"Sanctuary cities" and federal laws

[IvoryTowerDenizen]

@Okrahoma

Effectively as in “successfully”.

My interpretation makes more sense then, actually. He was not effectively (successfully) harbored in SF, unless you are asserting that they knew where he was and kept him in SF. For all the they knew he was out of SF as soon as he was released. Just because he chose to stay in SF doesn’t mean the city harbored him there.

[Yllaria]

@Okrahoma

They KNEW they were going to release him for three weeks. During those three weeks they could have picked up the phone and called ICE. As the mayor (quoted in the cite I gave) clearly says.

Actually, they knew for three weeks that they might be releasing him soon, if and only if the city lawyers said they couldn’t hold him for ICE. They didn’t know when the lawyers would stop arguing and issue a decision.

You keep saying that they knew three weeks ahead of time that he would be released on day X, but what your citations say is that the lawyers took three weeks to decide. That is not at all the same thing. Trust me. I’ve waited for city lawyers to reach a decision. It could have been three days - it could have been four weeks. Or months.

And when they reach a decision, the response goes down the line, sometimes quickly, sometimes not. And when the news reaches whoever processes the release, maybe it happens the same day and maybe it’s too late in the day and it’s put off until tomorrow, or next Monday.

This is government work. Until it happens, you don’t know when it will happen. I’m sure ICE would have loved daily updates. The lawyers are still deciding. The lawyers are still deciding. The lawyers . . . uh. . . looks like the order went out at ten. So, maybe today unless the Mayor asks them to recheck. That happens sometimes. You ready to pick him up? Maybe today?

[tim314]

@Okrahoma

“Facilitating an alien’s 'remaining in the United States illegally.”. Which releasing him onto the streets without calling ICE about it as ICE requested does.

God, this is just going around in circles. I’m saying neither “harboring” nor “facilitating” includes merely failing to report. You’re saying they do. I’m saying the fact that you can be charged with harboring a criminal, in a state where it is legal to fail to report a criminal, is evidence that the legal definition of harboring doesn’t include merely failing to report.

Then, you just repeat that harboring includes facilitating. This isn’t responsive to my contention that neither of these words includes failure to report. Do you have any evidence that either harboring or facilitating includes failure to report?

[bobot]

Chicago to sue over the threat to withhold funding to sanctuary cities:

Emanuel: City to sue Trump Justice Department over funding threat

[UltraVires]

This looks like a similar question to the 21 year old drinking age/SD v. Dole. Is the withholding of funds coercive or is it merely a nudge to encourage cooperation with a federal policy?

In Dole, the Court upheld withholding a full 10% of a state’s highway funds for not having a 21 year old drinking age. Given the numbers in the cited article, this seems to fall below that and would be constitutional, IMHO.

[Bone]

@UltraVires

In Dole, the Court upheld withholding a full 10% of a state’s highway funds for not having a 21 year old drinking age. Given the numbers in the cited article, this seems to fall below that and would be constitutional, IMHO.

In Dole the funding was explicitly contingent on certain activity. In the Chicago matter, the funding was not contingent at the time of its granting. Because of that, withholding such funding would not be constitutional. SCOTUS has held that the federal government may not impose conditions on grants to states and localities unless the conditions are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” Pennhurst State Sch. & Hosp. v. Halderman

[CarnalK]

@UltraVires

This looks like a similar question to the 21 year old drinking age/SD v. Dole. Is the withholding of funds coercive or is it merely a nudge to encourage cooperation with a federal policy?

In Dole, the Court upheld withholding a full 10% of a state’s highway funds for not having a 21 year old drinking age. Given the numbers in the cited article, this seems to fall below that and would be constitutional, IMHO.

The amount is not the sole criteria. From the SD v Dole wiki page:

1. The spending must promote “the general welfare.”
2. The condition must be unambiguous.
3. The condition should relate “to the federal interest in particular national projects or programs.”
4. The condition imposed on the states must not, in itself, be unconstitutional.
5. The condition must not be coercive.

Since this fund being withheld is for police equipment I suppose it passes #3. But there is some question as to whether hold requests are constitutional so it could fail #4.

