SUMMARY OF CURRENT PRINCIPLES RELATING TO “EXECUTIVE PRIVILEGE
The scope of the “executive privilege” is likely to be a significant legal issue in upcoming months. The privilege likely dates back to Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803). However, it was Richard Nixon and his refusal to deliver the Watergate tapes that led to the importance of the privilege in recent times. United States v. Nixon, 418 U.S. 683 (1974); Nixon v. Sirica, 487 F.2d 700, 717 (D.C.Cir.1973); see also, Nixon v. Administrator of General Services (GSA), 433 U.S. 425 (1977).
The privilege is discussed in great detail by the District of Columbia Court of Appeals in In re Sealed Case, 121 F.3d 729 (D.C.Cir.1997). In Am. Civil Liberties Union v. Dep't of Justice, 2016 WL 889739, at *1–7 (S.D.N.Y. Mar. 4, 2016) the court summarized the principles established in In re Sealed Case as follows:
1. The United States Supreme Court recognizes a privilege for presidential communications, founded on both the President's generalized interest in confidentiality and the need to guarantee the candor of presidential advisors and to provide the President and those who advise him with the freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. United States v. Nixon, supra., 418 U.S. at 708, 711.
2. Because the privilege is rooted in constitutional considerations—the separation of powers, the “unique constitutional role” of the President, and the deference afforded him by the other branches in the exercise of his Article II enumerated powers—once the presidential communications privilege is claimed, the document to which the privilege arguably relates is presumptively privileged. In re Sealed Case, 121 F.3d at 744. As with all presumptions, however, this one can be overcome; and the Government must convince the court that a particular document falls within the rather narrow parameters of that privilege before it will be deemed exempt from disclosure.
3. Although the privilege is the President's, he need not personally invoke it in. order for the privilege to attach. Citizens for Responsibility & Ethics v. U.S. Department of Homeland Security, 514 F.Supp.2d 46, 48, n. 10 (D.D.C.2007); Electronic Privacy Info. Ctr. V. U.S. Dept of Justice, 584 F.Supp.2d 65, 80–81 (D.D.C.2008). The President has not personally invoked the privilege in this case; however, I have no doubt that he would do so were it required by law. I thus consider this issue a red herring.
4. Even if the privilege attaches — that is, even if the Government makes the showing contemplated by Paragraph 2 above—it is a qualified, not absolute, privilege; it can be overcome by an adequate showing of demonstrated, specific need. In re Sealed Case, 121 F.3d at 744, 746.
5. The privilege, like all privileges, can be waived and is waived by the disclosure of the otherwise privileged information to third parties. In re Sealed Case, 121 F.3d at 741.
6. The privilege is distinct from and “affords greater protection against disclosure” than the deliberative process privilege, and can apply to final and post-decisional as well as pre-decisional and deliberative communications. In re Sealed Case, 121 F.3d at 745–46.
7. Most important: the privilege “should be construed as narrowly as is consistent with ensuring that the confidentiality of the President's decision making process is adequately protected. Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege.” Id. at 752.
Under the In Re Sealed Case, the privilege attaches to direct communications with the president and to communications made by his immediate advisors during preparing advice for the President, even when not made directly to the President. It also extends to communications authored or received in response to a solicitation by the President or a member of the Presidential adviser's staff. Id at 752. However, it was the position of the court in In Re Sealed Case that “the privilege should not extend to staff outside the White House in executive branch agencies.” Id.
LEGAL ANALYSIS OF PRESIDENT TRUMP’S JANUARY 25, 2017, EXECUTIVE ORDER ON SANCTUARY JURISDICTIONS
Many questions have been raised about the enforceability of President Trump’s January 25, 2017 Executive Order “Enhancing Public Safety In The Interior Of The United States” (“Executive Order 13768”) and possible Congressional actions threatening to limit Federal funding to sanctuary jurisdictions. The purpose of this article is to describe the legal theories raised both for and against the constitutionality of these actions and to set forth our views on these arguments.
On January 25, 2017, President Trump issued an executive order providing, in part, that “the Attorney General and the [Department of Homeland Security] Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Section 9(a) of Executive Order 13768.
The term “sanctuary jurisdiction” is generally used to describe a city or college campus which welcomes refugees and illegal immigrants. While the designation has no precise legal meaning, it typically refers to cities or universities which do not use their resources to enforce national immigration laws. Some sanctuary jurisdictions have gone further by forbidding their police or employees to inquire about a person's immigration status or share such information with U.S. Immigration and Customs Enforcement.
