IN the wake of the presidential election, as Democrats realized that Republicans will soon control all three branches of the federal government, progressives disinclined to secede from the Union rediscovered another exit strategy: states’ rights.More detailed, doctrine-wise, is Ilya Somin in WaPo, with "Federalism, the Constitution, and sanctuary cities," explaining Printz v. United States (the anti-commandeering doctrine) and NFIB v. Sebelius (the limit on using the spending power to coerce compliance).
Mayors in several so-called sanctuary cities, including Los Angeles, Oakland, Chicago and New York, immediately reaffirmed their commitment not to work with federal immigration officials in detaining and deporting illegal immigrants....
This is the main subject I wrote about when I wrote for law journals. See, e.g., "The Vigor of Anti-Commandeering Doctrine in Times of Terror." My experience was that liberals and lefties got annoyed at the suggestion that doctrine from conservative Justices could serve liberal causes.
ADDED: The post title is not intended to imply that Ilya Somin is himself a man of the left. And he now has a newer post: "Trump, federal power, and the left – why liberals should help make federalism great again."
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Recently, a case in Arizona reaffirmed that immigration law is the sole domain of the federal government and it is not a states rights issue. Start taking away federal money and see how they like it and if they are willing to pay up for their principles.
Althouse knew about the fake news problem back in 2004 with her footnote 1."To rely on the New York Times, one could easily get the impression that the Court has gone on a mindless rampage, enforcing federalism without regard for national interests, leaving Congress powerless to protect us from evils of all kinds. See, e.g., Linda Greenhouse, For a Supreme Court Graybeard, States' Rights Can Do No Wrong, N.Y. TIMES, Mar. 16, 2003...."
Ultimately economics Trumps statism.
Haha, Printz was a local case to undo the Brady Bill, IIRC. Jay Printz was sheriff of Ravalli County, hotbed o' wingers!
I'm too lazy to read all of the linked articles, but I'm schooled enough about America's governments to wonder why this is even a question worth pondering.
The political push by the Dems to open the Southern border to illegal Hispanic immigrants, to change the culture of our society, to increase the Democratic voting rolls, to ultimately change red states to blue, may have worked in California, may have worked in New Mexico, has been working in Arizona, but thankfully hasn't yet worked in the Great state of Texas!
Gotta love the Lone Star State for their stubborn resistance to Leftist political designs.
Before everything is said and done the proggies will be shrieking, "States rights! States rights!"
It's really funny how the left's views on state's rights, secession, surveillance, the filibuster, the Supreme Court, the nuclear option, or how replacements are chosen if a congressman retires or takes a government posting elsewhere... tend to fluctuate based on the makeup of the federal government.
Screw 'em. Unless they offer hard and fast legislation that can't simply be bypassed the next time they are in charge, I'm not at all interested. And even then, I'm highly suspicious.
That article of mine was published in 2004, the year I started blogging.
I find blogging so much more rewarding that writing for law reviews.
Democrats have long been supportive of ignoring laws they dislike. Then they want to secede after that.
Cancel ALL federal funding for "sanctuary cities". Money comes with strings attached. Use those strings.
Recently, a case in Arizona reaffirmed that immigration law is the sole domain of the federal government and it is not a states rights issue. Start taking away federal money and see how they like it and if they are willing to pay up for their principles.
Indeed. Those states/cities can no more IGNORE federal law than Arizona was allowed to enforce it.
It's really funny how the left's views on state's rights, secession, surveillance, the filibuster, the Supreme Court, the nuclear option, or how replacements are chosen if a congressman retires or takes a government posting elsewhere... tend to fluctuate based on the makeup of the federal government.
Indeed. The Republicans discussed ending the filibuster, but never did it. Conservatives were resigned to the Democrats ending the filibuster in the case of a Hillary win. We didn't love it, but those are the rules.
Democrats have absolutely no core beliefs on any issue outside of maintenance of power.
And "sanctuary universities" should also forfeit all federal funds.
Including loans. Research grants. EVERYTHING.
Screw 'em. Unless they offer hard and fast legislation that can't simply be bypassed the next time they are in charge, I'm not at all interested. And even then, I'm highly suspicious.
As Instapundit said, "If you want to discuss a Constitutional Convention to deal with these specific issues, we'll talk."
