“We’re going to defend all of our people regardless of where they come from, regardless of their immigration status,” Mayor Bill de Blasio of New York said at a news conference with other city officials.It's part of American federalism that state and local governments set their own agenda and perform their separate functions in their separate ways. Immigration is a matter that belongs to the federal government, but it can't force state and local government to do the work it wants done.
In Chicago, Mayor Rahm Emanuel declared: “I want to be clear: We’re going to stay a sanctuary city. There is no stranger among us. Whether you’re from Poland or Pakistan, whether you’re from Ireland or India or Israel and whether you’re from Mexico or Moldova, where my grandfather came from, you are welcome in Chicago as you pursue the American dream.”
When cities are doing their own work, they don't have to load in tasks assigned by the federal government. They can choose to do so, and they can be tempted to make that choice by conditions imposed on federal spending, but those conditions need to be made clear at the point when the money is offered, so that they do have a choice.
That's the protection for federalism that the Supreme Court has built into its doctrine about the Congress's spending power. Congress is trusted to take account of the interests of state and local government when it attaches conditions to spending, which is why it has to make the conditions clear. You can't sneak up on the local government and trick it into a position where it later figures out the autonomy it has lost.
So I don't see how President Trump can go looking for spending to withdraw to bully local government officials into caving into his new policy agenda. That's not how American federalism in the present-day constitutional law doctrine works, and it's certainly nothing close to what someone who cares about the original understanding of federalism would think proper.
____________________
* Is Madison, Wisconsin a "sanctuary city"? No, but the mayor likes to say it is!
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135 comments:
Money is fungible. Cuts in federal funds to cities don't have to have anything to do with enforcement of immigration laws. They can just be budgetary cuts to any category of spending, but the mayors will get the message. This is a case where playing hardball is easy. Coercion?!? Not a chance.
There are many programs in law enforcement, such as security, which involve Federal-local cooperation. The Government can say - honestly - that the local police are failing in their responsibilities and withdraw from the programs.
This would hit NYC particularly in the crotch. Which it deserves for many reason.
There is also the issue of obstruction of justice of the locals prevent or interfere with federal officers arresting the illegals from being arrested. Including failure to provide information.
Seems like Congress could propose new spending to cities, but condition it on compliance with immigration laws, right?
Federalism doesn't protect municipalities from consequences of their law breaking. We had to send the Feds in a few times to make democrats in the south follow equal protection laws.
The cities who refuse to follow the laws should also be explicitly liable for damages done by the illegals they protect.
I'm unimpressed by your lack of creativity.
1. Suspend funding without provision.
2. Offer new funding on conditions imposed.
Live on the federal teat, die on the federal teat. I agree with our host that the Feds can't make cities choose how to perform local functions. OTOH, the feds have every right to cut off the money flow.
Now I assume Ms. Althouse will say clearly--as she already has by implication that it is somehow unfair for the Feds to cut the money spigot when a city has embarked on programs that assume a certain constant level of Federal money to sustain. That might even be viewed as a sort of Federal government bait and switch. Unfair!!!!
Well too many colleges, schools, cities and counties have or will discover that Federal money is like cocaine. It's easy to get hooked. In fact it's easy to become the local governmental equivalent of a crack whore. You'll do anything for that next bundle of Federal cash. Withdrawal can be tough--but it can be done.
So Madison is not a sanctuary. Maybe Asylum is the correct term.
The bigger issue for Trump is one of greater public opinion. Will he come off as a mean ol' bully for cutting federal funds? He risks turning seedy characters like Rahm Emanuel and Bill de Blasio into unlikely folk heroes standing up to the man.
Get with the program Ann. Original intent only matters when the government is doing something I don't like.
“We’re going to defend all of our people regardless of where they come from, regardless of their immigration status,” Mayor Bill de Blasio of New York"
DeBlasio also muttered under his breath: "Additionally, we are going to defend their right to vote, regardless of their immigration status".
Just adding to the list of things people are freaking out about
As if big city mayors are going to change because Trump tells them to - lol
I think how the constitution works is a little more flexible on the matter.
Just avoid the conditions the SC sets in their tests. Do it another way.
I didn't read all 31 pages of that fine law review article but I well recall when the federal government threatened to cut state highway funds unless the states reduced the speed limit to 55. It worked. It always works.
Trump will cut the money to Chicago to set an example. Then Chicago goes to federal court and asks for the money. Show me a federal judge who will rule in favor of the City of Chicago.
Trump has the gold. He makes the rules. Animal cunning.
Cities are all Democrat anyway. Don't send them anything.
Local autonomy!
Some of the DOJ grants to cities are conditioned upon cooperation with immigration enforcement. Those funds will be cut off.
We'll soon find out how clever the GOP is these matters. If the Democrats needed to coerce some conservative mayors they would quickly find a way.
If Trump finds a legal angle to make this work the media/Democrat cartel will immediately declare it unconstitutional.
Did you know that if you avoid Fed money and pay your own doctor bills in cash, doctors give you a huge discount?
It's almost as if Fed money is poisoned.
Also they don't ask for your SS number or gun ownership questions.
Elite liberal lawyers and lawprofs set the precedent with establishment of the Pro-Choice doctrine (e.g. abortion rites, [class] diversity, social justice adventurism) based on emanations from the twilight zone that selective excised undesirable, inconvenient black letter law from the constitution for causes of wealth, pleasure, leisure, Democratic leverage, and political progress.
Mayors love illegal immigrants, because they pay sales tax and city tax, and never file taxes, so it is free money.
The citizens should thank the Mayors for their depravity. Their wicked love of money.
A nation has borders. The cities and states enjoy those borders. Don't be stupid.
Or, as a practical matter, pull an Obama. Cut off the funds and make the cities litigate. It'll take a couple of years to settle. It's called hard ball.
The Trump Administration should learn from the Obama Administration how to commandeer non-federal institutions. You start by sending a "Dear Colleague" letter, threatening to cut off all federal funds.
