As part of his immigration plan, President-elect Donald Trump has pledged to block federal funding to sanctuary cities within his first 100 days.
While sanctuary policies vary, these cities generally limit how much local law enforcement cooperates with federal immigration officials. Leaders in Sacramento, San Francisco and other cities have vowed to fight federal attempts to deport undocumented immigrants.
Ironically, the Republican assault on Obamacare may prove to be the basis that courts use to reject efforts to defund sanctuary cities.
The U.S. Supreme Court upheld key provisions of the Affordable Care Act in 2012 in a challenge brought by the National Federation of Independent Business and 26 states, and supported by Republicans and tea party activists.
However, the court struck down one provision of the health reform law – a part that is relevant to whether blocking federal funds to sanctuary cities is legal. The justices ruled unconstitutional the provision that would have blocked federal Medicaid funding to states that didn’t accept Medicaid’s expansion to cover millions more poor and disabled people.
Threatening to cut off federal funds to sanctuary cities for not cooperating with federal immigration enforcement runs into the same problem of coercing states to adopt federal regulations as their own.
Local leaders recognize that all residents must trust the police if they are to be effective. If police are viewed as partners with federal immigration 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.
Trump and Republican leaders may assert a right to cut off funding to sanctuary cities that is related to cooperation on immigration enforcement. Most proposals to cut off federal money to sanctuary cities would affect four programs. One reimburses jails and prisons for some costs of detaining noncitizens. That may be germane, but payouts are usually no more than $600 million annually nationwide. Community policing grants are much less germane because they are for general hiring, drug treatment and education. The biggest grants to cities are community development and housing grants that have nothing to do with 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 kill Obamacare.
Bill Ong Hing is a professor of law at the University of San Francisco and founder of the Immigrant Legal Resource Center. He can be contacted at firstname.lastname@example.org.