Law & the Courts

A Liberal Judge Rediscovers the Tenth Amendment — So Should Conservatives

Sanctuary cities are wrong to defy federal immigration law, but that’s not ground on which the administration can withhold funding from them.

Sanctuary cities are appalling. But using extra-constitutional means to defund them is still wrong.

One of the odd staples of American political life in the mid 1990s was Bob Dole’s love affair with the Tenth Amendment to the Constitution of the United States.

It had been rendered obsolete and nearly forgotten amid the vast expansion of the scope and power of the federal government in the 20th century. But the Republican Senate leader and 1996 presidential candidate was devoted to the proposition that “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.” He always kept a copy of it in his coat pocket and pulled it out at the drop of a hat in a vain effort to revive interest in federalism. It seemed an appropriate metaphor for an effort, which never seemed to have a fighting chance, to deny reelection to Bill Clinton.

Two decades later, it seems someone is finally listening to Dole.

On Monday, a U.S. federal district court issued a ruling that blocked President Trump’s executive order denying federal funding to sanctuary cities. That a liberal judge like William H. Orrick III, who had been appointed by President Obama to sit on the bench in San Francisco, would find a legal trick to try to thwart Trump and protect the notion that municipalities have a right to nullify federal law — so long as it was in the cause of preventing the government from enforcing immigration laws — was a given. So, too, were the resulting howls of outrage from conservatives and an administration that vowed to appeal the decision handed down in the same city where an illegal immigrant who was not handed over by the city to federal authorities killed 32-year-old Kate Steinle.

But what was interesting about the decision was Orrick’s rationale. He claimed that the executive order violated the Tenth Amendment, on the grounds that the president was attempting to usurp powers that belong to local authorities. While Congress has a right to impose restrictions on the use of funds it provides the states, the president cannot do so unilaterally. If the laws granting federal money to San Francisco and other sanctuary cities specifically required them to follow federal regulations regarding illegal immigration, revoking the funding would have been defensible. But lacking that legislative imprimatur, Trump’s action was clearly illegal.

That a liberal court would suddenly embrace a constitutional provision that has, at least in recent memory, been solely the preserve of conservatives is ironic. As a general rule, in recent years only those determined to resist a big-government philosophy of recognizing no restraint on the power of the federal government to dictate policy on just about anything have even mentioned the Tenth Amendment.

That a San Francisco court would pull that argument out of its hat is infuriating to both the administration and Republicans who rightly view as outrageous those who would seize on any pretext to defend illegal immigrants from the authorities. Moreover, it seems similar to the way liberal judges have gone outside the law to overturn Trump’s travel ban.

But once partisan anger is put aside, it’s clear that Judge Orrick was right.

The sanctuary-city movement is deplorable, and Republicans rightly sympathize with Trump’s desire to inflict penalties on Democrats who act as if they can disobey laws they don’t like with impunity while still having their collective snouts planted firmly in the federal trough. But as Bob Dole used to point out, rescuing federalism and the Tenth Amendment is a higher priority.

Trump’s effort to punish sanctuary cities is part of an effort to defend the rule of law against those ready to trash it for the sake of allowing illegals to escape the consequences of their actions. But it’s no small irony to note that the method he chose to employ in this struggle is similar to the one President Obama used to grant amnesty to millions who are here unlawfully.

Constitutional principles can be a cruel master. But defending the rule of law is not about prevailing on any specific issue.

Republicans rightly denounced Obama’s effort to go around the law to accomplish what Congress pointedly refused to do. But while many of those who voted for Trump did so specifically because of his willingness to employ the same scorched-earth tactics used against the GOP by Democrats, conservatives may applaud the president’s motives but cannot support any action that undermines the principle of the separation of powers.

While the administration will appeal Orrick’s ruling, as it has the various rulings against the travel ban-orders, this effort isn’t likely to have the same success.

While it is wrong for local authorities to choose not to comply with federal laws, it is highly problematic for a president to try to use the power of the purse to exact retribution even for such deplorable conduct. States and cities that take federal money must do so under the conditions set by Congress. But that money can’t be withheld for reasons Congress never stipulated. Trump has no power to deny federal money to sanctuary cities unless the laws authorizing that funding allow him to withhold it.

The reason is that pesky concept of federalism enshrined in the Tenth Amendment.

The Constitution guarantees the right of the people of the states to rule themselves and to exercise power in areas that are not the province of the national government. That does not give states or cities the right to nullify federal laws they don’t like or to prevent Washington’s agents or the military from enforcing them. But the federal government cannot compel local governments to enforce those federal statutes. That includes immigration laws.

The obvious precedent here is the Fugitive Slave Act. Federal authorities or those it authorized to capture escaped slaves and return them to bondage could use that immoral law. But the pro-slavery administrations of the 1850s could not compel Massachusetts or other free states to take part in those actions or to cooperate in any manner.

Constitutional principles can be a cruel master. But defending the rule of law is not about prevailing on any specific issue, even one that is predicated on opposing a lawless concept such as that of sanctuary cities. If Congress wishes to enact legislation imposing certain conditions on federal funding, requiring compliance with immigration laws and federal law-enforcement officials, it can and should do so. But just as Obama had no right to grant amnesty by overriding Congress, Trump cannot legally impose conditions on federal funding that are absent from the laws authorizing those allocations.

That isn’t what Trump or the voters who support him want to hear. But it’s what support for the Constitution demands. Perhaps Bob Dole, the ultimate GOP insider even if he is long retired, is exactly the sort of person the Republican base rejected when it chose Trump in 2016. But his passion for the Tenth Amendment still ought to command their respect — and to compel them to see that a true conservative must grudgingly accept that the court was right to strike down Trump’s executive order.


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