Has Jeff Sessions Ushered In A New Kind Of Federalism?

This column was first published by Truthdig.com.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” —10th Amendment, Constitution of the United States

You really have to hand it to Jefferson Beauregard Sessions III. He knows how to promote the doctrines of federalism and states’ rights, and tout the importance of the 10th Amendment . The diminutive, 70-year-old attorney general of the United States, whom “The Daily Show” loves to mock as a mean-spirited hobbit from J.R.R. Tolkien’s Middle Earth, has spent much of his long and virulently conservative career in politics and the law supporting such ideas in an effort to limit the scope of federal authority, especially in the fields of civil and voting rights.

Now, with the GOP firmly in control of all three branches of government and Sessions hypocritically threatening to enforce President Trump’s Executive Order (EO) No. 13,768 —which, among other provisions, calls for cutting off federal funds to so-called sanctuary cities—Sessions has managed to convert a growing number of liberals and progressives to the federalist cause. We are, as a result, witnessing the spread of a new, progressive form of federalism.

When you think about it, the conversion makes perfect sense. To derail the Trump administration’s domestic agenda—not just as it affects sanctuary jurisdictions, but also on gay and transgender rights, criminal justice and police reform, abortion, federal enforcement of marijuana laws, and the erosion of environmental safeguards—progressives are taking a cue from the right to bolster the autonomy of states and cities as they enact and defend initiatives aimed at protecting minorities, the poor, the undocumented and our ecosystems.

For much of the 20th century to the present, federalism was code for political reaction under the guise of strict constructionism. From economic questions, such as the legality of the federal minimum wage , to issues of school desegregation, conservatives time and again invoked the 10th Amendment as a basis for preserving the privileges of local elites, corporations and racial and misogynistic hierarchies, while liberals sought to expand the reach of the Constitution and national regulatory oversight.

Still, federalism as a legal philosophy has never been the exclusive preserve of the right. There is an inherent tension in our constitutional structure, dating back to the founding era, between Jeffersonian decentralists and Hamiltonian advocates of national power. Often, the decentralists have stood against human rights, but not always.

As writer/producer Gail Ablow noted in a recent column posted by Moyers & Company, many important legal struggles began at the state level before succeeding on a national scale. In 1783, for example, long before the enactment of the 13th Amendment in 1865, Massachusetts abolished slavery in its state constitution. Wyoming, of all places, accorded women the unrestricted right to vote in 1869, well ahead of the ratification of the 19th Amendment in 1920. “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory” of democracy, the great Supreme Court Justice Louis Brandeis wrote in a dissenting opinion penned in 1932.

Perhaps the leading exponent of progressive federalism today is professor Heather Gerken, selected in February as the first female dean of Yale Law School . In an interview published on the school’s website last December, Gerken explained her outlook :

My main goal is to convince people that federalism, which most people associate with conservatism, doesn’t have a political valence. Progressives have long ignored the many democratic benefits associated with federalism and localism because they associate decentralization with racism and parochialism. They look to the national government to protect racial minorities and dissenters. But this is not your father’s federalism. Because minorities can rule at the local level, states and local governments have become sites for empowering racial minorities and dissenters, the very groups that progressives believe have the most to fear from decentralization. The same-sex marriage movement is just the most well-known example of progressives using state and local power to further their ends. But much of the work on the environment, immigration, the minimum wage, policing, etc. is being done at the local level these days.

Although the progressive federalism movement will face many discrete challenges in the days ahead, none will be more important than the coming legal battles over sanctuary cities.

In March, Sessions announced that the Justice Department would begin to withhold grant money from sanctuary jurisdictions that refuse to comply with a provision of Clinton-era federal legislation that, he argues, requires localities to participate in the enforcement of immigration laws. Each year, the department awards upward of $4.1 billion nationwide to finance a range of local law-enforcement programs, including assistance to victims of violent crime. Sessions also threatened to “claw back” grants previously awarded. The terms of Trump’s EO 13,768 go even further, suggesting that all federal monies could be withheld from such jurisdictions.

While there is no formal legal definition of a sanctuary jurisdiction, it is estimated that there are more than 300 cities and counties throughout the country that have earned the moniker because, to varying degrees, they decline to honor at least some of the “detainer” requests sent to them by Immigration and Customs Enforcement (ICE).

ICE uses detainers to keep suspected undocumented immigrants who have been arrested on state charges in local custody so they can be picked up and deported when they have finished serving their state criminal sentences and would otherwise be released. To further compel and shame localities to comply with detainers, the Department of Homeland Security has begun publishing lists of jurisdictions that fail to fall in line.