"You can't sneak up on the local government and trick it into a position where it later figures out the autonomy it has lost." Hey, this sounds like a fun game. Can I play? "You can't sneak up on the federal government and trick it into giving you money even though you release criminal illegal aliens into the general population without telling anyone." "You can't sneak up on universities threatening to withhold their funding unless they implement newly invented Title IX "guidance."" Yeah, yeah, not exactly parallel, but fun all the same.
The thing about this POTUS that the mayors don't get is that this guy ACTS.
"...pay your own doctor bills in cash"
What doctor bills? I'm on tricare. I pay a membership fee to the government, and they take care of all my doctor and prescription costs.
I guess Althouse has forgotten how federalism really works. Why is the drinking age 21? Because Reagan withheld transportation funds until the States caved. Her caveat at the end about is this how we want federalism to work is ridiculous. That train left the station 155 years ago.
I'm confused. Didn't we already have this big case in Arizona where it was determined that only the federal government gets to determine immigration laws? Or does that only apply one way?
I do appreciate the Supreme Court's insistence that the federal government cannot extort state and local governments to take on federal responsibilities. I agree with that. But it is a tougher argument when the governing bodies in question are freely admitting they are aiding and abetting in federal crime in a policy matter that is the sole purview of the federal government. The federal government is required to give money to cities that are flouting the law is a tough one to present.
If all that is true, why was there all the outcry about 'unfunded mandates'?
Yes, the federal government should exert the power of the purse and withhold federal funding from cities that aid and abet criminals.
Here in Omaha a new college graduate was killed by a drunk illegal alien (3x the legal limit) from Honduras. She would be alive today if Obama didn't have a catch and release policy. Her name was Sarah Root. She was from Iowa. Trump carried her county by a large and verified number.
Trump should makes these asshole's cities the only sanctuary for illegals. I guarantee the collar suburbs of Chicago have no desire to be a sanctuary...or wouldn't for long when thousands or tens of thousands or hundreds of thousands start showing up. Give funds to cities for enforcement and aggressively deport. If an illegal knows he will be arrested and deported in Mt. Prospect, he will remain in Chicago.
All these big cities have substantial populations that are in great need of social services. They are not going to be happy when program funds become scarce due to huge influx of illegal citizens. Increased taxation is really not possible. They are already taxed to death.
For some reason, when it suits them, the Left avoids using the phrase "rule of law"
There's a lot of laws on the books about illegal aliens. A lot.
If the state and city governments choose not to enforce the law or choose not to cooperate with the Feds who are sworn to enforce the law, well, Yes, cut off their funds.
Very simple.
Professor Althouse has an excellent point, but there's an entirely different angle far more salient to the problem:
8 U.S. Code § 1324
Sanctuary cities and their governing bodies are unquestionably harboring illegal aliens in overt defiance of federal law.
Apart from anything else that might be done, for example, Congress cancelling all existing federal funding to cities and immediately replacing it with legislation requiring cooperation with the federal government, the moment he is confirmed Jeff Sessions could charge Rahm Emmanuel and the entire Chicago city government with violating 8 U.S. Code § 1324 and have them all arrested and detained in federal facilities.
The legal pathways to force compliance with federal immigration law are there, and there are more than one of them.
What @Static Ping just said. If cities are flounting federal law what other recourse is there? Can city officials be prosecuted?
I'm not a lawyer. But how does this differ from South Dakota v. Dole, a 1984 case that SCOTUS deemed constitutional? It permitted the withholding of federal highway funds from states that reused to raise the minimum drinking age to 21.
Ever since the Massachusetts supreme Court told Romney what he had to do in regards to gay marriage, I've wanted an executive to tell the judiciary to pound sand.
This is a perfect time for that.
I hope Trump cuts off funding. I hope they sue. I hope the courts tell the President to spend the money. And I hope Trump responds by telling the courts they can pay for it if they want it funded.
What are they going to do if he replies like that?
The only choice is impeachment. And sanctuary cities aren't popular. So, zero chance he is impeached over this.
Instead of removing funding for not helping, how about adding funding for helping, particularly if the help isn't inside YOUR governmental unit. To wit, create an equitable sharing fund, funded with fines to businesses that employ people not lawfully entitled to work (e.g., undocumented immigrants). Say the fine per unlawful worker is 5x max SS payments (employer's and employee's combined) contributions, regardless of payments to worker. Don't do anything to the worker. Just fine the business. Now, let the municipal governments and state governments get 1/2 of the fine if they report the violation, even if the violation is NOT IN THEIR TERRITORY. So Oakland could get money for reporting illegals in Oakland OR SF, and Camden, NJ could get money for reporting illegals in Camden OR Philly, PA.
Reduce the incentive to hire unlawfully, and reduces the incentive to be here illegally. And no action it taken against the immigrant, per se. Very humane. And very hard to defend your sanctuary policy against 'greedy' neighbors.
"Federalism doesn't protect municipalities from consequences of their law breaking. We had to send the Feds in a few times to make democrats in the south follow equal protection laws."
What lawbreaking?
Everyone should note that the government intends to coerce if you accept government funding. It's not a right, it's shackle.
Rahm Emanuel mentioned people from various countries. He failed to mention anyone from the United States of America. They are the people he represents - not illegals. Americans are getting murdered in his city, but he, like Bill de Bozo de Clown doesn't give a fuck about Americans as much as he does about people who don't belong here or have a right to be here - the illegals who are breaking our laws, keeping our wages low and straining our resources (which Chicago can't afford to waste further). How quickly these hacks forget his basic responsibilities and to whom they are owed.
David Begley: sad story. It doesn't take many of those to persuade a lot of voters to act.
I think the mayors are going to have a hard job here. Trump can choke off the funds and it will take them time (years?) to litigate for their release. Meanwhile they are living at or below the break-even. If they cut services, their voters will punish them. If they don't cut services, they may be making illegal expenditures; and then they become vulnerable both legally and on PR grounds as "lawbreakers sheltering lawbreakers and breaking even more laws to pay for it." A city IOU might become unenforceable.
This is indeed hardball, but it was entirely predictable. It could not go on.
I for one hope the cities resist. That will have lots of benefits.
1) Illegals will flood into them from the rest of the states; thereby concentrating the illegal immigrant problem into the blue strongholds. Thus, the illegals will be with the people who want them here.
