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Tuesday, December 20, 2016

Baseline Hell and Sanctuary Cities: Can Trump deputize cities' cops to work for the feds against the cities' will?

There have been both cautionary warnings that Trump might deprive "sanctuary cities" of federal money and reassurance that NFIB v. Sebelius might curb "anti-sanctuary" conditions on "unrelated" federal funds. I have seen less discussion, however, of another question: Can Trump simply deputize law enforcement officers to assist the feds even if the city's leadership opposes their officers' assisting with immigration?

The question is not only of immediate practical interest but also implicates one of my favorite academic topics -- the problem of baseline hell. The question turns on the constitutional distinction between the feds' "commandeering" local governments' action (forbidden) and prohibiting local governments from interfering with federal law enforcement (allowed). The diabolically difficult baseline problem arises when the feds prohibit a local government from interfering wth that local governments' own officers' efforts to aid the feds. Does such a prohibition count as commandeering? As a "generally applicable law"? Or as mere federal preemption, a permissible order for local governments to stand aside?

After the jump, I will offer some thoughts about navigating this particular infernal neighborhood in baseline hell.

As I noted in a post eight years ago, there is a bit of judicial support for the idea that, despite Printz's anti-commandeering rule, the feds can require cities to allow their employees to help the feds out by passing on information about detainees' immigration status to the feds. Two federal laws (with arguably the most infelicitous acronyms in the U.S. Code) impose such a restriction on local power -- §642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and §434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("IIRIRA" and "PRWORA"). Section 642, a bit broader than its cousin, provides that state or local law may not "in any way restrict" a "local government entity" from "[s]ending," "[m]aintaining," or "[e]xchanging" information about an individual's immigration status to any federal agency.

In NYC v. United States, the Second Circuit, in an opinion by Ralph Winter, upheld this provision against a Printz-type challenge by NYC in 1999 (a challenge launched by then-Mayor Rudy Giuliani: My, how times have changed). Judge Winter reasoned that section 642 did not require NYC to do anything: It merely prohibited NYC from interfering with police officers or other people who wanted to help out the feds. In Judge Winters' words, NYC could not "turn the Tenth Amendment's shield ... into a sword allowing states and localities to engage in passive resistance that frustrates federal programs." City of New York v. United States, 179 F.3d 29, 35 (2nd Cir 1999).

The difficulty with this reasoning, of course, is that officials who acquire information while working for a subnational bosses necessarily consume subnational resources, both material and legal, that the feds have no right directly to conscript. Such officials are paid with subnational governments' tax revenue, and they use subnational governments' computers, patrol cars, guns and badges, all authorized by subnational law. If they acquire information in the course of their duties, that information itself is the property of the subnational government. If the feds can confer on such agents of a subnational government the power to turn over information to the feds acquired using subnational governments' legal powers and money, then how have the feds not practically commandeered the subnational governments themselves?

Consider, however, two rejoinders to this plea for a broad anti-commandeering rule, both of which take us right into baseline hell:

1. Are federal bans on "sanctuary" prohibitions on information-sharing merely "generally applicable laws"? The feds impose a lot of information-sharing mandates on private organizations. Private employers, for instance,have to maintain I-9 forms on their employees and turn these over to the feds on the feds' request. Why cannot the feds defend mandates on sanctuary cities as analogous to such informational burdens on private parties? If section 642 is (part of) such a "generally applicable law" covering private and governmental entities alike, then it arguably gets a pass under the Garcia exception to Printz.

Under stately labels like "general applicability, baseline confusion grows like black mold in a wet attic. The problem, of course, is that one must define what it means for a burden on governmental officials to be truly analogous to a private burden. Rob Mikos (in his superb discussion of the problem of states' keeping secrets from the feds), confidently asserts that private mandates like I-9 forms are simply not "comparable" to the sorts of informational mandates imposed on states: "Nearly every statutory reporting requirement [imposed on subnational governments] is aimed exclusively at the states," because "Congress does not require comparable reporting by private citizens" (page 169). But what exactly defines "comparability"? Cost? Topic? The "proprietary" or "sovereign" character of the burden? The term "general applicability" does nothing to answer these questions, all of which turn on defining a baseline of "neutral" treatment to which private persons are "normally" subjected in order to figure out whether subnational government was treated unequally." (A problem with similar indeterminacy arises in defining whether a law burdening religious organizations but containing exemptions defined by a non-religious criterion is "generally applicable").

2. Are "sanctuary" policies forbidden "discrimination" against federal policies? There is a venerable principle that subnational officials may not "discriminate" against federal officials by (for instance) exempting only state but not federal employees from state income tax. If the city imposes a special limit on their local law enforcement not to assist with the enforcement of a uniquely federal responsibility, then have they engaged in forbidden discrimination against federal law? Of course not, one might respond: Cities do not enforce the laws of lots of different jurisdictions, from Afghanistan to Zaire. Not enforcing federal immigration law, therefore, is affording the feds equal, not discriminatory treatment.

Of course, the obvious rejoinder is that the feds are not "similarly situated" to all of those other jurisdictions: Putting aside the (as of yet unexplained) special duty of state courts to enforce federal law "similar to" state laws within those court's jurisdiction, state laws cannot normally shrug off the duty to give federal interests the same consideration that they give to "analogous" state interests just because those state laws also refuse to give similar advantage to non-federal interests. If state employees get a tax exemption, then federal employees must get one, too -- even if purely private employees do not.

Do sanctuary cities impose a "special" burden on federal interests by not sharing information with ICE about detainees' immigration status? Those cities share a lot of other information with a lot of other entities, public and private: One might argue that acting as a sanctuary is indeed forbidden anti-federal "discrimination." But cities surely are no obliged to enforce every federal law, or Printz is a dead letter. The question of whether cities' acting as a sanctuary singles out federal interests for illegally discriminatory treatment, therefore, must turn on whether one regards the sharing of detainees' immigration status as "analogous" to the other sorts of data that cities routinely share with public and private entities. That inquiry, once more, is just another hellishly tricky baseline problem.

In short, the doctrine, I think, leaves up for grabs the constitutionality of federal efforts to deputize non-federal employees against the will of the subnational government that employs them. I think that the right answer, as a matter of sensible federalism policy, is to force the feds to bargain with cities for their assistance. My opinion, however, is rooted in normative considerations about pluralism and political competition more than legal precedent. If one sticks with the latter, then one is essentially opting for the usual futile debates about "neutrality," "general applicability," "action versus inaction," and so forth -- in short, a sojourn in baseline hell.

Posted by Rick Hills on December 20, 2016 at 09:12 AM | Permalink

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