Introduction
In the recent past, legal controversy surrounding the application of the immigration law across the federal, state and local tiers of the government has widened. The decision taken by the American Attorney General (AG) to sue the state of California for the passing of three laws that limited cooperation between the state and the federal immigration agents supports the position. The AG considers that states, such as California, are preventing the federal agencies from enforcing the law. On this basis, the paper explores three issues, namely: whether state and local governments can declare sanctuary status legally for the individuals who are in the US illegally, thus refusing to cooperate with the federal government; whether the US President has the authority to deny federal grants to sanctuary states; and whether the US President, under executive power, can enforce federal regulations and executive orders on the deportation of aliens within the country. This paper holds that state governments cannot declare sanctuary status to protect aliens; the President lacks legal backing to direct funding restrictions to local authorities that deliberately contravene 8 U.S.C. 1373; and the President holds limited control to ensure that both state and local governments abide by the executive orders.
Sanctuary Status
Thesis Statement
Legally and constitutionally, local and state governments cannot declare sanctuary status for the aliens, and refuse to help the federal government in enforcing the law. Under the provision, 8 U.S.C. 1373, the federal government holds the authority regarding how state and local governments respond to the issue of sanctuary status.
Some states, such as California and other liberal States, have prosecuted their officials adjudged that they have assisted the federal government in achieving its goals. However, a critical review of laws on sanctuary indicates that such declarations as well as prosecutions are unconstitutional.[footnoteRef:2] For instance, it is imperative to refer to Article 1 Section 8.4 of the US Constitution. Under this law, the Congress has rights to set a uniform rule regarding naturalization. On this basis, a state or a city that establishes a law or a rule is in violation of the Constitution. Precisely, states or cities have no jurisdiction over immigration policy. Consequently, when states or cities purport to create laws on the issue of immigration, they are in contravention of the US Constitution. [2: Robert Duchemin. The Illegality of Sanctuary Cities – A Constitutional Perspective, tallahasseereports.com (2018).]
In furtherance of the above argument, reference is made to Section 2 of Article 1, known as the supremacy clause. The provision states: “This Constitution and the Laws of the United States which shall be made in Pursuance thereof custom writing company shall be the Supreme Law of the Land; and the Judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.” [footnoteRef:3] The above excerpt supports the viewpoint that the Constitution is the supreme law. This is in line with many other jurisdictions, especially those from the Commonwealth. Moreover, rulings across the state and other countries globally have held that all the acts of parliaments or others laws that are inconsistent with the Constitution become null and void. In essence, any law that contradicts the Constitution is devoid of substance. Based on this position alone, the sanctuary status propounded by the liberal states cannot stand the legal tests. [3: Robert Duchemin. (2018).]
Yet still, it is worthwhile indicating that in this regard, one should refer to Article 4, Section 3. It states that, all officers from state legislatures, judicial offices and executive either serving the federal or state governments, are bound by the oaths taken in concession that they will protect the US Constitution.[footnoteRef:4] Based on the provision, all officers of the government pledge to honor and support the Constitution, as the primary basis for holding the offices that they occupy. If this rule of law is adhered to, the officers of the states that claim sanctuary status would be hard-pressed to justify their continued occupancy of the offices whose legal basis they dispute. [4: U.S. Const. 8 U.S.C. Section 1373.]
In the case involving the city of Philadelphia against Jeff Sessions, the Attorney General of the United States is insightful regarding the issue under consideration.[footnoteRef:5] On issuing a preliminary injunction, the court inferred that the city was in “substantial compliance” with the law (8 U.S.C. § 1373). The position was largely attributable to the idea that the city never restricted the sharing of information on the issue of illegal immigrants with the Immigration and Customs Enforcement (ICE). In the final ruling, the court held that the city was in contravention of the above law because the failure to share information on the release of aliens undermined the ICE efforts in apprehending criminal aliens. Further, the court averred that, public and ICE agents’ safety was put into jeopardy as a result of the release of criminals into the city’ streets. [5: City of Philadelphia v. Sessions U.S. Dist court, 1. LEXIS 40699 (US District court) (2018).]
Reference to the history of the USA can also shed light on the debate about the sanctuary status of states and cities. In this regard, it is necessary to refer to the events taking place before the Civil War. Then, it is unclear as to what would have occurred if the state governments officials had failed to support the US Constitution. In an effort to bridge the gap in law, the 14-th Amendment was introduced.[footnoteRef:6] In particular, according to Section 3 of the law, [6: Robert Duchemin. The Illegality of Sanctuary Cities – A Constitutional Perspective, tallahasseereports.com (2018).]