Pushed last year by Rep. John Culberson (R-Texas), then-Attorney General Loretta Lynch announced a policy that requires recipients of funds from the Office of Justice Programs certify compliance with 8 U.S.C. 1373. During the daily White House Press Briefing on March 27, 2017, Attorney General Sessions announced the Department of Justice’s intention to expand this policy to cover every grant under its jurisdiction. The practical impact of the expansion is that the policy now applies to COPS grants. The Department also announced the intention to rescind funds already granted to jurisdictions that willfully violate Section 1373.
Per some estimates, more than 400 jurisdictions have refused to comply with Federal agencies’ request to detain residents who may have immigrated to the U.S. illegally. Many of these jurisdictions rely on research which shows that sanctuary cities are on average safer and have lower crime rates than the national average. See, Alan Berube, “Sanctuary Cities And Trump’s Executive Order”, (February 24, 2017) https://www.brookings.edu/blog/unpacked/2017/02/24/sanctuary-cities-and-trumps-executive-order/.
Yet, polls show that an overwhelming majority of Americans do not support the concept of sanctuary jurisdictions. See,
Sanctuary jurisdictions receive significant grants from the Federal government, including funds for transportation, infrastructure, education and police programs. The following are among the key funding sources that could be at risk under Executive Order 13768:
• The Edward Byrne Memorial Justice Assistance Grant, which helps states and localities pay for a range of criminal justice needs.
• The U.S. Economic Development Administration grant, which assists “economically distressed areas” with job creation and public works projects.
• The State Criminal Alien Assistance Program, which reimburses localities for costs associated with detaining immigrants.
• The Community Development Block Grant program, which helps fund a range of housing, infrastructure and business development projects.
• The Office of Community Oriented Policing Services, which provides money for law enforcement agencies to hire additional community policing officers.
The Department of Homeland Security has issued a guidance on its “Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States.” This guidance can be accessed at: https://www.dhs.gov/news/2017/02/21/qa-dhs-implementation-executive-order-enhancing-public-safety-interior-united-states.
As discussed below, legal challenges have already been filed challenging the constitutionality of Executive Order 13768. In addition, almost three hundred constitutional, immigration, administrative, and international law professors and scholars delivered a letter to President Trump demanding that he rescind section 9(a) of Executive Order 13768 due to its likely violations of the Spending Clause and the Tenth Amendment of the U.S. Constitution. See,
In terms of its historical context, the dispute over Executive Order 13768 is not the first time where the moral attitudes of certain states conflicted with their Federal obligations. Commentators have noted the parallel between many jurisdictions’ reaction to Executive Order 13768 and the Northern states’ response to the Fugitive Slave Act (“FSA”) prior to the Civil War. The FSA permitted slaveholders to enter free states to search for and capture escaped slaves. States outside the South declined to enforce the FSA and passed “safe-haven” bills which provided slaves with certain protections. These statutes raised the issue of whether a state had the right to enforce its own law against kidnapping in frustration of the Federal policy underlying the FSA. The Supreme Court resolved this issue in Prigg v. The Commonwealth of Pennsylvania, 41 U.S. 539 (1842) and the opinion in that case has relevance to Executive Order 13768 and possible related Congressional action.
At issue in Prigg was a Pennsylvania statute which essentially made it a crime to comply with the FSA. Pursuant to the state statute, Prigg was indicted for kidnapping after forcibly seizing in Pennsylvania a fugitive slave from Maryland. Prigg challenged his arrest on the ground that the Pennsylvania statute was unconstitutional. Recognizing the importance of the issue, the Court started its opinion by stating that “[f]ew questions which have ever come before this court involve more delicate and important considerations; and few upon which the public at large may be presumed to feel a more profound and pervading interest.” Id. at 48.
The Supreme Court in Prigg determined that the Constitution gave the Federal government the authority to enact the FSA and that the Pennsylvania statute unconstitutionally interfered with the Federal government’s authority. In reaching this result, the Court focused heavily on the fact that granting the Federal government authority in this area was essential to the Southern states agreeing to the Constitution.