Before everything is said and done the proggies will be shrieking, "States rights! States rights!"
And "Safe spaces now, safe spaces tomorrow, safe spaces forever."
When did "states rights" ever apply to or in immigration law?
Great post, Ann! I agree with those who would cut off federal funding to sanctuary cities. And states who allow non-citizens to vote* should forfeit their right to participation in federal elections.
*We've already hashed this out ad nauseam but it does happen--with purely political intent.
Cutting off federal money to sanctuary cities will increase Trump's popularity.
It will be like when Reagan fired all the air-traffic controllers who were striking.
Why does Ann find blogging more rewarding than writing for law reviews? And why is that? Nobody reads law reviews.
The Obama Administration threatened to cut off federal aid to ...
* universities that did not conduct kangaroo-court proceedings in response to sexual-harassment accusations
* any schools that had their own ideas about transgender use of bathrooms.
"Great post, Ann! I agree with those who would cut off federal funding to sanctuary cities. And states who allow non-citizens to vote* should forfeit their right to participation in federal elections."
I don't get why you think this is a great post, since you don't seem to agree with me. Maybe you just mean it's a great subject.
What funding are you picturing getting cut off? What would work that wouldn't be coercive and thus not permitted under the doctrine set in NFIB v. Sebelius?
Denying federal funding to sanctuary cities is the most practical way to deal with the issue. We'll see how quickly their fake altruism turns to venal self-interest.
"Why does Ann find blogging more rewarding than writing for law reviews? And why is that? Nobody reads law reviews."
You mainly write law review articles for yourself: To figure things out and to advance your career. It's a good idea to think about how those 2 goals are related to each other and see some of the perversity in the interaction.
Not really sure that I would call Hamilton and Ravalli county the hotbed of wingers, any more than most of MT. Today, I expect it is a little to the left of much of the state, with its million dollar homes. Still, they aren't that far north of Salmon, ID, on US 93, which has Buffalo Bore which makes the best handgun ammo for brown bears. But also near Missoula (home of U of M) to the north that recently passed a local ordinance requiring background checks for any firearms transfers within the city limits - which is somehow fitting that the first named plaintiff in Prinz was the sheriff of the next county to the south. Making it more interesting here, MT has state level firearms law preemption, which should preempt the Missoula ordinance. We shall see.
I don't get why you think this is a great post, since you don't seem to agree with me. Maybe you just mean it's a great subject.
LOL! No, I don't agree with you but it's still a great topic for discussion. Isn't that the point?
The federal government has participated in funding programs for development in cities--in particular, inner cities. They should not be permitted to house, feed and educate those who clearly broke the law by being here.
Forget sanctuary federalism, marijuana federalism is going to be the game changer.
This will ultimately be a sort of existential conundrum.
Will claiming states rights be for the Left leaning states worth the cost of giving states rights to the Right leaning states.
Stated another way, is it more important to be able to do what You want, or to tell others what they must do?
Ann Althouse: That article of mine was published in 2004, the year I started blogging.
I find blogging so much more rewarding that writing for law reviews.
I assume you are more widely read in this format as well. It suits you well. Go ahead and quit your day job but don't stop this, please.
The Vigor of Anti-Commandeering Doctrine in Times of Terror
The Obama Administration commandeered universities and schools to enforce its preferences in sexual policies.
The Obama Administration's commandeering method was to send "Dear Colleague" letters to the universities and schools. These letters threatened to cut off federal aid if the universities and schools failed to develop and impose the enforcement procedures that the Obama Administration desired.
These commandeering methods of the Obama Administration proved to be effective.
The Trump Administration will not be able to cut off all federal money for "sanctuary cities". That is plain under NFIB v Sebelius. However, any funding that can be shown spent on illegals - housing, hospitals, schools, garbage disposal, anything - can be cut rather drastically to exclude those fungible dollars from city budgets.
The battle will not take long. However, it would be nice if cities thought more carefully about yielding to federal demands at the outset. Too many politicians take the easy money now, forgetting about strings not yet attached that will cripple budgetary flexibility.
Funny that Dole v South Dakota has yet to be mentioned.
Some money CAN be cut before we reach "coercion" and that percentage lies between 10% and 100%.
