About Those Threats…

Trump has issued a number of threats against so-called “sanctuary” cities and states, and his supporters (most of whom, ironically, would be considered “states’ rights” supporters) have declared such local designations illegal.

So it was interesting to read a recent column by Ilya Somin, a conservative legal scholar, analyzing the relative constitutional rights involved.

President-elect Donald Trump has repeatedly promised to engage in large-scale deportation of undocumented immigrants. In order to accomplish that goal, he is likely to need the cooperation of state and local governments, as federal law enforcement personnel are extremely limited. But numerous cities have “sanctuary” policies under which they are committed to refusing cooperation with most federal deportation efforts. They include New York, Los Angeles, Chicago, Seattle, and other cities with large immigrant populations. Sanctuary cities refuse to facilitate deportation both because city leaders believe it to be harmful and unjust, and because local law enforcement officials have concluded that it poisons community relations and undermines efforts to combat violent crime. They also recognize that mass deportation would have severe economic costs.

The arguments and links in the foregoing paragraph, of course, are policy arguments. They detail why the proposed policy is stupid, but (as I frequently remind my students) just because something is stupid and/or mean-spirited and/or counterproductive doesn’t mean it is also unconstitutional.

After listing the reasons the policy is ill-considered, however, Somin does address the question of constitutionality.

Under the Constitution, state and local governments have every right to refuse to help enforce federal law. In cases like Printz v. United States (1997) and New York v. United States (1992), the Supreme Court has ruled that the Tenth Amendment forbids federal “commandeering” of state governments to help enforce federal law. Most of the support for this anti-commandeering principle came from conservative justices such as the late Antonin Scalia, who wrote the majority opinion in Printz.

But what about Trump’s threat to withhold federal funds from cities and states that refuse to help him implement his deportation program? According to Somin, while the President may be able to withhold some funds, the threat is far less “formidable” than it may seem.

Few if any federal grants to state and local governments are conditioned on cooperation with federal deportation efforts. The Supreme Court has long ruled that conditions on federal grants to state and local governments are not enforceable unless they are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” In ambiguous cases, courts must assume that state and local governments are not required to meet the condition in question. In sum, the Trump administration can’t cut off any federal grants to sanctuary cities unless it can show that those grants were clearly conditioned on cooperation with federal deportation policies.

It’s been truly  heartening to see how hobbled Trump has been by his complete ignorance of the way American government actually works. (For that matter, his obvious ignorance of the way law in general works helps to explain why he has been involved in–and lost–so many lawsuits.)

In an update to his original column, Somin highlights a “states’ rights” irony that might be filed under “be careful what you ask for.”

It is worth noting that if Congress were to pass a law stripping sanctuary cities of all their federal funding unless they help facilitate federal deportation efforts, it would be unconstitutional under the Supreme Court’s decision striking down the Obamacare Medicaid expansion in NFIB v. Sebelius (2012), which forbids funding conditions so coercive that they amount to a “gun to the head” of a state or local government.

Short version: If the federal government can’t force states to expand Medicaid, neither can it force states to help deport undocumented people.

 

38 thoughts on “About Those Threats…

  1. Sheila: “It’s been truly heartening to see how hobbled Trump has been by his complete ignorance of the way American government actually works. (For that matter, his obvious ignorance of the way law in general works helps to explain why he has been involved in–and lost–so many lawsuits.)”

    It’s more than just government and the law; He’s totally ignorant as to how HUMAN BEINGS WILL REACT. He and his buddies need to wake up.

  2. Mayor Joe Hogsett spoke at an Indianapolis “Welcome to All” rally; his speech was touted as being “just short of designating Indianapolis a sanctuary city”. That was only a week or so before local CVS fired all undocumented workers; so far I have found no information about this (other than the direct source I have), nothing public and nothing on Google. Doubtful Indianapolis is the only city where CVS took this action or that CVS is the only major company to hire and fire undocumented workers whose lack of documentation must have been known before they were fired for being undocumented.

    I have a question or three; where are those undocumented immigrants arrested in the earlier “roundups” by ICE? What has happened to them in recent’ weeks? Any undocumented Russians among those rounded up, or are they protected by Trump and the current administration?

  3. Just because something is unlawful or unconstitutional doesn’t mean 45’s administration won’t try to do it anyway. The primary goal of this administration is to throw a monkey wrench into the operations of government. Chaos in science has order. Chaos in government doesn’t.

