re Executive Order entitled “Enhancing Public Safety in the Interior of the United States”

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He signed the Executive Order entitled “Enhancing Public Safety in the Interior of the United States.” The EO targets “sanctuary” jurisdictions, stating that it is the policy of the executive branch to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal Funds, except as mandated by law” and “as deemed necessary for law enforcement purposes[.]” Funding conditions not germane to the purpose of the funds raise a serious Tenth Amendment constitutional question.

Sanctuary cities have laws or policies that limit using local resources to implement and enforce federal immigration laws. The EO directs the Attorney General and the Secretary of Homeland Security “in their discretion and to the extent consistent with law, [to] ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary [of Homeland Security].” Under 8 U.S.C. 1373, federal, state and local government entities and officials may not take action to prohibit or in any way restrict the maintenance or intergovernmental exchange of information regarding immigration status.

The EO imposes funding conditions not germane to the purpose of the funds. The U.S. Supreme Court said, “Congress may attach conditions on the receipt of federal funds….. Such conditions must (among other requirements) bear some relationship to the purpose of the federal spending, . . . otherwise, of course the spending power could render academic the Constitution’s other grants and limits of federal authority. …” N.Y. v. United States, 505 U.S. 144, 167 (1992). Among those limits, the Tenth Amendment provides, “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.”

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