Category: Legal Profession

The Perplexing “Sanctuary City” Nationwide Injunction

Last week, I spoke at the Santa Clara Law Review symposium, and addressed the constitutionality of 8 U.S.C. 1373. My tentative conclusion is that the facial constitutionality of this statute is a close call, but to invalidate it, the courts would have to find that the direction of a state’s workforce is not “proper”–a proposition that goes beyond the Court’s holding in Printz or NFIB. However, I was hesitant to discuss an as-applied challenge, because we did not know the specifics of (1) what sorts of funds would be withheld, (2) how much the funds would amount to, and (3) what sort of notice the states had. Moments before I gave my speech, via Charlie Savage, I tweeted about a series of letters mailed by DOJ to various sanctuary cities, listing the specific sorts of funds that they may be at risk of losing. Specifically, the FY 2016 Byrne JAG grant required recipients to stipulate that they were in compliance with 8 U.S.C. 1373. The amounts at issue were strikingly small ($4 million for New York City, and $20 million for the entire state of California). The letter did not even withhold the funds right away. Rather, the letter stated “Failure to comply with this condition could result in the withholding of grant funds, suspension or termination of the grant, ineligibility for future O.J.P. grants or subgrants, or other action, as appropriate.” It was quite open-ended.

With this background, yesterday’s nationwide injunction concerning “sanctuary cities” (a term with no actual meaning) is perplexing. First, it finds that the President’s January 25 executive order is unconstitutional, but remarked that the Justice Department could still withhold funds where the law permits it to.

[T]his injunction does nothing more than implement the effect of the Government’s flawed interpretation of the Order. It does not affect the ability of the Attorney General or the Secretary to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it impact the Secretary’s ability to develop regulations or other guidance defining what a sanctuary jurisdiction is or designating a jurisdiction as such. It does prohibit the Government from exercising Section 9(a) in a way that violates the Constitution.

In other word, DOJ can do exactly what it said it would do in the letters linked above. So what’s the point of the nationwide injunction? (See Howard Wasserman’s post about whether a nationwide, or really universal, injunction was even appropriate here). This opinion mostly serves as a symbolic victory, with little actual teeth.

Second, the crux of the opinion is that because the executive order was not specific as to what funds would be withheld, the vague order violates due process. That would have been enough to enter the injunction. Instead, the court unnecessarily reached other important constitutional questions, finding potential violations of the spending clause and commandeering doctrine. (As an aside, the commandeering doctrine is an application of the necessary and proper clause, not the 10th Amendment standing by itself, as the court erroneously stated on p. 41). These are very difficult questions, and it was improper (no pun intended) for the Court to prematurely address these questions.

Third, the court continued the recent practice of citing statement made by the President, and now Attorney General, to contradict representations made in court by the Justice Department. At bottom, the court believes the executive branch is attempting to mislead the court. This distrust is part and parcel of the resistance by the judiciary.

I’m reminded of an exchange in NFIB v. Sebelius between Justice Scalia and Solicitor General Verrilli, as I recount in Unprecedented:

Justice Scalia was not persuaded that the penalty was a tax for any purposes. On the next day, he asked Verrilli directly, “The president said it wasn’t a tax, didn’t he? . . . Is it a tax or not a tax? The president didn’t think it was.” Verrilli, no doubt frustrated by this question, evaded it with some Washington-spin: the president, Verrilli noted, had said that the penalty “wasn’t a tax increase,” but he didn’t say it wasn’t a tax.

In another time, when the President misled the American people about his signature achievement, courts were praised for ignoring his actual words, and were celebrated for bending over backwards to rewrite statutes in order to save their constitutionality. Today, courts, as part of the resistance, go out of their way to reach difficult constitutional questions of first impression, give executive orders the most uncharitable construction possible, and take fairly opaque statements by the executive branch to contradict official representations by the Justice Department. My how things change.

Had President Trump not issued his sanctuary city order back on January 25, and merely sent out these letters, there would be no nationwide injunction. Here, the Justice Department, which administers the grants, is well within its authority to require compliance with the terms these cities and states already consent to. I see a parallel to his travel bans. Had President Trump quietly instructed his State Department officials to quietly put on hold any visa application from these countries, and to suspend specific visas of individuals from these nations, without the dramatic flare of an executive order, there would not have been a nationwide injunction.

This early bravado has, in no small part, led to defeat after defeat in court.

