Federalism Seems to be a Hard Sell to Conservatives and Republicans

 

The recent ruling of a federal judge issuing a temporary injunction against President Donald Trump’s executive order denying further appropriations of federal revenues to cities that have deemed themselves to be “sanctuary cities” created another internal battle among Conservatives. Former U.S. prosecutor and National Review contributor Andrew McCarthy voiced concern that the judge’s ruling does not actually find fault in the executive order or the statute upon which the order was based, but rather, the judge concocted controversies in order to conjure up a ruling against Trump. McCarthy states that the executive order, in effect, did nothing other than demonstrate President Trump’s desire to enforce existing immigration law.

Another National Review paragon, David French, echoed much the same in his blog post for National Review’s “The Corner.” “The executive order was not changing the law. It did not strip federal funds from sanctuary cities. It directed federal officials to enforce existing law and then larded up that directive with meaningless legalese that made the order look far more dramatic to the untrained eye.” French’s sentiment regarding this executive order is much the same as McCarthy’s, at least in as much as it did nothing than exclaim a desire to enforce existing law. The existing law is 8 U.S.C. § 1337 which, according to the executive order, a sanctuary city must comply with or risk losing out on federal grants.

Viewed through this perspective, the federal government is attempting to use the carrot of funding for local initiatives in exchange for those local municipalities from operating as a sanctuary city, but how are sanctuary cities not complying with federal law? In yet another National Review contributor’s words, Charles Krauthammer, sanctuary cities are “defying the federal government” in that they act in opposition to the federal government’s enforcement of immigration law. This seems to mean that Krauthammer thinks that sanctuary cities are creating an atmosphere where federal law does not apply and that illegal aliens can seek refuge in these cities. Krauthammer has even employed the tactic of comparing such cities to segregationists and Confederates in what Krauthammer views is the flouting of federal law.

Krauthammer’s sentiments are not only over the top, but they display his ignorance of how our federal system works, or is supposed to work, as does the executive order itself. Krauthammer claims that these cities are engaging in “nullification and interposition” by operating as a sanctuary city. Krauthammer is either ignorant of, or believes his audience is ignorant of, what nullification and interposition is because sanctuary cities are not operating in anyway reminiscent of South Carolina in 1832.

For starters, sanctuary cities are not ignoring federal law, let alone federal law these cities believe to be unconstitutional or violations of their rights to self-government, as South Carolina framed justification for their nullifying the Tariff Act of 1828. Sanctuary cities are merely saying that they will not allow law enforcement entities under the jurisdiction and control of these local governments to do the job of federal law enforcement as it pertains to immigration law. Kari Hong, a law professor at Boston College who specializes in immigration law, explains that “activists believe that immigration laws will no longer apply or be enforced in a sanctuary city. That is not true. It’s just that the federal government has to do the enforcement and not the local police. And the federal government is always allowed to do that enforcement, even in sanctuary cities.”

The officials who have declared their jurisdictions sanctuary cities are acting within their right to do so since what they are really declaring is that local resources will not be spent to enforce federal law. This authority comes from no other than Justice Joseph Story in an 1842 ruling that dealt with the apprehension and return of fugitive slaves in free states to the states in which they were in a permanent state of servitude. The case arose out of a Maryland slave owner seeking the return of a slave who had become free and a resident of Pennsylvania. The slave owner relied on the Fugitive Slave Act of 1793 to supersede a Pennsylvania state law that sought to free slaves within Pennsylvania territory. The case is Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539 (1842) and the pertinent portion of the ruling is where Story writes “’The president shall commission all officers.’ Now, if no man can be an officer of this government, without bearing the commission of the president, certainly, no ‘magistrate of a county, city or town corporate’ can be a judicial officer of the general government, and so cannot take authority under the act.”

What Story is saying here is that, since local officials are not empowered by the federal government to act in their local capacity, then how could they be expected to act within a federal one. In this instance Story was discussing the use of local officials to apprehend slaves and turn over to slave owners those slaves determined to fit the claims of the slave owner by a local court in accordance with the Fugitive Slave Act of 1793. Story’s ruling spelled out that the slave owner is within his rights to claim his property under the act, but that the act did now spell out how said property was to be apprehended and that a state could refuse to act in furtherance of the slave owner’s claim. To enforce the Fugitive Slave Act of 1793, Story reasoned, officials of the federal government were the only ones required by law to act. Krauthammer would do well to educate himself on Story’s ruling, and on nullification for that matter, since Story was no proponent of what might be called Calhounism.