However, the Court also stressed that the constitutional and statutory provisions at issue “[did] not point out any state functionaries, or any state action, to carry its provisions into effect.” Thus, the Court reasoned:
The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist, that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or entrusted to them by the Constitution. On the contrary, the natural, if not the necessary, conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution.
As will be discussed below, underlying the Prigg Court’s suggestion of a limitation on Federal authority is the Tenth Amendment to the U.S. Constitution which provides that “[t]he 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 Tenth Amendment has historically been viewed as limiting the Federal government’s ability to mandate actions by states and localities. Thus, generally, the Federal government cannot compel states to enact or administer a Federal regulatory program or compel state employees to participate in the administration of a federally enacted regulatory scheme. Importantly, these Tenth Amendment protections extend not only to states but to municipalities and their employees.
Is Executive Order 13768 CONSTITUTIONAL?
The Supreme Court long ago recognized that “the power to legislate is a power possessed solely by congress, and to permit the president the freedom to suspend, amend, or disregard laws of his choosing would be to “clothe” the executive branch with the power of lawmaking.” Kendall v. U.S. ex. rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838). Since then, the Supreme Court has consistently recognized that “there is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” Clinton v. City of New York, 524 U.S. 417, 488 (1998). Therefore, as discussed below, an executive order must be based on some statutory or constitutional authority. Otherwise, the President would be acting in a legislative rather than executive capacity and the executive order would be invalid. See, Panama Ref. Co. v. Ryan, 293 U.S. 388, 430 (1935); Tara L. Branum, President or King? The Use and Abuse of Executive Orders in Modern-Day America, 28 J. Legis. 1, 65–78 (2002) (“Branum Article”).
Executive Order 13768 provides as follows as to the President’s authority:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation's immigration laws are faithfully executed….
Thus, in this instance, the President is claiming authority to issue Executive Order 13768 both pursuant to a constitutional authority to “ensure the public safety” and pursuant to the authority allegedly granted him under the Immigration and Nationality Act. Therefore, the legality of Executive Order 13768 hinges, in part, on whether the President has, in fact, such authority.
The Youngstown Framework.
The most often cited description of Presidential power comes from the opinion of Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–638 (1952) (concurring opinion). The framework divides exercises of Presidential power into three categories:
First, when “the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id., at 637.
Second, “in absence of either a congressional grant or denial of authority” there is a “zone of twilight in which he and Congress may have concurrent authority,” and where “congressional inertia, indifference or quiescence may” invite the exercise of executive power. Id.
Finally, when “the President takes measures incompatible with the expressed or implied will of Congress ... he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” To succeed in this third category, the President's asserted power must be both “exclusive” and “conclusive” on the issue. Id., at 637–638.
At issue in Youngstown was President Truman's order directing the Secretary of Commerce to seize and operate most domestic steel mills in order to avert a nationwide steel strike which the President believed would threaten the national defense. The Youngstown Court held that the order was invalid because it lacked a statutory or constitutional basis. See also, “Youngstown Zone Zero”, As a rule, the tendency of the courts is to justify the exercise of presidential power where possible. See, Branum Article at p. 68.
Cases Overturning Executive Orders.
The two most important cases invaliding executive orders are Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) and Building & Construction Trades Department v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002).
At issue in Chamber of Commerce was an executive order issued by President Clinton barring the Federal government from contracting with employers who hired permanent replacements during a lawful strike. President Clinton made no specific claim of independent constitutional power; instead, he based his authority on the Federal Property and Administrative Services Act, 40 U.S.C. Sec. 471 et seq. (the “Procurement Act”). That act provides that “[i]t is the policy of the executive branch in procuring goods and services that, to ensure the economical and efficient administration and completion of Federal Government contracts, contracting agencies shall not contract with employers that permanently replace lawfully striking employees.” The Court of Appeals held that the Procurement Act did not support President Clinton's authority in this instance. Therefore, the Court concluded that since the President lacked either statutory or constitutional authority, his executive order was invalid.
Similarly, in Building & Construction Trades Department the Court of Appeals overturned an executive order issued by President George W. Bush banning Federal agencies from requiring Project Labor Agreements for federally funded projects. Multiple claims of authority were made by the government during litigation, although the Procurement Act was the only specific authority cited by the President in the text of his order. In arguing the case, the government abandoned the Procurement Act argument. Instead, it cited additional statutes and the President's constitutional power “to supervise and guide subordinate executive officials”. The Court of Appeals rejected the government's claims that either the cited statutes or the Constitution granted the President authority to issue the executive order. Thus, the court held that in the absence of statutory or constitutional authority, the executive order was “beyond the scope of the President's authority.”