2) the impeding cuts for funds means lots of money saved. I hope Trump goes farther: After a couple of months, to allow time for everyone to flood into Chicago, no federal funding of any kind to anyone or anything inside a "sanctuary city." If they want to be lawless; then no federal money of any kind. That includes all welfare and other social service payments to anyone inside the city. We'll save hundreds of billions. And just imagine how popular the illegals will be with all the current welfare recipients!
The illegals will be pleading to be deported before they are killed. And if Trump holds firm for a few months, the dependant underclass will learn to live without welfare bennies. Plus, they'll hate the Democrat party for putting them into such a situation. Win win win all around. Of course, Lifelong Republican Chuck will be horrified at the idea of playing hardball with Democrats. Better to surrender immediately and give Chuckie Schumer complete control over US policy, right?
--Vance
Curious George at 10:24 AM
Trump should makes these asshole's cities the only sanctuary for illegals.
Trump should announce that he is terminating all immigration enforcement in sanctuary cities and is hugely increasing enforcement in the suburbs and towns surrounding those cities.
I do appreciate the Supreme Court's insistence that the federal government cannot extort state and local governments to take on federal responsibilities.
The issue (it seems to me) is that the sanctuary cities(and counties) are not just refusing to take on federal responsibilities....they are actively impeding and hampering the ability of the Federal Government to execute the laws.
The sanctuary cities are "aiding and abetting" criminal actions.
The blocking of the execution of existing Immigration Law and refusal to deal with criminals is adversely affecting areas outside of their city or county boundaries with rising crime and murder. Other States. Other Cities. Rural areas. Are all affected by the sanctuary cities refusal to enforce laws and by their active impeding of the Federal Government to enforce the laws.
It would seem, to me as a lay person, that there is standing on the part of the rest of the country that doesn't want to participate in "sanctuary" and who wants to see the laws enforced, to sue those areas for the harm resulting in the flaunting of Immigration laws and to force them to comply with Federal Law.
Ann asks: What lawbreaking?
Is aiding and abetting criminals not lawbreaking? If they are in this country illegally, they are [do I have to shout?] BREAKING THE LAW!
Ann Althouse said...
"Federalism doesn't protect municipalities from consequences of their law breaking. We had to send the Feds in a few times to make democrats in the south follow equal protection laws."
What lawbreaking?
Does failure to enforce federal immigration law count as lawbreaking?
Seriously, federal funding comes with a lot of strings attached. It's the old, "He who pays the Piper calls the tune" all over again. If you don't want the federal strings with their accompanying overhead expenses, don't accept the money.
"Did you know that if you avoid Fed money and pay your own doctor bills in cash, doctors give you a huge discount?"
That only applies to doctors who have dropped Medicare and most of those have also dropped all insurance.
Medicare demands that their members get the best price and then pay about 20% of the charges. If you give a discount and Medicare finds out, they will reset your "profile"to the lower charge and pay 20% of the lesser amount.
Insurance companies have the same arrangement and they will punish a doctor who violates their rules. I was once fined $500 for sending a patient to "the wrong lab" for a $16 wound culture. That was an HMO and after that I would only see their members in one office.
Doctors who have dropped insurance and Medicare usually cut their overhead by a lot. Insurance billing is often more than 50% of overhead. Medicaid is the worst. It pays about 10% and takes two years. Medicare has gotten much worse in recent years.
The busiest and best total hip surgeon in a nearby community in Orange County dropped Medicare and charged what Medicare actually paid for a total hip. He stayed the busiest. The patient could still use Medicare for hospital charges.
If you don't want the federal strings with their accompanying overhead expenses, don't accept the money.
Exactly! Many of these cities boast that they are the principal sources of capital and jobs so they should do just fine w/o federal funding. ;-)
A little note from Austin:
(1) Unless the local radio stations are out to lunch, ICE detainment to determine immigration status has no legal requirement, and law enforcement compliance is voluntary
(2) The State of Texas is currently working on a law that will prohibit 'sanctuary cities,' holding back funding and removing officials (even elected officials, I think cities are chartered by the State) that perform in such a way as to support them
(3) I heard an Austin city Commissioner yesterday say that 1/3 of his constituency are in the U.S. illegally. And I thought, what id a constituency? How could they have voted for him?
Althouse said ..."What lawbreaking?"
Reporter on TV just claimed Congress "outlawed Sanctuary Cities" 21 years ago. Also a federal statue that if you shield, conceal, or harbor an illegal alien it is a felony punishable by 5 years. Now I'm not a lawyer, much less a law professor, but until you've got a lot more than a two word question I'm inclined to think there's law breaking here.
Until San Francisco and the other Cities actually fire on Federal Military Forts there is not a War Between the States. And so far the USMC bases are still commanded out of Washington and not out of Mexico City. But things may change as the Interposition Theory of a modern day John C. Calhoun meets the will of a modern day President Jackson.
I'm a bit shocked that Ann would focus on the federal government's legal requirement to keep funding cities that ignore immigration law, to the point that they release violent illegal alien felons into the general populace, rather than the responsibility they have to keeping their citizens safe from these predators.
Perhaps Chicago can sign a mutual defense treaty with China, and then when Trump sends in the feds, Emmanuel can start World War 3.
I think if Congress appropriates the money to the cities with conditions, they have pretty broad leeway to do that (e.g., the Dole decision where states could lose some of their highway funds if they did not raise the drinking age to 21). GOP controls Congress now so could easily appropriate money for immigration enforcement.
What I suspect though is we'll see a dispute over whether a given city is actually helping or just making a show of it and taking the money, and whether the feds will decide it's good enough as long as it looks like it works. Because a lot of cities want that sweet sweet cash but aren't too keen on pissing off their liberal bases or actually spending the funds on this.
Ann Althouse said...
"What lawbreaking?"
A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:
* assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or
* encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or
* knowingly assists illegal aliens due to personal convictions.
http://americanpatrol.com/REFERENCE/AidAbetUnlawfulSec8USC1324.html
A little shaky on the pronouns. Should just use xen, the pronoun we xenophobes prefer.
