“Conservative” Lawyer Bruce Fein Claims States Rights For Sanctuary Cities, But Not For Arizona. Which Is Why We Need Kris Kobach.


Finally we have a President who promises to enforce immigration law.  But here’s a funny thing: the same immigration enthusiast lawyers who then claimed it was unconstitutional for state and local governments to defend themselves against illegal immigration now have become born-again states rights’ activists. At least one claims to be “conservative”: former Reagan administration official Bruce Fein.

The last three presidents (at least) have actively impeded enforcement of America’s immigration laws. In response, desperate states and localities passed numerous measures to restrict benefits to illegal aliens and facilitate cooperation between local law enforcement and federal immigration officials. Many of these laws, like Arizona’s SB 1070 mirrored federal immigration laws. Others—such as local E-Verify requirements—were explicitly permitted by federal law. But the ACLU, MALDEF, and the federal government tried to sue each locality into bankruptcy anyway, claiming federal pre-emption.

Fein piled on against enforcement. In 2010, he called SB 1070 an “unconstitutional and ugly statute criminalizing the absence of federal immigration papers and targeting racial or ethnic minorities who ‘look’ foreign.” (The statute did not include the word “look,” so I’m not sure why he inserted the scare quotes). Fein went on:

The US Constitution entrusts the federal government with authority over immigration, naturalization and deportation matters. As a nation, we sink or swim together. “No state,” said the court in one ruling, “can add to or take from” the force and effect of national law.

[No Repeal in Arizona, No World Cup, Huffington Post, June 3, 2010]

But now Fein argues that the 10th Amendment will prevent Trump from deporting criminals efficiently:

The U.S. Constitution protects states or localities from commandeering by the federal government to enforce federal statutes, including immigration laws. That doctrine was expounded by Justice Antonin Scalia in Printz v. United States (1997), holding that state or local law enforcement officials could not be compelled to enforce background checks or other provisions of the Brady Handgun Violence Prevention Act.

[Constitutional wall blocks Trump’s mass-deportation ambitions, Washington Times, November 28, 2016]

Despite the Washington Times headline, Fein does not deny the federal government has the right to deport illegals. But he argues that, as a practical matter, deportation will require the co-operation of state and local governments—and that this cannot be compelled.

Fein argues further: “The Constitution also prohibits the federal government from circumventing the anti-commandeering doctrine of Printz by coercing state or local governments to enforce federal law on pain of losing substantial federal funding for unrelated programs or policies.” Here he cites the Obamacare decision National Federation of Independent Business v. Sebelius (2012) which held that “held that the Affordable Care Act unconstitutionally sought to coerce states to expand eligibility for the federal-state Medicaid program by threatening a loss of all federal matching funds for failing to do so.”

Fein argues that Sanctuary Cities are “anti-commandeering immigration policies protected by Printz,” and the government cannot cut funds to Sanctuary Cities, because doing so would force them to “waive their anti-commandeering protection against enforcement of the federal immigration laws” which would be a “material alteration” of the conditions of the funding.

This may seem a superficially plausible argument. But the federal courts have already rejected it. In The City of New York v. United States, the 2nd Circuit unanimously held that Printz did not invalidate Section 434 of the Welfare Reform Act and Section 642 Illegal Immigration Reform and Immigrant Responsibility Act, which banned Sanctuary Cities. The court explicitly rejected New York City’s argument that the “Tenth Amendment prohibits Congress from exercising its power to regulate aliens in a way that forbids states and localities from enacting laws that essentially restrict state and local officials from cooperating in the federal regulation of aliens, even on a voluntary basis.”

The court further held that the 10th Amendment does not give “power of states to command passive resistance to federal programs governs” and to forbid “voluntary cooperation with federal immigration officials.”

(Side note: Rudy Giuliani was a named plaintiff in this suit—which should disqualify him from any consideration for Secretary of Homeland Security).

Furthermore, the Obamacare decision did not categorically prohibit cutting federal funds to localities who do not cooperate with the federal government. Fein acknowledges this by qualifying that there must be “substantial” federal funding for “unrelated” programs and must require a “material alteration” of the initial funding.

The Supreme Court distinguished forcing states to participate in the healthcare exchanges or losing all Medicaid funding to South Dakota v. Dole, where it held that the Department of Transportation could threaten “to withhold five percent of a State’s federal highway funds if the State did not raise its drinking age to 21” because the “Court found that the condition was ‘directly related to one of the main purposes for which highway funds are expended.’”

Needless to say, there are certainly many types of federal grants—whether to local law enforcement or to welfare benefits—that are directly related to immigration enforcement and which the Trump administration could therefore deny to Sanctuary Cities.

That being said, the 10th Amendment likely places some limits on what the federal government can force local governments to do on immigration. For example, I suspect the federal government cannot force states to house illegal aliens awaiting deportation in their jails. While it can require local law enforcement to search the legal status and send illegal aliens in its custody to ICE, the Federal Government likely cannot force them to actively seek out and detain illegal aliens. It can give some financial inducements to encourage local law enforcement to assist in these endeavors, but it cannot cut off every single cent of federal aid, or restrict completely unrelated programs.

I don’t purport to know exactly where the Courts will draw the line—but the Trump Administration can undoubtedly cut significant funding to Sanctuary Cities.

Fein’s column is instructive in two respects.

  • It shows that immigration enthusiasts will make wild legal arguments against Trump’s attempts to enforce our immigration laws.
  • More importantly, it shows that we cannot trust erstwhile “conservative” Republicans attorneys to be on the patriot side.

Trump is going to need smart, loyal, and ideologically strong attorneys crafting his policies and defending them in court.

In other words, he needs Kris Kobach to head the Department Homeland Security.

John Reid [email him] is an American citizen and a recent law school graduate.