  4. While Sheila’s column does indeed contain good news, the problem is that most mayors may not be aware of the Supreme Court precedent that protects them. Thus, the White House can make these threats, and they can work because those being threatened are unaware of the facts.

    Hopefully this column will be spread far and wide among city attorneys and mayors.

  5. Peggy,

    Exactly right. Our President is a nutty, con man. We need to accept him for what he is. Let’s face it, America is quickly BECOMING one terrible joke or maybe better said….. a model for a second-rate horror flick.

    Please excuse me, I’m only trying to focus on the bright side.

  6. Peggy; just yesterday I searched my Webster’s New Collegiate Dictionary for definitions to help explain “chaos theory”, what I found defined the Trump administration.

    chaos: a confused mass or heterogeneous agglomeration

    theory – an idea or opinion that is presented as true

    heterogeneous – consisting of dissimilar ingredients or constituents

    agglomeration – a heap or cluster of disparate elements

    Viewing the Trump administration as operating via the “chaos theory” is recognizable but was probably unplanned by him or them. They certainly didn’t plan on the public recognizing these facts or knowing that laws countermand his Sharpie signed Executive Orders and that he is putting undue pressure on Congress…and they are beginning to rebel along with many state governments.

  7. Peggy,

    If you’re transforming from democracy to neo-fascism, chaos would INITIALLY be a proper step to take. That’s pretty much how the Nazi’s SUCCESSFULLY destroyed the Weimar Republic.

    Trump is a nut case. Bannon isn’t. For them, it’s two steps forward, one back. They’re pretty much on schedule with their chaos. Just take a look at the Indiana legislature for a good example. It’s a model. The Nazis used political models. All the countries they took over in Europe were eventually ruled under the same model. Just give them time. It will happen here.

    Excuse me, it is happening here.

  8. It’s amazing how many incredibly weird things can happen when a U.S. President does not have the slightest idea what he’s doing. There’s already substantial evidence that Fake President Donald Trump is in the process of setting new records for stupidity. Where is Sarah Palin when you need her?

  9. So ye olde 10th Amendment that states’ righters worship has come back to haunt them when their authoritarian executive wants to order states what to do when the Supremacy Clause becomes secondary to the Amendment they so dearly love and with case law to back it up, eh?

    I think it is time to quit reacting in passive fashion to Trump’s threats and instead tell him to try his luck in withholding funding as a means to unconstitutionally control court-approved states’ rights. It is time to challenge these Bannon-Miller attempts to replace our democracy with fascist power and this would be a good area of discord to make our stand an aggressive one.

    Of course, this is not the first threat the Orange One has made in his clueless attempt to destroy our democracy under his phony and flag-waving claim that such policies are necessary for “national security” when in truth such threats invite breaches of our national security, nor will it be the last. The fact that some of those who come to our shores were not radicalized upon arrival but become radicalized after here for a time strongly suggests that we have a welcoming problem, and if he thinks we must keep all prospective “terrorists” at bay, has anyone ever considered what would happen if a big share of the 11 million undocumented immigrants were ever to become “radicalized” due to his ignorant threats and fascist chatter? Mayhem, anybody? How would Trump like it if state governors instructed their citizens not to pay federal income taxes, speaking of relative constitutional rights? Ridiculous, right? It is not more ridiculous than withholding funding from states which are enjoying their constitutional rights to self-government within already-approved constitutional limitations – so try your luck, Adolph, I mean, Donald.

  10. Unfortunately, just because the Federal Courts would/should block Trump/Bannon under 10th Amendment precedent, if he and their fellow travelers try to cut off Federal grants to cities and states that won’t help them round-up and deport undocumented immigrants, doesn’t mean they won’t try. The “chaos theory” applies to this as well.

    Even if they can’t succeed in their direct primary goal, they will have again created chaos and uncertainty. Keeping us on edge. Controlling the news cycle as Trump has successfully done since day one of his campaign. And as a bonus, they will also have the courts and liberals to blame for not protecting us against the inevitable terrorist attack that will happen. As Marv states, Trump is ignorant and probably certifiably mentally ill too boot; Bannon and Pence are not.