David53 said...
I'm not a lawyer. But how does this differ from South Dakota v. Dole, a 1984 case that SCOTUS deemed constitutional? It permitted the withholding of federal highway funds from states that reused to raise the minimum drinking age to 21.
I am a lawyer, and I have the same question. And in the realm of executive action versus congressional action, we have the Obama Administration's Title IX action in which they threatened to withhold federal education dollars from any institution of higher learning that fails to enact sexual assault/harassment initiatives to suit the Department of Education's Office of Civil Rights.
I'm interested, Professor Althouse, in how you'd distinguish those examples.
A recent IGS-UC Berkeley poll found that 74 percent of Californians want an end to sanctuary cities, including 65 percent of Hispanics and 73 percent of Democrats.
This issue is a big loser for Democrats. Courts have been known to bend to popular opinion, and Democrats oppose legislative changes at their own peril.
Also, what if states begin to impose their own cuts in funding to these cities if those cities do not turn these individuals over to state law enforcement authorities? I can assure you that Philadelphia gets no love from Pennsylvania voters.
Kind of interesting, though, to contrast this with the local failure to enforce marijuana laws. Is Colorado a Marijuana Sanctuary State? I guess so.
Why does federalism always work in one direction?
Many states call abortion illegal. But the federal government forces them to allow it. That's because our founders wrote into our Constitution, thou shalt be able to kill thy babies.
But immigration law? That's optional.
Want to protect federal law breakers from the repercussions of their crimes? No problem.
Unless of course it's keeping black children from attending white schools.
"Mayors love illegal immigrants, because they pay sales tax and city tax, and never file taxes, so it is free money."
Don't forget free votes for Dems too!
You have to wonder, where does DeBlasio get the *right* to defend criminals taking refuge in New York City? I mean, they are not his constituents. Presumably, he is claiming that it is in the interest of his actual constituents, the citizens of NYC, for him to do so. Shouldn't he at least let them vote on the matter?
Obeying the law is a "policy agenda"?
And here all this time we've been taught and otherwise told that when it comes to immigration, and anything relating to immigration, federal power is "plenary." Until now. Odd.
Blogger Ann Althouse said...
What lawbreaking?
I dunno. What was Arizona doing that was so bad that it went to court?
I think it is a firm principle of the Common Law that when a crime is committed, everyone is obliged to join in the "hue and cry" until the suspect is captured. There may then be different opinions as to what should be done with the miscreant, but he must be captured.
"Sanctuary" cities, counties, and states, "legalizing" marijuana, etc., etc., in defiance of Federal law is not just "refusing to take on tasks assigned by the Federal government;" it is sedition.
"I am a lawyer, and I have the same question. And in the realm of executive action versus congressional action, we have the Obama Administration's Title IX action in which they threatened to withhold federal education dollars from any institution of higher learning that fails to enact sexual assault/harassment initiatives to suit the Department of Education's Office of Civil Rights."
I haven't read Dole since law school but was there something in the opinion that required that there be some connection between the funds being spent/withheld and the condition that the feds held over the state/city? Like, you could withhold highway funds if they didn't have a 21 year drinking age because increased drunk driving meant more damage on the roads or something, but you couldn't withhold highway funding just because a state didn't allow gay marriage?
In this case, what city funds are the feds talking about withholding? Is this general aid or something more specific that can be related to law enforcement? I think if the latter there should be no problem adding a condition.
mockturtle said...
Ann asks: What lawbreaking?
Is aiding and abetting criminals not lawbreaking? If they are in this country illegally, they are [do I have to shout?] BREAKING THE LAW!
1/26/17, 10:42 AM
I seem to also remember federal officer and federal troops making a point of enforcing civil rights legislation over local protests starting in Little Rock in 1957 and going through the 1960s. If you are talking funding, I also suspect the Lincoln Administration cut payments for harbor customs to the city of Charleston after Fort Sumter, among other things.
"Why does federalism always work in one direction?"
Federalism is only a tool for whenever one side wants to benefit from it. Liberals who usually love federal power and preemption became big "states rights" fans when federal banking law was used to preempt more stringent state usury standards. Then they went right back to being federal power fans when states tried enforcing tighter immigration laws than the feds had. Now, they're federalists again.
Principles are dead.
Two words:
Bounty Hunters.
Federal cash rewards ( tax free of course ) for each illegal alien turned in. Immunity from local prosecution so they can't be charged with kidnapping by a city or state ( even if that foreign-looking guy they picked up turns out to be a US citizen. Mistakes happen. )
I haven't read Dole since law school but was there something in the opinion that required that there be some connection between the funds being spent/withheld and the condition that the feds held over the state/city? Like, you could withhold highway funds if they didn't have a 21 year drinking age because increased drunk driving meant more damage on the roads or something, but you couldn't withhold highway funding just because a state didn't allow gay marriage?
In this case, what city funds are the feds talking about withholding? Is this general aid or something more specific that can be related to law enforcement? I think if the latter there should be no problem adding a condition.
Agreed, I think. I had the same thought, fwiw, and that is another reason I brought up the Title IX education funding example.
There's a lot of federal block grant money going for law enforcement and homeland security, to SF, LA, NYC, Chicago, etc. But of course the nightmare scenario is if a Trump Administration withholds federal law enforcement money, and then something bad happens that can be plausibly attributed to the cutoff of federal law enforcement money.
It's part of American federalism that state and local governments set their own agenda and perform their separate functions in their separate ways. Immigration is a matter that belongs to the federal government, but it can't force state and local government to do the work it wants done.
As each level of government has its own responsibilities, and exercises its own judgement about how to fulfill them, would there be any constitutional issue if the federal government were to adapt by reallocating its own resources? Say, by evacuating all federal law enforcement personnel from New York City, Chicago, San Francisco, and Los Angeles, to be redeployed nearer the borders?
And then spreading news of the new, purely federal-level policy, in Spanish language broadcasts near and south of the border?
And then spreading news of the new, purely federal-level policy, in Arabic language broadcasts in other places?
