In what may well be a harbinger of the future, Miami-Dade, Florida, despite its large immigrant population, has given up its status as a sanctuary city.

This result, stemming from President Trump’s executive order stating that federal funds should be cut off to so-called sanctuary cities, was publicly predicted by public interest law professor John Banzhaf, who also noted that if a court is ever able to rule on the issue, it may be an unconstitutional violation of both states’ rights and Congress’ rights, but it is still likely to be quite effective in ending sanctuary status.

 

sanctuary city

sanctuary city

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In other evidence of a possible trend, the Governor of Texas and several legislators in Oregon and Ohio are pushing bills to ban sanctuary cities. Phoenix, the nation’s sixth largest city, overwhelmingly rejected a move to make it a sanctuary city; the mayor of Fresno just declared that his is not a sanctuary city; and Mobile refused a request to declare itself a sanctuary city.

If, as some fear, the order would threaten funding for cities which claim sanctuary status because they tell police not to question people about their immigration status, and don’t honor detainer requests to hold people in jail for immigration purposes, it may be unconstitutional on several grounds.

First, it arguably violates the long-standing principle that the federal government cannot, consistent with the Tenth Amendment, “commandeer” local officials to enforce federal law. This principle dates back at least to a 1842 Supreme Court decision striking down a requirement that states assist federal officials to capture runaway slaves.

It was also reinvigorated in a 2012 ruling that states could not be required to expand Medicaid programs under threat of a loss of federal funds – the same coercive method employed in Trump’s order, except there the threat was one mandated by Congress and signed into law, not a mere presidential order.

Second, the Court has said that conditions may not be imposed on federal grants unless they are “unambiguously” stated in the statute’s text “so that the States can knowingly decide whether or not to accept those funds.” Few if any existing grants have explicit conditions related to providing sanctuary.

Moreover, the conditions, if any, seemingly have to be passed by Congress.

Allowing a president to cut off funds based solely upon his own whim, without any congressional approval, could create a very dangerous precedent undercutting Congress’ authority (under separation of powers) as well as federalism (upholding state’s rights).

For example, it could permit a Democratic president to force states to do what a Republican dominated House and Senate might oppose, or visa versa.

Moreover, since the order provides for funds to be cut off only to “jurisdictions that willfully refuse to comply with 8 U.S.C. 1373,” it’s not clear it would even apply to most sanctuary cities.

That statute says simply 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, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

But since sanctuary cities usually simply have police not question people about their status, officials would have no citizenship or immigrant status information available to share which would be restricted. Even more clearly, 1373 has nothing to do with refusing to honor federal detainers.

Many experts commenting on the possible unconstitutionality or uncertainty about the applicability of the order fail to note that it may be difficult if not impossible for sanctuary cities to get a court to rule on these issues, especially in a timely manner, for a number of reasons.

The first is the administrative law principle known as ripeness, which says that courts should not address legal issues until they are ripe – sufficiently developed, with the facts clear enough, for a court to rule knowledgeably and authoritatively. This applies most strictly when constitutional issues are raised.

Here, since the very meaning of the order, its applicability to different so-called sanctuary activities, and how federal officials will interpret and seek to enforce it are all unclear, courts may well decide that the issues – especially those related to constitutionality – are just not yet ripe enough for adjudication.

A second administrative law doctrine, exhaustion of administrative remedies, provides that courts should not decide legal issues if plaintiffs have failed to exhaust whatever administrative remedies they may have before and within the agency itself.

For example, if the agency provides for hearings, these hearing should occur, and the agency at the highest level should then render a final decision, before a court decides important legal issues.

Here, each threatened sanctuary city almost certainly will be entitled to a hearing before funds are finally terminated, so cities may have to participate in such hearings before they can get relief from a court.

However, despite their claims now to the contrary, a sanctuary city might be unwilling to have this Sword of Damocles hanging over their heads while they go though a lengthy expensive hearing process, often with their very survival hanging in the balance, simply to protect people illegally in the country.

That means, suggests Banzhaf, that Trump’s order is likely to be very effective even if it is unconstitutional and/or vague.

Entities faced with possible financial devastation from funds being cut off are frequently not willing to take a risk, and often find that it is much easier to simply comply than to take a chance and fight.

Indeed, this effect is so well known that it goes by the name “regulation by raised eyebrow” – i.e., an agency often need do nothing more than suggest possible adverse consequences, and those subject to a possible sanction all too often comply immediately.

This was certainly true regarding any threat to broadcasting licenses.

When the Federal Communications Commission simply suggested that playing songs on the radio which “glorified” the use of illegal drugs was not consistent with the public interest, many stations changed their play list.

Although the agency’s action arguably infringed upon important First Amendment rights, it was upheld – with the court citing a case attorney Banzhaf won in the Court of Appeals (Banzhaf v. FCC).

In another case which Prof. Banzhaf orchestrated, several TV stations in the DC area scrambled to hire on-air reporters who were African American when the license of one station was threatened on this and other grounds – even though the activists’ legal challenge eventually failed.

Stations were simply not willing to risk the possible loss of their licenses, even though the odds that this would happen were small, and to have that risk hanging over their heads during years of litigation.

Certainly this has also proven to be true with regard to colleges which have spent hundreds of millions of dollars to set up programs to deal with rape, based solely upon mere suggestions by the Department of Education, with no more than an implied threat to their funding.

This falls far short of the explicit threat of loss of funding, coming directly from the president, in the sanctuary cities executive order.

In short, even if the executive order is in fact unconstitutional, no court may ever be able to make that ruling, and many cities will probably comply anyhow.