Both sides’ tactics and threats on immigration are hurting America’s constitutional balance.
Both sides’ tactics and threats are hurting America’s constitutional balance.
T he U.S. Constitution sensibly allocates powers, rights, and responsibilities between our layers of government, with a limited but robust federal government authorized to deal with a few specific problems and strong state governments left with everything else. This prudent balance is also true of immigration — but when it comes to that issue, both sides of the political aisle seem increasingly willing to violate the Constitution, escalating this issue in dangerous ways.
The federal government has the generally acknowledged power over immigration (most likely under Article I, Section 8’s Laws of Nations clause). The states, under the Tenth Amendment, retain the right to pass laws that do not conflict with constitutionally authorized federal laws. Article II requires — not allows, but requires — that the president “take care that the laws be faithfully executed,” and congressional immigration statutes are incredibly robust (making the Biden administration’s approach to illegal immigration all the more appalling). But the federal government does not have the authority to force states to implement federal priorities — nor can states actively obstruct federal law.
All of these rules are being tested as our immigration politics spin out of control in Minnesota and elsewhere.
Let’s begin with President Trump’s recent pledge to cut off federal funding to sanctuary states on February 1. If the administration defines by “sanctuary” as localities actively obstructing ICE, the Trump administration is right to go after them (albeit by lawsuit rather than funding). But if “sanctuary” means any community not assisting ICE, the administration would violate the Constitution. Under precedents developed by originalist members of the Supreme Court (and reflecting the major change from the Articles of Confederation to the U.S. Constitution), states cannot be forced to implement federal priorities. Recognizing this does not mean one is soft on immigration or sympathetic to sanctuary policies, but simply that one understands and respects the Constitution. Tom Homan, who is being dispatched to take over the increasingly chaotic enforcement in Minneapolis and is no one’s idea of an immigration squish, understands the difference, as Andrew McCarthy has observed.
That means the federal government cannot directly mandate state enforcement of federal law — such as making state governments run background checks for federal gun control laws, which the Court, in an opinion written by Antonin Scalia, blocked in Printz v. United States (1997). But the federal government also cannot wield funding so aggressively as to give states no choice but to implement federal preferences. This prohibition on coercive funding, especially imposing conditions unrelated to the federal spending itself, has been consistently repeated in cases like South Dakota v. Dole (1986), written by William Rehnquist, and National Federation of Independent Business v. Sebelius (2012), where the conservative justices blocked the effort to force states into Obamacare’s Medicaid expansion.
As such, most lower courts blocked efforts from the first Trump administration to withhold funding from sanctuary cities and almost certainly will do so again — as the Supreme Court will most likely agree.
Deployment of the National Guard to assist immigration enforcement is a trickier case, because two provisions of the Constitution are potentially at odds, and thus which side is in the right is dependent on the facts on the ground. This is why courts have split in assessing different deployments. Article II allows the president to enforce federal laws, while Article IV, Section 4 requires state consent for the federal government to assist in suppressing local violence. This is not a new issue: The left-wing Governor John Peter Altgeld protested, on states’ rights grounds, Grover Cleveland’s 1894 deployment of federal forces to Illinois to put down labor unrest disrupting the mail.
At the same time that states cannot be required to implement federal priorities, they cannot actively obstruct the feds. Active obstruction is nullification, the lawless doctrine closely associated with John Calhoun and slaveholding South Carolina or 1950s resistance to desegregation. While it is one thing for states to instruct law enforcement not to cooperate with or assist ICE, it is another thing entirely to tip off illegal aliens whose records were accessed by ICE, or pass laws purporting to constrain ICE’s operations, or worse yet, to insinuate the National Guard might be used to obstruct ICE, as Minnesota Governor Tim Walz did recently. Nearly all states’ rights defenders, including James Madison, Andrew Jackson, and Calvin Coolidge, have rejected nullification on the grounds that if implemented, it leads to civil war.
Progressives have long shunned the states’ rights at the core of our constitutional republic. They are now claiming to rediscover its merits, but at the same time, they are flirting with the most extreme version of state sovereignty that threatens the Constitution. Meanwhile, America’s conservatives have historically cherished the constitutional autonomy of states, but many of the Trump administration’s actions are unfaithful to that vital principle. This will only continue to get worse — at least unless all sides recommit themselves to our Constitution.