Order is lawful use of spending clause

Some claim that President Donald J. Trump's executive order potentially cutting off some federal funding to so-called "sanctuary jurisdictions" that "willfully refuse" to cooperate with Immigration and U.S. Immigration and Customs Enforcement efforts to apprehend people who it believes are in the U.S. illegally - is unconstitutional. That order in part grants discretion to the attorney general and secretary of Homeland Security to determine that sanctuary jurisdictions "are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General of the Secretary."

Opponents of the order rely in part on two U.S. Supreme Court decisions that (1) held unconstitutional a congressional act that required State officials to do background checks before issuing gun permits (United States v. Printz, 521 U.S. 898 (1997)), and (2) held unconstitutional a provision of the Patient Protection and Affordable Care Act that would have greatly expanded the States' obligations under Medicaid (Nat'l Federation of Independent Bus. v. Sebelius, 587 U.S. 519, (2012)).

These cases addressed acts of Congress, not a president's executive order. But some of the writings attacking the order say that even assuming the president has the constitutional power to issue such an order (an issue not addressed here), it violates the 10th Amendment to the Constitution, which says: "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."

However, Printz was decided under Congress' commerce clause power, and Trump's order seems to rely on Congress' ability to put "strings" on federal funds to induce states to do or not do things it is not constitutionally able to require under its other powers - the so-called "spending clause" power. Indeed, Printz itself said that cases decided under the spending clause were of little relevance in that case.

Sebelius, on the other hand, did decide some issues under the spending clause, noting that "Congress may attach appropriate conditions to federal taxing and spending programs to preserve its control over the use of federal funds. In the typical case we look to the States to defend their prerogatives by adopting 'the simple expedient of not yielding' to federal blandishments when they do not want to embrace the federal policies as their own. Massachusetts v. Mellon, 262 U.S. 447 (1923). The States are separate and independent sovereigns. Sometimes they have to act like it."

In Sebelius, the court explained that "[p]ermitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system. '[W]here the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.' [Stewart Machine Co. v. Davis, 301 U.S. 548], at 169. Spending Clause programs do not pose this danger when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds. In such a situation, state officials can fairly be held politically accountable for choosing to accept or refuse the federal offer. But when the State has no choice, the Federal Government can achieve its objectives without accountability, just as in New York [v. United States, 505 U.S. 144 (1992)] and Printz. Indeed, this danger is heightened when Congress acts under the Spending Clause, because Congress can use that power to implement federal policy it could not impose directly under its enumerated powers."

The Sebelius decision noted that Medicaid accounts for up to 20 percent of a state's budget, and threatening to eliminate that large a percentage of a state's budget if it refused to comply with Congress' proposed Medicaid program would constitute "economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion."

However, in South Dakota v. Dole, 483 U.S. 203 (1987), the Supreme Court upheld Congress' mandate that states raise their minimum drinking age to 21 in order to receive federal highway funds. The court determined that if South Dakota chose to set its minimum drinking age below 21, it would lose only 5 percent of the federal highway funds otherwise obtainable, and that such a condition on the receipt of federal highway funds was but "mild encouragement" to the states.

Here, the extent to which a state's budget might be affected by the discretionary action of the attorney general or secretary of Homeland Security under the order is not entirely clear, but it does not at present seem to threaten a significant part of a state's overall budget.

Indeed, at the hearing held before U.S. District Judge William H. Orrick in San Francisco on April 14, the lawyer defending Trump's order said that the order applies to a "very narrow range of funding," and is only directed at grants from the U.S. Departments of Justice and Homeland Security.

So, if the courts eventually find that the amount of federal funds states will lose by opposing federal law enforcement efforts do not rise to the level of the "economic dragooning" the U.S. Supreme Court found in Sebelius, the state politicians who support "sanctuary jurisdictions" will stand accountable to their state's voters for their actions.