Recent events are creating strange legal bedfellows. Following President Trump’s election, the administration took swift action against so-called “sanctuary cities.” This included the denial of federal funds to jurisdictions that refused to cooperate with federal immigration policy. Speculation followed whether the refusal of federal funding to so-called “sanctuary cities” is constitutionally permissible under the Tenth Amendment and the principle of states’ rights. In April of 2017, Judge William H. Orrick, an Obama appointee to the Northern District of California, ruled that the Trump administration cannot threaten cities with the withdrawal of federal funding if they do not assist federal immigration authorities in the deportation of undocumented immigrants. A liberal judge in San Francisco ruling against President Trump should come as no surprise. However, just last week the Seventh Circuit issued a ruling by three Republican judges granting a nationwide injunction against the Trump administration’s denial of federal funding to sanctuary cities. A San Francisco liberal judge and the conservative Seventh Circuit wholly agreeing on a point of law is notable.
Moving from the remarkable to the surreal, following President Trump’s election, Erwin Chemerinsky cited Justice Antonin Scalia’s state’s rights jurisprudence as support for the liberal cities’ argument that such action by the administration is unconstitutional. That’s right, liberal activist and University of California professor Erwin Chemerinsky cited states-rights originalist Justice Antonin Scalia. After taking a moment to look outside and ensuring that the world is not ending, no pigs are flying, and hell has not frozen over, consider the significance of this potential alliance. A confluence of events may be bringing together a new legal majority in favor of a stronger form of federalism.
For years, conservative and originalist judges fought the Executive Branch’s attempts to influence state action by withholding federal funds to jurisdictions that did not cooperate with federal policy. In 1997 Justice Scalia authored the majority opinion in Printz v. United States. The case involved the so-called “Brady Bill” (formally styled the “Brady Handgun Violence Prevention Act”). The Brady Bill compelled local state law enforcement to execute federal background checks for gun purchases. The court cited the Federalist Papers as illustrating the Founder’s intent for strong dual sovereignty under the principal of federalism. The court concluded that state law enforcement could not be dragooned into enforcing federal policy.
During the Obama administration, conservative justices continued a vehement defense of the Tenth Amendment and Federalism. In National Federation of Independent Business v. Sebelius (the Obamacare case), the conservative justices lost on the central issue of the constitutionality of the individual mandate. However, a majority of the court did hold that the federal government could not coerce the states to enact federal policy through the threat of denying Medicare funds.
The precedent set by conservative jurists in defense of federalism is now being embraced by liberal justices. Liberal justices now cite Justice Scalia in their fight against President Trump’s policies. To the credit of conservative judges, they are not fair weather friends to federalism. In last week’s City of Chicago v. Sessions ruling, three conservative judges struck down the Trump Administration’s attempts to deny funding to those jurisdictions that did not cooperate with federal immigration policy. Whether the Supreme Court will weigh in and expand upon its earlier precedent remains to be seen.
President Trump’s policy toward sanctuary cities, and the opposition to it, is painted with broad-brush strokes as a simple immigration policy issue. In fact, underlying it is the complex legal issue of the proper degree of states’ rights under the 10th Amendment. This legal issue carries far greater implications for society than any change in immigration policy. Immigration policy changes from one President to the next. In contrast, legal precedent serves as a bulwark against decades of popular resistance.
Perhaps the next legal battle where this conservative/liberal détente will grow is the efforts by certain states to legalize marijuana. As liberal states fight to legalize the drug, conservatives such as Senator Cory Gardner of Colorado have joined the fight to trumpet states’ rights.
Erwin Chemerinsky wrote in his December article that “[f]or decades, conservatives have championed states’ rights. The principles they have created mean that states and cities can decline to participate in Trump’s … plan.” Mr. Rush Limbaugh, the right-wing radio host, has repeatedly criticized liberals for discovering their love of states’ rights only following the election of President Trump.
If the sides wish to make headway, they are advised to hug it out.
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John Reid is an Assistant Professor of Law at the U.S. Air Force Academy. The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the United States Air Force Academy, the Air Force, the Department of Defense, or the U.S. Government.