Fair Weather Federalism, Revisited

By Dan Cadman on August 28, 2017

In response to my recent blog post "On the Notion of Fair Weather Federalism", about withholding funding from sanctuary cities, a reader posted a comment, saying in relevant part:


The Congress---not the President---decides how federal funds will be distributed to cities and counties around the USA. But the new administration can RECOMMEND conditions to attach to some federal grants. And Congress could restrict specific law-enforcement grants to cities that cooperate with all legal requests for information and custody of foreign nationals.

Here is a compromise that almost everyone can support: Let the POLICE do their work without concern for the citizenship of anyone encountered. But let the PRISONS fully identify everyone arrested---including country of citizenship.

I want to take a moment to respond:

Dear Sir,

You're right, Congress gets the first say-so. But your analysis is shallow; it just doesn't go far enough. Congress did in fact speak to the issue of federal grants when it passed, and the president signed into law, the Federal Grant and Cooperative Agreement Act of 1977 (P.L. 95-224).

Section 9 of that act ("Guidelines") states that "The Director of the Office of Management and Budget [OMB] is authorized to issue supplementary interpretive guidelines to promote consistent and efficient use of contracts, grants agreement, and cooperative agreements as defined in this Act."

OMB, as you may or may not know, is a White House agency whose director answers to the president. Thus, contrary to your assertion, it's not a stretch to say that the president, through his proxy at OMB, does in fact have a significant say in the manner in which federal grants and other funds are disbursed.

OMB, in its turn, has issued extremely detailed guidance in the form of federal regulations governing the way agencies are to deal with administration of grant funds under their control. For purposes of this discussion on withholding grant funds from sanctuary jurisdictions, the relevant portion can be found at 2 CFR Sec. 200.208 ("Certifications and Representations"), which states:

Unless prohibited by Federal statutes or regulations, each Federal awarding agency or pass-through entity is authorized to require the non-Federal entity to submit certifications and representations required by Federal statutes, or regulations on an annual basis. Submission may be required more frequently if the non-Federal entity fails to meet a requirement of a Federal award.

In the case of the Justice Department and other relevant grant programs, each applicant organization is obliged to certify that it is in compliance with federal laws. That seems to me neither onerous nor unreasonable. In fact, imagine the irony were the Department of Justice, the premier law enforcement and prosecutorial entity of the federal government, not to levy such a requirement.

The problem, of course, is that sanctuary jurisdictions cannot credibly make any such claim; this is because virtually every one of them has enacted a law, regulation, ordinance, or policy that contravenes two federal statutes. Take a look at the language found in Title 8 U.S.C. Sections 1373 and 1644.

In point of fact, it seems to me that a prima facie case could be made that a sanctuary jurisdiction that submits such a certification is in violation of federal criminal statutes relating to false statements and perjury. (See Sections 1001 and 1621 of Title 18 of the United States Code.)

One last observation: Your commentary reflects a shocking naiveté about how the criminal justice system really works, else you would not suggest that the public is made any safer when ICE agents retreat solely to the penitentiaries and do not examine the booking desks at local police and sheriff's departments to determine the alienage, deportability, and criminality of those being brought in after arrest. Take a look at what just happened in Sonoma County, Calif., when an alien was released by the sheriff's department after giving ICE a mere 16 minutes to arrive at their lock-up to take custody of the alien in question. Needless to say, for ICE agents to drop everything and arrive from San Francisco (their nearest field office) in time to prevent release was a physical impossibility. Note that the alien had been incarcerated to begin with for felony domestic abuse of his live-in girlfriend. Left to his own devices, and under no official restraint, when released he promptly returned to the residence, where he murdered her by beating her to death. Where is the sense in such a policy of noncooperation by the Sonoma Sheriff's Office?

Hoping this helps clarify things.