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Sanctuary Cities and the Courts

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Noah Feldman argues that decades of conservative federalism will now help liberals on issues like sanctuary cities.

President-elect Donald Trump says he will make “sanctuary cities” help deport immigrants by taking away their federal funding if they don’t change their policies. The good news is that he and Congress can’t do it — not without violating the Constitution.

Two core rules of federalism preclude Trump’s idea: The federal government can’t coerce states (or cities) into action with a financial “gun to the head,” according to Supreme Court precedent developed by Chief Justice John Roberts in the 2012 Affordable Care Act case. And federal officials can’t “commandeer” state officials to do their work for them under a 1997 decision that involved gun purchases under the Brady Act.

Behold the revenge of conservative federalism: Judge-made doctrines developed to protect states’ rights against progressive legislation can also be used to protect cities against Trump’s conservative policies. Ain’t constitutional law grand?

As you may recall, Roberts’s landmark opinion in NFIB v. Sebelius both upheld Obamacare and gutted it at the same time. Roberts voted to uphold the individual insurance mandate as a permissible use of Congress’s power to tax. But he simultaneously struck down the Medicaid extension except insofar as states might choose it voluntarily.

The ACA as written threatened states with eventual withdrawal of essentially all their Medicaid funding unless they agreed to the extension of the program to millions of new patients.

Roberts analyzed the issue by saying that, under the spending clause of the Constitution, Congress can’t create a funding condition that is unrelated to the original funding purpose and is so coercive that it amounts to a “gun to the head” of the states. Roberts’s doctrine applies with full force to Trump’s threat to pull cities’ existing funding if they remain sanctuaries by declining to cooperate with federal officials to enforce immigration law.

Well, maybe. The problem is taking conservative arguments in good faith. What is to say a newly conservative Supreme Court won’t just change its mind for cases that help conservative positions? While it’s possible that Kennedy wouldn’t go along with some of that, if Trump gets to name 2 or more justices, the likelihood of the Court being more hacktackular than it already is goes up tremendously. I guess the liberals can use the federalism arguments in its favor and that’s great for the time being. But that’s no guarantee of anything at all.

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