One might expect Donald Trump and Jefferson Beauregard Sessions The Third to embrace “states’ rights,” what with the baldly racist origins of that term. As it turns out, they’re only fans of state and local power when that power is used in the service of tribalism — the tendency of local populations, especially in Sessions’s neck of the woods, to exclude and target “The Other.” And they’re fans of states’ rights least of all when states or municipalities adopt — Gasp! — inclusive rather than exclusionary and clannish policies.
So it is that Chicago finds itself locking horns with Trump and Beauregard The Third. Chicago has adopted a “Welcoming City Ordinance,” and we can’t have anything like that going on — not in Trump’s America. Under the ordinance, Chicago police officers are required to treat all of their protectees, including non-citizens, with respect and dignity. Chicago cops don’t ask for papers and don’t collect information on immigration status. They encourage all people, regardless of citizenship status and without fear of imprisonment or deportation, to report crimes against themselves, serve willingly as witnesses to crimes committed against others, and assist their neighbors when assistance is needed.
In the world according to Trump and Beauregard, this makes Chicago a “sanctuary city,” which has become part of the right-wing vernacular as one of those things teabaggers know nothing about — except that it’s bad — even loathsome, if they knew what that meant — and they’re supposed to be really mad about it (like Benghazi, or Saul Alinsky, or unmasking). Ask a bagger whether sanctuary cities are bad and he’ll froth and nod and do a little rage dance; ask him why and he’ll go cross-eyed and say something like, “Cuz sank-ah-sherry’z fer Murkans!”
Anyway, Sessions, without statutory (congressional) authority, and via press release (Trumpsters like to govern by hastily drafted, ungrammatical, vague and ambiguous proclamation), is threatening to withhold federal law-enforcement money from Chicago and other cities unless they 1) agree to detain any non-citizen the feds ask them to detain for at least 48 hours, due process and the Fourth Amendment be damned, and 2) allow federal agents unfettered access to Chicago’s correctional or detention facilities to confront and interrogate any “alien” or — get this — person believed to be an “alien.” As Chicago’s lawyers have put it, Sessions is demanding the federalization of Chicago’s law-enforcement facilities.
There are a few constitutional problems with the Trump and Beauregard plan.
A. The Tenth Amendment
The Tenth Amendment provides as follows:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The framers of this amendment recognized three levels of sovereignty: federal, state, and “the people.” Federal power (at least as to lawmaking) comes mostly in the form of a list (a rather exhaustive and exclusive list) contained in Article I of the Constitution. Any power that is not on that list is reserved to the states or the people. As to the people, courts have ruled that they are sovereign — meaning they alone have power or jurisdiction — over such private and personal matters as the decision whom to marry; the care, custody, and control of their own children; refusing unwanted medical treatment; procreation, contraception, and reproductive choice — to name just some.
What that leaves for states is the general authority to make rules providing for the health, safety, and general welfare of the population. This is called, ironically enough in the context of the Chicago case, the “police power.” It includes the authority to make and enforce criminal laws as the state — or a subdivision of a state, like a city — deems appropriate as a matter of public policy.
The federal government can make its own laws about immigration and naturalization (that’s on the list from Article I), but it can’t make states enact laws about immigration, and it can’t make states enforce federal laws. When the feds try to do that, it’s called commandeering.
For example, in a case called Printz v United States, the Supreme Court considered a federal gun law (this was part of the Brady Act) that required local (state-level) law-enforcement officers to administer a federal background-check program. The Court fashioned a rule that even Trump and Beauregard should understand: Hey feds, enforce your own damn laws. The federal government may not take over and deputize state officials — state resources — to enforce or execute laws that the state had no part in enacting. This rule is called the anti-commandeering principle.
So under the Tenth Amendment, Sessions can’t force Chicago to participate in federal immigration law enforcement. Sessions also can’t just take over — commandeer — Chicago’s correctional or detention centers.
B. Bribery gone wrong
That’s why Sessions, instead of just ordering Chicago to go along with his draconian scheme, is trying to bribe Chicago to do it. To repeat, he is threatening to withhold federal money earmarked for law-enforcement projects in Chicago (money that has paid for 1000 police vehicles since 2005).
Believe it or not, Congress is allowed to use its spending authority (that’s another power listed in Article I) to bribe states to go along with federal policy. But when the federal government wields this power, it’s supposed to use it as a carrot, not a stick.
In a case called South Dakota v Dole, the Supreme Court considered whether Congress could withhold 5% of a state’s federal highway funds for a state’s failure to change its legal minimum drinking age to 21. The Court ruled that Congress could do that for the following reasons:
- Congress’s aim was provide a mild inducement, not to punish the state for its own policy choices or to coerce compliance with federal law;
- Congress’s conditions for the receipt of federal money were clear and unambiguous: states could tell exactly what Congress wanted them to do and exactly what they stood to gain or lose by complying or failing to comply;
- Congress’s measure made sense in that there is a logical relationship between the drinking age and highway safety; and
- Congress was not trying to get states to do something that would violate some other part of the Constitution.
Applying these principles, one can see where Trump and his Lilliputian lawman Beauregard might run into trouble (and yes, Chicago is suing them). Here are just a few problems:
- Oops, wrong branch: the spending power — and thus the power to bribe — belongs to Congress, not the executive (Trump and Sessions). Sessions imposed his two new conditions on Chicago’s receipt of its money without authorization to do so from Congress.
- Sessions is not using his attempted bribery to get Chicago to adopt a smarter policy that comports with the public good; he’s using it to punish Chicago for failing to help federal agents enforce federal law. In other words, Sessions’s behavior constitutes coercion, not an inducement; it’s a stick, not a carrot.
- Sessions, by bloviating endlessly on the subject (along with Trump, of course); referencing multiple statutes with amorphous threats for non-compliance; setting policy by press release; and failing to define his terms (what does he mean about letting the feds take over correctional and detention facilities — do the feds own Chicago’s police stations now?) has created an ambiguous, confusing mess for state and local officials trying to figure out what the hell he wants them to do.
- The federal government is trying to bribe state and local officials to do something that likely violates the Fourth Amendment’s prohibition against unreasonable seizures (including detentions up to 48 hours with no probable cause) and the Fourteenth Amendment’s Due Process Clause, which imposes stringent requirements about notice and hearings in criminal matters.
Other than all that, Trump and Sessions are on firm legal ground.
Trump’s sanctuary-cities policy is a sloppy and illegal mess, just like all his other policies. Maybe after a few more whacks at it, he and his lawyers will get it right. Until then, expect another round of judicial smack-downs.
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