Our Backyard: Oakland, Alameda, and Berkeley Should Sue Donald Trump
According to legal experts, the president's plan to strip sanctuary cities of federal funding is unconstitutional. Plus, it’s just wrong.
Trump was sworn in by Chief Justice Roberts, whose decision on Obamacare may block Trump's plan to punish sanctuary cities.
Screenshot from C-SPAN
Before Donald Trump signed an executive order on Wednesday seeking to punish sanctuary cities throughout the nation, city officials in Oakland, Berkeley, and Alameda had already tallied the potential impact of the president’s decision. As we noted yesterday, Oakland stands to lose up to $130 million annually in federal funds, while Berkeley and Alameda could be stripped of $11.5 million and $2.5 million, respectively, if Trump’s order is fully implemented. And while it would be prudent for sanctuary cities to prepare for the potential loss of federal dollars in the months ahead, they should also begin preparations to sue the Trump administration, because according to legal experts, his executive order is not just wrong but unconstitutional.
In late November, Harvard Law School professor Noah Feldman noted that Trump’s plan to cut off federal funding to sanctuary cities violates two Supreme Court decisions, which, ironically, were written by two conservative justices—the late Antonin Scalia and Chief Justice John Roberts—and concerned issues of extreme importance to Republicans: states’ rights, gun rights, and Obamacare.
In National Federation of Independent Business v. Sebelius, which upheld the Affordable Care Act but struck down a key component of it, Roberts wrote in 2012 that the federal government is prohibited in most instances from coercing states and cities to enforce federal law by withholding funds. The federal government “has no authority to order the states to regulate according to its instructions,” wrote Roberts, who swore in Trump at his inauguration on Jan. 20.
Roberts was referring to a provision in Obamacare known as the Medicaid expansion. It sought to greatly increase the number of low-income Americans covered by Medicaid. Congressional Democrats and President Obama had included a mandate in the Affordable Care Act, requiring states to adopt the Medicaid expansion or they would lose all of their Medicaid funding. Roberts wrote that this mandate amounted to a “gun to the head” and was unconstitutional.
Roberts added that there has to be a direct nexus between what the federal government is requiring states to do and the funds it’s threatening to withhold, and because the Medicaid expansion was a new program, the federal government could not threaten to take away existing Medicaid funds. As a result, the Medicaid expansion became a voluntary program in which many states could decline to adopt it without fear of losing the Medicaid dollars that they were already receiving.
“Roberts’ doctrine applies with full force to Trump’s threat to pull cities’ existing funding if they remain sanctuaries by declining to cooperate with federal officials to enforce immigration law,” Feldman wrote.
Peter L. Markowitz, director of the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law in New York, agrees with Feldman, telling The New York Times in a story published today, “You can’t say ‘if you don’t use your police officers to go after unauthorized immigrants, you don’t get any money for your hospitals.’ They can’t impose conditions that are totally unrelated.”
Trump, in other words, will run afoul of constitutional law if he tries to withhold federal funds for Head Start or affordable housing just because a city like Oakland, Berkeley, or Alameda, refuses to carry out federal immigration laws.
The only funding that Trump might legally be able to cut off to sanctuary cities is federal grants for police. Why? Laws in sanctuary cities like Oakland, Berkeley, and Alameda, typically only apply to law enforcement officers; they’re forbidden from helping federal immigration officials deport people (unless the person has been charged with a crime). As a result, there appears to be a legal nexus between federal funds for police and sanctuary cities’ bans on police helping enforce federal immigration laws. Ironically, however, Trump’s executive order calls for federal officials to make it a priority for sanctuary cities to keep receiving law enforcement grants.
The other Supreme Court decision, Printz v. United States, authored by Scalia in 1997, involved federally mandated background checks on handgun purchases in a law known as the Brady Bill. Writing for the court majority, Scalia struck down the background check mandate, stating that the federal government couldn’t require local entities to carry out what was essentially the federal government’s job: checking a gun buyers’ background. “The federal government may neither issue directives requiring the states to address particular problems, nor command the states’ officers, or those of their political subdivisions to enforce a federal regulatory program,” Scalia wrote.
“The bottom line is the federal government can’t coerce state and local governments to administer a federal program,” Constitutional law professor Erwin Chemerinsky, dean of UC Irvine School of Law, told the San Francisco Chronicle.
Many cities and states have already vowed to fight Trump to stop the implementation of his executive order, and this issue will surely end up in court. As cities with a history of protecting immigrants and refugees and providing safe havens for them, Oakland, Berkeley, and Alameda have a moral obligation to join these lawsuits.
Plus, the constitution is on their side.
Our Backyard is an occasional column by senior editor Robert Gammon.
Published Jan. 26, 2017 at 2:25 p.m.