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Guest on Houston Matters to Discuss Power and the Presidency

There are a few plus sides to current political dynamics. After eight years of screaming at the top of my lungs about the separation of powers, at long last, people are now taking the concept seriously. National Public Radio announced a coast-to-cast program focusing on power and the presidency. On Monday, I was a guest on Houston Public Radio to discuss the constraints imposed by the separation of powers on executive authority. The host and other guest wanted to talk about Roosevelt and Nixon. I preferred to talk about how President Obama’s precedents pave the way for President Trump.

Our segment runs the first 25 minutes or so:

Enjoy.

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Audio: Free Speech on College Campuses at UMass Law Federalist Society Chapter

A few months ago, the UMass Law Federalist Society Chapter invited me to speak about free speech on college campuses. As a reflection of a disturbing trend, the talk itself became a lesson itself on the First Amendment. The organization posted flyers around the school advertising the event. Below the flyer, to drive home the point, the students wrote “Free Speech Space.” Some students took them up on the offer, writing messages about immigration, the war in Syria, the environment, sexual assault, and a host of other controversial topics.

Other students were offended by these messages, so they responded in the only way they knew how: by tearing down the poster and crumpling it up into a ball. The offenders are unknown, though I understand the administration is checking security cameras to see who did it. (It’s remarkable how often such incidents are caught on omnipresent surveillance, yet how seldom any actual punishments are meted out). I also understand that members of the faculty supported the effort to take down the flyers because of the “offensive” messages scribbled on them.

When I arrived on campus, I was pleased to see new flyers were still posted, though without an included “free speech space.”

In light of this backdrop, and my recent concerns, I held back nothing, and gave a full-throated defense of free speech. At the moment my calendar is open for the fall semester, and I’d be happy to visit your campus.

Here is the audio:

 

 

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Media Hits and Events (4/16/17 – 4/24/17)

Events

 

 

Media

Josh Blackman, a professor at the South Texas College of Law in Houston, said it remains to be seen how many states would actually take the risk of seeking a waiver. He said a better structure might be to repeal the Affordable Care Act regulations and force states to opt in if they want to keep them.

“What state will actually do this? What we don’t know is what states will have to demonstrate” in order to get the waiver, he said. “Governors are not going to risk this because if it doesn’t work, it’s on them.” . . .

Despite uncertainties, however, any movement represents progress after health reform appeared dead.

“At a minimum, things are moving. I don’t think anyone would have predicted that a few weeks ago,” said Blackman, author of “Unraveled: Obamacare, Religious Liberty, and Executive Power.”

Josh Blackman, an associate professor at the South Texas College of Law in Houston, told The Daily Caller News Foundation that such a law is definitely unconstitutional, comparing it to a famous court case.

“In Brown v. Entertainment Merchants Association, the Supreme Court held that California could not prohibit the sale of violent video games to minors. That law was overbroad, and violated the freedom of speech,” Blackman told The Daily Caller News Foundation (TheDCNF).

The proposed law in question here “is even more overbroad, and by default, censors the sort of information adults can access unless they pay a fine. Even though the government does have the power to regulate “obscene” content–which is different from pornography — imposing a filter would sweep in a lot of constitutionally protected speech,” Blackman continued.

 

  • Quoted on KRLD Radio 1080 AM Dallas, concerning the Affordable Care Act (April 18, 2017) (Audio).

Josh Blackman, a constitutional law professor at the South Texas College of Law, said that if Mr. Trump truly wants leverage, then he should cancel an Obama-era rule that lets members of Congress and their staff keep their federal health care subsidies, even though they are mandated by law to use Obamacare’s exchanges.

Regular Americans who buy plans through the exchanges are restricted from having employers contribute to their premiums, so critics of the carve-out say it offered special treatment to Capitol Hill insiders.

“If the cost-sharing subsidies are cut, the American people as a whole will feel it,” Mr. Blackman said. “If the congressional subsidies are cut, the American people won’t feel it. In fact, Americans may be upset that members of Congress are begin given special treatment. I think this issue plays well in the public arena.”

 

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Free Speech: Here Today, Gone Tomorrow?

Floyd Abrams recently opined that “one of the most remarkable developments of the last 20 years” has been the fact that both liberals and conservative Justices now view “the First Amendment in an expansive and generally highly protective way.” These precedents, however, are not etched in stone. In an insightful, yet harrowing post, Mike Dorf describes how easy it would be for a differently-constituted Supreme Court to bring the United States in line with foreign nations concerning prohibitions of “hate speech.” Dorf writes:

A movement to treat hate speech as beyond the pale–perhaps as part of a backlash against Trumpism–could, given enough time, result in political changes and transformative judicial appointments. A SCOTUS majority might then announce that when it comes to hate speech, the U.S. is not an exception to the rest of the democratic world after all. At that point, Howard Dean would seem less like a constitutional ignoramus and more like a prophet.