Sitting high in the sanctuary offender rankings are jails in California, including those in Los Angeles, Sacramento and the Bay Area. A bill is also pending in the California legislature that would make the entire state—currently the world’s fifth largest economy —one big sanctuary jurisdiction .

According to Sessions, the crackdown is necessary because of an immigrant crime wave. “[W]hen cities and states refuse to help enforce immigration laws,” he said in his announcement, “our nation is less safe. Failure to deport aliens who are convicted for criminal offenses puts whole communities at risk—especially immigrant communities in the very sanctuary jurisdictions that seek to protect the perpetrators.

“DUIs, assaults, burglaries, drug crimes, gang crimes, rapes, crimes against children and murders. Countless Americans would be alive today—and countless loved ones would not be grieving today—if the policies of these sanctuary jurisdictions were ended.”

The facts, of course, are contrary. As several recent studies have shown, immigrants commit significantly fewer crimes per capita than their native-born counterparts. Nor is there any truth to the claim that crime rates in sanctuary cities are higher than elsewhere.

Sessions’ plans to withhold federal funds also rest on shaky legal grounds, and several sanctuary jurisdictions have filed federal suits to block the implementation of Trump’s executive order.

The first city to take legal action was San Francisco, which lodged its case in January. In its action, San Francisco contends that the EO violates both the 10th Amendment and the “Spending Clause” of Article I, Section 8, of the Constitution, which vests Congress, not the executive branch, with the power to tax and spend, and on that basis, withhold federal monies.

The city also argues that ICE’s detainer policies violate the 4th Amendment’s prohibition against unreasonable searches and seizures, because detainers are not criminal warrants issued by judges and supported by findings of probable cause to believe that detainees have committed federal criminal offenses. Rather, they are, in the legal sense, “civil” requests that individuals be held in criminal custody beyond the jail time they have already served for violating state criminal law.

San Francisco, along with other sanctuary jurisdictions, claims that it has no objections to honoring federal arrest warrants, but that ICE detainers place unreasonable stress on local law-enforcement budgets. Sanctuary jurisdictions also contend that deputizing local police and correction facilities to act effectively as ICE agents deters undocumented populations from cooperating with police in reporting serious crime and instances of domestic abuse.

The sanctuary litigation, in general, is in its formative stages. However, in a related decision dealing with an ICE detainer placed on a Haitian immigrant jailed in Miami, Fla., for a traffic offense that was handed down in early March, Circuit Court Judge Milton Hirsch ruled that both the 10th Amendment and the Spending Clause blocked enforcement of EO 13,768. He ordered the Haitian released.

Hirsch, a former president of the Florida Association of Criminal Defense Lawyers and a prominent critic of the state’s death-penalty procedures , reached his conclusion on the 10th Amendment by relying primarily on the late Justice Antonin Scalia’s 1997 5-4 majority opinion in Printz v. United States .

Widely considered a paean to federalism, Printz struck down a provision of the Brady Handgun Violence Prevention Act that required local police departments to perform background checks on gun buyers. “Congress cannot compel the States to enact or enforce a federal regulatory program,” Scalia held. “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

On the Spending Clause issue, Hirsch relied on a series of other pro-federalist Supreme Court precedents that, taken together, instruct that while Congress may attach conditions to the receipt of federal funds to a certain degree, it cannot do so in such a way as to bring about “otherwise-unconstitutional outcomes,” or in a coercive manner that threatens “to press-gang” or “commandeer” local personnel into federal service under the penalty of a loss of federal funding.

The “anti-commandeering” limitations of the Spending Clause were recently reaffirmed by the Supreme Court in its 2012 decision, striking down the Affordable Care Act’s mandatory Medicaid expansion provisions . Writing for another slender 5-4 majority, Chief Justice John Roberts described the ACA’s plan to deny all Medicaid funding to states that rejected the expansion as an unconstitutional “gun to the head.” Some budget experts estimated that the complete loss of Medicaid funding would comprise more than 10 percent of some state coffers . The loss of all federal funding to sanctuary cities would amount to an even greater deficit.

Hirsch’s ruling is under appeal.

It remains to be seen how the Supreme Court will rule on Trump and Sessions’ sanctuary funding threats should Hirsch’s decision, or other sanctuary cases, get there. With the addition of Neil Gorsuch , the high court now has a full complement of nine members. Gorsuch is a self-professed admirer of Scalia and a dedicated federalist. But then, we are all federalists now.