No person shall . . . hold any office . . . under any state, who, having previously taken an oath as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies of the same . . .[footnoteRef:7] [7: Robert Duchemin. (2018).]
This is yet another demonstration that those who swear to enhance the issue of sanctuary states are violators of the law, and must not continue serving in the country’s civil service. Thus, it is evident that the above sections of the country’s supreme law demand that all executive, legislative and judicial officers working at different governmental bodies owe their support to the Constitution. Upon violation of the oath, such officers must cease holding public offices. In other words, supporting the sanctuary status equates to open rebellion or disobedience to the Constitution.
Antithesis
States and local governments might declare sanctuary status for aliens and refuse to assist the federal government in enforcing the law. The US Constitution allows each tier of the government to take charge of certain aspects of governance. For instance, whereas the federal government is in control of such matters as foreign affairs and national security, state and local governments have power to run their routine operations.[footnoteRef:8] If immigrants are viewed as a component of the internal state affairs, then the federal government ought to interfere with the issue of immigration and allow the states to make their independent choices. [8: Harald Bauder, Sanctuary Cities: Politics and Practice in International Perspective, 55 International Migration 2, 15 (2017).]
Under Section 1373, the federal government cannot commandeer state governments by compelling to enforce the given laws. It, however, seems that the policies of this nature are in violation of the 10-th Amendment. In the case Printz v. United States, Justice Antonin Scalia observed that, the anti-commandeering doctrine borders on preserving states’ independence in terms of political grounds.[footnoteRef:9] Therefore, it is obvious that directives, such as those on the sanctuary status, imply taking away the powers bestowed on the states by the Constitution. This would then appear that federal law contravenes the 10-th Amendment, in so far as it tries to force state officials to provide information on any assistance to aliens. In the same way, it is evident that under Section 1373, the federal government seeks to take control of the officials from the State governments.[footnoteRef:10] [9: U.S. Const. 8 U.S.C. Section 1373.] [10: U.S. Const. 8 U.S.C. Section 1373.]
The acts by sanctuary states do not amount to the obstruction of law enforcement. While filing the case against California, Sessions were adamant that the federal government was not seeking states involvement in prosecuting the aliens. On the contrary, the Attorney General insisted that the federal government wanted sanctuary states to cease active obstruction of the enforcement of the federal laws. Consequently, the issue of concern is that the sanctuary states are committing an illegality by blocking or undermining attempts by the top government tier from enforcing the law. From the very beginning, it is evident that even the sanctuary states do not contest the citizenship problem surrounding some immigrants. Hence, it appears prudent that such states should, at least, allow ‘the wheels of justice’ to roll without any interference. However, the observation by the Sessions fails the legal test, since the states have simply refused to comply with federal requests for information as such compliance would equate to the subversion of state policy on immigration.
A number of practices and polices refer to the issue of sanctuary status. Localities are free to decide how they will expand their resources as pertains to the enforcement of immigration laws. However, a controversy emerges when the federal government interferes in the following issue. For instance, the Executive Order by Trump requiring that cities or states hold individuals beyond the Federal policy on immigration on the premise of requests by the Immigration and Customs Enforcement (ICE) based on the issuance of an ICE Detainer request raises concerns among the public.
From the contestations, the number of litigations has been experienced. Of contest has been the constitutionality of the ICE practices requiring that the detainees be locked up to an extra two days to facilitate additional investigations on their immigration status. Based on a number of litigation outcomes, the states have been found liable for violation of individual liberties. Such an outcome points to the contravention of the Fourth Amendment. On the basis of the above, if a state decides to refuse the compliance with federal authorities on the Fourth Amendment, then it would have committed no irregularity. Instead, such a city / state would have basically upheld the law. Consequently, it is only plausible to observe that sanctuary status on the basis of the law is protected.
The ICE has committed many mistakes, which have resulted in many costs to local authorities. From such mistakes, states and cities have been forced to incur costs due to the arising damages. Other observers contend that, the argument that sanctuary status support alien involvement in crime as being flawed. Common sense shows that in case the authorities need the immigrants to help in resolving crime, they have to feel free to come forward as crime witnesses or victims. However, this is only possible if the immigrants are sure that the local authorities do not cooperate with Federal authorities in order to determine their immigration status. In a nutshell, forcing state or city governments to report about the citizenship status of detainees or suspects defeats the primary goal of securing the community.
