“But what good came of it at last?”
Quoth little Peterkin.
“Why that I cannot tell,” said he,
“But ‘twas a famous victory.”
— Robert Southey, “The Battle of Blenheim” (1798)
Southey, a pacifist, wrote his anti-war poem long after the 1704 battle. We, however, need not wait 94 years regarding the Trump administration’s action against “sanctuary cities.” Four months have sufficed to reveal ’twas a constitutionally dubious gesture.
The slapdash executive order says sanctuary cities have caused “immeasurable harm” to “the very fabric of our republic,” without evidence of the shredded fabric or even a definition of “sanctuary city.” There are defensible reasons for cities to limit local law enforcement cooperation with federal immigration enforcement: e.g., preserving cooperative relations between local police and immigrant communities, which facilitates crime-fighting. But many such cities anoint themselves sanctuaries as virtue-signaling and to pander to immigrant communities.
The order says cities “that fail to comply with applicable federal law” shall “not receive federal funds, except as mandated by law.” A U.S. district judge in Northern California has held it is “toothless” if it pertains to merely a few federal grants. If, however, the order extends to other federal grants, it violates the separation of powers: The spending power is vested in Congress, so presidents cannot unilaterally insert new conditions on funding.
It is federal law that a state “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.” This does not, however, prevent voluntarily withholding information.
Furthermore, the Supreme Court has held that the 10th Amendment means that the federal government may not “commandeer” state and local officials to enforce federal laws.
Last Sunday, Texas Republican Gov. Greg Abbott signed legislation setting criminal and civil penalties for state and local officials who refuse to comply with federal immigration laws and detention requests. This is not constitutionally problematic.
But professor Ilya Somin of George Mason University’s Antonin Scalia Law School says: “Trump’s order is exactly the kind of high-handed federal coercion of states and undermining of separation of powers that outraged conservatives under (President) Obama. In fact, Obama did not go as far as Trump seems to do here.”
Neither the Trump administration’s order against sanctuary cities, nor the judge’s ruling against it, has significant discernible consequences. The order is government inspired by “Animal House,” in which the character Otter says: “I think this situation absolutely requires a really futile and stupid gesture be done on somebody’s part!”
George F. Will is a columnist for Newsweek and The Washington Post.