Dorf, who stresses that he does not “prefer the European/Canadian approach to hate speech to the American approach,” sees where the trend line is going.

Don’t believe it? Look no further than the New York Times editorial page, where Professor Ulrich Baer of NYU defends the “snowflakes” on free speech:

As a scholar of literature, history and politics, I am especially attuned to the next generation’s demands to revise existing definitions of free speech to accommodate previously delegitimized experiences. Freedom of expression is not an unchanging absolute. When its proponents forget that it requires the vigilant and continuing examination of its parameters, and instead invoke a pure model of free speech that has never existed, the dangers to our democracy are clear and present.

For a preview of what our polity would look like with people like Baer in charge as speech police, consider the recent  witch hunt in South Africa. A pseudonymic blogger for the Huffington Post wrote an idiotic entry, arguing that white people should lose the franchise. It was meant as satire, or something like that. This is the sort of inane content that no one would actually bother reading–until several readers filed complaints with the Press Ombudsman of South Africa. This ominous-sounding office found that HuffPo was guilty of a “tier-3 breach (serious misconduct) of the South African Code of Ethics and Conduct.” The sanction?

The Huffington Post is directed to apologise unreservedly to the general public for publishing text that:

  • was discriminatory and denigratory;
  • amounted to hate speech;
  • was malicious;
  • was against the public interest;
  • contained factual inaccuracies;
  • impaired the dignity and reputation of many people; and
  • blaming its system, instead of probing deeper into the racist and sexist nature of the blog.

(Remember: all those Justice Kennedy decisions promoting “dignity” go far beyond LGBT rights–this is the trump card by which European courts subjugate free speech.).

Consider the Ombudsman’s “Free Speech” analysis:

The Bill of Rights, which is quoted in the Preamble to the SA Code of Ethics and Conduct, makes provision for freedom of expression. That is a given.

The same Bill of Rights, though, also outlines borders to this freedom. As always, freedom cannot be unbridled and without limits, and should be exercised responsibly.

Indeed, that is what the Code of Ethics and Conduct is all about – to ensure that the freedom that this country has finally obtained, is protected by not abusing it. Each and every section of the Code has this aim as its main purpose.

This is also the main reason for the existence of the Press Council, and for the operations of its office.

My task, therefore, is to ascertain whether the content of the blog crossed the borders (set by the media industry itself), or not. On the other hand, while this office should ensure that the media stay within these borders, it should also be careful not to unnecessarily curb freedom of expression.

Free speech is “protected by not abusing it.” This doublespeak passes for blackletter law in foreign nations. How easy would it be to import this into our First Amendment doctrine, as Dorf suggests.

The Ombudsman further found that Pillay, the HuffPo editor in chief, was responsible for ensuring that content published on the blog “does not breach the code.”

He said her defences of the blog left the reader with the impression that she supports the gist of Garland’s argument. She further reinforced this idea by justifying the blog’s removal from the site on the basis of the writer’s identity, not the blog’s content.

“Let me be painfully clear about this: If it is Pillay’s belief that the gist of Garland’s article is correct, she is free to believe that and to pursue her view, but then she must know that this is not possible within the confines of the Code,” Retief says.

She is free to “believe” and “pursue” her views, but if she permits anyone to write about it, she will be punished.

As an aside, this sounds an awful lot like Justice Kennedy’s empty gesture towards religious liberty in Obergefell–you can “advotacate” and “teach” about your beliefs, until the Court tells you doing so is illegal:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advo- cate with utmost, sincere conviction that, by divine pre- cepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

Chief Justice Roberts’s dissent went unanswered:

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Make no mistake: there are elements of our society that would cheerfully throw certain bloggers and pundits in jail for their offensive and harmful words. A small segment, thankfully, but it is ascendant. (See my article Collective Liberty for a discussion of the demise of support for free speech among progressives).

