The Corner

Law & the Courts

Do We Hate Sanctuary Cities More Than We Like Federalism?

A lot of conservatives have been supportive of Attorney General Jeff Sessions’s attempt to strip certain federal funds from sanctuary cities, which Chicago has challenged in a lawsuit. I am no fan of sanctuary cities, but I am not a fan of this approach, either. Not only is there a credible case that what Sessions is doing is illegal, but more important, it involves a tactic that conservatives should reject wholesale.

I won’t go too deep into the legal weeds here, but over at the Volokh Conspiracy, Ilya Somin has offered a decent argument that this effort violates existing law. Limits to federal funds must be explicitly spelled out by Congress so that states and localities can choose whether to take the money with full knowledge of the strings attached; the executive branch can’t just add more strings on its own. And even if Somin is wrong to see this as a general constitutional principle, Chicago notes that the specific statute at issue here does not grant such discretion to the executive. In addition, the federal government can’t “commandeer” state and local law-enforcement resources.

And even if this is legal, it’s wrong. If the federal government wants to reimburse states for specific costs associated with enforcing federal law, that’s one thing. But it’s quite another for the federal government to go beyond that, using federal grants as leverage to get state and local governments to do what it wants. The textbook example here, of course, was the 1984 law demanding states raise their drinking ages to 21 or lose 5 percent of their federal highway funding.

The knee-jerk rejoinder is that if states don’t want the strings, they shouldn’t accept the money. But take a simpler view here: that of an individual American citizen. The federal government is taking his money through taxes and refusing to give it back unless his (supposedly sovereign) state enacts the right policies. That’s extortion, it’s a tyranny of the federal majority over dissenting state and local governments, and it’s a gross violation of federalism. And the more federal money gushes into the states — the feds currently provide nearly a third of state budgets — the more state and local policymaking is held hostage to the federal government’s whims.

State and local governments should happily help the federal government enforce immigration law. But they should also have every right to refuse to without losing federal funds that are available to those who choose otherwise.

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