JURIST Guest Columnist Hugh D. Spitzer of the University of Washington School of Law discusses US Supreme Court decisions which could derail the anticipated efforts by president-elect Trump to punish so-called “sanctuary cities” …

During the recent election campaign, candidate Donald Trump threatened to curtail federal funding for “sanctuary cities” that refuse to cooperate with federal efforts to deport undocumented immigrants.

Trump did not detail how he would go about doing this, but his ability to punish so-called “sanctuary cities” is likely to be hamstrung by the same Rehnquist and Roberts Supreme Court decisions on state and local powers that red states have relied on to block Obama administration initiatives.

The term “sanctuary cities” is something of a moving target. But at least 39 cities, 364 counties and four states have enacted laws or policies that limit the scope of local police and sheriff cooperation with federal immigration enforcement. In the same November balloting that elected Trump, urban areas with large undocumented populations — including Austin and Houston — chose law enforcement officials who promised they would not act with or on behalf of Immigration and Customs Enforcement (ICE). Mayors, led by Chicago’s Rahm Emmanuel, have warned [JURIST Report] of the adverse economic impacts of increased immigration enforcement against law-abiding but undocumented foreign workers.

If cities and counties decline to cooperate with the incoming administration on immigration policy, there are distinct limits on what the federal government will be able to do about it. That fact is rooted in the fundamental legal relationship between the national government and the states and between the states and local governments.

America’s 89,000 municipalities are entirely creatures of the states. There is tremendous variation across the country in what kinds of local governments exist, how they are created, and how much power they have. But they all have one thing in common: they are created according to state constitutions and statutes, and their powers are entirely subject to state control. This municipal law principle, known as “Dillon’s Rule,” was established in an 1868 Iowa Supreme Court decision written by the conservative jurist John Forrest Dillon, whom President Ulysses S. Grant appointed to the US Circuit Court of Appeals for the Eighth Circuit in 1869 and then resigned to teach at Columbia and Yale and to represent the Union Pacific Railroad. Dillon’s Rule states that municipal corporations have only the powers expressly granted by law, or those incidental to powers expressly granted.

Because local governments are creatures of the states which retain oversight authority over them (with notable exceptions such as the enforcement of protective legislation upheld under the Commerce Clause in Garcia v. San Antonio Metropolitan Transit Authority), the federal government has no more ability to order cities around than it can tell state governments what to do.

In the context of sanctuary cities, this means that only the state governments have authority to tell cities and counties that they must collaborate with federal immigration enforcement. When one looks at a map of “sanctuary cities,” most of them turn up in blue states — Texas and Louisiana being notable exceptions — and liberal state governments are unlikely to require their municipalities to actively aid ICE enforcement.

So the question becomes, what can the federal government do? Recent cases underscore that the national government cannot leapfrog the states to grant powers or responsibilities to municipal corporations that those localities lack under state law. For example, last August the US Court of Appeals for the Sixth Circuit in Tennessee v. FCC held that the Federal Communications Commission could not preempt state laws restricting city broadband service powers. The FCC tried to grant cities powers that state laws did not. The Sixth Circuit opinion stated:

The political subdivisions of a state are nothing more than that state’s ‘convenient agencies’ and the state generally retains the power to make discretionary decisions for its subdivisions … Any attempt by the federal government to interpose itself into this state-subdivision relationship therefore must come about by a clear directive from Congress.

The Tennessee v. FCC decision relied on a 2004 decision by the US Supreme Court, Nixon v. Missouri Municipal League, which held that while the FCC might have power to unshackle entrepreneurial private players in the telecommunications market from state restrictions, it had no power to grant local governments the authority to enter into that market in the first place.

Nor can the federal government conscript local governments into carrying out its programs. We know this from a number of important “anti-commandeering” cases decided by the Rehnquist and Roberts courts. In the 1997 case Printz v. United States, Justice Scalia’s opinion for the Court rejected a federal requirement that local law enforcement officials carry out handgun purchase background checks. Citing multiple sections of The Federalist, Scalia emphasized that the Constitution does not allow Congress to impose responsibilities on local governments without the consent of the states. Five years earlier, in New York v. United States, the Supreme Court held that the Constitution did not give Congress the ability to compel states to participate in a radioactive waste handling program. These cases were among many emanating from the Rehnquist court that underscored the vitality of the “dual sovereignty” division of responsibilities between the national and the state governments.