How do we prevent this? I’ll return to Dorf’s post. He explained:

American lawyers who went to law school in the last sixty years–which is to say just about all current American lawyers–were educated to believe that protection for the thought we hate is the central principle of the First Amendment and that hate speech regulation is inimical to such protection. One might even say we were indoctrinated in this belief. It is therefore understandable that we find it natural. Thus, ironically, an indoctrinated belief about free speech leads American lawyers to dismiss without even considering the idea that regulation of hate speech could be consistent with liberal democracy. Yet a culture of free speech is supposed to make us more, not less, open to ideas that we find unfamiliar.

I take exception with the notion that learning about free speech amounts to “indoctrination,” but his general point is sound. So long as the legal profession, and law students in particular, are taught the importance of protecting speech they hate, including hate speech, then the current status of the First Amendment is more-or-less secure. But if they are not taught this, and American law students begin to clamor for the stalinist policies of South Africa, our current First Amendment is in trouble.

This is why, in part, I speak to as many student groups as possible about the importance of free speech. Sure, I love teaching students about the Constitution, but there is a more important, selfish reason: I dread the day that I wind up guilty of a hate crime prosecution, or worse, forced to attend some sort of reeducation camp. (You may know it as compelled diversity training). I hope in 50 years I look back on this post and laugh about how foolish I was, and reaffirm that the free speech climate in America remains as strong as ever.  Will this happen? Anyone want to bet against it?

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Sanctuary Cities and the Constitutionality of 8 U.S.C. 1373

The current debate about so-called “sanctuary cities” (a term without any consistent meaning) centers around 8 U.S.C. s. 1373, which provides that a state “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.” The constitutionality of this provision implicates two doctrines: the spending clause and the commandeering principle.

With respect to the former issue, I’ve reserved judgment because there is a widespread uncertainty about how much funds would actually be withheld; what categories of funds would be withheld; and whether those funds are tied to purely discretionary grants, for which the clear statement rule has less bite. In January, I noted that New York City may be at risk of losing only $9 million in grants–a tiny fraction of the city’s $90 billion annual budget. More recently, in San Francisco v. Trump, the Justice Department explained that the federal government is still “in the process of identifying, in its discretion, what actions, if any, can lawfully be taken in order to encourage state and local jurisdictions to comply with federal law.” I suspect at some point, a notice will be placed in the federal register, stating the terms on which funding will be provided next year. This should address notice issues. No action has been taken to remove any sources of funding.  The question in the abstract is still premature, though the district court in the San Francisco case seemed ready to heap another nationwide injunction on the pile. Viva la resistance!

The second issue, concerning commandeering, however, is ripe for review: Can Congress, through section 1373, preempt a state law that prohibits local municipalities from voluntarily sharing information about immigrants with the federal government. The answer to this question is fairly involved, does not flow from a straightforward application of New YorkPrintz, or Reno v. Condon, and involves (of all things) a statute requiring states to report missing children.

Our inquiry begins with Printz. In Solicitor General Waxman’s brief, the government explained that if the Brady Handgun Violence Prevention Act was invalidated, other laws would be in jeopardy: “Today, as well, several federal statutes require participation by state and local officials in implementing federal regulatory schemes.” Of the seven statutes he list, six are run-of-the-mill conditional spending measures, involving educational or environmental grants. States were “required” to do something, but if they didn’t, the executive branch would hold back some money. Justice Scalia’s majority opinion in Printz dismissed the relevance of these six regimes, writing, “Some of these are connected to federal funding measures, and can perhaps be more accurately described as conditions upon the grant of federal funding than as mandates to the States.” But the first statute listed, 42 U.S.C. s. 5779(a), imposed a requirement on states to report missing children. It was not tied to the withholding of funds.

Before we get to section 5779, I’ll take a brief detour to 42 U.S.C. s. 5780. Though not cited in Printz, it is almost a mirror image of Section 1373. It provides (in part):

Each State reporting under the provisions of this section and section 5779 of this title shall—
(1) ensure that no law enforcement agency within the State establishes or maintains any policy that requires the observance of any waiting period before accepting a missing child or unidentified person report;
(2) ensure that no law enforcement agency within the State establishes or maintains any policy that requires the removal of a missing person entry from its State law enforcement system or the National Crime Information Center computer database based solely on the age of the person;
(3) provide that each such report and all necessary and available information, which, with respect to each missing child report, shall include…

Subparagraphs (1) and (2) prohibits states from enacting laws that would prevent the sharing of information in a timely fashion. This is on all fours with Section 1373. Subparagraph (3) provides that very specific pieces of information that must be shared. Whatever burden exists, this is not a minimal, ministerial one. If Section 1373 is unconstitutional, there is a strong argument that Section 5789 is unconstitutional.

