Coercing Sanctuary Cities Using Tax Dollars: The New Anti-Federalism

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The City of Chicago is asking a federal court to block implementation of a Department of Justice directive, which would place restrictions on it receiving federal tax money.

It’s easy to see why Chicago would fight for every dollar. It’s billions of dollars in debt and growing, primarily from a pension debt that Moody’s rates as the “worst in the nation” for large localities. As a percentage of operating revenues, pension debt from it’s five pension plans stands at over eight times their total revenues, and makes up nearly 2/3rds of the city’s outstanding debt. Both the city and the school’s credit ratings have been downgraded to junk status by at least one major ratings agency.

In order to keep some federal grants under new disbursement rules, Chicago can either comply with the rules, or attempt to find ways around them, possibly through the courts. What are the new conditions based on?

Chicago is a self-proclaimed sanctuary city at a time that immigration enforcement is a high priority for the federal executive branch.

“Sanctuary cities”– examples of federalism, local control, and nullification that conservatives claim to love, or are they an exception because they deal with immigration, arguably one of the few areas that the feds should be setting policy on? The answer is not universally agreed on by the right, and both sides have convincing arguments to make overall. However, many miss some key details in favor of their gut reaction.

There is no requirement for cities, localities, or states to actually enforce federal law nor to implement it, nor constitutionally can there be through actions or decrees of the federal government alone. The essence of the anti-commandeering doctrine stretches all the way back to 1842, when the Supreme Court ruled in Prigg v. Pennsylvania that the federal government couldn’t force State officials to enforce the Fugitive Slave Act if enforcement was made illegal by local law. Technically, federal enforcement agencies like ICE or the FBI could operate in Chicago to enforce federal law, but CPD cannot be forced to by the feds.

Instead of making non-enforcement of federal decree illegal outright, the federal government has tried another track…

Coercion.

The obvious example of this practice is the Department of Education’s entire modus operandi. They take money from the states, or at least individuals within the states, and then offer that money back with strings attached. Some of these strings include anything from testing requirements to curriculum, to which textbooks must be used, to class size or building requirements, to what words are used when discussing politically charged topics as well as what topics should be covered in the first place. To use an absurd example that seems less absurd over time… if a state teaches that 2+2=4, when the federal government says we should teach 2+2=5, the state isn’t breaking the law. However, they could lose federal funding, which is usually a huge chunk of their district’s school revenue. The Department doesn’t make the state’s actions illegal directly, it’s just using federal funds for coercion despite the technical legality of differing local action.

Shortly after the department of education’s creation in 1979, federal highway funds were used as leverage to compel states to have a unified drinking age of 21, rather than the few who kept theirs at 18 (or variations thereof). With the threat of losing money for roads, states like Wisconsin (of course) were forced to comply with the wishes of Congress if they didn’t want to take a financial hit.

Recently, there have been cases which such coercive tactics have been struck down by the courts. In 2012, for instance, the courts ruled that the federal government could not compel States to expand Medicaid by threatening to withhold funding for Medicaid programs currently in place. Punishing states for not adopting federal preferences despite the separation of powers was at issue, though this decision has not been expanded far past the one specific case considered- including to education, the drinking age, or the most recent attempts to clamp down on sanctuary cities.

The specific actions that the federal government is requesting from sanctuary cities are

1. Information sharing between local and federal agencies

2. Allowing federal immigration agencies access to local detention facilities

3. Providing the Department of Homeland Security at least 48 hours of advance notice before releasing anyone they know are wanted by the agency

Rahm Emanuel calls tying such dictates to Byrne grants (a form of federal money earmarked for local police departments) blackmail. “Chicago will not be blackmailed into changing our values, and we are and will remain a welcoming city.” His reasoning follows from the anti-commandeering doctrine discussed above.

However, these actions the DoJ is asking Chicago to comply with were probably chosen specifically because they highlighted examples of hindering a federal investigation by an agency like ICE, rather than compelling actual enforcement by local police. Or at very least, that could be argued. Withholding information or access to facilities could be painted by a skilled lawyer either way.

For Sessions’ part, he responded by saying “The city’s leaders cannot follow some laws and ignore others”, and if he’s talking about enforcement I’d like to say as AG he probably knows he’s wrong. However, this seems like the same track he’d likely support using against legal marijuana states if he could. He also made clear that when Emanuel accused him of blackmail, he wasn’t wrong, whether such blackmail is legal or not.

“This administration will not simply give away grant dollars to city governments that proudly violate the rule of law and protect criminal aliens at the expense of public safety, so it’s this simple: Comply with the law or forego taxpayer dollars.”

Gary Doan

Gary Doan

Obviously, he's a guy in front of a keyboard. He uses it to make money through the stock market for his career, but more importantly he uses it to tell other people on the internet how they're wrong, post dank memes, and stay in a constant state of research about economics, law, and history. He lives in a town called Salem in a geodesic dome with his lovely wife, lovely children, regrettable pets, and some random Sanders supporter that lives in his attic and drinks all his booze. He enjoys logic, snark, satire, tattoos, learning, and obviously writing and liberty (even of the viral variety).
Gary Doan
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