San Francisco is suing over President Donald Trump's executive order against "sanctuary cities." A federal court began hearing arguments April 14, and a decision is expected soon after.
The order, signed in January, defined "sanctuary jurisdictions" as any that "attempt to shield aliens from removal from the United States." It lists several actions the federal government may take, including denial of federal funds and other "appropriate enforcement action." Attorney General Jeff Sessions repeated the threat in March.
According to San Francisco's lawsuit, the order "commandeers state and local governments in violation of the 10th Amendment to the Constitution." In other words, the federal government intends to enlist the help of the 765,000 or so law enforcement officers who work for state and local governments to enforce federal immigration laws. This is cheaper for the federal government than hiring more agents, but it is costly to unwilling state and local governments. That's the "commandeering" problem at the heart of this legal challenge.
San Francisco's challenge to President Trump's immigration policies draws on an unlikely precedent: a Montana sheriff's challenge to federal gun control policy. More cities are considering similar challenges. The city of Seattle has filed suit. In my work on constitutional law, I study how principles of federalism established by deep red rural counties against a liberal national policy agenda are now serving deep blue urban cities resisting a conservative national policy agenda.
In these legal challenges, red and blue states agree on at least one thing: The federal government's powers are limited under the Constitution. This principle might save what some commentators have called a "bad marriage" between increasingly polarized red and blue states. Our federal system of government allows diverse state policy agendas. Under federalism, state and local dissenters retain some power to govern themselves. This can help soften the blow of national political victories for losing parties.
San Francisco's case against Trump cites a lawsuit filed in Ravalli County in the first year of President Clinton's term. Clinton lost the county in a landslide, though not as badly as Trump lost San Francisco. In his first term, Clinton signed the Brady Handgun Violence Prevention Act of 1993, or the "Brady Bill."
The law requires background checks for handgun purchases. The law required local law enforcement officers to run the background checks until the federal system was up and running. That did not sit well with Jay Printz, an old-school Montana sheriff who eventually would join the National Rifle Association's board of directors. The Brady Bill's mandate conflicted with Montana law, which prohibited Printz from regulating firearm purchases.
So he sued. He took his case all the way to the Supreme Court and won. In a 5–4 opinion authored by the late Justice Antonin Scalia, the court held that the "Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."
It relied on the 10th Amendment to the United States Constitution, which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The justices interpreted the Constitution as reserving control over state officials to the states alone. The ruling prohibited federal commandeering of state officials like Sheriff Printz by enlisting them to enforce federal law.
It also meant that as long as the federal government is not coercive, making an offer the states can't refuse, it can persuade them with the promise of federal funding. For example, in 1987, South Dakota challenged the federal government's withholding of a small share of highway funding if the state did not raise its drinking age to 21. The Supreme Court allowed the spending condition as a "relatively mild encouragement" to follow federal policy. Yet it warned that at some point, "pressure turns into compulsion."
The Supreme Court found the government reached that point in 2012, when it struck down the Affordable Care Act's expansion of Medicaid. Under the act, holdout states were faced with losing around 10 percent of their total budgets if they refused to accept the Medicaid expansion.
In the Affordable Care Act case, the court extended the reasoning of the Printz case to federal spending programs. In a metaphor Sheriff Printz might appreciate, Chief Justice Roberts wrote that the threat of losing so much federal funding was "a gun to the head." It was as good as commandeering the states themselves. Two of the more liberal justices joined Chief Justice Roberts and the four more conservative justices in a 7–2 decision on the issue.
San Francisco now argues that if the Brady Bill's requirement that Sheriff Printz conduct background checks is unconstitutional, then President Trump's sanctuary city policy is, too. Making federal funds conditional on compliance with federal immigration enforcement, San Francisco argues, would be "a gun to the head."
Federalism allows for people in the states to reach local compromises that cannot be reached at the national level in the current political climate. Other state and local governments may seek sanctuary from federal drug laws, for example. The anti-commandeering rule lets people in the states resist some federal mandates, or even the threatened loss of federal funds.
Today, a conservative administration in Washington is ruling over a center-left plurality in the states. One consequence is the appointment of conservative Supreme Court justices, who typically support states' federalism arguments. Given these shifts, we can expect more liberal jurisdictions to find common ground with Sheriff Printz's resistance in years to come.
Originally published April 10 in The Conversation. Anthony Johnstone is a professor of constitutional law at the University of Montana.