Immigration law is a federal concern and, as such, officers of the federal government are the only ones required to enforce it. States and local municipalities may assist federal officials in enforcing such laws, but there is no justification for saying that states or municipalities are in violation of the law when they do not. As Krauthammer might say, and indeed he did, “we live in a federal system.” Well sanctuary cities, whether you agree with them ideologically or not, are acting in accordance to federalist principles. Maybe it might be time that the general government begin to do the same.

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There are 117 comments.

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  1. Inactive

    It’s happened. I agree 100% with Robert McReynolds.

    • #1
    • April 27, 2017, at 10:37 AM PDT
    • 8 likes
  2. Inactive
    Robert McReynolds Post author

    What is funny is that I, of all people, would use a Joseph Story ruling to make the case for decentralization and real federalism.

    • #2
    • April 27, 2017, at 10:40 AM PDT
    • 3 likes
  3. Member

    I agree with you.

    However, this is not a win for federalism because it will only be about this one issue. There is nothing… absolutely nothing… to guarantee that this has any staying power or that conservatives would ever fight back in the future.

    I do not see this as a federalism win.

    • #3
    • April 27, 2017, at 10:46 AM PDT
    • 2 likes
  4. Inactive
    Robert McReynolds Post author

    Stina (View Comment):
    I agree with you.

    However, this is not a win for federalism because it will only be about this one issue. There is nothing… absolutely nothing… to guarantee that this has any staying power or that conservatives would ever fight back in the future.

    I do not see this as a federalism win.

    I must not understand what you are trying to say. Frankly, I think the Left has given those of us who are true friends of federalism and our system of government more weapons than they could even know. Nullification? Well I give you the stance of, say, California on marijuana. Sanctuary cities have offered us two potential weapons: the notion that local jurisdictions are autonomous from federal dictate and that we don’t need to spend federal money for local programs.

    *Edit: I suppose I should say that local jurisdictions are autonomous in terms of being agents of federal law enforcement. Not that they can ignore federal law that is constitutional.

    • #4
    • April 27, 2017, at 10:57 AM PDT
    • 2 likes
  5. Thatcher

    Robert McReynolds (View Comment):
    What is funny is that I, of all people, would use a Joseph Story ruling to make the case for decentralization and real federalism.

    Well there is no way to use Prigg that doesn’t make things less intellectually neat, right?

    It establishes the anti-commandeering doctrine, but does nothing to limit the direct application of federal power within the states.

    And in the absence of a practicable system of federal enforcement of the property rights in other people, it exonerated the practice of private seizure of human property across state lines.

    And then there is the fate of Margaret Morgan and her family, which was grist for the legal mill.

    Prigg is a moral hand grenade.

    • #5
    • April 27, 2017, at 10:57 AM PDT
    • Like
  6. Member

    Robert McReynolds (View Comment):
    Nullification? Well I give you the stance of, say, California on marijuana. Sanctuary cities have offered us two potential weapons: the notion that local jurisdictions are autonomous from federal dictate and that we don’t need to spend federal money for local programs.

    If conservatives dared do any such thing under a leftist government, we’d be crucified for it.

    There is no reason to expect this would stay unless you were willing to fight for it.

    • #6
    • April 27, 2017, at 10:59 AM PDT
    • Like
  7. Inactive
    Robert McReynolds Post author

    Stina (View Comment):

    Robert McReynolds (View Comment):
    Nullification? Well I give you the stance of, say, California on marijuana. Sanctuary cities have offered us two potential weapons: the notion that local jurisdictions are autonomous from federal dictate and that we don’t need to spend federal money for local programs.

    If conservatives dared do any such thing under a leftist government, we’d be crucified for it.

    There is no reason to expect this would stay unless you were willing to fight for it.

    Well then I would encourage you to seek out those willing to seek office with the backbone to act in such a way.

    • #7
    • April 27, 2017, at 11:05 AM PDT
    • 1 like
  8. Inactive
    Robert McReynolds Post author

    Quake Voter (View Comment):

    Robert McReynolds (View Comment):
    What is funny is that I, of all people, would use a Joseph Story ruling to make the case for decentralization and real federalism.

    Well there is no way to use Prigg that doesn’t make things less intellectually neat, right?

    It establishes the anti-commandeering doctrine, but does nothing to limit the direct application of federal power within the states.

    And in the absence of a practicable system of federal enforcement of the property rights in other people, it exonerated the practice of private seizure of human property across state lines.

