Sanctuary Cities Are Safe, Thanks to Conservatives
By Noah Feldman for Bloomberg. President-elect Donald Trump says he will make “sanctuary cities” help deport immigrants by taking away their federal funding if they don’t change their policies. The good news is that he and Congress can’t do it -- not without violating the Constitution.
Two core rules of federalism preclude Trump’s idea: The federal government can’t coerce states (or cities) into action with a financial “gun to the head,” according to Supreme Court precedent developed by Chief Justice John Roberts in the 2012 Affordable Care Act case. And federal officials can’t “commandeer” state officials to do their work for them under a 1997 decision that involved gun purchases under the Brady Act. Justice Roberts analyzed the ACA Medicaid provisions by saying that, under the spending clause of the Constitution, Congress can’t create a funding condition that is unrelated to the original funding purpose and is so coercive that it amounts to a “gun to the head” of the states. Roberts’s doctrine applies with full force to Trump’s threat to pull cities’ existing funding if they remain sanctuaries by declining to cooperate with federal officials to enforce immigration law.