Would there be anything wrong with Trump letting it be known that whether you’re from Poland or Pakistan, whether you’re from Ireland or India or Israel and whether you’re from Mexico or Moldova or Al Qaeda or ISIS or Al-Shabaab or Hizb ut-Tahrir or Boko Haram, the federal government simply doesn't have the resources to keep you from entering Chicago? I mean, from a constitutional point of view?
The City of Albuquerque is currently engaged in the beginning stages of a project to tear up Central Avenue (Old Route 66) from one end of town to the other to establish a bus system running on specially marked center lanes and normal traffic restricted to one lane in each direction on the outside. (It should be noted that this project never was put before the voters, and that the merchants along Central is united in opposition, but have lost in court suits to stop the project.)
The City has been "assured" it will receive $65 million in discretionary grants for this project, but there is no Federal commitment of any kind in writing.
This seems to be a good place to start applying some torque to the City to abandon its ideas about providing "sanctuary" for illegal aliens.
Blogger Ignorance is Bliss said...
Two words:
Bounty Hunters.
This is actually an idea I had some years ago.
Often times we put people in detention centers and they make bail for $20,000 or $25,000.
Whatever money they put up for bail, give to bounty hunters.
Those who don't go through that process, offer a standard fee of $5,000. If that doesn't get enough people interested, offer more.
Chuck
But the cities and states have the primary police powers. The federal government doesn't have general authority to enforce a state's criminal laws. One doesn't go to federal court for a speeding ticket.
"There's a lot of federal block grant money going for law enforcement and homeland security, to SF, LA, NYC, Chicago, etc. But of course the nightmare scenario is if a Trump Administration withholds federal law enforcement money, and then something bad happens that can be plausibly attributed to the cutoff of federal law enforcement money."
I can already see the playbook--after this gets through court challenges, we'll be seeing lots of stories of regular crimes left unsolved or health clinics shut down due to funding cutoffs (or even when the city accepts the money, because they had to shift resources).
On the other hand, if this is extra funding appropriated by Congress and conditioned on certain benchmarks, no one could really argue that cities who turn it down are losing any other funding or forcing tradeoffs. And if some cities turn the money down, that just leaves more money for the cities that accept. It'd be interesting to see how the liberal coalition splits over this (between "we want more money" and "we don't want to go after illegals").
I'm lmao.
What do Chicago pols demand?
We need jobs!
Stop passing laws that make Illinois and Chicago unattractive.
David Begley
I don't think that we are talking about federal enforcement of state provisions. Or taking over state police powers. It's just federal (discretionary) funding.
btw, here is a great little column by the wonderful Heather MacDonald in today's Journal. It is off-topic from the matter of de-funding sanctuary cities, but it is more to your point about federal incursion into local policing.
Heather makes the point (in response to Trump's bluster about "sending in the feds" to clean up Chicago) that Chicago would do well with LESS, and not more, federal meddling.
http://www.wsj.com/articles/in-chicago-the-feds-are-part-of-the-problem-1485390416
Tough luck Sanctuary Cities.... You can cry a river for all I care. Cut their funding!!!
I read a long time ago, if one wants to know what Me icon thinks of us, read their papers.
Chuck
But wasn't Jeff Sessions' opposition to the Violence Against Women Act was that it was federalizing state crimes? Same reason for SCOTUS striking down a law re crimes committed near school zones.
Wasn't Wisconsin a holdout to raising the drinking age?
It was 19 and money was withheld.
This is a battle the cities can't win if Trump is serious about fighting it. We will see if he is.
Arizona v. United States pretty well settled that the federal government's authority to regulate immigration ad that federal laws and enforcement preempted actions of the states. Is this a one way ratchet? I doubt it.
The difference is that Arizona respected the S. Ct ruling while sanctuary cities have not. All those lefties that thought Kim Davis should go to jail are thinking the same about DeBlasio and Emmanuel, right?
Right?
Ignorance is Bliss: Bounty Hunters.
Federal cash rewards ( tax free of course ) for each illegal alien turned in. Immunity from local prosecution so they can't be charged with kidnapping by a city or state ( even if that foreign-looking guy they picked up turns out to be a US citizen. Mistakes happen. )
GRANT LETTERS OF MARQUE AND REPRISAL AGAIN!
Funny. These same libtard hypocrites raising the federalism objection and declaring that the Federal Government cannot impose new strings on federal grant money are the very same people who were cheering Obama on when he threatened to withhold federal funding for school districts who didn't want to let boys shower in the women's locker room and compete in women's track and field events, OH, UNTIL ABOUT A HALF AN HOUR AGO.
How about explaining the issue here in how the Supreme Court decided the ACA Medicaid case. The ACA attempted to coerce the expansion of Medicaid by making all federal outlays for Medicaid contingent upon the expansion. The Roberts court ruled this couldn't be done. My question is why was this case different from, let's say, the raising of the drinking age?
Because of safety concerns:
* The Federal Government will not conduct any conferences in any sanctuary cities and will not allow any Federal employees to attend any conferences in any sanctuary cities.
* The Federal Government will not award any new grants to any institutions that have headquarters in any sanctuary cities.
Let the sanctuary cities sue, and the Trump Administration should drag out the litigation for years.
Can you imagine if that happened?
"This would hit NYC particularly in the crotch. Which it deserves for many reason."
Why? What are some of these "many reasons?"
I'm watching interviews and the word "exploited" keeps appearing.
You know what you need to do.
Get in line and pay the fine.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/26/constitutional-problems-with-trumps-executive-order-on-sanctuary-cities/?utm_medium=twitter&utm_source=dlvr.it&utm_term=.46cb8791c34f
Volokh weighs in, pointing out constitutional problems with Trump's order.
Jason thank you so much for that link.
I have always hated the "But what about Obama?" line. Except here, I still do not understand how the Obama Department of Education Office of Civil Rights' "Dear Colleague" letter of April, 2011 did not run afoul of the same anti-commandeering principle.
Was it because it was only a suggestive letter? Was it because no universities ever actually got defunded? And so it never got litigated?
What lawbreaking?
This lawbreaking.
Oh! Now, after all these years, Democrats find virtue in federalism. It really is kind of funny, you know.