    And then there is the fate of Margaret Morgan and her family, which was grist for the legal mill.

    Prigg is a moral hand grenade.

    This is only if you allow the fact that Prigg was about the Fugitive Slave Act of 1793 to box you in. There is so much more to that ruling than merely saying slavery was constitutional and that states could not prevent slave owners from claiming their slaves. If we can’t use legal reasoning that happens to also be intertwined with slavery, then we might as well just do away with our entire system of government and come under the jurisdiction of the UK.

    • #8
    • April 27, 2017, at 11:12 AM PDT
    • 1 like
  9. Moderator

    Robert McReynolds: Kari Hong, a law professor at Boston College who specializes in immigration law, explains that “activists believe that immigration laws will no longer apply or be enforced in a sanctuary city. That is not true. It’s just that the federal government has to do the enforcement and not the local police. And the federal government is always allowed to do that enforcement, even in sanctuary cities.”

    Thanks for the clarification.

    I could see how local police might find themselves hindered in their duty to keep the local peace if they also had to pretend they were federal agents. Many crimes are committed against acquaintances, and victims who know the criminal can be reluctant to report if doing so might automatically make it “a federal case”. People may decline to press charges (I have done so, not for an illegal immigrant, though) or refuse to cooperate with the police altogether if they believe the consequences to the criminal (or perhaps to themselves) would be disproportionate, and the objection that they’re wrong about it being disproportionate doesn’t change that that’s how people behave.

    • #9
    • April 27, 2017, at 11:13 AM PDT
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  10. Member

    If they believed in federalism they would cut off federal funding to all municipalities.

    • #10
    • April 27, 2017, at 11:19 AM PDT
    • 13 likes
  11. Inactive

    Misthiocracy (View Comment):
    If they believed in federalism they would cut off federal funding to all municipalities.

    Exactly.

    • #11
    • April 27, 2017, at 11:29 AM PDT
    • 2 likes
  12. Member

    I find it ironic that Federalism now seems to mean cities are entitled to be dependent on Federal subsidies.

    • #12
    • April 27, 2017, at 11:52 AM PDT
    • 5 likes
  13. Inactive
    Robert McReynolds Post author

    Richard Finlay (View Comment):
    I find it ironic that Federalism now seems to mean cities are entitled to be dependent on Federal subsidies.

    I find it ironic that one would claim that the cities have any power to force Congress to send such revenue to the cities in a federalist system. Blame Congress for that, not the cities. If someone came to you out of the blue and handed you a million dollars, would you turn it down? I didn’t think so.

    • #13
    • April 27, 2017, at 12:03 PM PDT
    • 3 likes
  14. Contributor

    So your explanation suggests that local governments could “collaborate” with federal law enforcement, but they can’t be forced into doing so. What would it take to begin withdrawing subsidies, period, to make the point that we want their “assistance”? Is there anything (except for Congress!) stopping the federal government from withdrawing local grants across the board? Or would local governments who are cooperating make a big fuss because they wouldn’t want to lose their subsidies? It’s interesting to see how the “entitlement” economy is built into the relationship between local and state government. One other thing: part of those subsidies may come out of federal mandates; if those mandates go away, there’s no justification for those subsidies, is there?

    • #14
    • April 27, 2017, at 12:07 PM PDT
    • 2 likes
  15. Member

    I agree with your take on this Robert.

    • #15
    • April 27, 2017, at 12:28 PM PDT
    • Like
  16. Inactive

    Jamie Lockett (View Comment):
    It’s happened. I agree 100% with Robert McReynolds.

    I’m in the same position. It’s a novel sensation, but I kinda like it.

    • #16
    • April 27, 2017, at 12:35 PM PDT
    • 4 likes
  17. Inactive

    I’ve said it before and I will no doubt say it again: it is becoming increasingly clear that many self-professed constitutional conservatives actually care less about constitutional fidelity than they do about implementing their policy preferences.

    • #17
    • April 27, 2017, at 12:42 PM PDT
    • 9 likes
  18. Member

    Robert McReynolds (View Comment):

    Richard Finlay (View Comment):
    I find it ironic that Federalism now seems to mean cities are entitled to be dependent on Federal subsidies.

    I find it ironic that one would claim that the cities have any power to force Congress to send such revenue to the cities in a federalist system. Blame Congress for that, not the cities. If someone came to you out of the blue and handed you a million dollars, would you turn it down? I didn’t think so.