The arguments advanced from Massachusetts about sanctuary status have bordered on the separation of functions. Many sanctuary cities from this State have raised the issue of funding and resources in terms of the division between the federal and State roles. In other words, the states are tired of using their resources to undertake a function that the federal government is supposed to handle.
Synthesis
In general, regardless of any federal, state or local provision, no tier of government, entity or officer can prohibit or restrict any government agent, official or body from sending to and / or receiving citizenship information from the Immigration and Naturalization Service.
In the recent times, the term ‘sanctuary state’ has been one of the widely discussed issues in the United States. In particular, the concept is often applied to the matters concerning immigration policy. Under the sanctuary city status, the cities that support the policy refuse to collaborate with the federal government in efforts to remove and deport the aliens from the US. Those who oppose the policy claim that sanctuary status is meant to shield undocumented immigrants from possible criminal prosecution. On the other hand, the supporters of the policy contend that framework is necessary towards the protection of the rights of US citizens, as well as undocumented immigrants.
States and local governments need to find a unanimous decision on the problem of aliens. Without doubt, the issue of sanctuary states has drawn a lot of controversy. Whereas states have insisted on being left to take control of the issue, the federal government has also claimed the mandate.[footnoteRef:11] Given the ruling of the court in the case of the City of Philadelphia and the AG of the US, it is evident that security is an overlapping function. Most importantly, the federal government has the mandate to secure the nation’s security. Since allowing the cities or states to take charge of the matter would undermine the federal governments’ role of protecting the country, and violate the US Constitution, states and local governments cannot declare sanctuary status for aliens, and refuse to assist the federal government in enforcing the law. [11: Lore Collingwood, Benjamin Gonzalenz, and Stephen Omar El-Khatib, Sanctuary Cities Do not Experience an Increase in Crime, The Washington Post (2016).]
Those that support the policy would opine that the Federal government has the mandate to enforce immigration laws across the country. However, the refusal by some states and cities to abide by the regulations on immigrant status would contribute to taking a selective approach as to what laws are enforceable and which are not. In other words, local governments have no legal basis to select which laws they will uphold and which they will be able to decline.
The principal idea is that the issue of aliens borders on immigration policy, and given that such matters fall under the functions of the federal government, states lack a legal basis to object to the former’s request for cooperation. In addition, although Section 1373 seems to accord the federal government to issue specific commands to states, the 10-th Amendment does not permit such overtures, in so far as, they seek to interfere with the independence of other governmental authorities. Taking a broad perspective of the 10-th Amendment would lead to the conclusion that states can adopt the sanctuary status; however, immigration laws fall under the control of the federal government, and for this reason, states cannot declare this status.
Grants to States
Thesis
The President of the United States has no legal backing to deny those states or local authorities that deliberately refuse to observe 8 U.S.C. 1373 (sanctuary jurisdictions) the right to benefit from the federal grants. Consequently, the federal government cannot deny grants to states because of their failure to comply with an executive branch directive. Only procedural and rational orders enjoy legal backing.
Under the Byrne Memorial Justice Assistance Grant Program (JAG), the federal government apportions some funds to the states every year. In 2017, the AG attached the release of the funding to compliance with federal regulations.[footnoteRef:12] Based on the ruling of Bauder case, the federal government does not enjoy the authority on the dispersal of funds and thus cannot deny funding to the states or local governments. Other cases, such as the County of Santa Clara v. Trump, et al. and the City of Seattle v. Trump, have led to the same perspective.[footnoteRef:13][footnoteRef:14] [12: Harald Bauder, Sanctuary cities: Politics and practice in international perspective, 55 International Migration 2, 15 (2017).] [13: City of Seattle v. Trump, U.S. Dist. Court, 1. LEXIS 103610 (US District court) (2017).] [14: County of Santa Clara v. Trump, et al., No. 3:17-cv-00574-WHO (N.D.Cal.) (2017).]
Based on the American system of government, the Congress has the powers to control the distribution, allocation and expenditure of resources within the state. Subsequently, cities and states determine the usage of their resources.[footnoteRef:15] Based on this fact, the executive has limited, if any authority over the determination of state or city expenditure. It is obvious that the executive lacks the authority to block the award of grants to cities or states that pass sanctuary laws on the issue of aliens. Although the Constitution envisages sharing functions and responsibilities in a harmonious manner, its framers do not contemplate a scenario, where one tier of government seeks to usurp the power of another. Thus, the position faults the attempts by the Trump administration to determine and influence the distribution of grants since; in this case, the executive is openly undermining the Congress, a body that reserves the mandate of resource allocation. Moreover, such overtures are against the basic principles of sound federalism. [15: Bier David. Should Sanctuary Cities Receive Federal Funding? Inside Sources (2018).]
