A DOCTRINE WITHOUT EXCEPTION: CRITIQUING AN IMMIGRATION EXCEPTION TO THE ANTICOMMANDEERING RULE.

• Author: McNulty, Mary Ann

INTRODUCTION 242 I. HISTORY AND BACKGROUND ON SANCTUARY 245 CITIES, ANTICOMMANDEERING, AND THE FEDERAL EXCLUSIVITY PRINCIPLE A. Sanctuary Cities 246 B. The Anticommandeering Rule 248 C. The Federal Immigration Power 250 II. THE UNIQUE FLAWS OF THE SECOND 251 CIRCUIT'S PROPOSED EXCEPTION TO THE ANTICOMMANDEERING RULE A. The Anticommandeering Rule is Applicable Across 252 All Federal 1. Rejecting a Balancing Test 253 2. Denying Any Exceptions Based on an Enumerated Right 254 3. Including Prohibitions in the Definition 256 B. The Proposed Exception for Immigration is 257 Particularly Flawed 1. The Exception Conflates Preemption with 258 Anticommandeering 2. The Exception Undermines the Rationales for the 260 Anticommandeering Rule a. Division of Power 260 b. Political Accountability 263 c. Cost Shifting 267 3. The Exception Ignores State's Inherent 267 Police Powers 4. The Exception Rests on a Refuted Theory of Federal Powers CONCLUSION 272 INTRODUCTION

Federal courts across the country have heard numerous lawsuits about the legality of "sanctuary cities," which limit cooperation with the federal government's immigration enforcement efforts. (1) For example, a sanctuary city might reject detainer requests issued by federal immigration officials or limit the amount of information state or local officials provide to federal immigration agents.

To curb this kind of noncooperation, several decades ago, Congress enacted 8 U.S.C. [section] 1373 ([section] 1373), which makes it unlawful for state and local government officials to "prohibit, or in any way restrict, any government entity or official from sending [information] to, or receiving [it] from" federal immigration officials. (2) Although [section] 1373 was unsuccessfully challenged shortly after its enactment, in recent years the statute has gained renewed attention as the federal government attempted to enforce its terms by threatening to withdraw federal policing funding from noncompliant jurisdictions. (3) Cities and states have been remarkably successful in these recent lawsuits, as district courts across the country have found the federal efforts to enforce [section] 1373 by withdrawing federal grant funding to be unlawful under both administrative law and constitutional grounds. And some district courts have found the statute itself to be unconstitutional and in violation of the anticommandeering rule, which prohibits the federal government from instructing states and cities to enact federal policies. (4)

But, in early 2020, the Second Circuit stood alone in finding the federal effort to enforce [section] 1373 to be lawful and the statute itself to be constitutional. (5) By preserving the federal immigration law despite its seeming contravention of the anticommandeering principle, the opinion created a circuit split that advanced the anomalous view that federal immigration actions are exempt from the otherwise generally applicable anticommandeering doctrine. (6)

The anticommandeering doctrine is based upon on the Tenth Amendment, which provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people." (7) Honing in on the text of the Tenth Amendment, the Second Circuit reasoned that "[a] commandeering challenge to a federal statute depends on there being pertinent authority 'reserved to the States.'" (8) The court surmised that the authority of state power "is not so obvious in the immigration context." (9) This opinion echoed previous Supreme Court opinions that have lauded federal power over immigration as broad, preeminent, and exclusive. (10) The Second Circuit thus concluded that the federal government may permissibly commandeer in the immigration context. (11) The Second Circuits relied on a federally enumerated right within the Constitution--regulating immigration--to justify federal commandeering and carve out an exception to the anticommandeering rule based on a federally enumerated right in the Constitution.

The Second Circuit's decision that the federal government can commandeer state governments in areas of exclusive federal authority through an enumerated right has profound implications. Not only would it be the first time the anticommandeering rule has been given an exception, but this precedent would allow the federal government free reign over state and local resources, facilities, and even legislatures to further any federal immigration agenda. The federal government could conscript entire state and local police departments to act as fully-fledged federal immigration officials, all financed with state funding.