Trump has so many options it's hard to imagine them all. He could go ahead and cut off the funds, expecting to lose 8-0 in the Supreme Court, but knowing that the litigation can be dragged out for years while the cities try to cope without that funding. Might Chicago, San Francisco, et. al., suddenly find virtue in negotiating with Trump? It works out in the commercial world.
Or he could push a bill through Congress making the officials of sanctuary cities personally financially liable for crimes committed by people who should have been deported under federal guidelines but weren't deported because of the cities' sanctuary status.
I'm sure there are more options, these are just the first two that came to my mind.
Why? What are some of these "many reasons?"
Everybody who lives there, Cookie. Every single person who lives there.
IIRC, shortly after the election the chair of one of the House committees was asked if Congress would need to act to allow the Trump Administration to cut funding from sanctuary cities. He replied Congress would not need to act because the ability to withhold funding had already been added to the law a few years before. Obama could have withheld funds from uncooperative cities and chose not to. Trump gets to make a different choice. Trump cannot withhold all a city's funding under this provision, but he can withhold some. From the discussion, it seemed to be a provision that was substantially similar to some foreign aide provisions -- which require the Secretary of State to certify that a country is not supporting terrorism before distributing the aide.
Democrats in 2016: "Make girls shower with boys in girls' locker rooms or we pull fed funding from your schools.
Democrats in 2017: "TO THE FEDERALISMMOBILE!"
Unlawful presence is not a crime. If someone enters the U.S. legally and overstays his visa, he could be subject to civil but not criminal sanctions.
Improper entry, as when someone sneaks across the border, is a crime. But the state would have to convict someone of improper entry before he or she could be labeled a criminal. Merely being in the U.S. without documentation does not make someone a criminal.
Mark Caplan said...
Merely being in the U.S. without documentation does not make someone a criminal.
Would you say that merely murdering someone does not make someone a criminal, until they are convicted?
Yes, the "Mayors of Sanctuary Cities" are real honest brokers of their constituents desires. I guess they did not read this devastating poll from Berkely, California of all places!
http://theresurgent.com/74-of-californians-want-to-end-sanctuary-cities/
Our President Trump should issue an executive order prohibiting the use of the expression undocumented immigrant or any other such euphemism in any federal publication. Only the correct, legal expression illegal alien may be used.
Blogger Tommy Duncan said...We'll soon find out how clever the GOP is these matters. If the Democrats needed to coerce some conservative mayors they would quickly find a way. If Trump finds a legal angle to make this work the media/Democrat cartel will immediately declare it unconstitutional.
Conservative mayors? Not in any bigger city near you. Only theoretical. Many suburban mayors (and some of them are conservative) have seen the feds force low-income housing into their suburbs and much of this has used a stick rather than a carrot. What's good for the goose is......
"Trump should makes these asshole's cities the only sanctuary for illegals."
I can't think of a better way to turn Democrats into Republicans. The unintended consequences of parading your virtue without exercising your brain.
Mark Caplan at 12:43 PM
Unlawful presence is not a crime. If someone enters the U.S. legally and overstays his visa, he could be subject to civil but not criminal sanctions.
Our President Trump should fix that. He should propose a law that anyone overstaying a visa will have that visa revoked, and no new visa will be issued to that person for ten years.
Staying in the USA more than six months after a visa has been revoked will be a criminal offense. The person will be deported immediately and may appeal only from the US embassy in his home country.
Also, no alien who marries a US resident while in this country on an overstayed or revoked visa will be granted residency on the basis of that marriage.
Seems the most efficient approach is mandating universal e-verify (and of course keeping the system up to date and working properly) and imposing draconian penalties for any employer who does not use it or who otherwise violates the law in hiring illegals. Even if it isn't perfectly enforced, the effect would make it undesirable enough to hire illegals that it'd do a lot towards cutting back the flow (or "self deporting") making the task of finding and dealing with the remainder a lot easier.
AA asks "What lawbreaking?"
Good question. What does "sanctuary city" mean? It seems to mean "a city where immigration law is not enforced by city officials". What else, substantively, could it mean? But do not officials and governments have obligations then under the law? How can you get a writ of mandamus unless there's a law? I don't think most people will have sympathy for the argument "We are not breaking the law, we are simply ignoring our legal responsibility to follow it."
I'd prefer to be a sanctuary country where we all agree and understand the effort. And ask other countries to do the same. And unite for war against the countries that insist on creating refugees. So if enough Oscar nominated actresses flee the U.S., the global sanctuary group could wage war against America on that basis.
I'd also like sanctuary from traffic tickets and parking fines. I'm an economic refugee.
Offer Sanctuary cities the opportunity to declare themselves city states with borders and no rights to vote in national elections.
Offer Sanctuary cities the opportunity to declare themselves city states with borders and no rights to vote in national elections.
I like it! :-D And they won't be able to use our highway systems, either.
So if enough Oscar nominated actresses flee the U.S., the global sanctuary group could wage war against America on that basis.
How about this: For ever immigrant, we trade a Hollywood celebrity!
Brando said...
Seems the most efficient approach is mandating universal e-verify (and of course keeping the system up to date and working properly) and imposing draconian penalties for any employer who does not use it or who otherwise violates the law in hiring illegals. Even if it isn't perfectly enforced, the effect would make it undesirable enough to hire illegals that it'd do a lot towards cutting back the flow (or "self deporting") making the task of finding and dealing with the remainder a lot easier.
Brando, let's remember that we are coming off the better part of 7 or 8 years in which no immigration law reform was possible. The reason that no immigration law reform was possible, was because of the Democrats' undying demand was for a "pathway to citizenship." You know, a "pathway to vote" for all of those undocumented Democrats.
That is no longer the case. We can now pass popular, sensible, workable immigration reform. It will not include a "pathway to citizenship." It should be easy. The only way it won't be easy, is if the Steve Bannon wing of the White House makes it so.
Ann Althouse said...and it's certainly nothing close to what someone who cares about the original understanding of federalism would think proper.
