Once such an agreement is reached, the Feds may not unilaterally make
material changes in the terms, nor may they use their superior
bargaining position to extort a State into acceding to onerous new
terms in order to get the Federal money on which it has come to depend. Whether a particular case involves such an extortion, as opposed to a
permissible nudge, depends on the facts. If the Feds are too heavy-
handed, they run the risk of violating the 10th Amendment's
Federalist division of powers.
``Who knew Federal judges in ur-statist San Francisco had become such
Federalists?
``Orrick contends that if Trump were to cut off funds from sanctuary
cities for failure to assist Federal immigration-enforcing officials,
it would offend the 10th Amendment. This is highly unlikely. First,
let's remember--though Orrick studiously forgets--that Trump's order
endorses only such stripping of funds as Congress has already approved. Thus, sanctuary jurisdictions would be ill-suited to claim that they'd
been sandbagged. Second, the money likely to be at issue would surely
be nothing close to Medicaid funding. Finally, Trump would not be
unilaterally rewriting an existing Federal-State contract; he'd be
calling for the States to follow Federal laws that, A, were on the
books when the States started taking Federal money and, B, pertain to
immigration, a legal realm in which the courts have held the Federal
Government is supreme and the States subordinate.
``Still, all that said, whether any Trump-administration effort to
cut off funding would run afoul of the 10th Amendment would depend on
such considerations as how much funding was actually cut; whether
Congress had authorized the cut in designing the funding program;
whether the funding was tightly related or unrelated to immigration
enforcement; and how big a burden it would be for States to comply with
Federal demands. Those matters will be impossible to evaluate unless
and until the administration actually directs a slashing of funds to a
sanctuary jurisdiction.
``If that happens, there will almost certainly be no legal infirmity
as long as Trump's E.O. means what it says--namely, that any funding
cuts must be consistent with existing Federal law. But it hasn't
happened.''
And for our poor, miseducated Judge Orrick sitting on the bench with
his head crammed full of mush, but none of it entangled with the U.S.
Keywords matched
immigration sanctuary
cities