  11. Just would add to my previous comment.

    At some point, I believe it’s likely that Trump/Bannon are going to try to further delegitimize the courts and judges. Trump, of course, has already begun the process by publicly ridiculing judges who have ruled against him. One way they can further their attack on the judiciary is by creating a constitutional crisis where Trump/Bannon refuse to comply and follow court decisions and orders and essentially say: “Make me!”

    Another one — of many — where I hope I are wrong that they will go that far.

  12. Why is there no frenzied media attack on Pence for using his personal E-mail to conduct Indiana state business? Is that only being reported here locally due to his Indiana connection? He went to court before the presidential election to fight to keep all of his E-mails from becoming public knowledge. The Republicans and the media kept Hillary Clinton’s E-mail carelessness (all that was proven and she admitted to it) for about almost three years. Apparently Trump is still using his pc to communicate his Tweets; it was reported long ago that he uses gmail. Sure makes it easy for Russia to hack him.

  13. David F,

    “As Marv state, Trump is ignorant and probably certifiably mentally ill to boot: Bannon and Pence are not.”

    Thanks, David. Everyone should take a look at Steve Bannon on Wikipedia to understand better what we’re facing. We don’t have any chance unless a countervailing force is created to take him on. As the FACE of the movement becomes more and more Pence, at some point it will be impossible to do anything.

    He’s in control not only of Donald Trump, but also a force behind the success of the Tea Party. He’s for real. He’s no joke. And he is a very, very, dangerous man. However, I strongly suggest, he isn’t as smart as he thinks he is. He’s vulnerable from the OUTSIDE, but not from the likes of the Democratic Party, media, or pro-democracy NGO’s.

  14. Neither Trump or Bannon had any substantial background in either local or national partisan politics until the recent presidential election. Both of them understand the media and propaganda. But have little or no knowledge of the weaknesses in the movement that Ronald Regan initiated in the early 80’s and which was continued through both Bush Presidencies, until it was “hijacked” by Donald Trump and Steve Bannon.

    From what I have observed first hand, is that TB’s main strategy to gain control has failed at least two times in the past. And I will bet they don’t even know that. The problem with deception is that you can deceive yourself.

    If this “insane political marriage” is not stopped at the outset, it will end up as a total calamity for the U.S. along with the destabilisation of the entire planet, which has already been set in motion.

  15. Clearly Trump and the last Bush were always seen by the GOP to be figureheads. Different personalities (Bush, easy to love, Trump, easy to hate) for sure but same function.

    Chaney was the real chief executive and now Bannon is. He’s the danger.

    Chaney knew the federal government intimately but Bannon not at all but he hates all of it with a passion. He’s just never given much thought to the world without a functional US government.

    What he’d like to accomplish is clear but what he can get away with is less so.

    Personally, I don’t see any chance for them, or us, to succeed. The question in my mind is how far will we have fallen by 2020.

    It takes at least one term for the inertia of the former administration to wind down and the influence of the new administration to take over. Will the damage be apparent then through the lies and blame? A close race I believe.

    Keep the press engaged documenting the fall and start the next campaign.

    Let the failures begin!

  16. JoAnn:
    The “media” was only doing the Tea Party-Repubs bidding over Hillary’s e-mails. There was never anything “there,” and the Repubs (OK, maybe not Trump) all knew there wasn’t any real crime or scandal involved. It was all hypocrisy then and now.

    The Repubs didn’t actually give a hoot about Hillary’s private e-mail server, it was just something that conveniently fell into their laps that they could use to make unthinking people believe Hillary was “crooked” and had committed horrible crimes. So there’s really no surprise the Repubs now have nothing to say about their own use of the same private servers.

  17. Pete,

    “Let the failures begin!”

    I understand where you’re coming from, but I believe you’re way off the mark on the damage the country is going to sustain if the “Trio” is not stopped. Unlike Trump/Pence/Bannon, I’ve been tracking this movement since 1960. Adolph Hitler destroyed Germany with something akin to the Alternate Right. He gained early momentum with his pogram against the Jews who were less than 1% of the population. No doubt the Jews are the early target again. That’s nothing new.

    What about the African-Americans? Do you think they’re going to also turn on the Jews because Donald Trump is going to help out the historically black colleges as he as just announced? No way. Since 1960, that scenario has been rejected at least three times. The “Trio” doesn’t even know that. What is going to happen is a racial/civil war if the country doesn’t regain its senses before the “Trio” becomes UNSTOPPABLE.

    All it will take is one Muslim suicide bomber, to “wrap things up”for them.

