Sanctuary 101, Part IV: Does § 1373 Unconstitutionally Commandeer the States?

[This is the last in a four-part series geared toward clarifying the legal and policy confusion still engulfing Trump’s sanctuary cities executive order. See Parts I, II and III.]

The constitutionality of Trump’s sanctuary cities executive order turns on two separate inquiries. First, can Trump condition federal grants in this manner—that is, on compliance with a single, substantively narrow statutory provision like 8 U.S.C. § 1373? I argued in my last post that, for the most part, he cannot, but with respect to certain discretionary funds he probably can. He could overtly attempt to cut off funds provided to states for immigration-related purposes. And quietly, in a way that proves difficult to challenge, he could exert influence on other funds whose allocation is, by the terms of their authorizing legislation, subject to great executive branch discretion.

As to any overt attempts to cut off funds for sanctuary-related reasons, because the condition that Trump’s executive order attempts to impose is compliance with § 1373, we now have to consider a second question: whether that provision itself is constitutional.

Again, our inquiry begins with recognition of the fact that § 1373 has nothing to do with compelling state cooperation in detaining individuals and is instead a provision about information control: it bars states and localities from prohibiting or restricting their employees from “sending to,” “receiving from,” “maintaining,” or “exchanging” with Immigration and Customs Enforcement (ICE) information about an individual’s citizenship or immigration status. The question is whether this restriction amounts to the federal government “commandeering” state and local officials by compelling them to administer or enforce a federal regulatory program in violation of the Tenth Amendment. Commandeering infringes on state sovereignty in a number of ways, allowing the federal government to shift not only the financial burdens of its policies to the states but also the political accountability.

In only two cases has the Supreme Court ever declared the federal government in violation of anti-commandeering principles. The leading case is Printz v. United States, which struck down the provisions of the Brady Handgun Violence Prevention Act that required state and local law enforcement to conduct firearm purchaser background checks. Reiterating the Court’s conclusion in its earlier landmark case, New York v. United States, where it rejected Congress’s attempt to force the states to choose between conforming to federal radioactive waste regulations or take title to the waste, Justice Scalia stated: "The Federal Government may not compel the States to enact or administer a federal regulatory program."

Sometimes it’s obvious when the federal government is compelling the states in this way. Forcing states and localities to detain individuals on behalf of ICE is a clear example, since this without question amounts to “requir[ing] state officials to assist in the enforcement of federal statutes regulating private individuals.” That said, we have from the Supreme Court very few concrete examples of impermissible federal commandeering, and a lot of high-level language about the general principles furthered by anti-commandeering doctrine. So whenever it comes to a minimalist statute that (1) doesn’t require programmatic state action and (2) is cleverly constructed in a deliberate effort to evade a commandeering problem, we should be wary of the use of cherry-picked, lofty language from Supreme Court precedent to support arguments that a statute definitely does or does not run afoul of anti-commandeering doctrine. The answer won’t actually be that clear-cut—unless and until the Supreme Court weighs in.

For purposes of demonstrating that § 1373 is not unique and the constitutional problem it presents is not straightforward, I think an example is helpful. A recurring question in the Third Circuit over the last few years has been the constitutionality of a weird, almost never-challenged federal law (the Professional and Amateur Sports Protection Act of 1992, or PASPA) that prohibits states from “authorizing by law" or licensing sports gambling—rather than, say, requiring the states to prohibit sports gambling. Congress enacted this law restricting the states 25 years ago notwithstanding the fact that there was and remains no federal scheme that prohibits sports gambling. The Third Circuit has upheld PASPA mostly on the grounds that it doesn’t actually require the states to do anything, such as enact new laws or even keep old laws on their books. The latter bit of reasoning was disturbed somewhat in a major en banc decision last year, when the court rejected New Jersey's attempt to get around the federal prohibition using an elaborate bill that purported not to authorize sports gambling but rather to repeal very specific portions of old, sweeping state restrictions on sports gambling that predated the federal law.

There are good, high-level anti-commandeering arguments for why the Third Circuit got this wrong, and why Congress shouldn’t be able to prohibit the states from authorizing practices that the federal government itself is not willing to prohibit (see Judge Tom Vanaskie’s 2013 partial concurrence and dissent). But putting aside the technical arguments for and against PASPA's constitutionality, I think in essence the Third Circuit upheld the federal law at the heart of the case because it was different enough and modest enough relative to federal laws struck down on anti-commandeering grounds in the past.

Section 1373 is another tricky kind of statutory provision written in a roundabout way in an apparent attempt to circumvent any commandeering problem. Just as PASPA does not affirmatively require states and localities to prohibit sports gambling (but apparently does prevent them from too cleverly repealing specific pre-existing prohibitions on sports gambling), § 1373 does not affirmatively require states and localities to provide information about individuals’ immigration status to ICE. Instead, it forbids states and localities from themselves prohibiting anyone—namely public employees—from assisting ICE in this manner.

