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The mayors of numerous Sanctuary Cities in the United States - those which shelter or allow undocumented immigrants - have promised to take the President to court. They have stated that his recent executive order asking them to deport local immigrants is unconstitutional. If enforced, the order would cut funding from any city that failed to abide by his directive.

While there are many social, political, and economical reasons to argue against the order, what part of the Constitution are these sources referring to?

What specifically has been or can be argued, using the Constitution as a base, against this order?

  • Welcome to the site, have you done any research on the Constitution in this regard? Good question. What the mayors are attempting in general is called "Nullification" by the way. Just to get you started. – K Dog Jan 26 '17 at 22:06
  • @KDog One site briefly mentioned the 10th Amendment but I want to see if that is credible or if there are additional violations being proposed. – Zxyrra Jan 26 '17 at 22:11
  • See the two articles I reference below to Ben Cooper's answer. They are a decent start to understand this. I don't think the cities have much of a leg to stand on since Obama's stance in Arizona v US. Arizona's case was much stronger than any on these mayors. And they still lost. – K Dog Jan 26 '17 at 22:32
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    @KDog but the Arizona case was fundamentally different from the present controversy. – phoog Jan 26 '17 at 22:53
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    @KDog But the Arizona case was trying to decide whether cities and municipalities can enforce federal law, not whether they can be compelled to do so, right? – reirab Jan 26 '17 at 23:56
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This follows the principle of federalism which is rooted in the 10th amendment. To quote:

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.

This has historically been interpreted by the courts to not allow the federal government to obligate local government to enforce federal laws and regulations. See New York v. United States (1992) as an example. The sanctuary cities are claiming that this permits them to not have to enforce federal immigration law.

It's worth noting that some Mayors, most notably Marty Walsh of Boston have committed to sheltering immigrants in public buildings. The legality of hiding immigrants from federal officials is much more questionable.

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    Reference to Arizona v United States is going to take precedence, it's much more recently decided on much more similar grounds. And you have Obama to thank. slate.com/articles/news_and_politics/jurisprudence/2012/06/… – K Dog Jan 26 '17 at 22:29
  • Also see the history of Nullification here.nysun.com/national/… – K Dog Jan 26 '17 at 22:30
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    @KDog Arizona is much less on-point. The feds can stop the states from interfering in federal tasks. They cannot force the states to enforce federal policy. Blame the NRA for establishing that the feds can't make local sheriffs enforce federal gun laws. For the whole cutting funds thing, blame the Republican AGs who challenged Obama are for establishing that the feds can't coercively cut funding to get states to comply (small relevant cuts are fine, "no money unless you do X" is not). – cpast Jan 27 '17 at 0:20
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    I would also add that Article 4, section 4 of the Constitution so does enumerate the power to the Federal Government, so the 10th Amendment doesn't apply – K Dog Jan 27 '17 at 16:25
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I agree with @Ben-Cooper that https://en.wikipedia.org/wiki/New_York_v._United_States is a valid precedent (I'm not a lawyer), but that case explicitly permitted the federal government to use "monetary incentives" to compel states. So, Trump's plan to take money from cities that don't enforce the law is probably Constitutional.

https://en.wikipedia.org/wiki/South_Dakota_v._Dole also confirmed the federal government can use "monetary incentives" to make states comply with federal wishes, even those that aren't actually laws.

The https://en.wikipedia.org/wiki/National_Maximum_Speed_Law was never a federal law per se: it merely economically punished states that refused to pass a 55mph speed limit law.

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    > that case explicitly permitted the federal government to use "monetary incentives" to compel states. administrations of both parties have done that. the speed limits on highways for example are some of the better known ones. but hi, if someone wants to sue, they are entitled to their rights as well. – dannyf Jan 27 '17 at 16:12
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    Monetary incentives are limited to non-coercive ones. See NFIB v. Sibelius -- even if the grants are somehow related to the behavior the feds want (which is true for highway funds and a drinking age law designed to reduce DUI, but not true for most federal funds and immigration policy), it's unconstitutional to threaten so much funding as to be coercive (the feds couldn't strip states that didn't expand Medicaid of all Medicaid funding). – cpast Jan 27 '17 at 16:17
  • @cpast My reading of law.cornell.edu/supremecourt/text/11-393 is that Congress also can't compel commerce: in other words, they can't force people in the States to buy anything (such as medical insurance). However, you are also correct: the Circuit court rejected the coercion argument, but the Supreme Court appears to have agreed with it. – barrycarter Jan 27 '17 at 16:37

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