Neither is DACA. Crazy how executive orders are suddenly "problematic" again, how questions of separation of powers are suddenly important again, how a "pen and a phone" don't seem to be adequate now, huh?
"That is no longer the case. We can now pass popular, sensible, workable immigration reform. It will not include a "pathway to citizenship." It should be easy. The only way it won't be easy, is if the Steve Bannon wing of the White House makes it so."
I expect something will pass, whether it'll be effective or not depends on the mettle of Congress and the WH. But I'd be shocked if we don't see something which by 2018 can be used in campaign ads as "major immigration fix!"
Trump seems to signal that there'll be some type of amnesty, for "good" people, so even more moderate immigration reformers in the GOP can back it.
Good question, Chuck: I thought of the Title IX "Dear Colleague" letter(s) too.
Anyway if this is the version of federalism the Left will permit (and the Court gives its blessing to) it opens up some other interesting possibilities. Think of all the federal rules and laws President Trump could announce his intention to not enforce. Sure, laws will still be on the books, but it's an enforcement decision--prosecutorial discretion, baby.
Let your imagination wander. My state would probably pass a state law making firearm suppressors legal, no problem. Sure they'd still require a federal tax stamp ($200) and registration/compliance w/the federal NFA...but if the Trump administration says they won't prosecute any violations, cha-ching!
Seems like a bad way to run a government, to me, but you gotta play by the rules as they are, right?
Trump seems to signal that there'll be some type of amnesty, for "good" people, so even more moderate immigration reformers in the GOP can back it.
Depends on how we define amnesty. If amnesty means, "You can stay, under a work permit. And you can have a special non-citizen drivers license," then I'd say yes, probably.
If we say that people will get to become citizens (bad enough, that they will be procreating while here on their work permits, creating American anchor-babies), then no.
And yes as usual you are correct in that Trump will need all of the Republicans to help since no Democrats will lift a finger to help him out on this one.
Marco Rubio and John McCain became infamous for their "amnesty" treason to the Party. In fact, they were only motivated by what the Dems were forcing on them at the time. It should be a whole lot easier now.
About the coercion angle, which is a very important angle, the cities would have an excellent argument if, say, the federal government required them to retain illegal aliens at their expense and then wait for the federal government to pick them up. They would have an excellent argument if they called the federal government to pickup so-and-so and the feds show up 3 months later and the city is left with the tab. And they would have an argument that the city has to actively enforce immigration law, investigating and arresting illegal aliens outside of normal police work. They might even have an argument that having to verify that an arrested suspect is legal or not is too much, though these sort of things tend to come out as part of basic investigations anyway.
I am not hearing this. I am hearing illegal aliens have a right to be here and the law is a nullity. I am hearing politicians declaring that they support the criminals in defiance of constitutional and duly passed law. This is George Wallace type stuff.
This is a direct challenge to the Constitutional derived powers of the federal government. This isn't marijuana, where arguably the federal government has no role unless it involved interstate commerce. (Even Reefer Madness realized that even if the courts with a warped version of the Commerce Clause do not.) This isn't drinking ages where the Interstate Highway system actually provides the federal government with a fig leaf. This is immigration law. The states cannot print their own money, they cannot sign treaties with foreign governments, they cannot levy tariffs on interstate commerce, they cannot revive slavery, and they cannot create their own immigration law. This is a major rule of law issue. It's not as simple as it seems.
Ken B said...Good question. What does "sanctuary city" mean? It seems to mean "a city where immigration law is not enforced by city officials". What else, substantively, could it mean? But do not officials and governments have obligations then under the law?
I could be wrong, but as I understand it the difference is usually that when someone is in a local jail and the Feds learn of it (typically through a fingerprint/ID search sent to the FBI at the jail) the Feds will ask the local people to hold the person so that the Feds can get a warrant to arrest the person for immigration law violations. That's the "detainer" request you hear about and I think they're usually for a short time. If the local jail declines that request, the person just leaves when they're released from the local jail (on bail or after serving their time, etc). The Feds don't have the resources to track and pick up all the immigration violators they're aware of, so if the person leaves the local jail it typically means they face no prospect of being picked up by the Feds and deported. If the local jail agrees to the detainer the Feds will get a warrant and then begin deportation proceedings. Usually the Feds ask the local jails to keep the people there during those proceedings and the Feds give the local jails money to reimburse the cost for that (that's another story you hear about sometimes--local jails/counties talking about not being reimbursed enough, running out of space, etc).
Anyway, being a sanctuary city usually means that the local law enforcement will refuse any detainer requests and may mean they'll refuse other cooperation with the Feds (info, etc). Courts have typically held that since immigration law is Federal law the local/state law enforcement agencies aren't required to help enforce it--their cooperation is voluntary. Sanctuary cities announce that they won't help the Feds (although even then some of them say they'll cooperate if the particular person has prior violent felonies, etc).
The state and local people are obligated to not obstruct the Feds, but they're not obligated to actively assist the Feds.
I could be wrong
You're not wrong. A pretty good explanation.
Here in Seattle we announced our non cooperation after an illegal immigrant sued. They were to be let out of jail, or prison, and had a detainer. The state called ICE who waited two days to pick him up. He sued for unlawful detention. I believe he won because the state was happy to have him win.
"Depends on how we define amnesty. If amnesty means, "You can stay, under a work permit. And you can have a special non-citizen drivers license," then I'd say yes, probably."
That's just it--strictly speaking, anything short of deportation and being back at the end of the line for entry is amnesty. But there's "make them citizens and give them a total reprieve" amnesty and then there's "if they're willing to serve in the armed forces, or they pay a fine and back taxes, have committed no crimes, and are barred for life from becoming citizens" amnesty. And variations in between.
One thing though is I'd definitely treat people different based on whether they came here as adults or they were brought in by their parents as children.
"Anyway, being a sanctuary city usually means that the local law enforcement will refuse any detainer requests and may mean they'll refuse other cooperation with the Feds (info, etc)."
I thought it also included cases where the illegal immigrant is not in jail or accused of a crime, but is discovered by the police in the ordinary course of their work (e.g., talking to witnesses of crimes)? One argument sanctuary cities make is that if they had to arrest and turn over anyone they suspect or discover is illegal, then the illegals won't cooperate in law enforcement.
