President Donald J. Trump after signing his executive order on sanctuary cities. EPA/Chip Somodevilla / POOL (AFP-OUT).

President Donald J. Trump after signing his executive order on sanctuary cities. EPA/Chip Somodevilla / POOL (AFP-OUT).

By Ilya Somin

Yesterday, President Donald Trump signed an executive order denying federal funding to sanctuary cities – jurisdictions that choose not to cooperate with federal efforts to deport undocumented immigrants. The order has serious constitutional problems. Unless interpreted very narrowly, it is both unconstitutional and a very dangerous precedent. Trump and future presidents could use it to seriously undermine constitutional federalism by forcing dissenting cities and states to obey presidential dictates, even without authorization from Congress. The circumvention of Congress makes the order a threat to separation of powers, as well.

The order indicates that sanctuary cities “that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” More specifically, it mandates that “the Attorney General and the [Homeland Security] Secretary, in their discretion and to the extent consistent with law, shall 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.”

Section 1373 mandates that “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.”

There are two serious constitutional problems with conditioning federal grants to sanctuary cities on compliance with Section 1373.