Deconstructing 'Sanctuary Cities': The Legality of Federal Grant Conditions That Require State and Local Cooperation on Immigration Enforcement
67 Pages Posted: 5 Apr 2019
Date Written: 2018
The term “sanctuary city” has generated more heat than light. The Trump administration has branded certain cities as citadels of lawlessness because those cities have resisted federal attempts to condition receipt of law enforcement funds on cooperation with the full range of immigration enforcement efforts. Pushing back against these federal conditions, cities and other subfederal entities have argued that the untrammeled cooperation that the Trump administration seeks would hinder local law enforcement and promote racial profiling.
Neither side acknowledges that the dispute is relatively narrow in scope, since federal and subfederal entities cooperate both tacitly and actively on many immigration-related fronts, from the data entered during routine local police stops to transfers of custody for persons convicted of serious crimes. That reality does not fit the straw figures that dominate the sanctuary city landscape in political debates. However, it informs attempts to resolve the underlying legal issues.
This Article assesses the legality of Trump administration conditions on both constitutional and statutory grounds. The Article argues for the constitutionality of 8 U.S.C. § 1373, which bars subfederal officials and entities from restricting communication of “immigration status” information. The Article thus rejects the reasoning in some recent court decisions and scholarly commentary that § 1373 violates the Spending Clause or constitutes “commandeering” of state power.
But the Article argues that courts should read § 1373 narrowly, as merely preserving the option of targeted operational coordination between the federal government and subfederal entities. That narrow view is consistent with the “backdrop” of federalism that the Supreme Court has invoked in its interpretation of statutes. Moreover, this narrow reading also dovetails with the preference for local innovation underlying the federal spending programs that the Trump administration has tried to condition on broad cooperation with immigration enforcement.
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