    I think the Hillsdale approach should be the ideal. If you want to be free of Federal meddling, liberate yourself from their patronage. You seem to be saying that bribery is a legitimate government function. Non-libertarian, in my view.

    • #18
    • April 27, 2017, at 12:46 PM PDT
    • 1 like
  19. Inactive

    @robertmcreynolds You seem to be asserting that so-called “sanctuary” cities have the right to assist people – who are in the country illegally – in avoiding deportation. Correct? Also…is sanctuary city a legal designation…?…requiring an amendment to the articles of incorporation? City Councils must approve by a vote, correct? Cities are creatures of the State where they are located and are subject to State law, if not (apparently) federal law. Can States compel sanctuary cities to not aid illegals in avoiding deportation? Or put another way, can States compel cities to hold illegals for the Feds on any account?

    • #19
    • April 27, 2017, at 12:47 PM PDT
    • 2 likes
  20. Inactive
    Robert McReynolds Post author

    Susan Quinn (View Comment):
    So your explanation suggests that local governments could “collaborate” with federal law enforcement, but they can’t be forced into doing so. What would it take to begin withdrawing subsidies, period, to make the point that we want their “assistance”? Is there anything (except for Congress!) stopping the federal government from withdrawing local grants across the board? Or would local governments who are cooperating make a big fuss because they wouldn’t want to lose their subsidies? It’s interesting to see how the “entitlement” economy is built into the relationship between local and state government. One other thing: part of those subsidies may come out of federal mandates; if those mandates go away, there’s no justification for those subsidies, is there?

    Nothing is stopping Congress from appropriating the people’s money in accordance with the Constitution.

    • #20
    • April 27, 2017, at 12:49 PM PDT
    • 2 likes
  21. Inactive
    Robert McReynolds Post author

    NicholasNoecker (View Comment):
    @robertmcreynolds You seem to be asserting that so-called “sanctuary” cities have the right to assist people – who are in the country illegally – in avoiding deportation. Correct? Also…is sanctuary city a legal designation…?…requiring an amendment to the articles of incorporation? City Councils must approve by a vote, correct? Cities are creatures of the State where they are located and are subject to State law, if not (apparently) federal law. Can States compel sanctuary cities to not aid illegals in avoiding deportation? Or put another way, can States compel cities to hold illegals for the Feds on any account?

    Nope, read it again. Immigration is federal law, and thus the only law enforcement entity required to enforce is federal. States and locals can if they so choose, but they cannot be made to enforce federal law.

    • #21
    • April 27, 2017, at 12:51 PM PDT
    • 3 likes
  22. Inactive
    Robert McReynolds Post author

    Richard Finlay (View Comment):

    Robert McReynolds (View Comment):

    Richard Finlay (View Comment):
    I find it ironic that Federalism now seems to mean cities are entitled to be dependent on Federal subsidies.

    I find it ironic that one would claim that the cities have any power to force Congress to send such revenue to the cities in a federalist system. Blame Congress for that, not the cities. If someone came to you out of the blue and handed you a million dollars, would you turn it down? I didn’t think so.

    I think the Hillsdale approach should be the ideal. If you want to be free of Federal meddling, liberate yourself from their patronage. You seem to be saying that bribery is a legitimate government function. Non-libertarian, in my view.

    I have no idea where you are getting that out of what I wrote. Do I think the Federal government should stop funding with federal revenue local initiatives? Yes, absolutely. Do I think that the Federal government has the right to coerce local officials to enforce federal law? Nope. Two different things.

    • #22
    • April 27, 2017, at 12:52 PM PDT
    • 3 likes
  23. Inactive
    Robert McReynolds Post author

    Salvatore Padula (View Comment):
    I’ve said it before and I will no doubt say it again: it is becoming increasingly clear that many self-professed constitutional conservatives actually care less about constitutional fidelity than they do about implementing their policy preferences.

    Absolutely. They become blind by the foreground–in this case sanctuary cities–and cannot see the bigger picture–the ability of the federal government to control local law enforcement. Hello, limited government types!!!!! That prospect should cause you some heartburn.

    • #23
    • April 27, 2017, at 12:54 PM PDT
    • 6 likes
  24. Member

    Robert McReynolds (View Comment):

    Richard Finlay (View Comment):

    Robert McReynolds (View Comment):

    Richard Finlay (View Comment):
    I find it ironic that Federalism now seems to mean cities are entitled to be dependent on Federal subsidies.