In any event, in Printz, the government focused on 42 U.S.C. s. 5779(a), which provides:

Each Federal, State, and local law enforcement agency shall report each case of a missing child under the age of 21 reported to such agency to the National Crime Information Center of the Department of Justice.

This is not a conditional spending program. 42 U.S.C. s 4775, enacted in the same statute, allows the executive branch to give grants to “public agencies or nonprofit private organizations,” but there is not even the faintest hint in s 4776, let alone a clear statement, that state and local law enforcement agencies that fail to comply are at risk of losing funding. In his reply brief for petitioner in Printz, Steven Halbrook wrote that “Current federal laws provide that States shall report missing children . . . in exchange for use of the National Crime Information Center.”

That explanation did not fly at oral arguments, when Justice Breyer pinned Halbrook about the constitutionality of this provision.

Stephen G. Breyer: That’s just the question that I have, actually. I mean, if you track this through, I take it there’s a statute, for example, which says that States have to report missing children, right?

Stephen P. Halbrook: –A statute that’s based on highway funding, yes.

Stephen G. Breyer: It’s not… I just see they’re setting up a task force, and they say in the task force… what it says here is every Federal, State, and local law enforcement shall report each case of a missing child under age 18.

Stephen P. Halbrook: To the NCIC.

Stephen G. Breyer Yes, right. Period.

Stephen P. Halbrook: Yes, right.

Stephen G. Breyer: Not whether you take money, you don’t take money, so I take it you’re saying that’s unconstitutional, too.

Stephen P. Halbrook: Well, I interpret that as being based on NCIC.

Stephen G. Breyer: I don’t see anything here that says you have to do it only if you take money.

Stephen P. Halbrook: Your Honor, when you look at the other provisions establishing the NCIC–

Stephen G. Breyer: Then if it says you only have to do it if you take money, then I’m not right. It’s not a good example. There must be an example, maybe it’s this case, where Congress has the power under the Commerce Clause to say, report some things, right? But the issue is whether it’s necessary and proper.

Breyer was right–the statute had nothing to do with highway funds. Assuming he sticks with his Printz dissent–is it perpetual?–the federal government could compel states to disclose information. Though, as we shall see, that is not what Section 1373 does not require the state to share any information.

Justice O’Connor also asked about the Missing Child program in Printz. Halbrook again tried to characterize the program as “voluntary.”

Sandra Day O’Connor: Is that… excuse me. Now, the Government has… the SG has filed a brief citing any number of cases, instances through the years where Congress has required States or local officials to perform some duties, and you assert that in every case it was linked somehow to funding?

Stephen P. Halbrook: As far as we could determine, the statutes we looked at that were prominently cited by the Government… the one that you mentioned, the fatalities reporting, and then the reporting the missing children relates to the National Crime Information Center, which is a voluntary system of record reporting between the Federal Government and the States… and we haven’t found an instance where there was not some nexus with receipt of a grant or some other–

O’Connor didn’t push further during arguments–the Chief interjected after Halbrooks’s response–but she did dedicate half of her two-paragraph concurring opinion to this precise issue, noting that such a statute differs from the Brady Act. She wrote:

In addition, the Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid. See, e.g., 42 U.S.C. § 5779(a) (requiring state and local law enforcement agencies to report cases of missing children to the Department of Justice). The provisions invalidated here, however, which directly compel state officials to administer a federal regulatory program, utterly fail to adhere to the design and structure of our constitutional scheme

To this regime, Scalia’s majority opinion punted, partially:

[O]ther [statutes], which require only the provision of information to the Federal Government, do not involve the precise issue before us here, which is the forced participation of the States’ executive in the actual administration of a federal program. We of course do not address these or other currently operative enactments that are not before us; it will be time enough to do so if and when their validity is challenged in a proper case. For deciding the issue before us here, they are of little relevance. Even assuming they represent assertion of the very same congressional power challenged here, they are of such recent vintage that they are no more probative than the statute before us of a constitutional tradition that lends meaning to the text. Their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice.

The Missing Child law was enacted in 1990. Due to its “recent vintage,” such a practice would not be dispositive of the constitutionality of a federal law that mandates the sharing of information.

Printz was argued on 12/3/96, and decided on 6/27/97. Section 1373–the provision at issue in the sanctuary cases–was signed into law on August 22, 1996. Query if anyone was aware of what Printz would hold a year later when the immigration law was enacted.