As part of the efforts to lay grounds for the refusal of extending grants to the dissenting states and cities, the US Attorney General cited safety as the basis upon which the idea rests.[footnoteRef:16] For a number of observers, such a directive is flawed since only the Congress enjoys the powers on the funds spending or adoption of conditions to guide expenditure. What is more, the safety argument falters since the executive does not demonstrate how the denial of funding to the states would lead to its improvement. [16: Bier David. (2018).]
History also supports the idea that the enforcement of immigration laws has no correlation with the issuance of grants. The grant program in question is not dependent on the observance of state government’s compliance with the federal laws. While creating the JAG program, the Congress took into consideration the criminal act involving the murder of the policemen offering protection to a Guyanese immigrant who was a witness.[footnoteRef:17] Given that the Congress did not authorize restrictions, the Trump administration has failed to find legal support for its campaign to freeze the funding to those states that have adopted the sanctuary status. [17: Bier David. Should Sanctuary Cities Receive Federal Funding? Inside Sources (2018).]
Some observers contend that even if the law had allowed such restrictions, it would have been imprudent to do this. This is because such a move would undermine federalism, which is based on the idea that the localities are free to develop their policies, and implement them. Considering the above stated, reference to the case, Obamacare case, NFIB v. Sebelius comes to mind. In the above case, the court determined that the Congress lacked the constitutional basis to cut Medicaid to the states that failed to expand its coverage. Based on the outcome, it is clear that the enforcement of such a move by the federal government posed a threat to political accountability within the system.
According to 8 U.S.C. Section 1373, “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”[footnoteRef:18] Ideally, the law states that, under no circumstances, can the federal government or any other state organ restrict the sending or reception of information on the status of citizenship of any individual. [18: U.S. Const. 8 U.S.C. Section 1373. ]
In the determination of the case involving the City of Chicago and Sessions (the AG), Judge Leinenweber noted that the statute on Byrne grants required conformity with Section 1373. However, Byrne concluded that the section was a requirement for the grant since the authorizing statute indicated that it was imperative to comply with provisions and other relevant laws. Based on the argument by the Justice Department, “all other applicable laws” are those regulations that govern the jurisdictions of the recipient states.[footnoteRef:19] However, Chicago posed that the applicable laws were those that were specific to the grants. Surprisingly, the judge considered that both arguments were plausible. [19: City of Philadelphia v. Sessions U.S. Dist court, 1. LEXIS 40699 (US District court) (2018).]
Referring to long-standing Supreme Court determinations shows that the federal government should not attach conditions to grants. The only exception to this is when the conditions are stated in unambiguous terms such that the states can decide either to accept or to decline the funds. Further, the Supreme Court has set a precedent on spending. In this regard, reference is made to the Spending Clause that demands that the conditions on grants be tied to the federal purpose for which the grants were founded. Based on the term ‘related’, possibilities concerning divergent interpretations abound. However, if the grants are conditioned upon conformity with federal law regulating cities and states, some of the requirements will, definitely, be unrelated to the enforcement purpose for which the Byrne grants were established to improve. Taking the interpretation of “applicable” by Sessions and Judge Leineweber, it is evident that the latter part of the decree is unconstitutional.
Considering the above angle in the interpretation of the law goes against well-established norms that the federal courts should avoid. Such an approach that renders the laws unconstitutional poses unanticipated ramifications for the legal fraternity. In this regard, one should refer to and consider the opinion of Chief Justice John Roberts on the NFIB v. Sebelius (2012) case by observing that the Obamacare health insurance was a tax. In essence, the courts are required to make extreme exceptions, as a part of the efforts to save the statutes from being declared unconstitutional. On this basis, the decision on the case involving Chicago on the term applicable raises concerns.
