Note: this piece was originally published on Reason, and was written by Checks & Balances member Ilya Somin.
On Monday, Attorney General William Barr announced that the Trump administration is filing new lawsuits challenging sanctuary policies in New Jersey and King County, Washington (which includes the City of Seattle). For the most part, these lawsuits are based on some of the same flawed constitutional reasoning that has caused the administration to lose a long series of other cases against sanctuary cities and states. The administration’s position is premised on the idea that the federal government can force states and localities to assist in enforcing federal laws, even when the former would prefer not to do so. This runs directly into the Supreme Court’s anti-commandeering precedents holding that the Tenth Amendment forbids such federal coercion of states. If the federal government wants to enforce federal law against private parties, it must either use its own resources to do so, or secure the voluntary cooperation of the states.
The lawsuit against New Jersey targets a state policy limiting the range of information that state and local law enforcement agencies are permitted to provide to federal immigration enforcement officials. The administration argues that this violates various federal immigration laws that supposedly require states to turn over information about aliens potentially sought for deportation by federal authorities. Even if the laws in question do say that, that just means they themselves are themselves unconstitutional, because they commandeer state governments to help enforce federal law.
That is exactly what several federal courts have already concluded in previous sanctuary city cases in which the Trump administration tried to rely on 8 U.S.C. Section 1373, a controversial federal law mandating that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
Because of Section 1373’s indirect nature, the issue of its constitutionality was once a close call. But in the wake of the Supreme Court’s 2018 decision in Murphy v. NCAA, the issue became a fairly simple one, for reasons I summarized here. Since Murphy was decided, multiple lower courts have uniformly either ruled that Section 1373 is unconstitutional, or interpreted it very narrowly to avoid causing constitutional problems by interfering with state autonomy. I went over these cases in detail in my recent Texas Law Review article on Trump-era sanctuary city litigation. The same fate likely awaits the Trump administration’s attempt to force New Jersey to do its bidding in this case.