Application of Precedent to Executive Order 13768.
There is no express authorization to withhold Federal funds in the Immigration and Nationality Act (INA), the only statute expressly relied upon in the Executive Order 13768.
The President will likely argue that his authority is implicit in Section 1373 of the INA (discussed below) which expressly makes it illegal for a “sanctuary jurisdiction” to prohibit any of its employees from sending to the INS (or receiving from the INS) information regarding the citizenship or immigration status of any individual. As typically the case in such litigation, the President will also likely rely upon other statutes not expressly referenced in the Executive Order 13768.
As stated throughout this Report, it is impossible to predict how any given court will rule on the issue of the President’s statutory authority. In our view, however, Section 1373 does not provide the President with the power to issue an executive order withholding Federal grants from sanctuary jurisdictions both because such a remedy is not expressly set forth in the statute and because the Federal statutes authorizing the grants make no reference to Section 1373. And, at this point, we are not aware of any other statute upon which the President could rely to support his authority to issue Executive Order 13768. See, Liberty Mutual Insurance Company v. Friedman, 639 F.2d 164 (4th Cir. 1981) (after a lengthy analysis of possible statutory bases for the executive order the court of appeals held that the order was not authorized by Congress.)
Executive Order 13768 does not state that it is based on any clearly expressed constitutional authority. Rather, the President has asserted that his authority is implied from his obligation under the Constitution “to ensure the public safety of the American people in communities across the United States.” Again, it is possible that a court will accept such an argument. But, for the most part, courts have failed to uphold executive orders based on an “implied” constitutional power and we believe that would be the correct result here. See, Branum Article at pages 65–78 (2002) (“if no express authority is granted and no other claim to power is made, the courts are more dubious about the validity of a presidential directive. However, the cases in which no claim to statutory authority is made are rare. Typically, numerous claims to power are made, including the rarely accepted claim that the President has “inherent” constitutional power.”).
Moreover, in this instance, Congress has passed statutes directing the executive branch to make grants to states and cities to further particular Congressional policies. Executive Order 13768 is a unilateral decision by the President to effectively amend those statutes to add a proviso not included in the legislation. Thus, in some respects, the situation is not unlike Train v. City of New York, 420 U.S. 35 (1975), in which the Supreme Court held that the President has neither the statutory nor inherent authority to refuse to spend money that Congress has allocated.
Accordingly, our view is that Executive Order 13768 lacks statutory or constitutional authority. Nevertheless, it is impossible to predict how any given court will rule on the constitutionality of the executive order. The cases are very fact specific and the opinions often politically based. In addition, Congress could enact legislation or otherwise act to provide the President with the authority which we believe is currently lacking to support Executive Order 13768.
Is 8 U.S.C. Section 1373 Constitutional?
The central component of Section 9(a) of Executive Order 13768 is its provision that sanctuary jurisdictions which willfully refuse to comply with 8 U.S.C. 1373 will not be eligible to receive Federal grants. Thus, even if a court were to conclude that Section 1373 authorized the President to issue Executive Order 13768, the court would also have to conclude that Section 1373 was itself constitutional.
8 U.S.C. 1373 states as follows:
a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
Arguments Against constitutionality of Section 1373.
There are two serious constitutional problems with conditioning Federal grants to sanctuary cities on compliance with Section 1373.
Separation of Powers/Contract Nature of Federal Grants.
First, longstanding Supreme Court precedent mandates that the Federal government may not impose conditions on grants to states and localities unless the conditions are “unambiguously” stated in the text of the law so that the states can knowingly decide whether to accept those funds. South Dakota v. Dole, 483 U.S. 203 (1987) (“Congress may condition the states' receipt of federal funds, but it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation.”).
We are not aware of any Federal grants to sanctuary jurisdictions which are explicitly conditioned on compliance with Section 1373. Accordingly, in our view, any such condition must be passed by Congress, and may only apply to new grants, not ones that have already been appropriated. See, See, Ilya Somin, “Why Trump’s Executive Order On Sanctuary Cities Is Unconstitutional”, (January 26, 2017) (“2017 Somin Article”).