The case of City of Philadelphia vs. Sessions is also illustrative of the issue of grants. The city of Philadelphia filed the case in August 2017 and accused the Attorney General’s imposition of sanctions bordering on funding provided to the city. First, the lawsuit was registered in the US District Court in East Pennsylvania. The city averred that the Department of Justice’s (DOJ) pursuit of the policy on anti-sanctuary city status was unlawful. That happened after the Presidency had encountered limits, in as far as, its efforts aimed at controlling immigration were limited by a series of court declarations, such as in the case of Santa Clara. Against that backdrop, the AG resorted to issuing the threats of withholding the funds to sanctuary cities, including the withholding of grants, citing non-compliance with 8 U.S.C. § 1373 as the basis of the action. [footnoteRef:20] As already mentioned, it is evident that local governments could not restrict or prohibit correspondence between cities, states, and federal authorities. [20: U.S. Const. 8 U.S.C. Section 1373. ]
In response to the allegations by the federal government, Philadelphia argued that it was compliant, and that its policy did not permit it to gather any information about immigrant status. Therefore, the city did not stand a position to share on the matter with the federal tier of the government. However, the city reiterated that its policies facilitated collaboration with the upper level of the government, particularly on the matters concerning criminal elements. For years, Philadelphia has been practicing the policy of directing its officers to desist from collecting immigrant status data, but, that measure has not interfered with its security functioning. In other words, the city’s security worked perfectly well without following the guidelines issued by the federal agencies. Further, the city indicated that the funding it received from the Byrne JAG program was essential, as it supported its criminal justice system. Consequently, the threats by the AG posed harm to the city; thus, it was necessary to seek remedial action in the courts.
On July 25, 2017, the city of Philadelphia opined that the DOJ’s press release placed 3 conditions on the receipt of Byrne JAG grants. Firstly, the city had to be in compliance with 1373; 2. Secondly, it was anticipated that the city could facilitate the work of homeland security by allowing access to all detention facilities. Such permission would enable the federal agency to meet any individual of interest. Thirdly, Philadelphia was obliged to provide the DOJ with information about the individuals scheduled for release from prisons, at least 48 hours in advance. Such a notice would allow the federal government to vet the ex-convicts and process them for deportation, in case deemed necessary.
In the assessment of the city of Philadelphia, the DOJ had no statutory or constitutional basis to advance the above conditions on the grants program. In particular, the statute, which the program was based on, did not envision such eventuality. In a nutshell, the DOJ usurped the Congress’s authority on expenditure and revenue allocation. Further, the city contended that the DOJ’s actions amounted to attempts to usurp the local governments’ powers of administering their laws. On the above basis, the city sought to secure an injunctive and declaratory relief. In particular, the city inferred that the court should declare that it was in compliance with § 1373, besides finding that the conditions on the grant were unconstitutional. In response to the Philadelphia suit, the DOJ argued that the policy framework of Philadelphia frustrated the ability of the federal government to withdraw the immigrants with criminal history from the USA. Further afield, the DOJ observed that for a long time, it had imposed such conditions on the grants as a part of its efforts to enhance law enforcement.
The issue of compliance seems to be of major significance in the case. From the case brief, it is evident that the city of Philadelphia traditionally cooperated with the federal agencies regarding the enforcement of the law. Such cooperation extended to include the ICE. Under the city’s policies, the agencies from Philadelphia, such as the police, lack information whether an arrested person is a citizen or an alien, and whether such a person is legally or illegally in the country. Therefore, the city was unaware of the status of an individual, as it pertains to his / her legal status in the State.
Further, the case of Philadelphia demonstrates that in the course of routine administration, no policies within the city bar it from inquiring about the citizenship of criminals. In addition, no law prevented the city from sharing information on the above-mentioned issues with the federal government. Despite such a possibility, in the event that the city has no solicited data at its disposal, then it cannot share it. In other words, it is impossible to share what is unavailable. However, as a part of the efforts to address administrative concerns, the city is free to seek informants; carry out surveillance; deploy electronic methods; and / or secure search warrants with the approval provided by the courts. It also emerged that the city did not place restrictions on the degree to which it could conduct investigations. Thus, immigration aspects could also be explored as part of the investigations into the criminal background of a suspect. Overall, the city’s policies support cooperation with the federal authorities.
Based on the district court, Philadelphia complied with Section 1373 substantially. In addition, the court found that the actions of the city did not make it a sanctuary city. This was in as far as such a term would imply that the city took specific measures to prohibit the apprehension and prosecution of criminals.
Judge Baylson found that the protest by Philadelphia had grounds for consideration. Therefore, Judge Baylson held that the arguments advanced by the city of Philadelphia were plausible. In particular, based on the doctrine of separation of powers, and the statute founding, the Byrne JAG program did not require imposing conditions on the disbursement of grants. Besides, the DOJ violated the Spending Clause, as well as the Tenth Amendment. Further, Philadelphia deserved a declaratory judgment that it was in compliance with Section 1373.
