DACA articles show need to analyze the allocation of power

The ongoing battle between President Donald J. Trump's administration and certain states and cities has produced several recent Daily Journal articles, among them one that addresses the president's actions concerning so-called "sanctuary" states and cities, and others that concern former President Barack H. Obama's executive order styled as the Deferred Action for Childhood Arrivals.

Dean Charles S. Doskow's Jan. 16 piece opines that U.S. District Judge William Orrick's Nov. 20, 2017, order enjoining provisions of Trump's executive order denying funds to sanctuary cities, which is now on appeal, is "based on sound constitutional principles and precedents." But Doskow failed to note that the U.S. Justice Department argued in that case that the financial impact of that order on the cities would be minimal, as opposed to the billions of dollars that the cities claimed they might lose.

If the Trump administration is right, and if the president has the power to withhold such funds by executive order (an issue not addressed here), the U.S. Constitution's "spending clause" would allow him to condition federal spending on the cities' compliance with a related federal mandate. South Dakota v. Dole, 483 U.S. 203 (1987) (by failing to raise its drinking age to 21 as required by federal law, South Dakota would lose only 5 percent of the federal highway funds otherwise obtainable, and such a condition on the receipt of federal highway funds would be but "mild encouragement" to the states).

If, on the other hand, it were found that withholding the funds constituted "economic dragooning that leaves the [cities or] States with no real option but to acquiesce," then such withholding of funds would be outside the "spending clause" power. Nat'l Federation of Independent Bus. v. Sebelius, 587 U.S. 519, 132 S. Ct. 2566 (2012).

In Sebelius, the court noted 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, 482, 43 S. Ct. 597, 67 L.Ed. 1078 (1923). The states are separate and independent sovereigns. Sometimes they have to act like it."

The court explained: "Permitting 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, 112 S. Ct. 2408. 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 [United States v.] Printz [521 U.S. 898 (1997)]. 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."

Dean Doskow also notes: "Both sides invoke constitutional principles, but the real issue is one of immigration policy, setting the administration's nativism against the progressive belief in a diverse society that welcomes immigrants. ... Like all federalism arguments, federalism is not the issue. This confrontation is just one part of an underlying political debate." But he also points out that Article I, Section 8 of the Constitution "has been interpreted broadly to mean that legislation in the immigration and citizenship areas are solely within the power of the federal government," suggesting that the federal government might be able to be more heavy handed in imposing conditions on federal spending related to immigration and citizenship.

The Jan. 17 Daily Journal article titled "Trump seeks high court DACA review" addresses the U.S. Justice Department's seeking of direct U.S. Supreme Court review (skipping the 9th U.S. Circuit Court of Appeals) of U.S. District Judge William Alsup's ruling requiring the Trump administration to reverse its decision to dismantle DACA. That article notes that U.S. Attorney General Jeff Sessions argued that former President Obama implemented DACA by executive order after Congress failed to act on the issue, and that Obama's similar order implementing DACA's "sister program," Deferred Action for Parents of Americans, was enjoined by a U.S. District Court in Texas; a ruling that was affirmed by the 5th Circuit, and ultimately affirmed by the U.S. Supreme Court by a tie vote, which creates no national precedent.

Judge Alsup determined that DACA and DAPA are not identical, and that "the DAPA litigation was not the death knell for DACA," concluding that the 9th Circuit "will likely hold that DACA was and remains a lawful exercise of authority by [the Department of Homeland Security]." See Daily Journal, Jan. 19, 2018, "DACA decision won't hold up."

Thus, the U.S. Justice Department argues that, like DAPA, DACA is an unconstitutional exercise by a president of authority that is allocated by the Constitution to Congress. Similarly, the sanctuary cities (and Judge Orrick) assert that the power to condition the allocation of federal funds resides with Congress, not the president. So it seems that, on the one hand, a president can regulate immigration and citizenship by executive order when implementing DACA, but when it comes to attaching conditions to federal funds, he cannot?

In a similar juxtaposition, a local newspaper recently equated California's resistance to the Trump administration's policies with the litigation filed by the state of Texas that derailed DAPA, comparing California Attorney General Xavier Becerra to former Texas Attorney General (current Texas Governor) Greg Abbott. (East Bay Times, Jan. 19, 2018, "America First Puts California on the Defensive"). It is doubtful that, in this election year, Attorney General Becerra would want to be seen as "following in the footsteps of Texas and other conservative states."

In fact, as Dean Doskow's article suggests, these "legal" disputes are political in nature, with "federalism" and "separation of powers" as their themes. Their resolution by the courts will require analysis of the allocation of power between the states and the three branches of the federal government, as set forth by the Framers of the U.S. Constitution:

"In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself." The Federalist No. 51 (James Madison).

If Congress does not act to moot the issues in the interim, the scope of the president's power will be addressed and hopefully determined by the U.S. Supreme Court (Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803)), and then we will see how federal and states leaders implement the court's mandate. See generally Cooper v. Aaron, 358 U.S. 1 (1958).