Second, under the Tenth Amendment, the Federal Government may not compel the states to implement, by legislation or executive action, Federal regulatory programs (the anti-commandeering principle).
The two most important cases in this area are Printz v. United States, 521 U.S. 898, 925 (1997) and New York v. United States, 505 U.S. 144 (1992).
In Printz, the issue was the Brady Handgun Violence Prevention Act (Brady Act), which obligated state law-enforcement officers to conduct background checks in connection with the transfer of handguns. 521 U.S. at 903.
In New York, the issue was the “take title” provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (Nuclear Waste Policy Act) which obligated states either to take ownership and possession of nuclear waste and assume liability for the operators' damages, or to regulate the waste in accordance with Congress's instructions. 505 U.S. at 153-154, 175-76.
The Supreme Court held in both cases that the Federal statutes violated the Tenth Amendment, because Congress was attempting to turn the states into involuntary agents of the Federal government and forcing them to enforce Federal legislation in opposition to the policy of the respective states. Many legal scholars believe these cases and their progeny support the conclusion that Section 1373 is unconstitutional. See, 2017 Somin Article, supra.
Justice Scalia set forth the following principles in Printz:
· The purpose of the anti-commandeering doctrine is the preservation of the States as independent and autonomous political entities.
· That the independence and autonomy of the states is undermined if the Federal government can take away the states’ power to decide what state and local officials may do while on the job.
· Federal law violates the Tenth Amendment if it requires state employees to provide information that belongs to the State and is available to them only in their official capacity.
· The same is true if the Federal government tries to prevent states from controlling their employees’ use of information that is available to them only in their official capacity.
Underlying both Printz and New York was the historical fact that, in drafting the Constitution, the Framers deliberately rejected a system of government in which Congress could “employ state governments as regulatory agencies.” New York, 505 U.S. at 163.
The Supreme Court has noted that the use of state employees to carryout Federal policy had been the model under the Articles of Confederation and that the inadequacy of that governmental structure was responsible in part for the constitutional Convention. The new governmental structure formulated by the Constitution was one of dual sovereigns, with each directly responsible to its citizens for its own actions.
As stated in Printz, the great innovation of the design incorporated into the Constitution was “a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” 521 U.S. at 920.
The fact that Section 1373 is directed at limiting the right of state governments to regulate local officials should not be a critical factor for purposes of the anti-commandeering doctrine. As argued by Professor Somin:
The Supreme Court has repeatedly ruled that the federal government may not “commandeer” state and local officials by compelling them to enforce federal law. Such policies violate the Tenth Amendment. Section 1373 attempts to circumvent this prohibition by forbidding higher-level state and local officials from mandating that lower-level ones refuse to help in enforcing federal policy. But the same principle that forbids direct commandeering also counts against Section 1373. See, Ilya Somin, “More On Federalism, The Constitution, And Sanctuary Cities”, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/12/more-on-Federalism-the-Constitution-and-sanctuary-cities/?utm_term=.43ae8d774f35 (December 12, 2016). (“2016 Somin Article”).
In our view, applying Printz and New York to Section 1373, a compelling argument can be made that the statute violates the anti-commandeering principles announced in those cases.
Arguments In Favor Of Constitutionality --Disclosure Of Information.
In contrast to Professor Somin, legal scholars David Rivkin and Elizabeth Price Foley argue that Section 1373 is constitutional. Rivkin and Foley, “Can Trump Cut Off Funds For Sanctuary Cities? The Constitution Says Yes”, http://www.latimes.com/opinion/op-ed/la-oe-rivkin-foley-sanctuary-city-20161207-story.html (December 7, 2016). According to Rivkin and Foley:
This “anti-commandeering” doctrine, however, doesn’t protect sanctuary cities or public universities — because it doesn’t apply when Congress merely requests information. For example, in Reno v. Condon (2000), the Court unanimously rejected an anti-commandeering challenge to the Driver’s Privacy Protection Act, which required states under certain circumstances to disclose some personal details about license holders. The court concluded that, because the DPPA requested information and “did not require state officials to assist in the enforcement of Federal statutes,” it was consistent with the New York and Printz cases.
Thus, in the view of Rivkin and Foley, the President can force sanctuary jurisdictions to disclose the names and locations of undocumented immigrants, thereby facilitating deportation.