So is § 1373 successful in sidestepping commandeering problems? Here is where I part ways with Ilya Somin, of the Washington Post: I don’t think the Supreme Court’s existing precedent makes the answer clear.

Somin points out that Scalia stated in Printz that federal law violates the Tenth Amendment if it “requires [state employees] to provide information that belongs to the State and is available to them only in their official capacity.” Based on this, Somin argues that “[t]he same is true if, as in the case of Section 1373, the federal government tries to prevent states from controlling their employees’ use of information that ‘is available to them only in their official capacity.’”

Measured in federalism principles, this is a strong argument; there are a lot of reasons to think federal interference with the states’ ability to control the information their employees collect in the course of their employment should be, by itself, impermissible. And concluding otherwise requires making much of the difference between the feds requiring the provision of information and the feds forbidding prohibitions on the provision of information—an intellectually suspect distinction that, to my mind, could open the door to strange situations like the Third Circuit’s uncomfortable and not entirely successful attempt to draw the line between (forbidden) authorizations and (permissible) selective repeals.

That said, the case law doesn't clearly support drawing an equivalence between requiring states to provide information to the federal government on request and prohibiting states from restricting the provision of information to the federal government on request. Most notably, these are different in terms of the resources and action required of the states. Unlike requiring the states to provide information, prohibiting the states from themselves forbidding the provision of information to ICE arguably does not "impress the state executive into [Congress's] service" (Printz), “command to state governments to implement legislation enacted by Congress” (New York), or “directly compel[] [the states] to enact and enforce a federal regulatory program" (Hodel v. Virginia Surface Mining & Reclamation Assn.).

Given the statute doesn’t require the states to affirmatively do anything, one could argue that § 1373 resembles not the federal schemes struck down in Printz and New York but rather the statutes upheld in South Carolina v. Baker or Reno v. Condon. In Baker, the Court upheld a statute that prohibited States from issuing unregistered bonds because the law “regulate[d] state activities,” rather than “seek[ing] to control or influence the manner in which States regulate private parties.” In Condon, the Court upheld a federal law prohibiting states and private persons from disclosing drivers' personal information on the grounds that it “does not require the States in their sovereign capacity to regulate their own citizens[, . . .] regulates the States as the owners of databases[, . . . ] does not require the South Carolina Legislature to enact any laws or regulations, and . . . does not require state officials to assist in the enforcement of federal statutes regulating private individuals.”

Most of those things are true of § 1373 and one could reasonably defend the constitutionality of the statute on these grounds. As for Somin’s conclusion to the contrary, he simply mischaracterizes the statutory provision when he asserts that “the whole point of forcing disclosure of information about undocumented migrants is precisely to ‘assist in the enforcement of federal statutes regulating private individuals.’” Again, § 1373 does not force disclosure of information but rather forbids prohibitions on disclosure of individuals’ immigration status. Though I am inclined to agree with Somin that there are principled reasons to interpret federal antics to preempt state action in this manner as at odds with anti-commandeering principles, the available Supreme Court precedent is sparse, and the Third Circuit is not alone among the federal appellate courts in resisting that very equivalence.

***

In sum, the only “sanctuary” jurisdictions directly affected by the terms of the order's defunding threat are those that affirmatively prohibit public employees from disclosing information about the citizenship or immigration status of individuals with the federal government. And such jurisdictions are not in danger of losing all or even most of their federal funding by virtue of their refusal to comply with the order. Rather, they could lose either select federal funds that have an immigration or, more broadly, law enforcement purpose, or else some amount of discretionary, executive-administered funding that Trump won’t admit was denied or reduced in reaction to the jurisdictions’ policies (be they immigration-related or something else).

As for the small portion of funds that Trump could plausibly cut off from the states explicitly for their failure to comply with § 1373, the constitutionality of the federal government’s attempt to “prohibit prohibitions” on individual public employees’ ability to share immigration-status information with ICE is a big open question and one on which the answer is simply not as open-and-shut as the experts insist it is.

The bottom line is this: uncertainty is the executive order’s friend; clarity and careful analysis are its enemy. There’s only so much this executive order can do—or even purports to do. We should not be misled or distracted by, say, Trump’s undisciplined tweets deriding sanctuary policies of all kinds as though they are all captured by his order—most are not.

There is value in separating out what Trump’s executive order actually does from our more general fears about the ramifications of an unbridled Trump presidency because these are ramifications that our federalist system is designed to help mitigate. Our political leaders have an obligation to understand that distinction at a time when, as I highlighted in my first post in this series, jurisdictions around the country are in the process of deciding whether to retain or adopt sanctuary policies and as voters seek to better grasp their options when it comes to resisting the cruel and abrupt turn in the federal government's policies regarding undocumented individuals. Their constituents deserve to know that “sanctuary” is not such a mysterious term and that in most cases sanctuary policies do not conflict with Trump’s order or federal law—and that in both theory and practice, adopting some variation of the label signifies not a defiance of our legal system but a celebration of it.