In my forthcoming Foreword to the NYU Journal of Law & Liberty, titled SCOTUS After Scalia, I trace the shifts on the right and left with respect to a host of constitutional issues, such as Article III standing and deference to administrative laws. One of the more pronounced changes reflects federalism. For example, in the Washington Post, Erwin Chemerinsky, Annie Laie, and Seth Daivs write that the Rehnquist and Roberts Courts federalism cases limit the Trump Administration’s powers over “sanctuary cities.”

Trump insists that he can force states and cities to participate in his plan to deport undocumented immigrants. But this ignores the 10th Amendment, which the Supreme Court has repeatedly interpreted to prevent the federal government from “commandeering” state and local governments by requiring them to enforce federal mandates.

For example, in Printz v. United States, in 1997, the Supreme Court struck down a provision of the federal Brady Handgun Violence Prevention Act that sought to require local officers to help enforce federal gun-control laws, including by conducting background checks. In an opinion by Justice Antonin Scalia, the court held that the act violated principles of federalism and the 10th Amendment for Congress by compelling state and local governments to comply with a federal mandate. Under the anti-commandeering principle, the federal government can no more require state and local governments to help it carry out mass deportations than it can require local officers to investigate and enforce federal gun laws.

Some have suggested that there is an exception to the anti-commandeering principle that allows the federal government to demand that states and cities turn over confidential information about undocumented immigrants. But this assertion misreads Supreme Court precedents. The court has held that Congress can require states and cities to disclose information where a statute also requires private parties to turn over the same kind of information. The court has never held that Congress can single out states and cities to share information with the federal government. That is the type of commandeering that the court repeatedly has found violates the 10th Amendment.

Nor can the federal government do indirectly — by threatening to withdraw federal funding from states — what it cannot do directly. In National Federation of Independent Business v. Sebelius, in 2012, the Supreme Courtstruck down a provision of the Affordable Care Act that required states to expand their Medicaid programs or lose the state’s federal Medicaid money. The court found the condition that Congress placed on states’ Medicaid funding unduly coercive and thus a violation of the 10th Amendment.

I was struck by reading these, as I recalled Chemerinsky has called for all of these cases to be reversed. Five minutes of research revealed some of Erwin’s prior writings.

In 2000, he wrote that Printz, as well as New York v. United States, should be overruled.

I believe that the ideal result in Reno v. Condon would have been for the Court to overrule the anti-commandeering principle. It is a rule not justified by the text, the Framers’ intent, historical practice, or sound constitutional policy analysis. Indeed, it often is counter-productive to the *829 Court’s goal of advancing state autonomy and is inconsistent with Congress’s powers under the Constitution. There is nothing in the text of the Constitution that mentions or even hints at an anti-commandeering principle. The Tenth Amendment’s text, of course, says only that Congress cannot act unless authorized by the Constitution, while states can act unless prohibited by the Constitution.⁴² Nor was the issue discussed at the Constitutional Convention. Neither New York v. United States nor Printz v. United States attempts to justify the anti-commandeering principle based on the Constitution’s text or Framers’ intent. Erwin Chemerinsky, Right Result, Wrong Reasons: Reno v. Condon, 25 Okla. City U. L. Rev. 823 (2000):

Erwin also wrote that the 10th Amendment places no limits on the spending power.

This is especially important as courts and commentators consider applying federalism principles to the spending power. Concern for protecting the states should not obscure the need to vindicate the authority of Congress to choose whether and how to spend its money. In this paper, I make three arguments. First, Congress’s spending power should be broadly interpreted. Second, the Tenth Amendment should not be applied as a limit on the spending power or on Congress’s ability to place conditions on its spending. Third, Congress should have expansive authority to require *90 that states waive their sovereign immunity as a condition of receiving federal funds. . . . *104 Thus, the Tenth Amendment should not be construed as limiting the ability of Congress to place conditions on grants to the states. Dole should continue to be followed. . . .  In this article, I have argued that the Spending Clause is different and that it should be limited by neither the Tenth nor the Eleventh Amendments. Erwin Chemerinsky, Protecting the Spending Power, 4 Chap. L. Rev. 89 (2001)

As for NFIB v. Sebelius, he wrote the spending clause analysis was made

“without reference to or invocation of constitutional theory” Erwin Chemerinsky, The Inescapability of Constitutional Theory Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self Governance J. Harvie Wilkinson III. Oxford, 2012. Pp 3, 161., 80 U. Chi. L. Rev. 935 (2013)

He added that the Chief’s decision in NFIB:

“gave little guidance as to how to decide when conditions are too coercive and that will lead to a great deal of litigation.” Erwin Chemerinsky, It’s Now the John Roberts Court, 15 Green Bag 2d 389 (2012)

First, overwhelmingly, the Supreme Court’s federalism decisions are “rights regressive”-that is, they limit rather than enhance individual liberties. Part II of the article discusses this. Second, as a more theoretical matter there is no reason to believe that federalism will increase freedom. The traditional explanations for why the vertical division of powers enhances liberty do not withstand scrutiny.
Erwin Chemerinsky, Does Federalism Advance Liberty?, 47 Wayne L. Rev. 911 (2001)

Now, Printz should be used to prohibit federal commandeering of state law enforcement officials, and the Tenth Amendment should put limits on the withdrawal of funds for non-compliant states, as a means to promote the individual liberty of aliens subject to removal.

I emailed Erwin and asked if he still favored the Court overturning Printz, and still maintained that the 10th Amendment places no limits on Congress’s spending power. He replied was not entirely responsive:

I continue to believe that the Supreme Court’s federalism decisions are misguided and undesirable. But they are the law. And our oped argued under this existing law. I do not see any inconsistency.

That’s a huge leap from saying the decisions are utterly inconsistent with the Constitution and ought to be overruled–“misguided and undesirable” is quite a tepid response. But there is a broader issue at play here.

Attorneys, as advocates, are fully entitled, and indeed expected, to use whatever precedents are available to advance their clients’ interests–whether they agree with the principle or not. Professors, as scholars, have a different purpose. Though they have their own opinions, they are seeking some higher truth through their writing, or even advocacy as amicus or direct representation or editorial writing. Though admittedly the line is blurry, there is something disconcerting about an academic explicitly relying on a rules he deems absolutely wrong, and that he previously called on to be overruled. There should be an expectation that the case is consistent with the scholar’s understanding of the correct interpretation of the Constitution. In other words, they are not “hired guns” who will adopt whatever argument is available to serve their causes. (On a related note, Justices who do this–such as Justice Scalia’s sudden embrace of substantive due process in McDonald–are also subject to criticism).

I don’t mean to pick on Erwin here. He isn’t alone. There have been a rash of progressives who suddenly embraced federalism decisions that they previously argued were wrong. On the whole, I’m ecstatic that the Federalist camp is growing! But I don’t pretend for a second they really mean it. Had Hillary Clinton won the Presidency, they would have called on Justice Garland to cast a fifth vote to overturn Printz and a host of other decisions.

Stay tuned to my Foreword for a discussion of “constitutional consistency.”