Never Thought I’d Cheer States’ Rights…

It has been somewhat lost among all his other bluster, and more recently by the diversion of his air strike against Syria, but Trump has reiterated his threat to withhold federal monies from so-called “Sanctuary” cities and states. (As many people have pointed out, the sudden onset of humanitarianism that purportedly prompted those airstrikes has yet to prompt a willingness to accept children fleeing the hellhole that is today’s Syria.)

Trump’s threats are evidently as empty as his compassion. Talking Points Memo reports that, thanks to a Supreme Court decision in a lawsuit brought by Republicans opposed to the ACA, Trump can’t withhold funds from states acting humanely. It would be illegal.

File under “be careful what you wish for”….

In 2012, the Supreme Court forced the Obama administration to make Medicaid expansion voluntary for states instead of mandatory, ruling that when the federal government “threatens to terminate other significant independent grants as a means of pressuring the States to accept” a federal policy, it is unconstitutionally coercive.

Conservative groups that celebrated this victory over “infringement on state sovereignty by the federal government” may now be dismayed to learn that it could throw a wrench into the Trump administration’s current plan to punish sanctuary cities.

Attorney General Jeff Sessions recently warned local officials that continued refusal to co-operate with federal immigration authorities would jeopardize approximately $4 billion dollars in unrelated grants; those grants currently support local programs addressing everything from human trafficking, sexual assault, and gang violence to mental health, gun crimes and various public safety issues.

Sessions evidently neglected to research the Administration’s authority to follow through on that threat.

Stripping the cities and counties of this funding, however, is easier said than done. Doing so could violate the 10th Amendment, which protects states’ rights against federal intrusion, and a number of Supreme Court cases, including the 2012 case that struck down Obamacare’s mandatory Medicaid expansion, legal experts warn.

“It may be unconstitutional on several grounds,” said George Washington University Law School professor John Banzhaf III.

Banzhaf argues that U.S. law dating back to the mid-1800s bars the government from “commandeering” local officials to enforce federal law in almost all instances. The 2012 Supreme Court ruling in National Federation of Independent Businesses v. Sebelius expanded on this principle, holding that “states could not be required to expand Medicaid programs under threat of a loss of federal funds—the same coercive method threatened by Sessions—except where the threat was one mandated by Congress and signed into law, not a mere presidential order,” Banzhaf said.

Two other cases–one in 1987 and one from 1997–reinforce the limits on federal coercive power.

In the 1987 decision South Dakota v. Dole — which concerned a government attempt to cut highway funding to states that tried to lower the federal drinking age — the Court said the federal government can only cut grants related to the policy they are trying to enforce. Though the federal government’s argument trumped the state’s in that case, the ruling significantly narrowed the kind of funding the federal government can withhold when attempting to incentivize local governments to carry out a certain policy….

The Court went even further in 1997, ruling in Printz v. United States that “the Federal Government may not compel the States to enact or administer a federal regulatory program.”

Sessions has now indicated that future grants will be conditioned upon compliance with federal immigration law, a tacit admission that– his threats notwithstanding–he cannot reach previous awards issued without such provisions.

I’m sure those staunch defenders of states’ rights–the ones who were so sincere when they explained that their opposition to civil rights laws had nothing to do with racial animus–will applaud this current application of federalism doctrine.

On the other hand, perhaps I shouldn’t hold my breath waiting for their applause….


  1. Sounds like good news, but I have to wonder why perjurer Sessions is still Attorney General?

  2. The Rs that are extremely authoritarian, like Sessions and Pence, want their way all of the time. I recall gov pence joining multiple lawsuits against the federal government while also encouraging our state legislators to create bills that blocked counties and cities from having the power to govern on issues they believe are best handled locally. Those authoritarian types are used to having their cake and eating it too. They just may figure out a way around this law too.

  3. I have privately thought myself not to be States Rights person, thinking that somehow I was being “superior” in that thought. However, the older I get the more I realize that most well thought out. political ideas can be valid, if they are lovingly guarded and not abused, Thus, there was an eon or two when monarchy was considered the only way to govern, from the village tribal ruler to the soverign of the people, whatever those persons were called.

    However, as the People began to realize individual worth,other forms of government have been tried, partially for the most part: democracy, socialism, communism.

    With democracy in the United States, it was natural that State’s rights should be sought after by those States that wanted to remain integral to the ideas upon which they were founded, yet who needed protection of a federal government.

