Donald Trump has enlisted the states to help him enforce his muscular anti-immigration policy by threatening to cut-off federal funds to non-participating states and localities. But Trump’s attempt to commandeer local law enforcement to help enforce his aggressive deportation agenda is patently unconstitutional. Just ask Antonin Scalia. . .
Under the 10th Amendment, states have every right to refuse to abide by federal mandates. This is the consensus of conservative justices passing on issues of federalism and the reach of the rarely relevant 10th Amendment. Indeed, Trump’s favorite Supreme Court justice, Antonin Scalia wrote the majority opinions in Printz v. United States (1997) and New York v. United States (1992) which confirmed the application of the 10th Amendment to rebuff federal overreach and secured the states’ right to refuse to help the federal government.
It is Scalia’s words that will render Trump’s threats empty.
There is no dispute that the federal government may condition the payment of grants to states to engender their cooperation on mutually beneficial efforts such as establishing a national highway speed limit in exchange for infrastructure spending; or federal spending on education in exchange for national educational standards for children.
But as the 10th Amendment has been interpreted, the conditions must be “unambiguous” and precisely stated in the laws that Congress passes. The grants must also be set forth in a manner in which the States can individually decide whether or not to accept them. Ambiguity in the law favors the presumption that the states are not obligated to meet the condition.
And to the great consternation of those who opposed Obamacare with such vitriol, the Supreme Court’s split-decision striking down the Obamacare Medicaid expansion will also serve to cut Trump off at the knees. The ruling in the case of NFIB v. Sebelius (2012) forbade conditional grants which are excessively coercive against the state or local government.
Whereas Trump has made a blanket threat to cut-off all (indiscriminate) federal funding to states and localities who serve as sanctuary cities, there can be no doubt that his threat is not only ambiguous but also excessively coercive.
Clearly, commandeering a state’s law enforcement personnel to have them enforce federal immigration law is forbidden. The seldom relied upon 10th Amendment is the precise reason why Trump’s effort to force the states to comply with his deportation policies will fail. You can thank state’s right conservative jurists and Obamacare nay-sayers for this easy win.