In any event, eleven days after Section 1373 was signed into law, New York City sought to enjoin it. (Irony of ironies, Rudy Giulliani of all people was the Mayor at the time–how things change!). Less than a month after Printz was decided, on July 18, 1997, Judge Koeltl (SDNY) ruled against the City. His opinion recognized that the majority opinion in Printz, as well as Justice O’Connor’s concurring opinion, flagged the possible commandeering issues attending the missing-child statute. However, the court distinguished Section 1373 from the missing-child statute:

In this case, Section [1373 is] even less intrusive on state sovereignty than those mandatory reporting statutes whose validity the Supreme Court explicitly refrained from deciding. Sections 434 and 642 do not require any reporting by any state and local officials. They merely prevent state and local authorities from interfering with the voluntary provision of information. They do not contravene the teaching of Printz that Congress cannot conscript state officers to carry out a federal regulatory program.

Critically, nothing in Section 1373 actually requires that the states provide information to the federal government. Rather, it merely prevents the state from prohibiting officials from providing information to immigration officials.

New York had another argument that was raised more forcefully on appeal: the law intruded on their sovereignty by controlling how they manage their employees. The Second Circuit characterized the city’s claim this way:

With regard to its argument concerning its power to direct its workforce, the City argues that inherent in our dual-sovereignty system is the power of state and local governments to determine the duties and responsibilities of their employees.

Judge Winter, writing for Judges Walker and Jacobs, acknowledged that New Yorks’s “concerns are not insubstantial.”

The obtaining of pertinent information, which is essential to the performance of a wide variety of state and local governmental functions, may in some cases be difficult or impossible if some expectation of confidentiality is not preserved. Preserving confidentiality may in turn require that state and local governments regulate the use of such information by their employees. Finally, it is undeniable that Sections 434 and 642 do interfere with the City’s control over confidential information obtained in the course of municipal business and over its employees’ use of such information.

The court punted, somewhat, based on the fact that New York brought a challenge premised on the sanctuary city executive order. The order, in short, only prevents disclosure of confidential information to federal officials, but to no one else. It’s purpose, the court finds, is not really to protect confidentiality, but to frustrate a federal policy.

The Executive Order is not a general policy that limits the disclosure of confidential information to only specific persons or agencies or prohibits such dissemination generally. Rather, it applies only to information about immigration status and bars City employees from voluntarily providing such information only to federal immigration officials. On its face, it singles out a particular federal policy for non-cooperation while allowing City employees to share freely the information in question with the rest of the world. It imposes a policy of no-voluntary-cooperation that does not protect confidential information generally but does operate to reduce the effectiveness of a federal policy. For example, the City argues that the Executive Order is essential to the provision of municipal services and to the reporting of crimes because these governmental functions often require the obtaining of information from aliens who will be reluctant to give it absent assurances of confidentiality. But again, the Executive Order does not on its face prevent the sharing of information with anyone outside the INS. . . .

This reasoning has a circularity to it. A state policy that frustrates a federal law is preempted (such as parts of SB 1070 in Arizona v. United States). But if the federal law is unconstitutional, because it intrudes on state sovereignty, it cannot preempt the state law. The 2nd Circuit dances around this issue.

Ultimately, the court upholds the law based on the challenge brought, leaving open the question of whether a more narrowly tailored executive order would survive scrutiny:

Given the circumscribed nature of our inquiry, we uphold Sections 434 and 642. Essentially, the foregoing discussion relating to the power of states to command passive resistance to federal programs governs the analysis here. The effect of those Sections here is to nullify an Order that singles out and forbids voluntary cooperation with federal immigration officials. Whether these Sections would survive a constitutional challenge in the context of generalized confidentiality policies that are necessary to the performance of legitimate municipal functions and that include federal immigration status is not before us and we offer no opinion on that question.

In an earlier part of the opinion, the court noted that New York’s efforts were not truly designed to protect confidentiality, as officials could share information with non-federal officials. Rather, it was designed to frustrate federal programs. Indeed, Judge Winter compares New York’s obstruction to the massive resistance following Brown v. Board of Education. (This analogy is imprecise for reasons I am developing in my work on Cooper v. Aaron, but it will suffice here).

