By Joe Palazzolo, WSJ
A thicket of U.S. Supreme Court rulings could limit the reach of the executive order issued by President Donald Trump last week meant to prod “sanctuary cities” into helping the federal government enforce immigration law.
Some local and state officials, including in New York, have promised to fight the order, which says cities that fail to turn over information about illegal immigrants “are not eligible to receive federal grants.”
Legal experts said the Supreme Court has given them many tools for resistance.
The court has ruled that the U.S. Constitution bars the federal government from commandeering state officials or using federal funds to “coerce” states into doing the bidding of Washington.
As recently as 2012, the court held that the federal government couldn’t expel states from Medicaid if they refused to expand eligibility for the federal-state health program, curtailing a key provision of the Affordable Care Act.
“If the denial of Medicaid funding alone was coercive, the denial of all federal funding of any kind for refusing to cooperate in enforcement of immigration law must be coercive,” said Dale Carpenter, a constitutional law professor at Southern Methodist University.
The federal government can withhold a grant from a city or state, but it must do so for reasons related to that grant’s purpose, legal experts said. For example, the Trump administration likely couldn’t deny grants for highways to a city for defying Mr. Trump’s executive order on immigration, because the two are unconnected, said Michael McConnell, a former federal appeals judge who now teaches at Stanford Law School.
The rules have some flexibility, legal experts said. The U.S. Supreme Court said in a 1987 case that the federal government could withhold highway funding from states that refused to raise their minimum drinking age to 21 years, reasoning that the funding and the condition both promoted highway safety.
Jonathan Adler, a professor at Case Western Reserve University School of Law, said the Constitution permits the U.S. government to ensure that “federal money is not undermining the purposes for which that money is allocated in the first place.”
The Supreme Court has also likened federal-state grant laws to contracts: They are valid only if the state knowingly and voluntarily accepts the terms. Some legal experts interpret that to mean that conditions on federal grants have to be spelled out in the text of a law passed by Congress, while others say cities and states could be put on notice with federal regulations.
Regardless, said Ilya Somin, a constitutional law professor at George Mason University’s Antonin Scalia Law School, “the president can’t impose additional conditions on its own.”
Other experts, however, said Mr. Trump’s order bypasses trip wires set down by the Supreme Court, because it demands only information from cities in return for federal money, not action.
David Rivkin, a lawyer at law firm BakerHosteler who served in the Reagan and George H.W. Bush administrations, pointed to a 2000 U.S. Supreme Court case involving a federal law that imposed restrictions on the disclosure by states of drivers’ personal information.
In upholding the law, the court noted approvingly that it didn’t “require state officials to assist in the enforcement of federal statutes regulating private individuals.”
Mr. Rivkin said Mr. Trump’s order, likewise, passes muster because “it’s not telling city officials to carry out any particular actions.”