Tag Archives: Sanctuary cities

Trump’s Empty Threats

At least once a day–and sometimes more often– Donald Trump reminds us that he is an idiot.

Most recently, he displayed his ignorance of economics by imposing new tariffs on China, and then confidently asserting that China was paying them. Since his massive ego doesn’t allow him to learn from anyone–not even the third-rater “experts” with whom he has surrounded himself and who (dim as some of them are) still know far more than he does–he doesn’t understand that tariffs are essentially a tax on American consumers. (His steel tariffs alone have raised the price of washers and driers by more than $100 each.)

Not too long ago, Trump issued what he clearly thought was an oh-so-clever threat to those evil “sanctuary cities.” He proposed to resettle immigrants exclusively in those cities, an idea that the Brookings Institution called “part and parcel of the president’s approach to immigration, an issue on which he has always maintained a tenuous relationship to reality.”

Tenuous indeed.

He has apparently abandoned the threat, clearly puzzled by the lack of concern expressed by those he’d threatened. (Actually, “bring it on” is more than a lack of concern…)

In Trump’s view, sending immigrants to sanctuary cities is a way to punish those Democrats unwilling to “change our very dangerous immigration laws.” In the president’s eyes, because illegal immigration is so appalling to him, it must be appalling to everyone, and the transfer of refugees seeking asylum to sanctuary cities will turn voters against pro-immigration reform Democrats.

The president’s aborted plan for sanctuary cities is emblematic of everything that is wrong with his approach to immigration. Even if the claim that a disproportionate number of immigrants are criminals were true (it is not), the obvious problem with his plan is that there is nothing to guarantee that all these “bad actors” would stay in these Democratic strongholds. Once there, they might just move to places where large proportions of Trump voters and supporters live, and data the Washington Post obtained on a small sample of recent immigrants shows that occurring.

The Brookings article also noted that implementing this cockamamie policy (my terminology, not theirs) would require numerous violations of the laws, beginning but not ending with the Hatch Act.

Think of it this way: what if a Democratic president decided that Republican states who had voted against him or her on the basis of opposition to welfare programs should not get food stamps. There would obviously be howls of opposition if deep-red states were systematically deprived of federal funds, raising concerns about political abuse of power and a subjugation of Congressional intent in appropriations.

Trump constantly demonstrates that he doesn’t understand law–not only is he ignorant of specific rules that most Americans know, he clearly doesn’t understand the role of law in governance generally. (Granted, he also doesn’t understand governance…or really, much else.)

It isn’t just the legal framework that eludes him. He is also blissfully fact-free. As the Brookings analysis explains:

 As of the halfway mark of the fiscal year, 190,000 people have been apprehended in family units—almost a four-fold increase over last year. They currently make up the majority of all border apprehensions.

What would be the impact of relocating those asylum-seekers? There are eight states that have designated themselves sanctuary states (California, Colorado, Illinois, Massachusetts, New Jersey, New Mexico, Oregon, and Vermont) totaling a population of 80.23 million. In addition, there are another 87 counties and municipalities outside of those eight states that have designated themselves sanctuary jurisdictions, with a population totaling 39.71 million. Thus, the total population living in areas designated as sanctuary jurisdictions totals 119.94 million people.

The president believes the transfer of asylum-seekers to sanctuary jurisdictions would put such an undue burden on those local governments and populations that the people would rise up against their governments’ embrace of sanctuary status. In reality, however,… all families apprehended so far this year total an equivalent of .016 percent of the population of those sanctuary jurisdictions. Put differently, if those asylum-seekers were spread across sanctuary jurisdictions according to population, those jurisdictions would receive 16 asylum-seekers per 10,000 residents.

Hardly an unsupportable burden, even if asylum-seekers were the unproductive drains on local economies that Trump insists they are. But of course, he’s wrong about that too.

In 2017, researchers in the Department of Health and Human Services conducted an analysis of the economic impact of refugees, a very similar population to asylum-seekers. They found that in a 10-year period, they contributed $63 billion more in government revenues than they cost.

The administration rejected the report, because facts aren’t their thing.

America’s Oval Office is currently occupied by an incredibly uninformed (and embarrassingly stupid) raving bigot. If the (misspelled and ungrammatical) comments his supporters post to this and other blogs are any indication, they share those characteristics.

It explains a lot.

 

Sanctuary

You may have read about Jeff Sessions’ recent lawsuit against California. Sessions is pursuing the Trump Administration’s vendetta against immigrants (ostensibly against undocumented immigrants, but with rhetoric that signals distaste for anyone–legal or not–who is less pale than a Norwegian), and he’s determined to overcome any obstacles to that task.

Vox explains the lawsuit. 

The Department of Justice has just filed a lawsuitagainst the state over three laws it passed in 2017 that limit government officials’ and employers’ ability to help federal immigration agents, and that give California the power to review conditions in facilities where immigrants are being detained by the feds. Sessions, in a Wednesday speech to the California Peace Officers’ Association, a law enforcement union, is giving the message in person.