Obviously though if they convict an illegal alien of another crime, they have no right to stay (they don't have a right to stay technically even if they didn't commit any other crime). The only question is where do you dump them off if you don't know their country of origin. We could dump them in Cuba as a thank you for the Mariel Boatlift.
Ann, I do not believe you are correct. What sanctuary cities do is refuse to share information with Immigration. No one is making them do any work for the feds for free. It would be like saying Chicago is a sanctuary from the IRS--how well would that go down?
Whoooa, I suspect your legal analysis here is more than a bit too superficial, Althouse.
Immigration is one of the enumerated powers reserved to the federal government and, specifically, Congress in the Constitution. This places it in a different state/local realm than many other issues, and this fact has featured pretty prominently in earlier and recent court cases on local enforcement of immigration laws.
Compare it to coinage - could a city government refuse to recognize US coins? No.
Printz v United States distinguishes sharply between an enumerated power and a non-enumerated power. That's because it was written by Scalia. His very nice parsing of the Necessary and Proper clause is highly relevant to this issue.
As to enforcement, federal laws instructing a notice of release or a 48 hour hold are minimal encroachments that in no way amount to the burden of laws struck down recently.
I think you should read US v Arizona, De Canas v Bica, and consider the preemption rule. If a city or state has a policy in effect that amounts to a de facto regulation of immigration that conflicts with Congress', it is probably preempted. Hines v Davidowitz, 1941, states that federal authority is supreme, and that the Congressional scheme may not be interfered with in any way.
And then there's https://www.law.cornell.edu/uscode/text/8/1373:
8 U.S. Code § 1373 - Communication between government agencies and the Immigration and Naturalization Service
(a) In general
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official 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.
(b) Additional authority of government entitiesNotwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
(c) Obligation to respond to inquiries
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
(Pub. L. 104–208, div. C, title VI, § 642, Sept. 30, 1996, 110 Stat. 3009–707.)
I don't actually believe that Trump intends to move legally so much as he is attempting to change internal political gears - the fact is that most citizens in the country are heartily in favor of removing criminal aliens not legally resident in the states. I think he is picking this battle for political effect.
However, legally speaking, it's not clear to me that a state or a city can put in effect, and enforce, the types of sanctuary policies that have, in some cases, been enacted. After a point it becomes aiding and abetting evasion of a valid federal law.
The Feds clearly cannot, under SC precedent, mandate that state and local police officers go out and round up illegal aliens. But I don't think a state or city can adopt policies that, de facto, obstruct the federal government in this effort, and withholding of federal funds for de minimis cooperative (notice) efforts will probably stand under SC precedent.
Immigration is a special case, because except for the District of Columbia, the federal government's regulation of immigration has always involved and preempted the secondary sovereignty of the state governments.
Brando said...
I thought it also included cases where the illegal immigrant is not in jail or accused of a crime, but is discovered by the police in the ordinary course of their work (e.g., talking to witnesses of crimes)? One argument sanctuary cities make is that if they had to arrest and turn over anyone they suspect or discover is illegal, then the illegals won't cooperate in law enforcement.
Obviously though if they convict an illegal alien of another crime, they have no right to stay (they don't have a right to stay technically even if they didn't commit any other crime).
Yeah, you're right: the degree to which local law enforcement investigates a person's immigration status varies, too. Asking after the status of witnesses (or victims) creates real problems.
If I understand it correctly, one part of Trump's order would encourage a change of policy from one where localities were given Fed detainer requests based on convictions to one where they're given based on arrests. Presumably sanctuary cities will ignore in either case.
Althouse was onto Greenhouse way back in 2004. Footnote from the linked law review article:
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, § 4, at 5 (referring to "a
stunning series of federalism decisions that have curbed the power of Congress to bind the states to the full reach of federal law," and that represent a "federalism revolution," "ignited" by Chief Justice Rehnquist and "likely to define his place in Supreme Court
history")
Now that the tables are turned, I wonder if Greenhouse will champion states rights against an overreaching federal government.
No, no, no.
Publicly remove federal immigration enforcement activities and personnel from sanctuary cities along with federal money directly tied to supporting the presence of illegal immigrants, e.g. education, welfare, etc. Give real meaning to "sanctuary." Promote infestation.
Punitive action creates martyrs. Natural consequences identify irresponsibility.
"As if big city mayors are going to change because Trump tells them to - lol"
They most certainly will. It will happen immediately after the money goes elsewhere.
Count on it.
Blogger Mark Caplan said...
Unlawful presence is not a crime. If someone enters the U.S. legally and overstays his visa, he could be subject to civil but not criminal sanctions.
Improper entry, as when someone sneaks across the border, is a crime. But the state would have to convict someone of improper entry before he or she could be labeled a criminal. Merely being in the U.S. without documentation does not make someone a criminal.
So if you come home and find a stranger camped out in your living room, are they just an "undocumented house guest"?
Merely being in the U.S. without documentation does not make someone a criminal.
Actually, I believe it does. And the 'someone' is subject to deportation.
These are all Democrat cities. Trump will cut off all funds and starve them out if need be.
Merely being in the U.S. without documentation does not make someone a criminal.
Yeah it does. That simple fact is what makes the difference between being a sane, normal person and being a liberal lunatic who hates this country.
Blogger Ann Althouse said...
"What lawbreaking?"
You are not this dumb. Are you joking? Is there some other tangential point you are trying to make?
Mayor of Miami orders jails to comply:
http://www.foxnews.com/politics/2017/01/27/miami-dade-mayor-orders-jails-to-comply-with-detention-requests-after-trumps-sanctuary-city-crackdown.html
The mayor of Miami-Dade Thursday ordered the county's jails to comply with federal immigration detention requests after President Donald Trump moved to cut off millions in federal funding to so-called "sanctuary cities."
"In light of the provisions of the Executive Order [Wednesday], I direct you and your staff to honor all immigration detainer requests received from the Department of Homeland Security," Mayor Carlos Gimenez told the county's corrections department, in a letter reported by the Miami Herald.
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