A number of local and state government leaders have indicated that they will not comply with federal orders to seize “illegal” or “undocumented” aliens. Some mayors and even governors have stated that they will not permit their police to pick up “illegals” or even stop them and ask for documentation. Rather, their jurisdictions will be “sanctuaries” for these individuals. They will protect them from federal intrusive and harassing behavior.
Other political leaders have challenged this behavior as being both unconscionable and unconstitutional, arguing that federal immigration power is supreme and no city or state can interfere with it. Threats have been made to cut off all federal funding to any city, county or other political entity that does not fully cooperate with immigration authorities and protects these “illegal aliens.”
Whether it is unconscionable is debatable. That famous political scholar Yogi Berra stated that “where you stand depends on where you sit.” Liberals historically like national power and have concerns about “states rights.” Conservatives historically argue that state and local governments should be able to govern themselves with little federal interference.
The late Justice Antonin Scalia, however, has answered the question about whether this behavior is unconstitutional. In 1997, he wrote that the federal government should not be able to “press” state and local officials into “federal service.” States are “independent and autonomous political entities” and cannot be made to be “puppets” of the federal government.
The case was Printz v. United States. Congress passed the Brady Handgun Violence Prevention Act. The law required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. This requirement was to be only for a short period of time — until a federal system of checks could be established.
In a 5-4 decision, written by Justice Scalia, the Supreme Court held that this was “commandeering.” The court rejected the dissenters argument that the 10th Amendment protection of state sovereignty had to be trumped (pun intended) by the “national emergency” of gun violence.
The Brady law’s “commandeering” was just for a limited period and for a limited purpose and was pursuant to explicit congressional authority. A presidential order, or even a congressional authorization of such an order, would seem to be far more intrusive into state sovereignty.
More recently, in 2013, Chief Justice John Roberts has commented on the ability of the federal government to cut off existing funding to local governments in order to have them implement a federal program. Simply stated, the federal government “may not compel” behavior by cutting off existing funds. The federal government cannot use its spending power “to implement federal policy it could not impose directly.”
The case was National Federation of Independent Business v. Sebelius, the so-called Obamacare decision. Congress passed a detailed plan for health care and health insurance. While upholding the law as being based on an allowable tax program, the Supreme Court rejected one portion of the law. Congress provided that a state could lose some or all of its existing Medicaid funding unless it complied with new conditions set for use of that funding and any new funding.
The chief justice stated that setting new conditions on use of such funding was “coercion” or “economic dragooning.” “What Congress is not free to do is to penalize states that choose not to participate … by taking away their existing … funding.”
In both the Brady law and Obamacare cases, the issue was congressional power over states and local governments through the states. Congress could not compel or coerce by forcing behavior or by slicing existing funding.
Limits to federal power and “coercion” apply to the executive branch as much as to Congress.
Belsky is a former dean and now Randolph Baxter professor of law at the University of Akron. He has served as a prosecutor and as counsel to the U.S. House immigration subcommittee. He teaches courses in constitutional law, ethics and criminal justice.