Confusion about Commandeering

Newly-elected Virginia Governor Abigail Spanberger is refusing to cooperate with federal Immigration and Customs Enforcement (ICE) efforts to detain and deport unlawfully present immigrants, including those with criminal records. Whether or not one agrees with this policy, Governor Spanberger is under no obligation to help the federal government enforce federal law. For the same reasons that New Hampshire cannot be required to implement the federal Clean Air Act, states cannot be directed to enforce (or even facilitate the enforcement of) federal immigration law. This is the import of the anti-commandeering principle embodied in cases like New York v. United States, Printz v. United States, and Murphy v. NCAA.

While states may not be commandeered by the federal government, states can be required to comply with generally applicable law–that is, laws that regulate state activities that are otherwise subject to federal regulation, such as employment or the operation of certain functions. States also cannot block federal efforts to enforce federal law directly, such as occurred with Operation Metro Surge. As I have explained previously, Minnesota’s arguments that the federal government violated the anti-commandeering principle by deploying federal agents to enforce federal immigration laws in Minneapolis bear no weight.

I unpack the anti-commandeering principle a bit more in my latest Civitas Outlook column. Here is a taste:

The New York decision makes clear why Minnesota’s Attorney General Ellison’s anti-commandeering argument went nowhere in Minnesota v. Trump. The imposition of otherwise-constitutional burdens on states is a permissible way to induce state cooperation, as is the direct enforcement of federal law, even when it is not to the liking of state governments. This is precisely how “cooperative federalism” works under most federal environmental laws. States are encouraged to embrace federal priorities and agree to enforce federal pollution control laws, and are promised federal financial support for their efforts. Should states refuse, however, the federal government comes in to enforce federal environmental laws directly, often in ways that are more burdensome or disruptive than the state would like. In effect, the federal government tells the states, “if you don’t enforce our standards, we’ll do it for you, and you won’t like it.” Indeed, under the Clean Air Act, the U.S. Environmental Protection Agency enforces more stringent regulatory standards in non-cooperative states than in the rest of the country.

While the federal government can offer incentives for state cooperation, the Trump Administration does not have free rein to withhold federal funding from sanctuary jurisdictions or impose sanctions that Congress has not approved. The federal government may impose conditions on the receipt of federal funds, but those conditions must be related to the funding’s purpose and — of particular relevance to the debate over immigration — states must have notice of the conditions before the funds are disbursed. Existing precedent also suggests that such conditions should be imposed or authorized by Congress and cannot be declared by executive fiat. This means the Trump Administration will have a harder time withholding federal funds from sanctuary jurisdictions than it might like, unless it gets Congress to go along.

The anti-commandeering doctrine may seem counterintuitive to some (and confusing to some government officials), but it aligns with the federalist nature of our republic. Preventing the federal government from forcing states to enforce or implement federal law reinforces political accountability by clarifying which government officials are responsible for which policy decisions. Yet, as Justice O’Connor explained in her New York v. United States opinion, if the federal government could commandeer state officials, federal officials would be insulated from political consequences for their decisions (should they prove unpopular), and the accountability of both federal and state officials would be “diminished.”

You can read the whole thing here.

For those interested in anti-commandeering issues, I have two papers in the works. One  unearths some of the anti-commandeering principle’s pre-New York history, including the federal government’s concession that such a principle exists fifteen years before New York was decided. A second explains why some applications of the Endangered Species Act to state and local governments violate the anti-commandeering principle. I’ll post more on both of these subjects in coming weeks.

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