officer who was pulled over on the side of the road.
Johnson County should never have been saddled with this creep. Espinosa-Flores was previously convicted of a DUI in Las Angeles County, but local officials refused to hand him over to ICE. Last year, a fine Kansas officer had to pay the price. Thus, unelected judges declaring sanctuary nation policies on behalf of these jurisdictions are hurting all states and communities.
This is exactly why the Framers gave over the issue of immigration to Congress — to prevent liberal states from saddling the rest of the union with them. 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.”
It’s time to end sanctuary cities once and for all. And if that means ignoring the sanctuary courts, then so be it.
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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.