WASHINGTON (July 27, 2015) – On Thursday, the U.S. House passed a bill that would crack down on so-called “sanctuary cities.” This Republican push advances a preferred policy of conservatives, but obliterates state sovereignty and clearly violates the well-established anti-commandeering doctrine.

Many American cities refuse to help the federal government carry out enforcement of some federal immigration policies. In general, these “sanctuary cities” merely decline some requests from ICE to detain people beyond the time they were originally supposed to be held.

California established this as state-wide policy with implementation of the Trust Act in January 2014. The state law, known as the TRUST Act, limits the state’s cooperation with Secure Communities, a federal program that allows the Department of Homeland Security to access fingerprints taken by local police, to screen detained individuals for immigration status and to request that law enforcement agencies hold them if they’re found to be undocumented.

Such policies don’t block federal immigration enforcement. They merely deny the use of local facilities, personnel or resources to the feds in some situations.


But while they do not directly interfere with federal action, they do expose a serious flaw and Achilles heel in overall federal policy. Because the feds engage in so many unconstitutional and unauthorized activities, they lack the manpower and resources to carry out their most basic legitimate responsibilities. As a result, the federal government depends on local law enforcement to do its job for it. This siphons valuable manpower and resources away from local police departments’ crime fighting responsibilities.

Instead of cutting funding for unconstitutional federal education programs or the EPA and redirecting the money towards legitimate federal functions such as immigration enforcement, Republicans seek to maintain the status quo, and they seem to be trying to make things worse.

Conservatives insist cities and states must take part in federal immigration enforcement and have aggressively pushed Congress to pass legislation to force their cooperation. On Thursday, the House passed a Republican-backed bill along party lines (241-179) that would do just that. According to an Associated Press report, the proposed law would punish cities that refuse to work with ICE.

The House bill, by Rep. Duncan Hunter, R-Calif., would punish jurisdictions that prohibit the collection of immigration information or don’t cooperate with federal requests, by blocking them from receiving certain law enforcement grants and funding.

The first section of the bill cuts off federal funding for immigration enforcement to sanctuary cities. Congress can legitimately do this, since these cities are not engaging in immigration enforcement. But the second section cuts off more general funding for law enforcement agencies, including the COPS program for hiring community policing officers and other types pf policing block grants. The feds can’t do this. It would be like the power company cutting of my electricity because I didn’t pay my water bill.

Conservative interest groups continue to lobby hard for passage of this bill. An email blast from Tea Party Patriots Thursday proclaimed, “Conservatives in Congress want to cut off all federal money for these lawless liberal cities,” and urged the reader to sign their petition. “This is our chance to ram legislation through Congress that will cut off federal funds to left-wing sanctuary cities like San Francisco…”

This provides a prime example of conservatives abandoning the constitutional principle of state sovereignty when it doesn’t advance their policies. In fact, the bill that passed the House Thursday violates the well-established anti-commandeering doctrine. Based on the Tenth Amendment and affirmed by four major Supreme Court cases dating back to 1842, the anti-commandeering doctrine prohibits the federal government from forcing states to provide state resources or personnel for enforcement of federal acts.

It was the anti-commandeering doctrine that protected states from coercive threats of funding cuts to “encourage” expansion of Medicaid under Obamacare. In Independent Business v. Sebelius (2012), the Court held that the federal government cannot compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Roberts argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.

That system “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ ” Bond, 564 U. S., at ___ (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.

Conservatives cheered this ruling, but now want Congress to use the very same coercive funding threats to force cooperation with federal immigration enforcement. What exactly is the difference, other than conservatives like immigration laws and hate Obamacare?

Some will undoubtedly argue that states have to cooperate with immigration enforcement because it is a legitimate role of the federal government, but Obamacare isn’t. But the anti-commandeering doctrine was never based on constitutionality. The feds cannot force states to cooperate with perfectly legitimate federal functions any more than unconstitutional acts. Ultimately, federal agencies must enforce federal policies on their own. States can help if they wish, but the Constitution does not place any obligation upon them to do so.

This follows the blueprint provided by The Father of the Constitution. In Federalist #46, James Madison wrote that “refusal to cooperate with officers of the union,” is a “means of opposition” to stop federal actions. Madison called for non-cooperation to oppose “unwarrantable” acts. But he also said it could be applied to stop “warrantable” measures that just happen to be unpopular.

Most federal funding is unconstitutional to begin with, and states and local governments would do well to learn to live without it. Nevertheless, the feds can’t use federal funds as a billy club to force states to do their bidding. Conservatives should be careful what they wish for. By trying to force state cooperation with immigration laws, they open the door for the federal government to force states to cooperate with implementation and enforcement of Obamacare, federal gun control laws and a host of other polices they count on states to oppose.

Sadly, it seems many conservatives want to cry “states’ rights” when it suits them, but suspend state sovereignty when it gets in the way of their preferred policy preferences. They’d better be careful. You can’t restrain power with half-measures.

Mike Maharrey