Not for decades has there been as much tension between the federal government and various state/local entities as we have witnessed during the first 100 days. Examples include how much pressure (via funding cutbacks, staking out county courthouses, etc.) the federal government can put on states to facilitate and/or assist in federal immigration enforcement, whether states can condition ballot access on tax-return disclosure in future presidential contests, what, if anything, states can do to insulate their denizens from federal marijuana law enforcement, and whether states can refuse to do business with persons who help the federal government “build the wall.”
Each of these brouhahas raises important and distinct cutting-edge federalism questions. For example, in the “sanctuary jurisdiction” setting, we may get an answer to the question left open in Printz v. United States1—whether federal laws requiring states to provide the feds information fall outside the so-called “anticommandeering” principle that protects states from being forced to enact or implement federal policies. (Notwithstanding all the sturm und drang over sanctuary entities, the only threat the feds have made so far is to enforce 8 U.S.C. § 1373,2 which says, in pertinent part, that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [federal immigration authorities] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”).
As was implicit in Justice O’Connor’s concurrence in Printz, some federal information mandates (such as the one she mentioned concerning information on missing children) might not implicate the “accountability” rationale for Printz (and New York v. United States3 before it)—that is, the concern that states might get unfairly blamed by voters concerning state-implemented policies for which the feds are really responsible. In the sanctuary movement, misattribution problems could cut in both directions; if § 1373 is enforced and residents see crime rates go up because undocumented persons become less willing to work with local police for fear the police will turn over information regarding their status to the feds, voters may blame local authorities instead of the feds for the resulting crime increase. On the other hand, without enforcement of § 1373, perhaps people might blame the feds for crimes committed by unlawfully present immigrants when local authorities are exacerbating the problem by not cooperating.
Another important unresolved question implicated by the battle over sanctuary jurisdictions is the relationship between federal authority to commandeer and federal spending-clause doctrines. To date the feds have threatened sanctuary entities with only the cut off of Department of Justice grants that were explicitly conditioned on § 1373 compliance, but some in the administration have made some noises about denying more general funding to noncompliant jurisdictions. If courts decide that § 1373 and other information mandates are exempt from the Printz anticommandeering principle, does that mean that the administration can withhold any funding it chooses (assuming Congress is on board) from jurisdictions who violate § 1373, regardless of: (1) whether states had prior notice their noncompliance would trigger loss of funds; (2) whether there is any nexus between the funds being jeopardized and immigration enforcement; and (3) how big a hole the loss of funds would blow in state or local budgets? One might argue that these three principles—notice, nexus, and concern for state budgets—that are prominent in modern spending-clause doctrine (e.g., National Federation of Independent Business v. Sebelius4) are relevant only to the extent that states have a choice to decline federal money in order to be free from the federal conditions. And—the argument would run—if states have no choice but to comply with § 1373 because it does not constitute commandeering in the first place, then the feds should be able to enforce that requirement with draconian and post hoc funding cuts, just as they could enforce it in federal court with injunctive relief backed up by contempt power. But, others may argue that states at least deserve prior notice of what they might lose if they violate valid federal law and/or that funding sanctions against states must always be proportional to any violations.
Moving beyond these specific questions raised by the sanctuary-jurisdiction disputes, I see at least three overarching principles on which we must keep our eyes as the larger federalism battles rage.
First, we should generally start by asking whether the particular domain in contest is one in which states have been given a constitutionally significant role or instead is an arena in which the federal government is clearly the primary constitutional actor. State pushback in the area of presidential-election ballot access is much more likely to be permitted than is interference with respect to federal drug enforcement, since the former is made the domain of states under Article II (see Bush v. Gore5), while the latter is covered by federal power under Article I (see Gonzales v. Raich6). In this vein, the fact that states might not be required to even hold presidential elections may give states much more leeway over presidential ballots than constitutionally required congressional ballots (although any reforms ought to take effect in 2024 so they seem less personal).
Second is the line between nonassistance and interference. As broad as the anticommandeering principle may be, state and local authorities have no right to interfere with federal immigration enforcement, say, by harboring individuals sought by federal authorities, impeding access to such individuals by federal officials, providing false information to the feds, or by affirmatively discriminating against employees or contractors of the federal government with respect to the provision of state services or state contracting opportunities.
In a similar vein, although California Chief Justice Cantil-Sakauye was well within her rights (and acting well within the tradition of the political safeguards of federalism) to complain about what she saw as federal overreaching when federal officials went to state courthouses to apprehend undocumented persons, if state court marshals were to interfere with or block federal officials in public areas in and around state courthouse facilities, such impediments would not be protected and, indeed, would conflict with the Constitution’s command that federal law (and enforcement of permissible federal enactments) be supreme and respected by all state officials.
Finally, we should keep our eye on whether the justices of the Supreme Court seem to apply their federalism visions neutrally, without regard to the particular president or policies in question. For example, if Printz and New York insulate states from having to actively participate in liberal policies such as gun control and environmental regulation, they ought—unless there is some “immigration exception”—to spare states from having to participate in immigration detention. (Relatedly, it will be interesting to see if the liberal dissenters in Printz and New York, who often refuse to accede to precedents they see as wrong-headed, will now embrace the anticommandeering rule.) The same is true of Bush v. Gore and state latitude over presidential ballots. In short, we need apply the same principles when the feds seek (whether wisely or not) to build walls as when they seek to tear walls down, say, by ending racial segregation or facilitating marriage equality.
* Dean and Iwan Foundation Professor of Law, University of Illinois College of Law.
1 512 U.S. 898 (1997).
2 8 U.S.C. § 1373 (2012).
3 505 U.S. 144 (1992).
4 132 S.Ct. 2566 (2012).
5 531 U.S. 98 (2000).
6 545 U.S. 1 (2005).