This conclusion has been criticized on the following grounds: (1) that even if Rivkin and Foley are correct about the disclosure of information, the Supreme Court precedent on which they rely does not allow the Federal government to force state and local officials to actually help apprehend and deport migrants; (2) that the argument of Rivkin and Foley only applies to information that state and local officials actually have in their possession and such jurisdictions could choose not to keep records on the names and locations of undocumented migrants, and not to check the immigration status of people arrested for various minor crimes; and (3) that Reno does not give the Federal government a blank check to compel state and local authorities to disclose information. See, 2016 Somin Article, supra.
As to the Reno decision, the Supreme Court in that case emphasized that the Federal law in question was constitutional because it did not require states to enact any laws or regulations, and it did not require state officials to assist in the enforcement of Federal statutes regulating private individuals. The disclosures required in Reno were intended to help enforce a Federal law that prevented states themselves from violating the privacy rights of citizen drivers’ license holders. By contrast, the whole point of forcing disclosure of information under Section 1373 is precisely to have state employees assist the Federal government in the enforcement of a Federal policy to which sanctuary jurisdictions object.
Professor Ilya Somin has stated the following regarding Rivkin and Foley’s positon:
If there were indeed a general information-disclosure exception to the Tenth Amendment’s prohibition on commandeering, it would constitute a major expansion of Federal power. State and local governments have extensive information about hundreds of millions of people that the Federal government could use to coerce us in numerous ways. Fortunately, there is no such exception in the Constitution, or in any of the Supreme Court’s precedents. Such an exception would also enable Congress to impose massive uncompensated burdens on state governments. Ultimately, mandatory information disclosure is a form of commandeering no less than any other. It makes little sense to forbid other types of commandeering of state and local resources, but give the Federal government a blank check to compel disclosure of information. [2016 Somin Article supra.].
Another argument in favor of the constitutionality of Section 1373 was set forth by Professor Michael Grieve in “Sanctuaries and Sanctimony” sanctimony/#sthash.oIrtAjmC.dpuf. (“Grieve’s Article”).
According to Professor Grieves, “[Section] 1373 does not commandeer anything at all. It merely preempts certain laws and practices.” Professor Grieves position is supported by City of New York v. United States, 179 F.3d 29 (2nd Cir. 1999) which involved a municipal policy that expressly prohibits its employees from providing information to ICE regarding the immigration status of any alien. The city challenged the constitutionality of Section 1373. In upholding the facial constitutionality of the act, the court explained that the statute did “not directly compel states or localities to require or prohibit anything. Rather, they prohibit state and local governmental entities or officials only from directly restricting the voluntary exchange of
immigration information with [ICE].” Id. at 35.
Professor Grieves also argues that the Federal government might be able to withhold Federal funds from jurisdictions which refuse to comply with Section 1373 for the following reason:
Nor is section 1373 a grant condition; it’s a free-standing prohibition, enforceable if need be by judicial injunctions. It is not easy to explain why the feds have to keep sending money, especially for law-enforcement purposes, to jurisdictions that ignore the prohibition. And suppose that a Federal grant program states in bold, unmistakable letters that the recipient government shall comply with all applicable Federal laws (those prohibiting the diversion of funds, say, or other forms of corruption). Is that clear enough, and sufficient to encompass 1373? I’d think so.
As it is with Executive Order 13768, it is hard to predict how any given court will rule on the constitutionality of Section 1373. Much will depend on the facts of the case and the degree to which the Federal government is requiring state and local employees to expend time and resources in furtherance of Federal immigration policy. However, in our view, to the extent the Federal government is requiring state or local employees to spend more than a de minimis amount of time or resources carrying out exclusively Federal policies (except where the funding for such time and resources is pursuant to a grant from the Federal government as discussed below), the better argument is that Section 1373 violates the non-commandeering doctrine. See, “An Unconstitutional Threat to Sanctuary Cities”,
Would A Statute Authorizing The Withholding Of All Federal Funds In The Manner Of Executive Order 13768 Be Constitutional?
If there were a statute authorizing the President to withhold all Federal funds from states that refused to comply with Section 1373, the constitutionality of such a statute would be called into question by Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566, 2601–07, 183 L. Ed. 2d 450 (2012).
