By Daisy Ni (PO ’21)
Earlier this October, Governor Jerry Brown signed Senate Bill 54 and effectively turned California into a “sanctuary state.” A reaction to President Trump’s hardline immigration rhetoric and policies, the bill limits state and local law enforcement communication with federal immigration authorities and would prevent officers from questioning and holding people on immigration violations.
Sanctuary jurisdiction has been narrowly defined by the Trump administration to refer to “jurisdictions that willfully refuse to comply with 8 U.S.C. 1373,” a statute that prohibits restricting state and local government agencies from exchanging information on an individual’s immigration status to federal immigration agents. Issuing a direct challenge to the authority of the federal government, California joins the thriving debate regarding the legality of such sanctuary cities and states power.
Though the federal government has the ability to lay down the “law of the land,” state and local governments have a right under the U.S. Constitution to refuse to help enforce federal laws. Most notably, the Supreme Court in New York v. United States (1992) and Printz v. United States (1997) established that the federal government cannot conscript, or “commandeer,” state or local officials to carry out federal law. To ensure enforcement, the federal government must use federal personnel. Thus, sanctuary jurisdictions such as California are under no constitutional obligation to abide by the president’s executive commands.
The anti-commandeering principle, however, does not apply to mere information-sharing legislation like Section 1373. In Reno v. Condon (2000), the Supreme Court held up the Driver’s Privacy Protection Act, which required states under certain circumstances to disclose personal details about license holders. The Court concluded that DPPA “did not require [states] to enact any laws or regulation, as did the statute at issue in New York, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.” The action of sharing information is not equivalent to forcing states to enforce federal law. Under this precedent, the Trump administration could possibly make sanctuary cities disclose information to facilitate deportation, even if it cannot make states help apprehend migrants.
The Trump administration has attacked the creation of such sanctuary cities and states: the President himself signed an executive order in January stating that sanctuary jurisdictions will not be “eligible to receive Federal grants.” However, placing aside the legality of sanctuary cities, Trump’s method to counter them has been criticized as unconstitutional. As per the Constitution, the president does not have jurisdiction over the distribution of federal funds—that power is granted to Congress. If the Trump administration wanted to proceed with this kind of legislation, its effects will be far from immediate. The Supreme Court has historically ruled that conditions in federal grants are not enforceable unless they are unambiguous; the Trump administration cannot cut off any federal grants to sanctuary cities without showing that those grants were clearly conditioned on cooperation with federal deportation policies. However, few current federal grants contain conditions specific to this exact purpose, and are thus not liable to be cut. As a result, in order to truly ensure compliance with Section 1373, Congress will have to enact new conditions and legislations that apply only to future grants. Even then, however, Congress will have to tread cautiously regarding the extent of the deprivation of funds. Under NFIB v. Sebelius (2012), the Supreme Court prohibited funding conditions so coercive they amount to a “gun to the head.” Trump’s threat to withhold all federal funding from sanctuary cities and states like California may fall into this category and thus be labeled unconstitutional.
Other than standing as a constitutional ambiguity, California’s new legislation raises questions regarding the logistics of the specific bill itself. For example, cost estimates ran up to $400 billion a year, which is twice the current state budget. Many of these expenses will fall upon California’s taxpayers with middle and low-income families getting hit the hardest, families which include many migrant workers themselves. Thus, the bill as it currently stands induces a paradoxical effect on the people it means to help. It is also important to consider the one exception the bill includes: it allows state and local law enforcement agents to work with and communicate with federal authorities regarding illegal immigrants already in jail. While the relationship between sanctuary cities and crime has never been conclusively determined, the Trump administration has used the risk to order as the justification for its policies and many citizens remain concerned. Problems such as these, outside of the sphere of legality, continue to worry the Californian populace.
Standing as a modern-day Nullification Crisis, Senate Bill 54 prompts the age-old division of federalism and elicits a series of ping-pong debates across the state and country. It is still unclear how far the President is willing to push his deportation agenda, but the growing trend of sanctuary states—in conjunction to bill 54—stands as a threat to his authority and power.