    That’s the reality that most of you want to deny. It’s very understandable.

  18. The Republicans will have tread lightly with the Trumpet. A few have critiqued him, but the majority of Republicans will offer their support and protection when needed. The force of the Trumpets personality (like it or not) and his marketing skills delivered the Presidency for the Republicans. Jeb, Cruz, or Rubio would never had made it into the Oval Office IMHO.

    The Trumpet has kept his side of the bargain by revealing his plans to slash the EPA and attacking ACA. He has also planning on the delivery of a nice fat increase in defense spending for the Wall Street-Security-Military-Industrial Complex. There is the Wall, which must have engineering firms, lawyers and contractors salivating at the thought of huge pork barrel project.

    The establishment Republicans may not like the Trumpets overt bombastic approach, but only the Trumpet could have delivered the White House into their hands.

  19. Louie,

    “The establishment Republicans may not like the Trumpets overt bombastic approach, but only the Trumpet could have delivered the White House into their hands.”

    You’re right. They owe him big time. He’s their hero, for the moment at least.

  20. I have more faith in an institutionalized American response to this transparent attempt to turn our democracy out to pasture in favor of authoritarian control than some of my fellow writers and think Trump will be lucky to last until the mid-terms of 2018 as the economy folds and the Dow plummets next year when his “policies” have had a chance to take hold.

  21. Let’s simplify the political situation:

    Indiana is still very much a basketball state. So let’s use a “three on one fast break” as a metaphor. My father was voted the best basketball player for the decade of the 30’s by The Jacksonville Journal, the local newspaper some years ago. I like to think there must have been something good that I inherited from my father. Maybe, It was his quickness.

    Imagine Steve Bannon dribbling down the court with Donald Tump and Mike Pence on his flanks and only one lone man left to defend with only seconds remaining in a tie game. How does the lone defender prevent the opposition from scoring? In this case, it is any easy decision, since neither Trump or Pence have enough standing with the team. The defender knows from experience, it’s going to be Bannon.

    We can hear the cheerleaders in the background…..”Bannon, Bannon he’s our man, if he can’t do it nobody can.”

    You must remember it’s just a game, you must have the experience to know what play the opposition will call.

    With the crowd going wild, and Bannon closely guarded, he goes up for the shot and …………, there is no more time left on the clock.

    We can’t believe it, Steve Bannon has been charged with a foul.

  22. Gerald,

    I hope you’re right. But I wouldn’t bet on it. There’s a lot more at play than the stock market or the economy. If everything tanks, who is going to have the answer for that? I doubt if it will be some economic “silver bullet.” More than likely it will be a call for harsher crowd control measures and more armored vehicles. Just more reason to vote Republican and prepare for Mike Pence to be the new Republican nominee for President.

  23. Gerald,

    You can’t deal with this horror scenario unless you stand up to the power. I’m sure Betty, Marge, and Nancy know that. It takes much more than just going to the polls or the courthouse.

  24. Marv, we all have to decide for ourselves who is likely to be the fastest horse on this track today. I think that you and I agree that it’s Bannon.

    My point is that what ultimately will restore democracy is his failure. People who are easy to manipulate by advertising have to be shown that the argument against him is not that he’s unlikeable but that his way fails everyone.

    Sad to say but if we get to 2020 and most folks have a job and there have only been a few terrorist successes and no nuclear wars the power of the incumbency probably gives him 4 more years.

    Remember it took 6 years for Chaney’s incompetence to prevail and most of it was easily and successfully blamed on Obama.

    Probably the best that Democrats can do is to position themselves with a clear message of we told you this would happen and keep the press and Bannon at odds.

  25. well, again, I’m glad I vote Libertarian. For many years we expressed concern about Presidential Executive Orders overrunning Congress. AND, we have been concerned for YEARS about federal laws and procedures overpowering state and local rights. “State’s Right’s” was viewed as a euphemism for Dixie / Segregation / old white planters with packs of hounds pursuing runaway slaves, especially among liberal groups. They knew Obama was a kindly master, as would Hillary be, so there was nothing to fear. Now it turns out giving up your powers to the executive could mean Trump has the authority, and not the good king the masses want. What a shock! You just get what you vote for.

