President Trump in recent days unveiled his latest tactic to clamp down on sanctuary jurisdictions. Having failed in his earlier efforts, the President now seeks to withhold the next round of federal stimulus funding from sanctuary jurisdictions in order to strong-arm them into changing their policies. Congress should categorically reject this hostile move and, instead, once again reiterate what it has already made clear: The President cannot use federal funding as bait to compel sanctuary jurisdictions to change.

President Trump has long held sanctuary jurisdictions in his cross-hairs. He sees these jurisdictions, which restrict their officers from cooperating with federal immigration officers, as undermining his own immigration priorities. From the earliest days of his campaign and all throughout his presidency, President Trump has railed against sanctuary jurisdictions and sought to bring them in line with his brutal immigration policies.

But his efforts have been crude and patchy. He started just five days into his presidency, when he ordered executive agencies to withhold all federal funding from sanctuary jurisdictions. His own administration quickly saw that he overshot—that the President had no authority to do this, at least without Congress’s say-so. After all, Congress, and not the President, has the power of the purse under our Constitution. This includes the power to impose conditions on federal funds, like a condition to drop sanctuary policies in order to receive federal funding.

So the Attorney General narrowed the policy. The Attorney General informed sanctuary jurisdictions that if they failed to drop their sanctuary policies, they would lose funding under just one program, the Byrne JAG grant, designed to provide federal money for state and local law enforcement. In particular, the Attorney General told sanctuary jurisdictions that they must give notice to federal immigration officers when they planned to release an alien from their custody, and provide access to federal immigration officers to aliens within their prisons. In addition, the Attorney General required sanctuary jurisdictions to certify that they complied with a federal law that prohibited state and local jurisdictions from not cooperating with federal immigration officers.

But this approach had its own problems. The courts slapped these conditions, ruling that the Attorney General lacked statutory authority to impose them. The courts said that neither the Byrne JAG program nor the Attorney General’s more general authority to administer grants authorized the Attorney General to impose these conditions. Again: the Legislative Branch has the power of the purse, not the Executive Branch.

The Attorney General tried to wiggle around these rulings by imposing new conditions under different statutory authorities. But just last week, the United States Court of Appeals for the Seventh Circuit held again that the Attorney General lacked statutory authority—and more, that Congress repeatedly rejected efforts to include authority in legislation. The court saw right through the Attorney General’s improvised gambit and even compared the Administration’s ever-evolving approach to a game of whack-a-mole.

After over three years of failed policy, and having lost overwhelmingly in the courts, now the President seeks to enlist Congress in his petty and capricious attempts to clamp down on sanctuary jurisdictions. He does this by proposing to require jurisdictions to disavow sanctuary policies as a condition of receiving federal stimulus money. This approach has its own constitutional problems. For one, this would effectively compel sanctuary jurisdictions to tow the Trump Administration line on immigration policies, in direct violation of the Tenth Amendment and federalism principles. For another, stimulus funding has nothing to do with sanctuary policies, and linking them also violates the Tenth Amendment and federalism policies.

It’s time for Congress to put a stop to the President’s spit-balling policies and constitutional violations. Congress must tell the President, again, that he cannot use federal funding to compel sanctuary jurisdictions to change.

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Steven D. Schwinn is a Professor of Law at the University of Illinois Chicago John Marshall Law School. He teaches and writes on the U.S. Constitution and human rights. Professor Schwinn is co-editor of the Constitutional Law Prof Blog.

Suggested citation: Steve Schwinn, It’s Time to Stop President Trump’s Spit-balling Approach to Sanctuary Jurisdictions, JURIST – Academic Commentary, May 16, 2020, https://www.jurist.org/commentary/2020/05/steven-schwinn-trump-sanctuary-cities-stimulus-covid19/

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org