Nikolas Bowie  //  3/21/17  //  Commentary


The Alabama Constitution has been around for a long time; so long that it still contains this passage in section 256: “Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.” This section is obviously unconstitutional, and it’s shameful that voters haven’t taken it down yet. But no one can challenge it in court because it just as obviously won’t be enforced anytime soon.

Appreciating this odd situation—a law so unconstitutional it’s unenforceable, and so unenforceable it’s unchallengable—is crucial to understanding the Department of Justice’s recent defense of President Trump’s executive order on sanctuary cities. The Department makes no attempt to defend the constitutionality of the order. Instead, it all but admits that the order’s stated goal is so indefensible that there’s no threat the administration will ever reach it. On that basis, it argues that legal challenges against the order should be dismissed.  But courts evaluating the order should end the comparison with Alabama’s constitution there. They should strike this dead letter before the administration can later resurrect it.

To summarize the situation: Two months ago, President Trump issued an executive order directing the executive branch to ensure, “consistent with law,” that “sanctuary jurisdictions . . . are not eligible to receive Federal grants.” The order doesn’t define the term “sanctuary jurisdiction” but instead allows the Attorney General to do so.One part of the order implies that a sanctuary jurisdiction is any place that “hinders the enforcement of Federal law.” Another part suggests that it is any place that “willfully” violates a 1996 statute that prohibits local governments from restricting the ability of law enforcement to communicate with federal officials about a person’s immigration status.

Cities responded to the order immediately. The day after it was issued, Miami-Dade Mayor Carlos Gimenez ordered county jails to comply with requests by immigration officials to indefinitely detain inmates suspected of illegal immigration. Federal law doesn’t require cities to comply with those requests, but the mayor explained he wanted “to make sure we don’t put in jeopardy the millions of funds we get from the federal government.” Later that day, President Trump tweeted: “Miami-Dade Mayor drops sanctuary policy. Right decision. Strong!”

Within a few weeks, two California counties (Santa Clara and San Francisco) and two Massachusetts cities (Chelsea and Lawrence) sued the federal government. Each has “sanctuary city” policies that prohibit police officers from assisting in immigration-related investigations, asking residents about their immigration status, or detaining residents solely so federal officers can investigate their immigration status. The cities and counties argue there’s a credible threat that the Trump administration will label them sanctuary jurisdictions and withhold federal funds. And they contend that this will violate the Fifth Amendment (which prohibits vague laws); the Spending Clause (which prohibits laws that attach coercive conditions to federal grants); the Tenth Amendment (which prohibits laws that commandeer state officials); and the Vesting Clauses (which allow only Congress, not the president, to amend federal statutes).

As Dean Erwin Chemerinsky writes for this site, the cities’ arguments are strong. The order faithfully executes the laws only in the sense that it cuts them to pieces.

The Department of Justice doesn’t appear to disagree. In a recent response to Santa Clara’s lawsuit, it emphasizes that the order directs the executive branch to withhold federal funds only “to the extent consistent with law.” According to the Department, this disclaimer “incorporates, among other things, the law regarding grant conditions and procedures.” The Department leaves it to the reader to figure out that these “conditions and procedures” presumably include the Fifth Amendment, the Spending Clause, the Tenth Amendment, and the Vesting Clauses. It implies that this is why President Trump hasn’t defunded any sanctuary cities yet: he probably can’t.

In other words, the Department is saying that President Trump issued an idle threat. There’s no indication that he or anyone else will ever sit down and determine what it means to be a sanctuary jurisdiction, how to “ensure” that sanctuary jurisdictions don’t get federal funds, and, most difficult of all, how to do both “consistent with law.” It’s like section 256 of the Alabama Constitution—an embarrassment, sure, but not the job of a federal court to clean up.

To understand why a judge might agree with the Department, you first need to know a little bit about the type of cases federal courts resolve. Federal judges don’t like to issue advisory opinions; they like to fix real problems. So if you want a federal judge to stop someone from doing something, you first need to show that the other person is likely to harm you in a way the judge can fix. If you want the judge to stop the person immediately, you also have to show that waiting is likely to harm you in a way that can’t be fixed later. And to satisfy these two requirements in a situation like this, where you want a federal judge to stop someone from enforcing an unconstitutional law, the Supreme Court has held that you must show that there’s a “credible threat” that the law will be enforced.

The Court’s holding makes more sense with an example. Say you wanted to protest in a place that credibly threatened to fine all protestors. There’d be harm for a federal judge to fix: the harm of being deterred from speaking out or the harm of being punished for doing so. But if you wanted to protest in a place where there weren’t a credible threat of enforcement, then there’d be no harm and no reason for a judge to intervene.

Accordingly, the Department is arguing that President Trump’s incredible threat to withhold all federal funding from sanctuary cities is just that—not credible. If the threat is not credible then the cities aren’t being harmed, and if the cities aren’t being harmed then the courts should wipe their hands of these lawsuits while the president sits on his.

But it would be wrong and dangerous for federal courts to allow President Trump’s order to stand on the ground that, like section 256 of the Alabama Constitution, it’s a mean-spirited but harmless document. The order is part of President Trump’s promise to “cancel all federal funding to sanctuary cities” within the first 100 days of his presidency. The governor of Alabama who promised “segregation forever,” by contrast, has been dead for two decades.

Cities and counties around the country have considered the order’s threats so credible that they’ve suspended existing sanctuary policies and declined to enact new ones. Nothing similar is happening in integrated school districts in Alabama.

And at this very moment, sanctuary cities and counties are preparing for dramatic budget shortfalls and debating whether to withhold grants from community groups that do everything from assisting victims of rape and domestic violence to providing housing and afterschool for low-income residents. It would be naïve to call this an overreaction to a non-existent threat.

As the president likes to repeat, he’s “delivering on campaign promises,” from the ban and the wall to repeal and replace. As he also likes to repeat, he’s not the type who holds back from bad policy just because some so-called constitutional provisions stand in the way. It would be absurd for federal courts to ignore President Trump’s threat against sanctuary cities on the (demonstrably) false premise that it’s ineffectual. The judges hearing these cases should respond to the Department of Justice with a threat of their own: “SEE YOU IN COURT.”


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