I think a pain-inducing number can be found within that range.
Democrats have absolutely no core beliefs on any issue outside of maintenance of power.
Progressivism is the main core belief of the Democratic Party. It's the same belief system that excludes whole swaths of the electorate, for example, Jim Webb. Name one core belief of Progressivism and you will like find a belief anathema to the average Trump voter.
United States or Confederate States?
State or a nominal grouping of Counties?
County or a nominal grouping of townships?
Community or every man for himself and the devil take the hindmost?
"I assume you are more widely read in this format as well."
I think any given blog post here on any given day has more readers than all the law review articles I worked on and published over a period of decades.
I think most law professors feel they can glance at a law review article and form the belief that they already know what it says and that it is not worth reading to find out. The articles are chosen and edited by law students who insure that it will be extremely tedious to read and any effort put into making the article readable will only increase the likelihood that you'll have to fight with editors to preserve the work you put into creating a text that everyone is already averse to reading because of what those editors are demanding that you do. What an idiotic predicament!
I thought Generals Grant and Sherman settled this bit about "coercion."
"States' Rights"? Hell, that's just code for Jim Crow, poll taxes, whites-only restaurants and other Democrat adventures. I have this on the highest authorities! At least, that's been the party line for the last 30 years. Good luck reversing that lesson, assholes!
So... Law professors are stymied by a system that they and their colleagues put into place?
Levi Starks:
It is victims all the way down.
Wonderful news. Smaller units of government and governance returns government to the people. A number of counties are larger than the population of the U.S. in 1800. sounds divide those into states, 1000s, interstate compacts and computers can deal with the rest . Each unit of governance can do it all. States rights done right. Good fun. Competition between them for a citizen's love and their enterprise will fix the rest, as long as citizens and companies can vote with their feet. Go right ahead and offer sanctuary, since all the consequences fall to them, and any other state that agrees with them and form a state compact to pay for it.
I think most law professors feel they can glance at a law review article and form the belief that they already know what it says and that it is not worth reading to find out. The articles are chosen and edited by law students who insure that it will be extremely tedious to read and any effort put into making the article readable will only increase the likelihood that you'll have to fight with editors to preserve the work you put into creating a text that everyone is already averse to reading because of what those editors are demanding that you do. What an idiotic predicament!
What a Kafkaesque process! I love your writing style. And over the years I've gravitated towards the best writers on current events and it follows a certain pattern: Lileks, Instapundit, Best of the Web, Althouse, Powerlineblog, Hugh Hewitt.
The precision of wording that lawyers and law professors bring to the written word is music to my ears. James Lileks is married to a lawyer, which may have something to do with it, although being a working journalist (of the honest sort) doesn't hurt. Taranto at the WSJ is very well-versed in the law. I think of him as the anti-Greenhouse at the Journal and in the BOTW. Anyway, there is a relationship between law and the written word that makes blogs by the law-oriented more interesting and enjoyable to me.
The main reason that immigration policy CANNOT be left up to the individual States and is controlled by the Federal Government IS exactly a State's Rights issue.
What one State may decide to do within its own borders is something that most likely will not affect other States. Abortion is one of those issue that should be a State by State issue. The abortion rulings in Georgia have no effect on the citizens of Colorado. Each State has the right to self govern, within its own boundaries
However, if one State, California for instance, decides to open its borders and allow any and all illegal immigrants to enter and then give them State documentation, this will most certainly affect those other States that do NOT want illegals to flood into their jurisdiction.
The flood of illegals that are admitted, contrary to a cohesive Federal policy, by a rogue State (California) will spill over into the other States who may not have the resources to counter the problem and who don't want this type of immigration policy. Thus violating the rights of the other sovereign States by inflicting the results of its own rogue and illegal polices on the others.
One State will be adversely affecting the sovereign rights of all the other States. If the States do not like the FEDERAL policies, then we have a mechanism to change those policies. It is called Congress.
A rogue State has no right to change policies that affect all the other States.
IN other words like Las Vegas. What happens in Vegas, stays in Vegas and no one cares. But when Vegas starts taking over your neighborhood you DO care.
No matter whether sanctuary cities will be able to frustrate the reduction of federal aid, this issue will be a political disaster for the Democrat Party.
