How Obamacare Litigation May Save Sanctuary Cities Funding

As part of his immigration plan, President-elect Trump has pledged to block federal funding to sanctuary cities within his first 100 days. While sanctuary policies vary, these cities generally have laws or policies in place that limit how much local law enforcement cooperates with federal immigration officials when it comes to searching for and detaining deportable immigrants. Ironically, the manifestation of Republican disdain for the Affordable Care Act, aka Obamacare, before the Supreme Court may prove to be the basis that courts rely upon for rejecting efforts to de-fund sanctuary cities.

 

The Supreme Court upheld key provisions of the ACA in 2012 in National Federation of Independent Business v. Sebelius (NFIB). The challenge was brought by the NFIB, twenty-six states, and supported by Republicans and tea party activists. By a 5-4 margin, the Court upheld the individual mandate component of the ACA. Thus, ACA’s overhaul of the health-care system creating state-run insurance exchanges charged ahead. However, one part of the ACA was struck down as unconstitutional—a part that is quite relevant to the legality of blocking federal funding to sanctuary cities.

 

In the NFIB case, seven of nine members of the Supreme Court ruled unconstitutional the provision of the ACA that conditioned all of a state’s Medicaid funding on its acceptance of the ACA’s expansion of Medicaid to cover millions more poor and disabled people. In other words, that provision would have blocked federal Medicaid funds to states that refused to cooperate. Writing for three members of the Court, Chief Justice Roberts found the threat to cut existing funds to uncooperative states too coercive. Four other conservative members of the Court voted to strike down the Medicaid expansion along with the entire ACA.

 

Most sanctuary policies are emblematic of community policing approaches that promote public safety. Local leaders recognize that all residents in the community must trust the police if the police are to be effective. If police are viewed as partners with immigration enforcement officials, then victims of crimes and witnesses will not come forward. Thus, sanctuary policies are about public safety and how to spend public funds, not about regulating immigrants.

 

Threatening to cut off federal funds to sanctuary cities for not cooperating with federal immigration enforcement runs into the same problem as the threatened Medicaid cutoff provision in the ACA.  In NFIB, Chief Justice Roberts pointed out that the “Constitution simply does not give Congress the authority to require the States to regulate.” That occurs when “Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.” The four dissenters agreed that “Congress effectively engages in this impermissible compulsion when state participation in a federal spending program is coerced.” So seven of the justices stood for the principle that states must have a meaningful right to refuse participation in federal programs.

 

Legal scholar Spencer Amdur’s argues that this “right of refusal” approach can be used to navigate interactions between federal and subfederal entities. The right of refusal is a state’s right to withhold its regulatory services. The Supreme Court suggests that if states and localities object to federal policy, they must be free to withhold their regulatory services. This casts considerable doubt on forceful federal strategies in the immigration field.

 

Trump and Republican leaders may assert a right to cut off funding to sanctuary cities that is germane or related to immigration cooperation. Most of the proposals to cut off federal funding to sanctuary cities would affect four programs. The State Criminal Alien Assistance Program that reimburses jails and prisons for some non-citizen detention costs. That may be germane, but payouts are usually no more than $600 million annually nationwide. Justice Assistance Grants and Community Oriented Policing Services awards are much less germane because they are for general hiring, drug treatment, adjudication, and education. The biggest grants to localities are Community Development Block Grants administered by the Department of Housing and Urban Development—funding nothing related to law enforcement. Those grants clearly would be safe from cutoff.

 

Trump and Republicans may want to stop federal funds flowing to sanctuary cities, but they would face a huge problem getting through the courts thanks to Republican efforts to strike Obamacare.

 

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