In the ruling, Judge Baylson extended the Philadelphia city equitable relief and stated that it had the right to receive the JAG funds. In its finding, the court was convinced that the city of Philadelphia could have no knowledge of the citizenship status of the individual immigrants. However, the court attributed that fact to the insufficient evidence presented in support of its claims against the city. Moreover, the court found that the city’s policies were enacted in good faith with the intention of enhancing the protection of the individual liberties. In its judgment, the court reasoned that, the city would be worse off by failing to protect the individual rights in the pursuit of the federal government interests. In other words, the city is required to protect the rights of its residents, including those of its prisoners. Thus, the court declared that even if the conditions by the DOJ were valid, the city of Philadelphia would be either in compliance or substantially meet those conditions.
Further, the lower court elucidated its judgment by indicating that whenever a government agency could need an order from the judiciary, it should require that the city would provide information about a suspected alien of a questionable character. As the court observed, the provision was essential to the protection of the rights of the prisoners.
From the determination of the case, some aspects emerge as being critical. In particular, although the court had among its primary tasks the determination of JAG conditions, it was clear that little evidence was adduced in support of the removal or expulsion of a beneficiary from the program. In addition, the court reasoned that in the instances where an individual entered the US illegally, his / her records could not be found. Hence, it was questionable to require that the city must provide such details. In addition, the defendant was unable to prove that Philadelphia was in contravention of the legal provisions.
The court concluded that the city was in compliance with the section in contention and that there were no grave violations relating to “the specific constitutional injuries alleged on violations of the Tenth Amendment and the Spending Clause” posing irreparable harm to the city of Philadelphia.[footnoteRef:21] However, based on testimonies adduced by senior members from the police department, it was found that if the city of Philadelphia were forced to make changes as proposed by the federal government, it could potentially face irreparable losses. The majority of immigrants could live in fear in the city, thus boycotting essential services, such as healthcare or treatment for substance abuse and counseling on the family-related problems. Therefore, the court’s judgment was, “that the DOJ may not lawfully preclude the city of Philadelphia from receiving JAG Program funds based on alleged non-compliance with the Challenged Conditions.”[footnoteRef:22] Consequently, the federal government cannot deny any state or city grants due to non-compliance with certain aspects of the law. [21: City of Philadelphia v. Sessions U.S. Dist court, 1. LEXIS 40699 (US District court) (2018).] [22: City of Philadelphia v. Sessions U.S. (2018).]
Antithesis
The President of the United States enjoys legal backing to deny states or local authorities the right to benefit from federal grants. From the case (Philadelphia v. AG), it is evident that the federal government has the authority to impose restrictions on the grants that it issues to state governments. Based on the ruling, non-compliance, whether substantial or otherwise, provides sufficient grounds for denying state or local governments federal grants. Hence, the Department of Justice (DOJ) was justified in its refusal to give some states the Byrne JAG grants. It also emerged that the city did not spend any money from the FY 2017 Byrne JAG grants. On this basis, the city lacked any grounds to lodge a complaint that it would suffer harm if it were delisted from the recipients of the project. Hence, the court emphasizes that the theory of harm advanced by the city fails the plausibility test.
Varied opinions have emerged from the courts. Whereas, many of the rulings have supported the idea that the executive cannot deny funding to sanctuary states, William Orick, a US District judge, refused to compel the government to release up to one million dollars withheld from California.[footnoteRef:23] The judge based his decision on the fact that the case concerning the grants was still ongoing, and it remained unclear, which side the ruling would support. [23: Christophi Hellen. Judge Denies $1 Million Funding in Sanctuary Cities Case. Courthouse News Service (2018).]
Synthesis
Generally, the issuance of grants is dependent on a number of factors, including the stipulated guidelines on the statute which the grant is founded on. The awarding of federal grants falls under the powers of the Congress only. In this regard, all grants are subject to the approval of the legislative house. Regarding discretionary power, the awarding agencies have to confine their activities to statutory provisions, as well as any relevant guidelines of the grant in question. Nonetheless, regardless of the authority delegated to the awarding organ, all grant conditions ought to be consistent with the reference statute.
Being among the mandatory grants, for the JAG Program, the awarding agency needs to be satisfied that certain requirements, as set out by the authorizing statute, have been satisfied. Therefore, those states seeking such grants should provide the federal administering agency with the detailed plans on the use of the funding. Given that these types of grants are not competitive, no compliant applicant can be denied the funds.
