President Trump’s decision to cut funding to sanctuary cities as part of an illegal immigration crackdown violates the Tenth Amendment, according to House Democrats.
“I hope one of them will sue,” Rep. Sheila Jackson Lee, D-Texas, said of the sanctuary cities during a House Judiciary subcommittee hearing.
The Trump administration said Monday it plans to “claw back” federal funding provided to cities whose law enforcement officials decline to honor detainers issued by Immigration and Customs Enforcement. The crackdown addresses one of the most frustrating aspects of immigration policy for conservatives, who routinely highlight crimes committed by people who have entered the country illegally and taken refuge in the sanctuary cities. That has placed Democrats in the position of making a typically-Republican argument about states’ rights against the federal government.
“The Constitution, specifically the Tenth Amendment, protects states’ rights and it prohibits federal actions that commandeer state and local officials,” Calif. Rep. Zoe Lofgren, the top Democrat on the Judiciary panel’s immigration and border security subcommittee, said Tuesday. “When it comes to immigration, these principles seem to be overlooked.”
That argument stems from conservative Supreme Court jurisprudence. Chief Justice John Roberts barred the federal government using the threat of funding losses to force states to expand Medicaid under Obamacare. A gun rights opinion written by the late Justice Antonin Scalia could also complicate Trump’s efforts.
“Scalia reasoned that the federal system separates state officials from the executive chain of command that covers federal employees,” Harvard University professor Noah Feldman wrote in November. “And he concluded that the constitutional system of federalism bars Congress from pressing state officials into service to execute federal laws.”
That might gall immigration hawks whose efforts to increase state enforcement of immigration law were blocked by the Obama administration, but Democrats aren’t hesitating to bring the arguments to bear in the sanctuary city fight. “State and local officials know their communities and know how to keep them safe,” Lofgren said. “The Constitution’s longstanding principle is either ignored or seen as an impediment by some people.”
Republicans maintain that is incorrect, contradicting Democratic arguments that immigrants who fear deportation are less likely to report crimes, by reminding them of the crimes committed in sanctuary cities. “These sanctuary communities are magnets for illegals who are looking to lay low, not be bothered, and commit crimes or plan terrorist attacks,” Thomas Hodgson, a sheriff in Massachusetts, told the committee.
Democrats might disagree with that assessment, but the constitutional argument gives them a procedural weapon, regardless of the policy debate. “There are well-known constitutional limits on the ability of the federal government to withhold funds to the states,” Lofrgen said. “State and local officials know their communities and know how to keep them safe.”
