Sanctuary Cities and Federalism by Extortion (Guest Post by Jacob Hamburger)
Over the past several months, I’ve occasionally spoken to reporters about the Trump administration’s efforts to bully state and local governments into abandoning “sanctuary” policies and collaborating with ICE’s campaign of mass deportations. The administration has taken a multi-pronged approach to compel compliance, including filing lawsuits that allege that various non-cooperation or pro-immigration policies are preempted by federal law, withholding or clawing back federal funds, making public threats to arrest or investigate officials who refuse to cooperate, or “flooding” cities with hostile federal agents. Just last week, this strategy appeared to pay off. After receiving a threatening letter from the Justice Department, the mayor of Louisville, Kentucky announced that the city would begin honoring federal requests to detain immigrants for 48 hours after their release date from custody to allow ICE to pick them up—apparently flouting the city’s 2017 ordinance prohibiting “detain[ing] any person for violations of federal civil immigration laws.”
Although some of these measures were part of the Trump 1.0 playbook as well, one point I often emphasize is the continuity between these measures and Trump 2.0’s attacks on universities, law firms, and media outlets. In all of these contexts, the administration picks a fight with the largest, wealthiest, or most prominent target—Harvard and Columbia, Paul Weiss and Skadden Arps, CBS and Paramount—in the hope that smaller targets will be less inclined to resist its agenda.
When it comes to “sanctuary cities,” there are in fact several kinds of jurisdictions that decline cooperation with ICE. As Professor Rick Su has written, some of these, including many larger cities in blue states, define themselves as sanctuaries to make a political statement against harsh federal immigration policies. But others are motivated more by a desire to avoid the cost and administrative burden of conducting immigration enforcement and prefer not to publicize any disagreements with federal policy they have. These jurisdictions are more likely to think of compliance through a cost-benefit lens, and Trump’s sanctuary city agenda seeks to raise the cost of noncompliance (while perhaps sweetening the deal for those that cooperate with new funding available under the OBBBA). Lawsuits against places like New York and Chicago, or threats to investigate and arrest their elected leaders, make it more likely that places like Louisville will agree to the administration’s terms.
Recent writing on the Columbia-Trump settlement by Professor Dorf as well as Professors David Pozen and Adam Tooze of Columbia provide some helpful language for understanding this new regime of governance. Building on earlier scholarship by Professors Steven Davidoff Solomon and David Zaring, Pozen refers to the Trump administration’s approach to what it views as hostile private or state and local entities as “regulation by deal”: seeking to achieve policy outcomes not by enacting generally applicable regulations subject to administrative process, but rather by conducting individual transactions or settlements with the relevant parties. For Tooze, it is a bit too generous to call this a form of regulation, and the looser term “governance” better fits the bill. Similarly, Dorf encourages us to think of what happened at Columbia as less of a “deal” than the payment of a “ransom” in response to the administration’s extortion.
Although the Trump administration’s aggressive or extortionary approach is distinctive, this transactional style of governance is not entirely novel—certainly not in the realm of intergovernmental relations where today’s battles over sanctuary policies take place. We law professors may not want to go as far as Tooze in calling it a constitutive part of American legal culture: “Does the invocation of ‘law’ in the US today not come with a connotation of menace, threat, extortion, ruinous and arbitrary fees, obscure deal-making, hidden clauses, life-ruining nuisance suits, and bizarre somersaults from the freedom of speech to accusations of terrorism[?]” But as scholars such as Professor Bridget Fahey have detailed, “deals” are a ubiquitous part of how modern federalism operates, although they often go by other names, such as “state plans” to administer Medicaid, or “Intergovernmental Service Agreements” to house ICE detainees in county jails.
Of course, what we typically refer to as “sanctuary” policies reflect a choice by state and local jurisdictions not to enter into these kinds of deals. Fahey’s “federalism by contract” requires freedom for states and localities to refuse to contract. This is the basic principle of the constitutional prohibition on “commandeering” these governments’ resources. Even when Congress seeks to induce states and localities to act by placing conditions on federal funds, there are constitutional limits on overly coercive conditions. Senate rules also work against the Trump approach, as seen by the Senate Parliamentarian’s decision to cut out funding restrictions against sanctuary cities from the OBBBA. In short, state and local governments would seem to enjoy far greater protections against Trump’s governance by extortion than their counterparts in the private sector.
Still, the Trump administration is doing everything it can to undermine these legal protections. Some of its bullying efforts against state and local governments have involved relatively straightforward attempts to enforce its positions through litigation, such as the suits against Chicago, New York, Los Angeles, and Denver asserting dubious claims that cooperation with ICE is mandatory. In other cases, it has adopted more extreme procedural tactics. This June, for example, the administration sued Texas to challenge the state’s law granting in-state tuition to undocumented residents (yes, this is in fact the law in Texas). Rather than defend the state’s law, Texas Attorney General Ken Paxton immediately conceded to an injunction against it, settling the case within hours of its filing. This quick “deal” was a victory for both Trump and Paxton, at the expense of the state’s legislative process. And in February, the administration took the radical step of not only withholding federal funds for sanctuary cities—a move jurisdictions have litigated under both Trump 1.0 and 2.0—but clawing back FEMA grant money directly from New York City’s bank account.
In short, state and local governments that are not interested in becoming subsidiaries of ICE find themselves in a similar position to the targets of Trump’s extortion tactics in the private and non-profit sectors. While as a matter of constitutional law these governments may formally enjoy greater protections, the effectiveness of these federal protections may depend on the willingness of smaller states and cities to incur the costs the administration has imposed on them. The Supreme Court’s decision in Trump v. CASA, Inc. may also change some of this calculus, to the extent that jurisdictions that choose not to sue the administration for fiscal or political reasons cannot benefit from the injunctions secured by those that do. In other words, as is so often the case, we are left waiting to see what Trump can ultimately get away with.