The JAG Program is based on a formula that pays attention to the applicant’s background as well as the rate of violent crimes.[footnoteRef:24] For some time, the AG has restricted the eligibility of the program through the imposition of various conditions. In the case of Philadelphia, one of the reasons for the denial of the grant was that Philadelphia was not cooperating with the Office of the Inspector General (OIG) in efforts to eject undocumented criminal aliens from the USA. Consequently, the AG placed new conditions that the local authorities should give federal agencies advance notice regarding scheduled releases of certain individuals from correctional facilities; and that the federal agents should be provided access to the detention facilities within the city. Popularly, the two are known as the notice and access conditions. [24: City of Philadelphia v. Sessions U.S. Dist court, 1. LEXIS 40699 (US District court) (2018).]
From the above, it is obvious that the attempt to coerce the states into submission goes against the American government’s basis, which is grounded on the principle of separation of the states and the federal policies. If a change has to be introduced, the alteration should not be seen as an intrusion attempt by the federal government. Although the conservatives would favor the policy where the federal government imposes its way, there is a need to look back. For instance, according to the records, a liberal Congress sought to force local sheriffs to enforce gun laws, by passing legislation. The law was, however, overturned by the Supreme Court. This underscores the essence of autonomy between the two tiers of government. Hence, the idea that the threat by illegal immigrants is grave, and should facilitate the suspension of the law is misplaced.
Enforcement of the Executive Orders
Thesis
Through the authority of the executive branch, the President of the United States enjoys the constitutional power to ensure that state and local governments abide by the executive orders as well as standing federal regulations concerning the deportation of illegal immigrants. The creators of the Constitution of the United States recognized the importance of keeping power in check[footnoteRef:25], so executive orders issued by the President are enforceable. [25: Julien Boudon, The Separation of Powers in the United States, 4 Pouvoirs, (2016).]
Executive orders are viewed on the same basis as the federal ones. Looking at a number of landmark cases in the history of the USA reveals the state of power that the executive orders have. However, the same history highlights that the executive orders are not final. For instance, the nullification of an order by Harry Truman is a case in point. Reviewing the executive order by Trump on Obamacare is also helpful in as far as the understanding of the orders is concerned. In particular, the order sought to reduce any unwarranted regulatory or economic burden resulting from the Affordable Care Act, and going a step further to accord the states additional control over and flexibility in the creation of the healthcare market.[footnoteRef:26] [26: Somin Ilya. Federal Court Rules against Part of Trump Plan to Deny Funds to Sanctuary Cities, The Washington Post (2017).]
Antithesis
The President of the United States is limited constitutionally in ensuring that state and local governments abide by the executive orders. In case when an executive order is not based on law, its enforceability is thrown into doubt. Consequently, the US President would face problems in having such orders implemented. The constitutional grounds for the executive orders lie on the immense powers due to the executive. The US Constitution makes the orders a gray area since it is silent on their issuance or nature. However, under Article II of the Constitution, the President has a range of different powers. For instance, the US President is the commander-in-chief of the US armed forces and can issue decrees. Although the Congress has the power to pass legislation that might override executive orders, clearly, the President enjoys veto powers over the congregational proceedings. Just like in the case of Truman, Lincoln also faced a similar fate. Justice Roger Taney, a Supreme Court judge, concluded that the order was unconstitutional.[footnoteRef:27] The decision, known as Ex Parte Merryman did not yield a positive result since surprisingly, the President, as well as the Congress ignored the ruling. [27: Somin Ilya. Federal Court Rules against Part of Trump Plan to Deny Funds to Sanctuary Cities, The Washington Post (2017).]
Like many other presidents, President Donald Trump has issued a number of Executive Orders. Unlike in the past where many orders were generally uncontested, those under the current administration have attracted incredible controversy. For instance, in accordance with Executive Order No. 13768, entitled Enhancing Public Safety in the Interior of the United States, the jurisdictions should comply with Federal law in order to receive funds. The same order would imply that sanctuary states were ineligible for various grants. The executive order led to the filing of the case of City of Santa Clara v. Trump, 250 F.Supp.3d 497, 507 (N.D. Cal. 2017) (quoting 82 Fed. Reg. 8799).[footnoteRef:28] [28: City of Philadelphia v. Sessions U.S. Dist court, 1. LEXIS 40699 (US District court) (2018).]
