Travis County Sheriff Sally Hernandez’s decision to limit cooperation with U.S. Immigration and Customs Enforcement is, to be sure, politically controversial. Her decision, nonetheless, is above constitutional reproach.
The late Antonin Scalia, President Trump’s favorite Supreme Court Justice, has an important federalism lesson for the president or others who might plan to conscript state and local officials to enforce his draconian immigration policies. In Printz v. United States (1997), Scalia held that “the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”
Sheriff Jay Printz of Ravalli County, Montana, and Sheriff Richard Mack of Graham County, Arizona, challenged —successfully — the interim background check provisions of the Brady Handgun Violence Prevention Act. The Brady Act imposed three judicially-enforceable duties on “chief [state and local] law enforcement officers.” After these officials received notice of proposed handgun transfers, the statute provided that they “shall” make reasonable efforts to ascertain within five days whether the proposed transfer would be illegal; “shall” destroy information about the transfer if the transfer does not violate federal, state or local law; and “shall” provide a statement of reasons for a determination that the transfer is illegal. The Supreme Court held that “such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Sauce for the goose is sauce for the gander. The same federalism defense invoked by the two politically conservative sheriffs is readily available to more liberally minded officials like Sheriff Hernandez in sanctuary states and cities who are opposed to federal immigration laws and policies. State and local officials, of course, are free to cooperate with federal officials in the enforcement of national immigration laws. President Trump’s provision in his Jan. 25 Border Security Executive Order “to authorize State and local law enforcement officials … with their consent … to perform the functions of [federal] immigration officers” is undoubtedly valid. From the beginning of our nation, state and local officials have cooperated with federal officials in enforcing national law. The president can encourage Sheriff Hernandez to enlist; he cannot draft her into ICE. If the president wants to enforce national immigration laws, he must commit national resources, not state and local officials and not state and local tax dollars, to the task.
The president’s threat in a companion executive order to withhold federal funding from sanctuary states and cities that violate Section 1373 of the Immigration Code also faces a substantial constitutional hurdle. The national government, to be sure, can deny federal funds for violating conditions attached to a grant. Section 1373, however, does not involve a grant of federal funds. Instead, this statute directly prohibits states and local governments from taking certain actions restricting the flow of immigration status information to the national government. Even if there are some limited federal funds expressly conditioned on compliance with Section 1373, the sheriff is free to ignore the command of the statute if she turns down the grant.
If the president has in mind a comprehensive denial of federal funds, he should take heed of Chief Justice John Robert’s warning in the decision striking down parts of the Affordable Care Act that the president and Congress cannot use the spending power — and the threat of broadly withholding federal financial assistance — to force the states and local governments to do the national government’s bidding. They cannot, in the chief justice’s colorful phrase, use the spending power as a “gun to the head” of state and local officials.
Stand firm on your principles, Sherriff Hernandez. Let ICE and Attorney General designate Jeff Sessions drag you into court and attempt to coerce your department to enforce national immigration laws. Justice Scalia is in your corner. There is little reason to fear that the conservative justices now on the court, who proudly support the states’ role in our federal system, will abandon you.
La Pierre is a professor of law at Washington University in St. Louis, Missouri. In a 1997 Supreme Court case Printz v. United States, La Pierre filed an amicus brief for two state and local government organizations in support of two sheriffs.