What portion of the electorate agrees that there should be sanctuary cities?
This kind of Democrat foolishness will lead to a huge re-election of Trump in 2016.
There are lots and lots of issues that lend themselves to federalism. Immigration is not one of them. That's explicitly top down. States with their own immigration policy in violation of federal law have effectively made state level treaties with foreign countries which is a big no-no. They have no argument.
Now if we are discussing marijuana legalization then that is another story.
Trump should announce now that he will withdraw federal immigration enforcement personnel from those sanctuary cities for reassignment to areas interested in cooperative enforcement of immigration laws. Once inaugurated, he should identify federal funding to those cities allocated to support illegal immigrants and quietly terminate it.
Give'em all the federalism they can stand.
It is time those who value what they call "tolerance and diversity" above public safety and solvency accept responsibility for their lunacy.
Have your sanctuary cities and colleges. Cut funding.
The local taxpayers are behind you, tax local!
We have GOT to get a handle on all these "misplaced" visas.
A fake embassy in Ghana?
hombre at 9:50
Trump should announce now that he will withdraw federal immigration enforcement personnel from those sanctuary cities for reassignment to areas interested in cooperative enforcement of immigration laws.
That is an excellent idea.
In particular, Trump should greatly increase immigration enforcement in the suburbs and cities surrounding the sanctuary cities. Thus illegal aliens will tend to resettle and concentrate even more densely inside the sanctuary cities.
The Trump Administration can make it known that no new federal contracts of any kind will be awarded to any organizations located in sanctuary cities.
Hmm...a Republican president-elect, A Democratic meltdown, talk of secession and state's rights.......History really does repeat itself.
Republican state governments can declare that they will not allow any of their state employees to attend any conventions that take place in sanctuary cities.
The political push by the Dems to open the Southern border to illegal Hispanic immigrants, to change the culture of our society, to increase the Democratic voting rolls, to ultimately change red states to blue, may have worked in California, may have worked in New Mexico, has been working in Arizona, but thankfully hasn't yet worked in the Great state of Texas!
Key word: yet. Remember, you guys have to win all the time. The left only has to win once.
Just have to hire more ICE agents and spend less on federal funding to local law enforcement. Also have to build ICE detention centers in the sanctuary cities to hold the illegals instead of relying on local jails.
A fake embassy in Ghana?
I thought that it was hilarious. If you were in Ghana, you essentially needed to go to a fake embassy, instead of a real one, to get a visa to come here, or to some European country. And, pay an obnoxiously high price. Of course, it didn't always work out, such as when a fake embassy kept issuing old style visas after the country it was supposed to be an embassy had changed formats.
There will also be steeped up federal corruption investigations of officials in sanctuary cities.
DBQ, but Calif is doing the right thing so its ok to force it onto to Nevada.
I don't think disciplining the "sanctuary cities' will be all that difficult All you have to do is begin reducing federal aid across the board during the budget process. There's no coercion involved just a change in Federal priorities. I imagine that cities that voted Hillary are going to be in for some hard economic times in the Federal budget. Why not? Elections have consequences someone once said.
Interesting idea that it would be unconstitutional to cut off Federal funding to sanctuary cities. I don't understand too well: After the Civil War, would it be allowed for the federal government to coerce the state governments to help them free slaves, or stop them from returning slaves to their owners? Is it true that they would have no recourse aside from sending their own soldiers, even financial penalties on money earmarked for those states? What makes that unconstitutional?
I don't get how any court can force the president to spend money.
Tell them to pound sand. What are they going to do? Impeach the president? Good luck with that.
Obama has shown that the president spends the money. Even if Congress attempts to starve a beast, the president can continue to feed it. Or not feed it, as the case may be.
I don't think trump will do this. But, what if he did?
What if he refused to send money to any state with sanctuary cities. Who could force him to send the money?
Would it be possible either instead of or in addition to stripping sanctuary cities of federal funding to amend federal election law so that any county, city or other political subdivision that refuses to enforce or cooperate in the enforcement of federal immigration law will not have the votes cast within that political subdivision counted in any election for the House of Representatives, United States Senate or the in their State’s allocation of its electoral votes for the Presidency? In other words, if they want to allow illegal aliens to potentially vote in their local and Statewide elections, that’s their business but they do so knowing that they forfeit participation in federal election.