The executive order further added that Secretary of the JAG program and the AG enjoyed the discretion to exclude he cities deemed non-compliant from receiving the funding. The sanctuary cities opposed the Executive Order alleging that it was in violation of the tenet of the Separation of Powers. Further, the aggrieved parties contended that the order was in contravention of the “Spending Clause of Article One of the Constitution.”[footnoteRef:29] Besides, following the Executive Order would violate the Tenth Amendment, according to the plaintiff. [29: City of Philadelphia v. Sessions U.S. Dist court, 1. LEXIS 40699 (US District court) (2018).]
Based on the finding of the court, the AG misinterpreted the law and the Executive Order was inconsistent with the basic / fundamental constitutional provisions. In the determination of the court, only the Congress had powers to decide on spending and applicable conditions to the federal funds. In this regard, the President’s input is only to ensure that the law is faithfully implemented. In other words, the law does not contemplate a scenario where the AG or the Secretary has discretionary powers on expenditure. The flopping of the above Executive Order demonstrates that not all orders from the President have a legal effect.
The court made interesting statements based on the order issued by the President. According to the judgment, even if the President had powers over spending, the Executive Order 13768 would have overstepped the constitutional boundaries on spending laws. Furthermore, the judges felt that the Order was placing ambiguous conditions, and proceeded to infer that such impositions failed to satisfy the JAG program’s purpose, as well as conditions. As the court indicated, there was no nexus between Section 1373 and federal funding. In this case, the President seems to have been misguided by his legal team led by the AG. Precisely, the Executive Order could not establish the nexus, which is required for it to be effective.
From the above recent order by the Trump administration involving the suspension of grants to those cities and states that declared the sanctuary status, it is evident that the legality of Executive Orders determine their effectiveness. The case filed by Santa Clara and San Francisco from the state of California proceeded up to the 9th US Circuit Court of Appeals, which rendered its decision by a 2:1 ratio that Trump erred in law. In other words, the executive order was unconstitutional. The court was unequivocally clear; and it inferred that only the Congress had powers over spending in the country. This is yet another case that demonstrates that the executive orders have to be constitutional for them to be effective.
Synthesis
The issuance of Executive Orders by the President of the United States must be premised on the Constitution to be effective. In this regard, the constitutional or legal basis of executive orders is uncontested. Article II; Section 1 directly vests executive powers in the presidency.[footnoteRef:30] Under Section 3 of the same Article, the President should ensure that the laws are implemented faithfully. Such powers accord the presidency broad powers and discretion to influence legal issues. In addition, executive powers hold a legal ground based on the power delegated by the Congress to the presidency. Although the overall idea is that the executive orders have a legal basis, their use should be tempered with caution and reason. If done procedurally, executive orders have the same weight as the federal ones, and must be obeyed by each citizen of the country. In cases the laws are viewed as non-procedural or illegal, like in the most recent order where the Trump administration sought to suspend grants to the sanctuary states, the courts can make pronouncements leading to their nullification. [30: U.S. Const. 8 U.S.C.]
Conclusion
The management of state affairs is complex. Within the United States, the Constitution underscores the doctrine of separation of power such that each division of the government must confine itself to its province of operation. Clearly, the sanctuary status has attracted controversies within the legal fraternity of the country. Based on the paper, local and state governments cannot declare the sanctuary status for the aliens, and proceed to reject cooperation with the federal government on law enforcement. It further becomes evident that on the basis of the Constitution, generally, regardless of any federal, state or local provision, there is no layer of government, entity or officer that could restrict or prohibit any government agent, official or body from sending to and / or receiving citizenship information from the Immigration and Naturalization Service. Further, it is the finding of this research that, the issuance of grants depends on a number of factors; although, the stipulated statute guidelines are fundamental. Hence, it is established that the President of the United States lacks legal backing to deny sanctuary jurisdictions federal grants. In addition, the issuance of Executive Orders by the President of the United States must be premised on the Constitution to be effective. This assumption is premised on the idea that the authority of the President to issue Executive Orders is not stated explicitly in the Constitution, nor does it appear in any statute. Nevertheless, it is accepted generally, that the Presidency derives its powers from Article II of the Constitution. Based on Article II, the executive power shall be vested in the President of the United States. From the above, it is evident that while issuing Executive Orders, the President must be cognizant with the Constitution and do so within its confines. Therefore, the federal government can only influence state governments in handling various issues so long as the law is followed. Against this backdrop, it is possible to conclude that the state governments are required to adhere to executive orders if they have a legal basis.
