Executive Orders Immigration Legality of President Trump's Actions

State Officers Are Not Required to Deport Anyone

On Tuesday morning, the Department of Homeland Security released new documents revealing more details about President Trump’s immigration plans. Trump is counting on state and local police officers to help him enforce his harsh deportation policies. If states and cities agree to help him, that’s fine. But there are many others –including sanctuary cities– that will refuse to help him out. He cannot force those states to comply.

Why not? It’s unconstitutional, as simple as that. Remember that our government is based on something called federalism. What federalism means is that there are two sovereign governments – federal and state. There are some areas in which the federal government will have all the power and other areas in which only states have power. There are middle ground, hazier, zones as well, in which federal and state power will overlap. In case of a conflict, federal law will most likely trump.

The Supreme Court has made it clear that the federal government is in charge of immigration laws and states have to yield to that federal power. This, however, doesn’t mean that the federal government can force state police officers to help them carry out federal laws. Federalism keeps state and federal governments separated. If the federal government were allowed to compel state officers to enforce federal regulations, the separation between state and federal governments would start to disappear. This is a legal doctrine called “commandeering.”

       There is a democracy value at stake. If the federal government could force state officers to carry out federal law, two things could happen. First, if the federal program succeeds, members of Congress (instead of state officers) would take all the credit for that success and without asking their constituents to pay taxes to fund the program. And no one likes to pay more taxes, so congressmen would be taking even more credit when, in reality, the success of the program was at the expense of state constituents’ taxes. The second thing that could happen is the opposite. If the federal program fails, state politicians will suffer those consequences in the next election. Constituents would blame state officials for failing, without realizing that this was a federal plan in the first place.

These two possible results would threaten our democracy because one of the core democratic values is that people are able to elect politicians based on their plans and actions. If federal and state governments get mixed up, we can get easily confused and not know whom to credit or blame for what.

The President’s threat to withdraw federal funds if states refuse to comply is also unconstitutional. The federal government is not allowed to suddenly impose new conditions on federal grants to states. When the federal government gives grants to states, there are generally some conditions attached. Many of the existing conditions have little to do with enforcement of federal immigration policies. Therefore, the President cannot simply come up with new conditions and threaten to withdraw the funds if these new conditions are not met.

 

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