  26. When in doubt Ban the Book.

    Arkansas Lawmaker (Republican) Introduces a Bill to Ban Howard Zinn From Classrooms. Legislation from Rep. Kim Hendren would keep legendary historian’s works from all public and charter schools. Not so oddly our own Mitch Daniels tried in vain to Ban the Zinn. Emails unearthed by the Associated Press in 2013, for example, revealed that former Governor of Indiana Mitch Daniels sought to ban Zinn’s works from that state’s classrooms, and the Tucson, Arizona school district in 2012 banned Zinn’s seminal A People’s History from all classrooms.

    Hendren’s other claim to infamy and stupidity > back in 2009 – Oy vey! Arkansas State Senator Kim Hendren calls Chuck Schumer ‘that Jew’ A Republican Senate challenger in Arkansas called Sen. Chuck Schumer “that Jew” at a campaign event and has spent a week backtracking, apologizing, and digging himself in deeper.

    “I don’t use a Teleprompter, and occasionally I put my foot in my mouth,” said Hendren. (Side Bar – sound familiar) “I was attempting to explain that unlike Sen. Schumer, I believe in traditional values, like we used to see on ‘The Andy Griffith Show,'” Hendren said. http://www.nydailynews.com/news/politics/oy-vey-arkansas-state-senator-kim-hendren-calls-chuck-schumer-jew-article-1.408880

    By the way Hendren was born born February 6, 1938 and is White.

  27. j. england; so why didn’t Gary Johnson ask his supporters to vote for Hillary, knowing there was no chance in this world of the Libertarian party winning the presidency?

  28. why would Gary Johnson ask Libertarians to throw their votes away and abandon their principles to vote for Hillary? Most people thought Hillary was a shoo in, and the Democratic party, by providing such a poor and ethically challenged candidate, (as well as fixing the primary against Bernie) clearly thought such an inferior candidate was “good enough for government work”. Libertarians were / are in the same position as A. Lincoln when the Republicans went from obscure to winners. The better question is why did Donald OK Gary being on the Presidential Debates while Hillary blocked him from appearing, just as she fought against Bernie? First debate had 88 million voters who could have heard Gary talk (great since we don’t have the huge $$ for ads) and Hillary blocked that. Who knows how the election would have gone if Gary had been allowed on any or all 3 debates? Hard to feel sorry for people distressed that Trump is using the same powers that Hillary would use for the same improper reasons.

  29. Trump thought Hillary was going to win and that throwing Gary into the debates might throw a monkey wrench into her campaign, a feat, as it turns out, that was accomplished instead and if unexpectedly by the Russians and Comey.

  30. Pete,

    “My point is that what ultimately will restore democracy is his failure. People who are easy to manipulate by advertising have to be shown that the argument against him is not that he’s unlikeable but that HIS WAY FAILS EVERYONE. ”

    I agree 100% that you have described the type of treatment that is needed. We only differ as to its application. Having had the advantage of a “political MRI” I can see the “body politic” in a much more advanced stage of malignancy than you do and, consequently, much more closer to death.

    We are dealing with an emergency, radical surgery needs to be performed now, not later, when the patient will be for the most part….DEAD. However, I doubt if the surgery can still be performed in the U.S. at this late date, since ALL of our institutions are now infected by the virus.

  31. It certainly will be difficult for any president to enforce immigration laws that’s why a wall that was funded needed to be built years ago. Congress agreed to and funded it. The amount of undocumented workers clearly have taken from African American jobs over the decades No one realizes that many inner city jobs could go to the African-American community are going to undocumented workers. I don’t think anyone would disagree that undocumented workers that have been involved in some sort of crime should go first. This is where the problem lies. cities who have illegal aliens that have committed crimes are hiding them from the federal government. We are a nation that is $20 trillion in debt $10 trillion over the last eight years. If we don’t follow the laws that are on the books today then people will use the laws against us because they have been come overwhelmed as the government is no longer able to facilitate its responsibilities because it has been over burdened by forbidding and overwhelming national debt.
    Teachers in schools are unable to teach because we have so many new programs to reach illegal immigrant population. Politicians looking for votes are hiding their illegal alien criminals from a federal government wanting to protect our innocent population from murders, rape, theft, drunk drivers, and drug dealers.
    Immigration policy is clear, we are supposed to only admit immigrants that are clear advantage to our country and not because it allows for votes to politicians who rely on the uneducated voter or those that will vote for more government entitlements that hinder economic growth through higher tax rates on the middle class worker.

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