It’s a huge escalation of the Trump administration’s fight against “sanctuary cities” that limit local-federal cooperation on immigration enforcement. After a year of slow-moving or unsuccessful attempts to block “sanctuary” jurisdictions from getting federal grants, Sessions is moving to stop them from passing laws that limit cooperation to begin with. And he’s starting with a shot across the bow: targeting the bluest state in the union, whose 2017 bills represented a model for progressives to use federalism against the Trump administration’s immigration agenda.

Sessions’ is determined to pursue his punitive federal policy without having to deal with impediments to enforcement enacted by progressive cities and states. According to Vox, we should view this lawsuit as the next phase “in a battle the Trump administration and California are equally enthusiastic about having: an ongoing culture war between progressive politicians who feel a duty to make their immigrant residents feel as safe as possible, and an administration (and its backers) whose stated policy is that no unauthorized immigrant should feel safe.”

Vox is right to label this a culture war. I used to reserve that term for fights over the so-called “social issues”–abortion, same-sex marriage, prayer in schools, religious icons on public land and the like. That was before I realized that environmentalism had also become a culture war issue, and that the division wasn’t simply between religious and secular Americans, but also between adherents of very different religious worldviews.

We Americans are currently very polarized, to put it mildly. The expanded “culture war” of which immigration is a part is an outgrowth of our increasing tribalism, our stubborn  residence within bubbles populated primarily by our “own kind,” both intellectually and geographically.

The big question is whether this is an era of transition–a time of paradigm shift brought on by rapid changes in technology and especially communications–or whether it is something more lasting. The activism of the younger generation that we have seen in the wake of the Parkland shooting is a hopeful sign that it may be the former–that the fear and insecurity that have prompted recent, distressing eruptions of bigotry and racial resentment will pass as my generation dies off.

The challenge will be to keep the Donald Trumps and Jeff Sessions of the world from inflicting irreparable damage in the meantime.

Never Thought I’d Cheer States’ Rights…

It has been somewhat lost among all his other bluster, and more recently by the diversion of his air strike against Syria, but Trump has reiterated his threat to withhold federal monies from so-called “Sanctuary” cities and states. (As many people have pointed out, the sudden onset of humanitarianism that purportedly prompted those airstrikes has yet to prompt a willingness to accept children fleeing the hellhole that is today’s Syria.)

Trump’s threats are evidently as empty as his compassion. Talking Points Memo reports that, thanks to a Supreme Court decision in a lawsuit brought by Republicans opposed to the ACA, Trump can’t withhold funds from states acting humanely. It would be illegal.

File under “be careful what you wish for”….

In 2012, the Supreme Court forced the Obama administration to make Medicaid expansion voluntary for states instead of mandatory, ruling that when the federal government “threatens to terminate other significant independent grants as a means of pressuring the States to accept” a federal policy, it is unconstitutionally coercive.

Conservative groups that celebrated this victory over “infringement on state sovereignty by the federal government” may now be dismayed to learn that it could throw a wrench into the Trump administration’s current plan to punish sanctuary cities.

Attorney General Jeff Sessions recently warned local officials that continued refusal to co-operate with federal immigration authorities would jeopardize approximately $4 billion dollars in unrelated grants; those grants currently support local programs addressing everything from human trafficking, sexual assault, and gang violence to mental health, gun crimes and various public safety issues.

Sessions evidently neglected to research the Administration’s authority to follow through on that threat.

Stripping the cities and counties of this funding, however, is easier said than done. Doing so could violate the 10th Amendment, which protects states’ rights against federal intrusion, and a number of Supreme Court cases, including the 2012 case that struck down Obamacare’s mandatory Medicaid expansion, legal experts warn.

“It may be unconstitutional on several grounds,” said George Washington University Law School professor John Banzhaf III.

Banzhaf argues that U.S. law dating back to the mid-1800s bars the government from “commandeering” local officials to enforce federal law in almost all instances. The 2012 Supreme Court ruling in National Federation of Independent Businesses v. Sebelius expanded on this principle, holding that “states could not be required to expand Medicaid programs under threat of a loss of federal funds—the same coercive method threatened by Sessions—except where the threat was one mandated by Congress and signed into law, not a mere presidential order,” Banzhaf said.

Two other cases–one in 1987 and one from 1997–reinforce the limits on federal coercive power.

In the 1987 decision South Dakota v. Dole — which concerned a government attempt to cut highway funding to states that tried to lower the federal drinking age — the Court said the federal government can only cut grants related to the policy they are trying to enforce. Though the federal government’s argument trumped the state’s in that case, the ruling significantly narrowed the kind of funding the federal government can withhold when attempting to incentivize local governments to carry out a certain policy….

The Court went even further in 1997, ruling in Printz v. United States that “the Federal Government may not compel the States to enact or administer a federal regulatory program.”

Sessions has now indicated that future grants will be conditioned upon compliance with federal immigration law, a tacit admission that– his threats notwithstanding–he cannot reach previous awards issued without such provisions.

I’m sure those staunch defenders of states’ rights–the ones who were so sincere when they explained that their opposition to civil rights laws had nothing to do with racial animus–will applaud this current application of federalism doctrine.

On the other hand, perhaps I shouldn’t hold my breath waiting for their applause….

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.