Such a result directly undermines the concerns that animated the anticommandeering rule. The constitutional prohibition on commandeering was meant to divide power in order to avoid federal tyranny, maintain political accountability, and prevent the federal government from shifting costs onto states. (12) If the Second Circuit's approach stands, the federal government would exercise unchecked authority in the area of immigration, force states to be politically accountable for federal immigration regulations, and shift the costs of a federal immigration program onto states.

This Comment will analyze the Second Circuit's view that the anticommandeering doctrine has an immigration exception. Part I provides background on sanctuary cities, the anticommandeering doctrine, and the federal government's "exclusive" power over immigration. Then, in Part II, I argue that, contrary to the Second Circuit's holding, the anticommandeering rule does not, and should not, have an exception for immigration related commands. First, the anticommandeering rule has always been a doctrine of general applicability. The Supreme Court has never created an exception nor instituted any balancing test between federal and state interests. (13) Second, anticommandeering concerns apply in the immigration context as forcefully as any other area of the law. The three primary concerns animating anticommandeering--division of power, political accountability, and cost shifting--all exist when the federal government commandeers state or local resources in the immigration context. Third, even if powers committed "exclusively" to the federal government, which the Second Circuit maintains immigration to be, permitted federal commandeering, the reality of immigration regulation belies the federal exclusivity principle. The federal exclusivity principle has become boilerplate, contradicting the emerging consensus that states and local governments consistently and frequently regulate immigration.

1. HISTORY AND BACKGROUND ON SANCTUARY CITIES, ANTICOMMANDEERING, AND THE FEDERAL EXCLUSIVITY PRINCIPLE

   The sanctuary city debate is notable in that it has pitted one historically recognized constitutional power against an emerging constitutional restraint: the federal immigration power against the federal prohibition on commandeering states. Generally, these two have lived in congruity. The federal government regulated immigration, but did not commandeer the states to do so. The passage of [section] 1373--and the Second Circuit's preservation of it--have threatened this balance, creating an artificial tension between these two constitutional principles. This Part provides a brief historical background on these issues to contextualize the novelty of the Second Circuit's decision.

   1. Sanctuary Cities

      The term "sanctuary cities" refers to either state or local governments that have limited cooperation with the federal government on immigration-related programs. (14) Sanctuary city policies can cover a range of issues, including information sharing, (15) investigations, (16) and identification cards. (17)

      In response to sanctuary policies, the United States Department of Justice (DOJ) announced that the federal government would condition the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG), a significant source of federal funds for state and local policing, on compliance with three new conditions intended to force cities and states to cooperate with federal immigration officials. (18) This Comment focuses on just one of the three conditions, the so-called "compliance condition," which requires recipients of Byrne JAG funds to prove compliance with [section] 1373.

      Section 1373 provides that "a Federal, State, or local government entity or official 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." (19)

      Although the Supreme Court has spoken to what kinds of conditions amount to unconstitutional coercion, (20) conditioning federal funding on complying with [section] 1373 is irrelevant to the statute's constitutional analysis. As one lower court put it,

      [A]rgu[ing] that no anticommandeering claim exists here because compliance with Section 1373 is merely a condition on grand funds which [a sanctuary city] is free to refuse.... ignores that Section 1373 is an extant federal law with which [a sanctuary city] must comply, completely irrespective of whether or not the City accepts Byrne JAG funding. (21) Thus, although the DOJ described [section] 1373 as a "compliance condition," it has always been a federal law that mandates compliance from state and city government officials.

      At the litigation stage, the federal government's withholding of federal funds from sanctuary cities resulted in significant losses in three circuit courts. When ruling against the federal government, the Third, Seventh, and Ninth Circuits avoided the constitutionality of [section] 1373. Instead, these circuits rested their decisions on administrative law grounds, finding the Attorney General lacked the requisite statutory authority to withhold federal funding. (22) The Second Circuit...