In NFIB the Supreme Court held that part of the Affordable Care Act (“ACA”) violated the Spending Clause of the Constitution. Before NFIB, the Supreme Court had consistently found that numerous Federal statutes did not violate the Spending Clause. To the contrary, the Court’s opinions generally expressed doubt that a request that a state do something with a monetary carrot attached could ever violate the Spending Clause—the rationale being that a state always had the option to reject Federal money. See, e.g., Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937), (holding that the unemployment compensation scheme offered as an option to the states, which was designed to induce the states to enact conforming legislation for private employees, did not violate the Tenth Amendment because the states were not coerced into adopting the legislation.)
In NFIB, various states contended that the Medicaid expansion provisions of the ACA exceeded Congress's authority under the Spending Clause. They asserted that Congress was coercing the states to adopt the changes it wanted by threatening to withhold all a state's Medicaid grants, unless the state accepted the new expanded funding and complied with the conditions that came with it. This, they argued, violated the basic commandeering principles discussed above even though the restrictions were conditioned on the states’ decision to either accept, or not accept, Federal funds.
Chief Justice Roberts wrote the NFIB plurality decision. He first set forth the following points regarding the appropriate use of Federal power:
· The Spending Clause grants Congress the power “to pay the Debts and provide for the ... general Welfare of the United States.” U.S. Const., Art. I, § 8, cl. 1.
· Congress may use this power to grant Federal funds to the states, and may condition such a grant upon the states' taking certain actions that Congress could not require them to take.
· Such measures encourage a state to regulate in a particular way, and influence a state's policy choices. The conditions imposed by Congress ensure that the funds are used by the states to provide for the general Welfare in the manner Congress intended.
He then set forth the following limitations on that power:
· The Supreme Court has recognized limits on Congress's power under the Spending Clause to secure state compliance with Federal objectives.
· Spending Clause legislation is a contract between the Federal government and the states.
· The legitimacy of Congress's exercise of the spending power rests on whether the state voluntarily and knowingly accepts the terms of the ‘contract.’
· Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the states as independent sovereigns in our Federal system.
· That system rests on the insight that freedom is enhanced by the creation of two governments, not one.
· For this reason, the Constitution has never been understood to confer upon Congress the ability to require the states to govern according to Congress' instructions. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.
· Congress may use its spending power to create incentives for states to act in accordance with Federal policies. But when pressure turns into compulsion, the legislation runs contrary to our system of Federalism.
After discussing its commandeering precedent, Chief Justice Roberts then stated the following regarding Congress’s authority under the Spending Clause:
Spending Clause programs do not pose this danger when a State has a legitimate choice whether to accept the Federal conditions in exchange for Federal funds. In such a situation, state officials can fairly be held politically accountable for choosing to accept or refuse the Federal offer. But when the State has no choice, the Federal Government can achieve its objectives without accountability, just as in New York and Printz. Indeed, this danger is heightened when Congress acts under the Spending Clause, because Congress can use that power to implement Federal policy it could not impose directly under its enumerated powers.
In NFIB the states argued that--regarding the Medicaid expansions provisions of the ACA--Congress had crossed the line distinguishing encouragement from coercion. They stressed that, rather than simply refusing to grant new funds to states that decided not to accept the new conditions, Congress had threatened to withhold those states' existing Medicaid funds. The states claimed that this threat served no purpose other than to force unwilling states to sign up for the dramatic expansion in health care coverage effected by the act.
The result in NFIB was a split decision. Chief Justice Roberts wrote the plurality decision on behalf of three Justices and found that the Medicaid expansion provision violated the Spending Clause and that the penalty provision in the ACA should be struck. Justice Ginsburg wrote a concurring and dissenting opinion on behalf of two justices, and found the Medicaid expansion valid (but also concluding that the proper remedy in case of a violation would be to uphold the ACA and strike the penalty). Justices Scalia wrote a dissent for four justices, finding the Medicaid expansion provision of the ACA violated the Spending Clause and that the entire ACA should be held unconstitutional. The overall result of the various opinions was a holding that the Medicaid expansion penalty provision in the ACA was a violation of the Spending Clause, and the proper remedy was the striking of that penalty from the ACA.
Based on NFIB a compelling argument can be made that if Congress were to pass a statute which, like Executive Order 13768, threatened to cut-off all Federal grants to sanctuary jurisdictions which failed to comply with the terms of Section 1373, such a statute would violate the Spending Clause. In our view, such legislation would go beyond pressuring a sanctuary jurisdiction to bend to Federal policy but would constitute compulsion to spend its time and resources on a Federal policy with which it disagrees. Therefore, in our view, a statute authorizing Executive Order 13768 would run contrary to our Nation’s system of Federalism and would be unconstitutional.