[Bone]

Here is a bit more discussion about the spending power and conditions imposed on grants:

Conditions Unambiguous and Set Forth Prior to Acceptance
Under the relevant Supreme Court precedents, federal grant conditions must be set forth unambiguously before a recipient enters into a grant agreement with the federal government. In its 1981 decision in Pennhurst State School and Hospital v. Halderman, the Supreme Court explained that this restriction arises because a grant is “much in the nature of a contract” between the states and federal government. Accordingly, in the Court’s view, the “legitimacy of Congress’ power to legislate under the spending power … rests on whether the State knowingly and voluntarily accepts” the federally imposed conditions.60 The Court concluded that “[t]hough Congress’ power to legislate under the spending power is broad, it does not include surprising
participating States with postacceptance or ‘retroactive’ conditions.” 61 As a result, the Court required that a funding condition be established “unambiguously” prior to acceptance of the grant in order to allow the recipient to make an informed decision about the consequences of participating in the grant program.
62
The Pennhurst requirement was subsequently applied and clarified in the Supreme Court’s 2012 decision, National Federal of Independent Businesses v. Sebelius, which invalidated63 provisions of the Patient Protection and Affordable Care Act of 2010 (ACA)64 that would have required the states to expand their Medicaid programs by 2014 to cover virtually all poor Americans under the age of 65, or risk losing all Medicaid funding that they receive from the federal government.65 In defense of these provisions, the federal government argued that “the Medicaid expansion is properly viewed merely as a modification of the existing program because the States agreed that Congress could change the terms of Medicaid when they signed on in the first place.”
66 However, the Court rejected the argument that the new conditions represented permissible modifications of the existing program because it viewed the Medicaid expansion as “accomplish[ing] a shift in kind, not merely degree.”67 Citing Pennhurst, the Court opined that states could not be expected to anticipate the statutory provision which granted the federal government the power “to ‘alter’ or ‘amend’ the Medicaid program included the power to transform [Medicaid] so dramatically.”

There is no way it passes this requirement.

[Richard_Parker]

A big uncertainty is how the Supreme Court will view the holding of NFIB. The opinion is so fractured that’s its hard to say what it does as precedent on the issue of coercive funding.

Alito and Gorsuch are probably Trump votes regardless of the merits. But I think it’s hard to predict whether Kennedy, Thomas, Sotomayor, and Ginsburg would side with Kagan, Roberts, and Breyer or with Gorsuch and Alito. In the end I think you get at least 5 to apply NFIB to strike down coercive funding, especially since the Tenth Amendment piece of the puzzle is even stronger here than in NFIB or Dole.

[Bone]

Would it surprise you if Gorsuch ruled against the administration and overrule precedent? I’d be surprised.

[CarnalK]

@Bone

Would it surprise you if Gorsuch ruled against the administration and overrule precedent? I’d be surprised.

Wait, wouldn’t ruling against the administration be following precedent? I thought that was your point in the previous couple of posts.

[k9bfriender]

@Bone

Would it surprise you if Gorsuch ruled against the administration and overrule precedent? I’d be surprised.

Wouldn’t ruling for the administration be overruling precedent?

Ninja’d, but the opposite view, by CarnalK

[CarnalK]

I’m not a big court watcher but I would not be surprised if Gorsuch ruled against the administration. No reason to assume he’s a Trump zombie and the facts and precedent look damning.

[Bone]

Yeah, messed that up. I mean, I think Gorsuch would vote to uphold precedent and rule against the Administration.

[Slash1972]

Is it possible for the Federal Government to just end this grant program completely, and then start a new one that specifically requires grant recipients to follow the ICE requests?

[CarnalK]

@Slash1972

Is it possible for the Federal Government to just end this grant program completely, and then start a new one that specifically requires grant recipients to follow the ICE requests?

Congress could but that alone will not make it constitutional, I don’t think. Merely get it past one of the hurdles.

[Richard_Parker]

@Bone

Yeah, messed that up. I mean, I think Gorsuch would vote to uphold precedent and rule against the Administration.

On close cases of national importance, I expect Gorsuch to be the most reliable vote for GOP-supported policy outcomes on the Court.

Time will tell.

[UltraVires]

@Bone

In Dole the funding was explicitly contingent on certain activity. In the Chicago matter, the funding was not contingent at the time of its granting. Because of that, withholding such funding would not be constitutional. SCOTUS has held that the federal government may not impose conditions on grants to states and localities unless the conditions are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” Pennhurst State Sch. & Hosp. v. Halderman

I am not familiar with the granting process, but isn’t it a yearly thing? I understand that the feds could not require a repayment of funds, but why couldn’t next year’s grant “unambiguously” require ICE cooperation (assuming the other Dole factors are met)?

[UltraVires]

Sorry for the double post, but isn’t this like saying, “Well, you gave me highway funds last year without any drinking age requirements, so you can’t change the rules next year!”

[CarnalK]

@UltraVires

I am not familiar with the granting process, but isn’t it a yearly thing? I understand that the feds could not require a repayment of funds, but why couldn’t next year’s grant “unambiguously” require ICE cooperation (assuming the other Dole factors are met)?

It could but future possible legislation doesn’t effect current lawsuits.