If the Trump administration is unable to command cities and counties to participate in ICE activities, could it use the tried and true approach of “bribing” them through the “power of the purse,” the Constitution’s Spending Power? Here, too, federal tools are heavily restricted by important decisions from the Rehnquist and Roberts courts. In the well-known 1987 case South Dakota v. Dole, Chief Justice Rehnquist authored the court’s opinion which approved (but implicitly limited) the size of federal government transportation funding cut-back to punish states that declined to increase the drinking age to 21. Rehnquist wrote that conditions on federal grants must be related to the subject matter of the particular national projects or programs, and suggested that the level of grant reductions must be modest. He pointed out that “financial inducements offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.'” Justice O’Connor agreed with the principles but dissented, writing that in that specific case the minimum drinking age was not sufficiently related to interstate highway construction to condition funds appropriated for that purpose.

But most important is Chief Justice Robert’s lead opinion in the 2012 case NFIB v. Sebelius, which, among other things, responded to entreaties from “red state” attorneys general and blocked a key portion of President Obama’s Affordable Care Act. The provision in question would have withheld all of a state’s Medicaid grants if that state refused to accept increased federal funding and expand medical coverage to low-income people. Chief Justice Roberts cited New York v. United States, South Dakota v. Dole and Printz v. United States, holding that the Affordable Care Act’s Medicaid provision passed the line from “relatively mild encouragement” to “a gun to the head.” Roberts noted that, in South Dakota v. Dole, only five percent of a state’s highway funds were at stake, suggesting that mild encouragement of that kind was an appropriate level.

If the Trump Administration and Congress opt to reduce federal funding for states that do not order their cities and counties to cooperate with ICE, under Rehnquist and Roberts decisions the reductions will have to be related to the subject matter of the particular national project or program (perhaps limited to federal immigration enforcement assistance). And the reductions cannot be more than “relatively mild encouragement” — perhaps the five percent level permitted in South Dakota v. Dole or a bit more. So long as the cities avoid affirmative interference with federal enforcement activities, the national government will be quite limited in the amount of punishment it can dole out.

And big city mayors seem quite determined to stick with their non-collaboration policy even if the federal government attempts more draconian funding cutbacks. This is a moral issue for the mayors and their voters. We have seen from recent red state resistance to President Obama’s initiatives that public officials can be remarkably stubborn when resisting what they see as an attack on their communities’ fundamental values. When northern states and cities actively resisted federal fugitive slave laws prior to the Civil War, the national government was ultimately able to bludgeon them into cooperation only because Article IV, Section 2 of the Constitution provided the basis for doing so. But that provision is not relevant to free undocumented persons, and in any event it was rendered inoperative by the Thirteenth Amendment’s abolition of slavery.

The supreme irony is, of course, that predominantly Democratic states and cities will be relying on the constitutionally-imbedded states rights that Republicans have fought so hard to sustain. Sanctuary cities will have to rely on Chief Justice Roberts and his colleagues who have strongly advocated the Madisonian principles so important to lawyers and judges with roots in the Federalist Society. Cynics might suggest that conservatives on the Supreme Court will change their tune based on the change in federal administrations. But that would ignore their historical commitment to limited federal powers. As one libertarian commentator observed in a recent piece on sanctuary cities, President Trump will be forced to “follow the Constitution, or the courts will enjoin him as they have his predecessor.”

Hugh Spitzer is a Professor of Law (Acting) at the University of Washington School of Law, located in Seattle, Washington, where he teaches both federal and state constitutional law, and local government law.

Suggested citation: Hugh D. Spitzer, “Sanctuary Cities” to Find Sanctuary in the Rehnquist and Roberts Courts, JURIST — Academic Commentary, Dec. 30, 2016, http://jurist.org/acadmic/2016/12/hugh-spitzer-sanctuarycities-immigration.php.