The City’s sovereignty argument asks us to turn the Tenth Amendment’s shield against the federal government’s using state and local governments to enact and administer federal programs into a sword allowing states and localities to engage in passive resistance that frustrates federal programs. If Congress may not forbid states from outlawing even voluntary cooperation with federal programs by state and local officials, states will at times have the power to frustrate effectuation of some programs. Absent any cooperation at all from local officials, some federal programs may fail or fall short of their goals unless federal officials resort to legal processes in every routine or trivial matter, often a practical impossibility. For example, resistance to Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), was often in the nature of a refusal by local government to cooperate until under a court order to do so.

By the time New York City filed its petition for certiorari, the Court had already granted review in what was then Condon v. Reno from the 4th Circuit. New York claimed that the 2nd Circuit’s decision conflicted with the 4th Circuit’s decision, which invalidated the federal Driver’s Privacy Protection Act. SG Waxman filed a short BIO, noting that there was no conflict with Condon, and–echoing SDNY–wrote that “The provisions challenged here, which impose no reporting requirements on the States, are ‘even less intrusive on state sovereignty than those mandatory reporting statutes whose validity the Supreme Court explicitly refrained from deciding’ in Printz.” The Court denied review in New York City’s case, without any noted dissent.

That brings us to Reno v. Condon, which is relevant, but not dispositive. The Driver’s Privacy Protection Act of 1994 (again, before Printz) “regulates the disclosure and resale of personal information contained in the records of state DMVs.” South Carolina challenged the federal ban on disclosing personal information, arguing that it imposed burdens on the state:

South Carolina contends that the DPPA violates the Tenth Amendment because it “thrusts upon the States all of the day-to-day responsibility for administering its complex provisions,” Brief for Respondents 10, and thereby makes “state officials the unwilling implementors of federal policy,” id., at 11.3 South Carolina emphasizes that the DPPA requires the State’s employees to learn and apply the Act’s substantive restrictions, which are summarized above, and notes that these activities will consume the employees’ time and thus the State’s resources

Writing for a unanimous Court, Chief Justice Rehnquist rejected the challenge:

We agree with South Carolina’s assertion that the DPPA’s provisions will require time and effort on the part of state employees, but reject the State’s argument that the DPPA violates the principles laid down in either New York or Printz. We think, instead, that this case is governed by our decision in South Carolina v. Baker, 485 U.S. 505, 108 S.Ct. 1355, 99 L.Ed.2d 592 (1988). . . . .

Like the statute at issue in Baker, the DPPA does not require the States in their sovereign capacity to regulate their own citizens. The DPPA regulates the States as the owners of data bases. It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. We accordingly conclude that the DPPA is consistent with the constitutional principles enunciated in New York and Printz.

This case does not resolve the sanctuary city debate, but it does come much closer than Printz does. Specifically, Condon discusses how Congress can regulate the terms on which states can disclose information already in their possession, but it does not discuss what happens if a state refuses to comply with the federal program.

Yet, there is a passage in Condon that I had forgotten about:

The DPPA’s prohibition of nonconsensual disclosures is also subject to a number of statutory exceptions. For example, the DPPA requires disclosure of personal information . . .

Requires?! Like the missing-child law?

18 U.S.C. 2721(b), which was not cited by SG Waxman in Printz, provides:

Personal information referred to in subsection (a) shall be disclosed for use in connection with matters of motor vehicle or driver safety and theft, motor vehicle emissions, motor vehicle product alterations, recalls, or advisories, performance monitoring of motor vehicles and dealers by motor vehicle manufacturers, and removal of non-owner records from the original owner records of motor vehicle manufacturers to carry out the purposes of titles I and IV of the Anti Car Theft Act of 1992, the Automobile Information Disclosure Act (15 U.S.C. 1231 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), and chapters 301, 305, and 321331 of title 49, and, subject to subsection (a)(2), may be disclosed as follows:

(1) For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions.

(4) For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.

The DPPA is not (as far as I can tell) a spending-clause law, and was upheld against a commandeering challenge. Inadvertently, perhaps, the Court passed on the constitutionality of a statute requiring the provision of information from DMVs. I don’t think the issue was raised anywhere in the papers, so it was not presented to the Court.

There is, of course, another case that is on point, which I mentioned earlier: Arizona v. United States. To date, jurisdictions such as San Francisco and Santa Clara, brought proactive suits against the federal government. AG Sessions could take a page out of AG Holder’s playbook: turn the sword into a shield, and sue to enjoin those state laws as preempted. As I wrote on National Review the day before the inauguration,

Arizona’s S.B. 1070, commonly referred to as the “show your papers” law, gave local law enforcement the power to arrest aliens who were in violation of federal immigration law. The Supreme Court invalidated this provision of S.B. 1070, finding that it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Federal control over immigration, the Court held, is “so pervasive . . . that Congress left no room for the States to supplement it.” In other words, state immigration policies that interfere with the comprehensive federal immigration scheme are preempted. If Arizona is not allowed to adopt a policy that arguably helps federal law enforcement (by arresting those subject to removal), then California certainly cannot adopt a policy that explicitly impedes federal law enforcement. This precedent does not help sanctuary cities.

