March 25, 2020


Retired Supreme Court Justice Joins Opinion Shooting Down Trump's Attack on Sanctuary Cities (MARK JOSEPH STERN, MARCH 25, 2020, Slate)

Trump's Department of Justice has long sought to punish "sanctuary" jurisdictions, those hundreds of cities, counties, and states that refuse to enforce federal immigration laws. Most sanctuary jurisdictions prohibit local law enforcement from asking about immigration status, arresting people because of their immigration status, or informing the federal government when it detains a person who happens to be undocumented. These jurisdictions also forbid jails from extending the detention of unauthorized immigrants so federal agents can take them into custody.

The DOJ has no constitutional authority to simply commandeer local police into enforcing immigration law. So, instead, the agency sought to cut off sanctuary jurisdictions from the leading source of federal funding to local law enforcement, the Edward Byrne Memorial Justice Assistance Grant Program, if they did not explicitly agree to cooperate with immigration enforcement. This move would deprive these jurisdictions of millions of dollars in federal funding each year, potentially coercing them into abandoning their sanctuary policies.

Before Tuesday, the 3rd, 7th, and 9th U.S. Circuit Courts of Appeals had already found that the Justice Department has no authority to slash funding for sanctuary cities and states. Only the 2nd U.S. Circuit Court of Appeals upheld the DOJ rule in a frightening decision that suggested the federal government can require local cops to serve as immigrant enforcers. The 1st Circuit rejected that logic, siding against the DOJ rule in an opinion by Judge Bruce Selya (a Ronald Reagan appointee) joined by Judge David Barron (a Barack Obama appointee) and Souter. (Justices can sit on federal courts of appeals after they retire from the Supreme Court.)

The fundamental problem with the Justice Department's attack on sanctuary jurisdictions, Selya explained, is that it's totally unauthorized. Federal agencies don't have the power to impose new conditions on funding to the states. Rather, Congress must authorize those conditions, within constitutional limits that bar the "commandeering" of state officials. 

Posted by at March 25, 2020 7:03 PM