WASHINGTON (June 18, 2020) – The U.S. Supreme Court left the anti-commandeering doctrine untouched last week.

The High Court refused to hear an appeal by the Trump administration seeking to overturn a lower court opinion that allowed California’s immigration “sanctuary state” policies to stand.

Under the longstanding legal principle known as the anti-commandeering doctrine, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842.

This legal doctrine has thwarted the Trump administration’s attempts to stop immigration sanctuary jurisdictions. Federal courts have pretty consistently ruled against the administration when it has attempted to force state or local governments to help enforce federal immigration law.

The Trump administration sued California seeking to overturn three state sanctuary laws summarized by Ilya Somin writing for the Volokh Conspiracy.

Senate Bill 54, which restricts state and local officials from sharing information about immigrants within the state, with federal agencies; Assembly Bill 103, which requires the state attorney general to inspect any facility in the state where immigrants are detained by federal agents while awaiting immigration court dates or deportation; and Assembly Bill 450, which forbids private employers from cooperation with federal Immigration and Customs Enforcement raids and audits unless such cooperation is mandated by a court order or a specific federal law, and requires employers to give notice to employees of any federal immigration-related inspections of employment records.

The Ninth Circuit of the U.S. Court of Appeals held that SB54 does not directly conflict with any federal law and also reaffirmed the anti-commandeering doctrine.

The United States’ primary argument against SB 54 is that it forces federal authorities to expend greater resources to enforce immigration laws, but that would be the case regardless of SB 54, since California would still retain the ability to “decline to administer the federal program.” New York [v. United States], 505 U.S. at 177. As the Supreme Court recently rearticulated in Murphy, under the anticommandeering rule, “Congress cannot issue direct orders to state legislatures…”

SB 54 may well frustrate the federal government’s immigration enforcement efforts. However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts. The United States stresses that… Congress expected cooperation between states and federal immigration authorities…. But when questions of federalism are involved, we must distinguish between expectations and requirements. In this context, the federal government was free to expect as much as it wanted, but it could not require California’s cooperation without running afoul of the Tenth Amendment.

The Ninth Circuit also broadly affirmed the other two California laws.

By letting the appellate court opinion stand, the Supreme Court passed on an opportunity to shrink the scope of the anti-commandeering doctrine.

Somin called it “yet another setback for Trump, one in a long series of defeats for their efforts to try to pressure sanctuary jurisdictions into assisting the federal government’s efforts to ramp up deportation of undocumented immigrants.”

Regardless of your view on immigration policy, the SCOTUS taking a pass on an opportunity to tear apart the anti-commandeering doctrine is an important win for broader constitutional principles.

The anti-commandeering doctrine offers the states the only legal avenue to push back against federal overreach. It opens the door for states fo follow the blueprint James Madison gave us in Federalist #46 to deal with “unwarrantable” federal actions or even warrantable actions that happen to be unpopular. Madison advised a “refusal to cooperate with officers of the union.” Because the federal government depends on state and local cooperation for almost everything it does, the strategy is a powerful tool to block federal actions. The Trump administration wouldn’t so aggressively oppose sanctuary jurisdictions if they didn’t work.

We can apply the anti-commandeering strategy to any federal action – from enforcement of federal gun control, to opposing marijuana prohibition, to blocking the implementation of federal healthcare systems.

Some short-sighted conservatives want the courts to overturn the anti-commandeering doctrine because they support Trump’s immigration policy. This is short-sighted and cuts off your nose to spite your face. The anti-commandeering doctrine is one of our most powerful tools for liberty. It’s good news that the SCOTUS has kept its hands off – for now.


Mike Maharrey

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