There is a tension, however, between these two cases. Under Printz, local officials cannot be conscripted to enforce federal law-enforcement duties. At the same time, a state law or policy that serves as an “obstacle” to Congress’s federal immigration scheme violates the holding of Arizona. Conservative attorneys general should cheerfully point out this tension to the courts. For California to prevail, the Supreme Court will have to shake things up. Printz’s commandeering doctrine will be expanded, thus reigning in the power of the central government; Arizona’s preemption analysis will be curtailed, which expands a state’s internal police powers.

Where does this leave us? This constitutionality of Section 1373 is not foreclosed by precedent one way or the other. There is a tension.

Critics contend that Printz’s commandeering principle lacks any textual grounding in the Constitution. This isn’t quite right. Justice Scalia’s opinion explains that Brady Act failed not because of the 10th Amendment, standing by itself, but because it was not a “proper” exercise of federal power. The notion of separating “necessary” and “proper” into different elements was employed in NFIB v. Sebelius, but this doctrine was previously alluded to in New York, and employed in Printz. Scalia’s opinion explains:

What destroys the dissent’s Necessary and Proper Clause argument, however, is not the Tenth Amendment but the Necessary and Proper Clause itself.13 When a “La [w] … for carrying into Execution” *924 the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 2376-2377, it is not a “La[w] … proper for carrying into Execution the Commerce Clause,” and is thus, in the words of The Federalist, “merely [an] ac[t] of usurpation” which “deserve[s] to be treated as such.” The Federalist No. 33, at 204 (A. Hamilton). … We in fact answered the dissent’s Necessary and Proper Clause argument in New York: “[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts…. [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.”

It may be necessary to require local law enforcement officials to perform background checks while the instant background check system is developed, but it was not proper because of the intrusion onto state sovereignty. It may be necessary to impose an individual mandate to ensure a functional health care market with both guaranteed issue and community rating, but it was not proper to intrude on the sovereignty of the individual. The question concerning Section 1373 this: is it proper for Congress to prevent states from preventing their local official from voluntarily providing immigration information to federal officials?

To strike down Section 1373, the Court will need to find it is not proper, by building on New YorkPrintz, and NFIB. It is not enough to cite Printz and go home. (This is what fair-weather federalists will hope for!). The Court will have to expand doctrine. As I wrote in NRO, “[t]his rejiggering of precedent would be a boon to federalism,” especially if there is “buy-in from the liberal justices.”

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Obama in 2015 after Nationwide Injunction from Texas Court: Republicans “found a district court judge” and “This is just one federal judge.”

Tonight, Attorney General Sessions made some waves with critical remarks of the Hawaii District Court’s decision to enjoin the entirety of President Trump’s second travel ban:

“We’ve got cases moving in the very, very liberal Ninth Circuit, who, they’ve been hostile to the order,” Sessions said. “We won a case in Virginia recently that was a nicely-written order that just demolished, I thought, all the arguments that some of the other people have been making. We are confident that the President will prevail on appeal and particularly in the Supreme Court, if not the Ninth Circuit. So this is a huge matter. I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the President of the United States from what appears to be clearly his statutory and Constitutional power.”

This comment immediately made me recall President Obama’s reaction after Judge Andrew Hanen in Brownsville, Texas issued a nationwide order halting his deferred action policy in February 2015:

Now, unfortunately, a number of Republican governors chose to sue.  They found a district court judge who has enjoined — meaning stopped — us going forward with this program.  But that’s just the first part of the process.  This is just one federal judge.  We have appealed it very aggressively.  We’re going to be as aggressive as we can because not only do we know that the law is on our side, but history is also on our side.

With a nationwide injunction, a single judge in South Texas or on an island in the Pacific can halt a President’s policy around the country, and indeed around the globe.

The more revealing aspect of the interview came later, where he specifically alluded to the “psychoanalyze” aspect of McCreary County:

The judges don’t get to psychoanalyze the President to see if the order he issues is lawful. It’s either lawful or it’s not.

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