    As the States grew more homogenous, even in the early years, it increasingly appeared unnecessary and even unwise for the States to have more authority on “serious” matters than the federal government.

    When there has been increasing abuse of power anywhere, however, there is usually a backlash to stem this power as quickly as possible. Here in our cities and other institutions we are finding States Rights the solution in trying (and hopefully succeeding) to outbalance a wrong being done by the federal government.

  4. Mitch McConnell has proven many times that hypocrisy only counts when Democrats do it.

  5. It all comes down to Bobby Knight. His ugly, ugly impulses and those of his fans can be seen as an analogies of everything the Republicans do. Like the rabid BK fans, the Rs feel entitled to obedience and loyalty, as if one’s very tribal identity depends on it, but pity the poor referee who makes a call against them. Because, as we all know, they are fighting the good fight, their man can do no wrong, and God is on their side. Like Knight, their King, once deposed, will spend a lifetime showing his spite for all that is good, and his child-like followers will support him to their graves.

  6. The forces of authoritarianism may find a way to avoid the 10th Amendment and court decisions that limit their attempts to deny money for “unrelated grants” by reframing the issue in such a way that there is wiggle room for a now 5-4 court to find that “national security” or some other such vague phrase removes stare decisis from consideration. As one commentator put it, we see the same thing happening in state control of cities’ ordinance and home rule, and there is no 10th Amendment or its counterpart to protect cities from overriding state control. “Home rule” is an increasingly cruel joke; it exists only within the confines of state control. Thus there is a distinction, unfortunately, as constitutionlly unprotected cities are political subdivisions of the states and subject to more control than that in the federal – state example.

    I, too, have long been for limitations on the reach of the 10th Amendment because of the manner in which it was employed in matters of voting and civil rights. Madison gave us state control of the ABCs of setting elections but he did not give them control of the right to vote per se, a different issue, and one not covered by states rights. With the current suppression of the vote by state legislatures who intermix or obscure these issues as grounds for legislation, I expect and hope to see more litigation questioning the right of states to deny or even substantially limit a federally given right to vote, a pillar of our democracy.

  7. Do we really get the benefits of states rights laws in Indiana? Is it possible we’re getting the benefits of southern states rights laws? It may be an illusion. but it seems our Hoosier stars are more in alignment with Dixie stars. It’s no wonder Trump was attracted to Pence, who did Indiana a favor by leaving it

  8. One would hope the U.S. Attorney and his staff would be cognizant of and willing to abide by Supreme Court precedents, but there are those in government who ignore legal restraints until someone gains an injunction or other court decision to force them back within the law. Ignorant or illegal???? I’d much rather the nation’s highest law enforcement official (and President) wouldn’t fit into either category.

  9. At the bare bones level of plain reason, it seems possible to have it both ways. In fact, we already have it both ways. How? If the federal government wishes any policy to be enforced in the states, it can accomplish all the enforcement it desires by DOING THE ENFORCING ITSELF, e.g. by using federally employed officials, footing the entire expense of execution and omitting the leverage of withholding federal funds for any program in the state, as is done with border control. And on certain state and local enacted policies–fully funded by the state and wholly free of constitutional mischief–the states may enjoy the liberty to proceed as they desire.

  10. well, Donald may turn out to be one of the better President’s after all. Many (often liberal) voters would overlook the threatening implications of Obama, Hillary, Eric Holder, and the many folks that wanted any federal agency to overrule ANY local government and civil rights properly belonging to the people. After all, they were kindly masters and the cynical views of the founding fathers were simply not stylish in today’s world. Now when Donald claims the same powers of previous regimes (some) people awake from their slumber and realize that giving away their rights was not as smart as once thought.

  11. Executive orders in the past were implemented where Congress wa going to vote that way any way primarily. But that changed over the past decade, now we have a second President issuing executive orders some reversing orders of the preceding. Laws forbidding sanctuary cities aren’t on the books? If not that’s a simple solution, write a law. States rights including the repeal of the 17th amendment would put the control of the federal government back in the hands of a Democratic Republic not just federal judges appointed by a political persuasion left or right. Targeting immigrants who commit crimes is something we can agree on but sanctuary cities don’t allow for that. You only have to watch ID Discovery Channel to get creeped out by criminal behavior from domestics or immigrants alike to understand why it’s a bipartisan issue that elected Trump. Not that I agree, but apparently avoiding a political truth as clear as this one is not paying off as now we are faced with cuts in some areas that I disagree with.

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