Opinion: What will resisting Donald Trump cost California?
Good morning. I’m Paul Thornton, The Times’ letters editor, and it is Saturday, Dec. 10, 2016. If you read only one tweet about President-elect Donald Trump’s transition, let it be this one: “If there were a Secretary of Mouse Welfare, Trump would appoint a cat.”
Let’s take a look back at the week in Opinion.
So-called sanctuary cities, those that refuse to use municipal resources to help the federal government deport immigrants, are scrambling to prepare for the start in six weeks of life under a president who promised to deport millions of people in the country illegally. Their worry: that the Trump administration might deny funding to cities that frustrate attempts by federal agents to enforce immigration law.
Some scholars and activists protest that such a punishment would be mean-spirited and possibly even unconstitutional. Not so, say constitutional lawyers David Rivkin and Elizabeth Price Foley in a Times op-ed article — courts would almost certainly allow Trump to financially punish cities in this way. They write:
Feldman and others point to New York v. United States (1992) and Printz v. United States (1997), in which the Supreme Court concluded that the federal government cannot conscript state or local officials to carry out federal law. The federal government must enforce its own laws, using federal personnel. So when state or local police arrest immigrants who are present in the country illegally, they are under no obligation to deport them, as deportation is the responsibility of the federal government alone.
This “anti-commandeering” doctrine, however, doesn’t protect sanctuary cities or public universities — because it doesn’t apply when Congress merely requests information. For example, in Reno v. Condon (2000), the court unanimously rejected an anti-commandeering challenge to the Driver’s Privacy Protection Act, which required states under certain circumstances to disclose some personal details about license holders. The court concluded that, because the DPPA requested information and “did not require state officials to assist in the enforcement of federal statutes,” it was consistent with the New York and Printz cases.
It follows that, consistent with the anti-commandeering doctrine, Congress can require state, local or university police to tell federal agents when they arrest an immigrant present in the country illegally. …
Whatever one’s view of the best immigration policy, it should be uniform. Some, including the Washington Post’s editorial board, have suggested that Congress should give sanctuary cities flexibility to report only those who’ve committed the most serious violent offenses. But precisely which criminals should be subject to deportation requires resolution by Congress, not each city or university.
Sanctuary policies create Balkanization on an issue with important foreign policy implications and corresponding potential for diplomatic embarrassment. As the Supreme Court affirmed in Arizona v. United States (2012), “the removal process is entrusted to the discretion of the Federal Government” because it “touch[es] on foreign relations and must be made with one voice.”
The Constitution is clear that power to determine deportation policies belongs to Congress, not states, municipalities or universities.
Can Trump cut off funds for sanctuary cities? The Constitution says yes.
Several cities and public universities have vowed to resist President-elect Donald Trump’s plan to deport undocumented criminals by doubling down on sanctuary policies. In response, Trump has pledged to curtail federal funding for sanctuary providers. Activists, predictably, are crying foul, and some legal scholars, such as Harvard’s Noah Feldman, have even claimed that such a response would be unconstitutional.
But whatever one thinks about Trump’s strategy, it almost certainly would pass muster at the Supreme Court.
Feldman and others point to New York v. United States (1992) and Printz v. United States (1997), in which the Supreme Court concluded that the federal government cannot conscript state or local officials to carry out federal law. The federal government must enforce its own laws, using federal personnel. So when state or local police arrest immigrants who are present in the country illegally, they are under no obligation to deport them, as deportation is the responsibility of the federal government alone.
This “anti-commandeering” doctrine, however, doesn’t protect sanctuary cities or public universities — because it doesn’t apply when Congress merely requests information. For example, in Reno v. Condon (2000), the Court unanimously rejected an anti-commandeering challenge to the Driver’s Privacy Protection Act, which required states under certain circumstances to disclose some personal details about license holders. The court concluded that, because the DPPA requested information and “did not require state officials to assist in the enforcement of federal statutes,” it was consistent with the New York and Printz cases.
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http://www.latimes.com/opinion/op-ed/la-oe-rivkin-foley-sanctuary-city-20161207-story.html
Edited by
Sojourning_Soul
on Sat 12/10/16 04:54 PM