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JustinL

(722 posts)
Thu Dec 1, 2016, 02:59 PM Dec 2016

"Federalism, the Constitution, and sanctuary cities" by Ilya Somin

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/26/federalism-the-constitution-and-sanctuary-cities/?utm_term=.6bbd8ccb88ca

President-elect Donald Trump has repeatedly promised to engage in large-scale deportation of undocumented immigrants. In order to accomplish that goal, he is likely to need the cooperation of state and local governments, as federal law enforcement personnel are extremely limited. But numerous cities have “sanctuary” policies under which they are committed to refusing cooperation with most federal deportation efforts. They include New York, Los Angeles, Chicago, Seattle, and other cities with large immigrant populations. Sanctuary cities refuse to facilitate deportation both because city leaders believe it to be harmful and unjust, and because local law enforcement officials have concluded that it poisons community relations and undermines efforts to combat violent crime. They also recognize that mass deportation would have severe economic costs.

Under the Constitution, state and local governments have every right to refuse to help enforce federal law. In cases like Printz v. United States (1997) and New York v. United States (1992), the Supreme Court has ruled that the Tenth Amendment forbids federal “commandeering” of state governments to help enforce federal law. Most of the support for this anti-commandeering principle came from conservative justices such as the late Antonin Scalia, who wrote the majority opinion in Printz.

...

Many deportation advocates claim it is essential to enforce the law against all violators. But the vast majority of Americans have violated the law at some point in their lives, and few truly believe that all lawbreaking should be punished, regardless of the nature of the law in question or the reason for the violation. And few have more defensible reasons for violating law than undocumented migrants whose only other option is a lifetime of Third World poverty and oppression. In any event, even if there is an obligation to enforce a particular law, it does not follow that the duty falls on state and local governments.

...

UPDATE: It is worth noting that if Congress were to pass a law stripping sanctuary cities of all their federal funding unless they help facilitate federal deportation efforts, it would be unconstitutional under the Supreme Court’s decision striking down the Obamacare Medicaid expansion in NFIB v. Sebelius (2012), which forbids funding conditions so coercive that they amount to a “gun to the head” of a state or local government. While the exact limits of this principle are debatable, denying a state all federal grants for the purpose of compelling cooperation with federal deportation policy surely qualifies, if anything does. At the very least, that would be true for local governments that depend on federal funds for a substantial proportion of their budget.
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"Federalism, the Constitution, and sanctuary cities" by Ilya Somin (Original Post) JustinL Dec 2016 OP
I hope you are right yeoman6987 Dec 2016 #1
did they threaten to withhold all federal funds, or only a portion of highway funding? JustinL Dec 2016 #2
 

yeoman6987

(14,449 posts)
1. I hope you are right
Thu Dec 1, 2016, 03:32 PM
Dec 2016

The fed did this to Arizona when they refused to put drunk driving on the books.

JustinL

(722 posts)
2. did they threaten to withhold all federal funds, or only a portion of highway funding?
Thu Dec 1, 2016, 03:42 PM
Dec 2016

In NFIB v Sebelius, 132 S.Ct. 2566, Roberts distinguished a highway funding case as follows (pp. 2604-2605):

In South Dakota v. Dole, we considered a challenge to a federal law that threatened to withhold five percent of a State's federal highway funds if the State did not raise its drinking age to 21. The Court found that the condition was "directly related to one of the main purposes for which highway funds are expended — safe interstate travel." 483 U.S., at 208, 107 S.Ct. 2793. At the same time, the condition was not a restriction on how the highway funds — set aside for specific highway improvement and maintenance efforts — were to be used.

We accordingly asked whether "the financial inducement offered by Congress" was "so coercive as to pass the point at which `pressure turns into compulsion.'" Id., at 211, 107 S.Ct. 2793 (quoting Steward Machine, supra, at 590, 57 S.Ct. 883). By "financial inducement" the Court meant the threat of losing five percent of highway funds; no new money was offered to the States to raise their drinking ages. We found that the inducement was not impermissibly coercive, because Congress was offering only "relatively mild encouragement to the States." Dole, 483 U.S., at 211, 107 S.Ct. 2793. We observed that "all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5%" of her highway funds. Ibid. In fact, the federal funds at stake constituted less than half of one percent of South Dakota's budget at the time. See Nat. Assn. of State Budget Officers, The State Expenditure Report 59 (1987); South Dakota v. Dole, 791 F.2d 628, 630 (C.A.8 1986). In consequence, "we conclude(d) that (the) encouragement to state action (was) a valid use of the spending power." Dole, 483 U.S., at 212, 107 S.Ct. 2793. Whether to accept the drinking age change "remain(ed) the prerogative of the States not merely in theory but in fact." Id., at 211-212, 107 S.Ct. 2793.

In this case, the financial "inducement" Congress has chosen is much more than "relatively mild encouragement" — it is a gun to the head. Section 1396c of the Medicaid Act provides that if a State's Medicaid plan does not comply with the Act's requirements, the Secretary of Health and Human Services may declare that "further payments will not be made to the State." 42 U.S.C. § 1396c. A State that opts out of the Affordable Care Act's expansion in health care coverage thus stands to lose not merely "a relatively small percentage" of its existing Medicaid funding, but all of it. Dole, supra, at 211, 107 S.Ct. 2793. Medicaid spending accounts for over 20 percent of the average State's total budget, with federal funds covering 50 to 83 percent of those costs. See Nat. Assn. of State Budget Officers, Fiscal Year 2010 State Expenditure Report, p. 11, Table 5 (2011); 42 U.S.C. § 1396d(b). The Federal Government estimates that it will pay out approximately $3.3 trillion between 2010 and 2019 in order to cover the costs of pre-expansion Medicaid. Brief for United States 10, n. 6. In addition, the States have developed intricate statutory and administrative regimes over the course of many decades to implement their objectives under existing Medicaid. It is easy to see how the Dole Court could conclude that the threatened loss of less than half of one percent of South Dakota's budget left that State with a "prerogative" to reject Congress's desired policy, "not merely in theory but in fact." 483 U.S., at 211-212, 107 S.Ct. 2793. The threatened loss of over 10 percent of a State's overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion
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