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Horowitz: Why the rare court win on sanctuary cities is so important — and how Trump can make the most of it

Conservative Review

Does a state have the right to use its law enforcement to thwart immigration law and then demand federal grant funds for its law enforcement? It’s a question that never even should have been in court, given that courts don’t appropriate funds, but because every political issue winds up in court, the Trump administration has been stymied in enforcing immigration laws against the states. That is, until now.

In reversal of a district court ruling and in disagreement with other more liberal circuit court rulings, the Second Circuit Court of Appeals ruled yesterday that the Department of Justice was justified in cutting off law enforcement grants to sanctuary cities, such as New York City. The Second Circuit covers the states of New York, Vermont, and Connecticut, but New Jersey, Washington, Massachusetts, Virginia, and Rhode Island joined in the original district court lawsuit in New York.

“Repeatedly and throughout its pronouncement of Byrne Program statutory requirements, Congress makes clear that a grant applicant demonstrates qualification by satisfying statutory requirements in such form and according to such rules as the Attorney General establishes,” wrote Judge Reena Raggi for the unanimous three-judge panel. “This confers considerable authority on the Attorney General.”

Then-Attorney General Jeff Sessions promulgated a regulation in 2017 requiring states to comply with three conditions in order to be eligible for Byrne Grant funds. Pursuant to the policy, states cannot restrict communications with federal authorities about the citizenship and immigration status of its incarcerated aliens, they are prohibited from releasing criminal aliens without prior notice, if requested by ICE, and they must allow federal immigration authorities access to incarcerated aliens. These jurisdictions were slated to lose $385 million in justice assistance grants.

States and cities sued the policy and won victories in numerous district courts as well as in the Seventh and Ninth Circuits. The courts’ rationales centered on federalism and state sovereignty, as if to say there is somehow a right for states to get federal funding while violating the sovereignty of the whole of the union.

Judge Raggi rejected this argument by noting that the relevant statue allows the attorney general to make conditions on grant funding. Plus, withholding federal grants is not a form of commandeering states, because they are free to do what they want and not take the money. “A State is deprived of ‘legitimate choice’ only when the federal government imposes grant conditions that pass the point at which ‘pressure turns into compulsion,’” said the Second Circuit opinion.

Furthermore, Judge Raggi noted that 8 U.S.C. §1373 explicitly bars states from prohibiting communication with immigration authorities, a power that the federal government legitimately holds. Citing Arizona v. U.S., she made it clear that the Supreme Court has said the federal government has complete control over immigration, even when states want to get tougher on illegal aliens. Certainly, that applies when states want to undermine federal enforcement.

Thus, statute actually requires what the states say the Trump administration cannot do. And to say the statute itself is unconstitutional on 10th Amendment grounds is wrong as well because, as Raggi noted, the law doesn’t “affirmatively conscript states, localities, or their employees into the federal government’s service,” such as with the costly Medicaid expansion or aspects of the Americans with Disabilities Act. “Rather, the law prohibits state and local governments and officials ‘only from directly restricting the voluntary exchange of immigration information’ with federal immigration authorities.”

That’s the bottom line. All they are asking is for states not to obstruct a core federal power. The federal government is not mandating any costly regulatory structure – just don’t harbor illegal aliens. There is no practical way for the federal government to exercise its solemn responsibility if states are active accomplices to the assault on the national sovereignty.

Trump needs to take this victory a step further and find other programs to withhold from these states. His power is an even broader mandate than what the court acknowledged. 8 U.S.C. 1373 was enacted as part of the 1996 Welfare Reform Act precisely 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 filled with the majority of illegal aliens in this country.

States using undesirable aliens to increase their representation in the federal government is quite literally why the Constitution took the issue away from the states, where it was under the Articles of Confederation. Writing in Federalist #42, Madison elaborates that the federal power over naturalization solved “a very serious embarrassment” and “defect” of the Articles of Confederation whereby “certain descriptions of aliens, who had rendered themselves obnoxious” can force themselves on several states had they “acquired the character of citizens under the laws of another State.”

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 or a political policy of the local government.

Therefore, the Trump administration would be justified in cutting off other grant funding programs as well so that sanctuary cities don’t reap the reward of their crime by accumulating more people illegally to gobble up federal funding.

It’s not very often that conservatives enjoy a broad victory in the courts. Trump should make the most of it.

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