    I find it ironic that one would claim that the cities have any power to force Congress to send such revenue to the cities in a federalist system. Blame Congress for that, not the cities. If someone came to you out of the blue and handed you a million dollars, would you turn it down? I didn’t think so.

    I think the Hillsdale approach should be the ideal. If you want to be free of Federal meddling, liberate yourself from their patronage. You seem to be saying that bribery is a legitimate government function. Non-libertarian, in my view.

    I have no idea where you are getting that out of what I wrote. Do I think the Federal government should stop funding with federal revenue local initiatives? Yes, absolutely. Do I think that the Federal government has the right to coerce local officials to enforce federal law? Nope. Two different things.

    I have no quarrel with your explicit points. I object to the aspect of this case that implies local government bodies have an entitled right to Federal subsidies. If that would get Congress to stop such subsidies, that would be great, but I lack confidence in Congress. I am confident that (especially 9th circuit) courts will assert the ‘right’ of states/localities to other regions’ money through Federal subsidy.

    • #24
    • April 27, 2017, at 1:01 PM PDT
    • 3 likes
  25. Thatcher

    Robert McReynolds (View Comment):

    Richard Finlay (View Comment):
    I find it ironic that Federalism now seems to mean cities are entitled to be dependent on Federal subsidies.

    I find it ironic that one would claim that the cities have any power to force Congress to send such revenue to the cities in a federalist system. Blame Congress for that, not the cities. If someone came to you out of the blue and handed you a million dollars, would you turn it down? I didn’t think so.

    Well, I’m not sure, but I probably would. Let’s do a test: You send me a million dollars and lets find out.

    • #25
    • April 27, 2017, at 1:29 PM PDT
    • 2 likes
  26. Inactive

    Robert McReynolds (View Comment):

    Salvatore Padula (View Comment):
    I’ve said it before and I will no doubt say it again: it is becoming increasingly clear that many self-professed constitutional conservatives actually care less about constitutional fidelity than they do about implementing their policy preferences.

    Absolutely. They become blind by the foreground–in this case sanctuary cities–and cannot see the bigger picture–the ability of the federal government to control local law enforcement. Hello, limited government types!!!!! That prospect should cause you some heartburn.

    • #26
    • April 27, 2017, at 1:30 PM PDT
    • 2 likes
  27. Thatcher

    It’s interesting that for decades (at least) the Feds have used the mere threat of loss of funds to coerce states to do as they please.

    Until the issues of Obamacare and now illegal aliens came up, I can’t recall if anyone ever said “Fine”.

    • #27
    • April 27, 2017, at 1:37 PM PDT
    • 1 like
  28. Member

    Chuckles (View Comment):
    It’s interesting that for decades (at least) the Feds have used the mere threat of loss of funds to coerce states to do as they please.

    Until the issues of Obamacare and now illegal aliens came up, I can’t recall if anyone ever said “Fine”.

    I remember when Nixon inaugurated ‘Revenue Sharing.’ The Fed was much more efficient at collecting taxes, so sharing with thte States was going to make the whole country more efficient. Another excuse for expanding the Federal government, with the added bonus of the Feds being able to skim more off as the money circled around. The ability to condition the money on policy was not advertised, although I thought it was obvious. This was back when the Republicans were still the funding agency for Democrat programs. Has that changed?

    • #28
    • April 27, 2017, at 1:47 PM PDT
    • Like
  29. Inactive

    Robert McReynolds (View Comment):
    Nope, read it again. Immigration is federal law, and thus the only law enforcement entity required to enforce is federal. States and locals can if they so choose, but they cannot be made to enforce federal law.

    That immigration is federal law is not in dispute. That enforcement (deportation) is feds, is not in dispute. But, cities may invent a right to aid fugitives from justice to escape? In dispute.

    • #29
    • April 27, 2017, at 1:51 PM PDT
    • 2 likes
  30. Inactive

    Chuckles (View Comment):
    It’s interesting that for decades (at least) the Feds have used the mere threat of loss of funds to coerce states to do as they please.

    Until the issues of Obamacare and now illegal aliens came up, I can’t recall if anyone ever said “Fine”.

    Obamacare’s attempt to coerce States via funding loss was ruled unconstitutional in NFIB v Sebelius, proving that as recently as a few years ago conservatives thought coercion was a bad thing. It seems as though constitutional principle changes with administrations.

    • #30
    • April 27, 2017, at 1:51 PM PDT
    • 6 likes
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