Would Specific Grants Conditioned On Compliance With Section 1373 Be Constitutional?
The final question is whether Congress can condition some grants relating to law enforcement on a state’s compliance with Section 1373. Generally, the answer to this question is yes, subject again to NFIB’s principle that the condition is not overly coercive.
South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) illustrates this point. In Dole, the Supreme Court considered a challenge to a Federal law that threatened to withhold five percent of a State's Federal highway funds if the State did not raise its drinking age to 21. The Court found that the condition was “directly related to one of the main purposes for which highway funds are expended—safe interstate travel.” 483 U.S., at 208. At the same time, the condition was not a restriction on how the highway funds were to be used—a set aside for specific highway improvement and maintenance efforts. Accordingly, the Court determined that the question before it was whether the financial inducement offered by Congress was so coercive as to pass the point at which “pressure turns into compulsion.” Id., at 211. Under these facts, the Court held that the inducement was not impermissibly coercive, because Congress was offering only “relatively mild encouragement to the States.” Id. In consequence, the Court concluded that the encouragement to state action was a valid use of the spending power because whether to accept the drinking age change remained the prerogative of the States not merely in theory but in fact. Id.
Even Professor Somin, who believes Executive Order 13768 to be unconstitutional, has reasoned that Congress could condition some future grants on compliance with Section 1373. But, as noted by Professor Somin:
[F]ew if any current Federal grants are conditioned on cooperation with deportation efforts. Any such conditions would need to be newly enacted by Congress, would apply only to future grants, would have to be unambiguously clear, and not be so severe as to be “coercive.” They would also have to be related to the purpose of the grant. These requirements almost certainly rule out conditioning all Federal grants to sanctuary cities on cooperation with deportation efforts, though Congress could potentially condition grants to local law enforcement agencies on that basis. [2016 Somin Article, supra.]
Current Challenges to Executive Order 13768.
Two California counties (Santa Clara and San Francisco) and two Massachusetts cities (Chelsea and Lawrence) have filed Federal lawsuits challenging the constitutionality of the Executive Order 13768 on many of the grounds discussed herein. Copies of the complaints in these cases can be accessed at: See, “An Unconstitutional Threat to Sanctuary Cities”,
And one state court judge has already ruled that Executive Order 13768 is unconstitutional. See, http://www.miamiherald.com/news/local/community/miami-dade/article 136179733.html.
Similarly, New York Attorney General Eric T. Schneiderman has issued a guidance to his state’s local communities expressing views as the constitutional limits to the Executive Order 13768 similar to those expressed herein. This guidance recommends eight basic measures that local governments could follow consistent with Mr. Schneiderman’s constitutional analysis:
1. Local Enforcement Authorities should not engage in certain activities solely for the purpose of enforcing Federal immigration laws.
2. Absent a judicial warrant, LEAs should honor U.S. Immigration and Customs Enforcement (“ICE”) or Customs and Border Protection (“CBP”) detainer requests only in limited, specified circumstances.
3. Absent a judicial warrant, LEAs should not honor ICE or CBP requests for certain nonpublic, sensitive information about an individual.
4. LEAs should not provide ICE or CBP with access to individuals in their custody for questioning solely for immigration enforcement purposes.
5. LEAs should protect the due process rights of persons as to whom Federal immigration enforcement requests have been made, including providing those persons with appropriate notice.
6. Local agency resources should not be used to create a Federal registry based on race, gender, sexual orientation, religion, ethnicity, or national origin.
7. Local agencies should limit collection of immigration-related information and ensure nondiscriminatory access to benefits and services.
8. LEAs should collect and report data to the public regarding detainer and notification requests from ICE or CBP in order to monitor their compliance with applicable laws.
A copy of this New York Guidance can be accessed at:
Executive Order 13768 has widespread public support at the National level. Nevertheless, in our view, sanctuary jurisdictions opposed to the order have strong arguments that it conflicts with several significant constitutional principles relating to the Separation of Powers, the Spending Clause, and the rights of the states protected by the Tenth Amendment. Given the public’s interest in the issues raised, and the political nature of the dispute, the constitutionality of Executive Order 13768 should ultimately be resolved by the Supreme Court.
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