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‚ÄčIs AG Sessions De-funding of Sanctuary Cities - Is Anti-Commandeering a Thing?

US District Court Judge Michael Baylson has ruled that AG Sessions may not impose conditions on so-called sanctuary cities and any funds they might receive from the federal government in the form of grants, for example. If Philadelphia wishes to not cooperate with ICE officials when releasing illegal immigrants back into the community (often illegals who have engaged in criminal activity beyond their breaking of immigration law), then the federal government can only act through Congress, which has the power to attach conditions to spending, according to Judge Baylson’s ruling. The particular spending in this case being the Edward Byrne Memorial Justice Assistance Grant which is a pot of money for local law enforcement in Philadelphia - around $1.6 million.

But the big, juicy reason behind Judge Baylson's ruling seems to be what is called the anti-commandeering doctrine. Here's what Mark Joseph Stern writes in Slate:

Fourth, and most importantly, Baylson ruled that Sessions had run afoul of the 10th Amendment's bar on federal "commandeering" of the states. The Supreme Court recently reaffirmed this rule in Murphy v NCAA a 7-2 decision striking down the federal ban on sports betting. In Murphy, Justice Samuel Alito explained that the Constitution prohibits the federal government from compelling state officials to implement federal policy. Thus, Congress may not forbid states from legalizing sports gambling. The cardinal rule, Alito noted, is that while the federal government may regulate private actors--individuals, businesses, and the like--it may not regulate states themselves or, by extension, state officials.

So, exactly where in the 10th amendment is this anti-commandeering doctrine? It's a reasonable question to ask because Stern is right that Justice Alito seemed to suggest that not allowing states to overturn their anti-gambling laws is a clear case of the federal government commandeering or taking charge of what the 10th amendment supposedly prohibits them from doing. Here's the 10th amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Here's a few lines from an article in the SCOTUS blog by Steven Schwinn, who quite strongly suggests that the anti-commandeering doctrine is a very recent thing and more than that, the creation of an activist judiciary:

The Supreme Court created the doctrine out of the 10th Amendment and related federalism principles in two cases, New York v United States in 1992, and Printz v United States in 1997. But outside the court's rulings in those cases, the doctrine has no basis in constitutional law.

First, the doctrine has no basis in the text and structure of the Constitution. If anything, the text and structure point in the other direction. For example, the supremacy clause makes the Constitution and federal laws supreme over state constitutions and state laws; it also binds state judges to the Constitution and federal law. The oath clause requires state legislators and state executive officers to swear an oath to support the federal Constitution, but doesn't reciprocally require federal officers to swear an oath to support the states.

Other parts of the text specifically commandeer the states in various ways that cut to the heart of their independent sovereignty.

Schwinn then turns towards the source of the anti-commandeering doctrine, the 10th amendment itself, and weighs its significance within the structure of the constitution:

This is only a formula for federalism, a "truism" that simply cannot bear the weight of the anti-commandeering principle, especially given the broader text and federal-supremacy structure of the document.

It boils down to the difference between the federal government compelling individual behavior through its various laws and rules and regulations, and compelling states. The anti-commandeering doctrine allows the first but not the second. But Schwinn suggests that that is a false dichotomy and that the constitution deliberately allows both on the part of the federal government.

Is Schwinn right and SCOTUS - or at least Justice Alito - wrong? Because while the specifics of the immigration debate matter, the general principles behind them matter far more. Opinions on immigration will change as the culture in America changes, but the methods for solving disagreements between the different levels of government is something one hopes will stay a steadier course.

So it is fitting to ask: does the anti-commandeering doctrine exist in the constitution? For now, it certainly seems to. And that will mean greater and greater state power in the years ahead. And that will, and already does effectively, mean that immigration policy in America depends on which town, city, or state you live in. Like it or not.

Posted by AllardK at June 7, 2018 10:00 PM
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