On July 25, federal district court Judge Lindsay C. Jenkins issued a ruling rejected the Trump Administration's lawsuit challenging Illinois "sanctuary" policies restricting state and local government assistance to federal immigration enforcement policies. Judge Jenkins held that the policies in questions generally do not conflict with federal immigration law, because "any collaboration under the ]Immigration and Nationality Act] is permissive, not mandatory." Federal law allows state cooperation, but does not require it. In addition, mandatory cooperation is barred by the Supreme Court Tenth Amendment "anti-commandeering" precedent, which bars the federal government from requiring state and local governments to help enforce federal law:
Even if the Sanctuary Policies "obstruct[] federal immigration enforcement, the United States'[s] position that such obstruction is unlawful runs directly afoul of the Tenth Amendment and the anticommandeering rule." California II, 921 F.3d at 888. "Extending conflict or obstacle preemption to [the Sanctuary Policies] would, in effect, 'dictate what a state legislature may and may not do.'" Id. at 890 (citation modified) (quoting Murphy, 584 U.S. at 474). It would transform a statutory provision giving States "the right of refusal" into a provision requiring state action. Id. As explained, "the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs." Printz, 521 U.S. at 925.
Ironically, the anti-commandeering rule was first elaborated in Supreme Court decisions written by conservative Supreme Court justices on issues involving environmental and gun control mandates. At the time, these rulings were cheered by conservatives and decried by many on the left. But, during Trump's first term, and now again in his second, the main focus of anti-commandeering litigation shifted to immigration policy, resulting in a shift in its political valence. In 2018, the Supreme Court furthered strengthened the anti-commandeering doctrine in Murphy v. NCAA, a ruling written by conservative Justice Samuel Alito. That ruling had the predictable- and predicted by me - effect of bolstering sanctuary cities. Judge Jenkins' recent ruling relies heavily on Murphy.
As Judge Jenkins notes, her decision is consistent with numerous similar rulings against Trump's first-term efforts to coerce sanctuary cities. For more detail, see my Texas Law Review article assessing litigation arising from Trump's first-term actions in that field. In that article and elsewhere, I also explained why immigration sanctuaries (and conservative gun sanctuaries) are beneficial, and why judicially enforced limits on commandeering provide valuable protection for federalism and the separation of powers.
As also described in my Texas Law Review article, the first Trump Administration also lost a long list of cases in which it tried to withhold federal grants from sanctuary jurisdictions by attaching immigration-related conditions not authorized by Congress. That losing streak has continued in Trump's second term.
Judge Jenkins' ruling will likely be appealed. But unless the Supreme Court makes major changes in its federalism jurisprudence (which I hope and expect it will not do), the administration is likely to continue to lose these types of cases.
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