Portside

President-elect Donald Trump says he will make “sanctuary cities” help deport immigrants by taking away their federal funding if they don’t change their policies. The good news is that he and Congress can’t do it -- not without violating the Constitution.

Two core rules of federalism preclude Trump’s idea: The federal government can’t coerce states (or cities) into action with a financial “gun to the head,” according to Supreme Court precedent developed by Chief Justice John Roberts in the 2012 Affordable Care Act case. And federal officials can’t “commandeer” state officials to do their work for them under a 1997 decision that involved gun purchases under the Brady Act.

Behold the revenge of conservative federalism: Judge-made doctrines developed to protect states’ rights against progressive legislation can also be used to protect cities against Trump’s conservative policies. Ain’t constitutional law grand?

As you may recall, Roberts’s landmark opinion in NFIB v. Sebelius both upheld Obamacare and gutted it at the same time. Roberts voted to uphold the individual insurance mandate as a permissible use of Congress’s power to tax. But he simultaneously struck down the Medicaid extension except insofar as states might choose it voluntarily.

The ACA as written threatened states with eventual withdrawal of essentially all their Medicaid funding unless they agreed to the extension of the program to millions of new patients.

Roberts analyzed the issue by saying that, under the spending clause of the Constitution, Congress can’t create a funding condition that is unrelated to the original funding purpose and is so coercive that it amounts to a “gun to the head” of the states. Roberts’s 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.

Existing federal funding for cities isn’t connected to immigration. It’s less connected than existing Medicaid funding was to the ACA Medicaid extension. That funding, like Medicaid, is justified in the first place by Congress’s power to spend for the general welfare.

And pulling the funding would be just about as coercive as pulling Medicaid. New York City alone could lose $10.4 billion annually in federal money.

In the only case in which the Supreme Court allowed conditional funding, Congress threatened to take away 5 percent of highway money if states didn’t raise the drinking age to 21. Taking all federal funding from cities is certainly much closer to the ACA precedent than the highway one.

Nor does it matter that the ACA case involved states not cities. As a matter of federal constitutional law, cities are just instruments of states. Coercing cities amounts to coercing states, which would have to come up with money to help the cities.

The “gun to the head” doctrine alone would be enough to render Trump’s proposal unconstitutional. But there’s more.

Another federalism doctrine, known as the “anti-commandeering principle,” says that the federal government can’t require state officials to enforce federal law. Its leading formulation was written by the late Justice Antonin Scalia in the 1997 case of Printz v. U.S.

The Printz decision struck down provisions of the Brady Act that required state and local law enforcement officials to do background checks of firearm purchasers. Scalia reasoned that the federal system separates state officials from the executive chain of command that covers federal employees. And he concluded that the constitutional system of federalism bars Congress from pressing state officials into service to execute federal laws.

That’s exactly what Trump wants to make city officials do:  cooperate in the enforcement of federal law. The Constitution makes immigration law the purview of federal, not state government.

That means it would be illegal commandeering to require state officials to enforce federal law. Checking immigration status is no different from doing a gun background check.

It’s well worth noting that the gun-to-the-head doctrine and the anti-commandeering principle were both developed by conservative justices to thwart progressive results. But the beauty -- and the sting -- of constitutional law is that doctrines developed in one political setting can be deployed in another.

When Congress passes progressive laws like the ACA or the Brady Act, conservatives dissent using federalism arguments. Now, with a Republican Congress and president, it will be progressives’ turn to rely on states’ rights.

That isn’t hypocrisy -- it’s the natural progression of the law, which should apply neutrally, regardless of who’s in power. What’s good for the goose is good for the gander.

As I argued in a column I wrote at 3 a.m. after the election, it’s all about the Constitution now. The protection of sanctuary cities is an example of how the Constitution protects minority rights -- in this case the rights of cities that dissent on immigration policy.

Article 1, Section 8, Clause 4, gives Congress power to establish a “uniform rule of naturalization.”

Those cities are exercising what the legal scholar Heather Gerken has called “dissenting by deciding.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include "Cool War: The Future of Global Competition" and "Divided by God: America's Church-State Problem -- and What We Should Do About It."

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net