Funny that Dole v South Dakota has yet to be mentioned.
Some money CAN be cut before we reach "coercion" and that percentage lies between 10% and 100%.
I think a pain-inducing number can be found within that range.
IIRC Dole and its progeny only referred to funding for the States. While it might apply to political subdivisions of States (e.g. cities although that’s debatable), I don’t see any reason why it would apply to universities (including public ones) and even local public schools. The federal government could threaten to cut off all federal funding (including student loans) that doesn't pass through State governments for schools that don’t cooperate fully with immigration authorities without running afoul of federalism.
Also, the Trump Administration can declare that it will not conduct any conventions or conferences in any sanctuary city.
Sanctuary cities and legal marijuana are attacks on the authority of government itself. These are matters that affect everybody and must be decided by the means provided in the national Constitution.
What funding are you picturing getting cut off? What would work that wouldn't be coercive and thus not permitted under the doctrine set in NFIB v. Sebelius?
But would this qualify under that?
If Arizona was not permitted to enforce already-passed immigration law, why should California be permitted to ignore it? That seems like it'd be a fundamental unequal treatment issue. Arizona sought to enforce laws on the books. California seeks to ignore it. I cannot find a legitimate justification for why AZ would be doing their action illegally and CA isn't.
Trump Administration can declare that it will not conduct any conventions or conferences in any sanctuary city.
Consider, for example, what might happen to, say AGU, if Federal Travel there was forbidden. Not that this is a bad thing considering how freakin' enormous that winter meeting is anyway.
(I know, I know, it's not in SF after this year for a couple years anyway, but....)
Thorley Winston:
The point about Dole vs NFIB is that the Supreme Court has said 100% is coercive but 10% is not coercive. Do try to follow the point.
Further, not counting votes would not be ensuring a Republican form of government which is guaranteed in the Constitution.
MikeR asked: Interesting idea that it would be unconstitutional to cut off Federal funding to sanctuary cities. I don't understand too well: After the Civil War, would it be allowed for the federal government to coerce the state governments to help them free slaves, or stop them from returning slaves to their owners? Is it true that they would have no recourse aside from sending their own soldiers, even financial penalties on money earmarked for those states? What makes that unconstitutional?
Even more recently, did Eisenhower not send federal troops to Little Rock, AR, to enforce integration?
mockturtle:
Sending federal troops in way that does not violate posse comitatus is acceptable. That is the precise opposite of commandeering.
Why isn't a municipal sanctuary status decision preempted by IRAIRA (1996) as found in the Hazelton decision from 2012?
Someone get Mike Sylwester on a plane to DC -- stat! I like the way you think, sir.
The point about Dole vs NFIB is that the Supreme Court has said 100% is coercive but 10% is not coercive. Do try to follow the point.
If you are going to try to be condescending, it would probably help not to confuse two different Supreme Court cases or to get their holding(s) wrong.
Didn't the Obama administration say that public schools and colleges that do not follow federal guidelines on access to bathrooms, locker rooms and dorms are in danger of losing federal funding?
Many deportation advocates claim it is essential to enforce the law against all violators. But the vast majority of Americans have violated the law at some point in their lives, and few truly believe that all lawbreaking should be punished, regardless of the nature of the law in question or the reason for the violation. And few have more defensible reasons for violating law than undocumented migrants whose only other option is a lifetime of Third World poverty and oppression.
Yes, we're all criminals. Yes, we're overcriminalized. Yes, it's well nigh impossible for the average citizen to always know when he is in violation of the law. I for one have been beating this particular drum for years.
But can we please not compare selling "loosies" on the streets of New York or illegally downloading music from the Internet with laws that seek to regulate who is permitted to enter, live and work in this country and who is not? If cities and states and universities (and presidents who lie under oath about sex) can determine which laws they will follow, then why can't bakers and pizza makers and photographers? Is there no permissible way for the federal government to force municipalities and states to comply with federal law? Why should only individuals and private entities be subjected to penalties for non-compliance?
And, please, I don't want to hear that violating immigration law is defensible because the only other option is a lifetime of Third World poverty and oppression. First of all, that's not true. And second, such a defense takes us into the abhorrent realm of critical theory law where one's circumstances, life experiences and personal narrative determines whether or not he should be subject to a specific law or body of law.
Thorley Winston:
You should think about why a 10% withholding of federal roads money was constitutional in SD v Dole and why 100% was unconstitutional coercion in NFIB.
The Supreme Court is busy drawing lines. Between 10 and 100% is the line.
Dole vs NFIB
Oh, I see why you were confused. It's a shame, really.
READ AS: Comparing Dole with NFIB
Dole: 10% is constitutionally permissible
NFIB: 100% is not constitutionally permissible
Jackson had his Calhoun nullification crisis. Trump will have his nullification crisis too. But at a minumum he will need to get the 9th Justice/5th-vote appointed and confirmed first.
SukieTawdry said...
Yes, we're all criminals. Yes, we're overcriminalized. Yes, it's well nigh impossible for the average citizen to always know when he is in violation of the law. I for one have been beating this particular drum for years.
One big difference comparing immigration law-breaking with other law-breaking: Most people who break the law ( speeding, underage drinking, etc. ) stop doing so when the police show up. They may well break the law again in the future, but they at least have to stop for a bit, and repeated law-breaking will land them in progressively more trouble.
For someone in the country illegally, stopping the law-breaking means leaving the country. People who say they should be allowed to stay are not just advocating forgiveness for past transgressions, but for ignoring the ongoing crime.
The old South corrupted the meaning of States' rights when it tried to hide behind the concept over slavery.
Just because individual rights trump States' rights, that doesn't mean there's no such thing.
DavidD:
I agree that Democrats screwed up the states' rights argumwnt.
Above all, does this not expose the folly of people sending their money to Washington DC, only to have it sent back with strings attached?
Perhaps sanctuary cities and those agreeing with the concept are now more amenable to repealing the 16th amendment.
I am all for the left rediscovering the 10th Amendment. Then again, they really aren't rediscovering it, they're simply looking for anything at hand to fight Trump and will readily drop the whole states' rights thing the minute they get back into power.
That said, this is a poor choice of issue on which to make the fight. Thanks in part to overreacting to Arizona's attempt to enforce existing laws, the precedent is already set that cities and states cannot preempt the feds on immigration. That all works well and good when the President is Obama who willfully neglects enforcement of the law. That doesn't work when President Trump directs his attorney general to start enforcing the law.
My preferred approach would not be to deny the cities funds so much as it would be to assess them for the number of illegals they harbor. Pass legislation assessing a $1000 per capita fee per annum for all illegals in any jurisdiction that refuses to enforce immigration law and deem it a security fee. If necessary, prosecute the politicians for breaking the law.
"My preferred approach would not be to deny the cities funds so much as it would be to assess them for the number of illegals they harbor. Pass legislation assessing a $1000 per capita fee per annum for all illegals in any jurisdiction that refuses to enforce immigration law and deem it a security fee. If necessary, prosecute the politicians for breaking the law."
How do we determine who is illegal and who isn't when the very cities involved refuse to allow any mechanism for making that determination? Won't there be a new industry created for manufacturing "proof" of citizenship?
What we need is a federal law or Supreme Court ruling requiring proof of citizenship (with a counterfeit-proof type paper for those issued after the law/ruling) to register to vote. The big problem here in IL is that no proof of citizenship is required to register so we know illegals vote.
Margaret:
That is easily handled. You make every city provide evidence of citizenship for any of the recipients of public assistance and the federal government only reimburses for verified citizens. The cities will be free to provide 100% of the public assistance they wish for non-citizens.
That bill will immediately prove too large for the kindhearted and soft-headed Collectivists.
But my suggested law will never pass due to Republican senators who are also Collectivists, like John McCain and Lindsey Graham.
Birkel,
If the illegals are identified as such, can we then not deport them? Cost savings all around. And we do have laws against coming here illegally, so why not? If ICE is re-activated to do its job, we should be able to rid our country of people who have no right to be here.
Those of us who do not want to be transformed by illegal invasion have been shamed as racists, nativists. Maybe it's time to reject those labels and insist that our laws be used to stop the "transformation." It is not mean-spirited to want adult illegals to return to their own countries and pay the price of reforming those countries so that they are liveable.
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