Is Federal Anti-Sanctuary Law Constitutional?

Summary

• Sections 1373 and 1644 of Title 8 are integral to the successful enforcement of our immigration laws. They are designed to ensure that sanctuary states, cities, and localities cannot prohibit their law enforcement officers from, on a voluntary basis, letting U.S. Immigration and Customs Enforcement know when aliens whom ICE wants to place in removal proceedings are to be released from their custody. This allows ICE officers to assume custody of the aliens upon their release.
• Many sanctuary jurisdictions have in place statutes or policies that do exactly what sections 1373 and 1644 forbid — they prohibit their law enforcement officials from even voluntarily revealing to ICE the immigration status of aliens in detention, and from disclosing their release dates.
• The actions of these sanctuary jurisdictions have serious consequences. As the Trump administration explains, they result in ICE officers having “to engage in difficult and dangerous efforts to re-arrest aliens who were previously in local custody, endangering [the] officers, the particular alien, and others who may be nearby” and result in “criminal aliens [being able to] evade[] the detention and removal that Congress prescribed, and … instead return to the civilian population, where they are disproportionately likely to commit additional crimes”.
• Attorney General Bondi has directed the Department of Justice to bring legal challenges against sanctuary jurisdictions’ offending statutes and policies. In fact, the Trump administration has already filed suit against Illinois, its governor, the City of Chicago, its mayor, and other local officials in Illinois.
• The fundamental question looming over the Trump administration’s battle with sanctuary jurisdictions over sections 1373 and 1644 is their constitutionality. The 2nd Circuit has found section 1373 to be constitutional in at least one respect — it has ruled that the federal government can constitutionally condition New York City’s receipt of federal law enforcement grants on its compliance with section 1373. On the other hand, a number of federal district courts around the country have found section 1373 to be unconstitutional. On appeal, the appellate courts have deliberately avoided the constitutional question and have based their rulings as to DOJ’s ability to condition eligibility for law enforcement grants on section 1373 compliance on purely statutory grounds. However, these appellate courts, both conservative and liberal, have expressed doubt as to the constitutionality of section 1373.
• The primary premise for the contention that sections 1373 and 1644 are unconstitutional is that they violate the Tenth Amendment to the U.S. Constitution by “commandeering” state and local law enforcement into enacting or administering a federal regulatory program.
• The Supreme Court has, in fact, ruled that “commandeering” is in violation of the “dual supremacy” of the states and the federal government under the Constitution. In the three most important cases:
  • The Supreme Court, in a decision written by Justice Sandra Day O’Connor, ruled that provisions of the “Low-Level Radioactive Waste Policy Amendments Act of 1985” were unconstitutional. They required states to either enact legislation providing for the disposal of radioactive waste generated within the states’ borders, or to take possession of the waste, which the Court concluded was impermissibly compelling states to enact or administer a federal regulatory program.
  • The Supreme Court, in a decision written by Justice Antonin Scalia, ruled that provisions of the “Brady Handgun Violence Prevention Act” were unconstitutional. They required state and local law enforcement officers to conduct background checks on prospective handgun purchasers, which the Court concluded was impermissibly compelling states to enact or administer a federal regulatory program.
  • The Supreme Court, in a decision written by Justice Samuel Alito, ruled that provisions of the “Professional and Amateur Sports Protection Act” were unconstitutional. They prohibited state authorization of sports gambling, which the Court concluded was impermissibly dictating to state legislature what they could and could not do.
• How does the Supreme Court’s rulings as to “commandeering” bode for sections 1373 and 1644? There are three very strong reasons to conclude that federal courts should not find sections 1373 and 1644 unconstitutional:
  • First, the Supreme Court has by its own admission not yet ruled as to whether federal requirements that states and localities simply provide it with information — “purely ministerial reporting requirements” such as requiring law enforcement agencies to report cases of missing children to DOJ — should be considered unconstitutional commandeering. Litigation over sections 1373 and 1644 may turn out to be a catalyst for forcing the Court to decide this issue.

  • Second, a Supreme Court decision written by Chief Justice William Rehnquist is powerful ammunition for efforts to ensure that sections 1373 and 1644 withstand a commandeering challenge. The Court ruled that provisions of the “Driver’s Privacy Protection Act of 1994” were constitutional. They regulate the disclosure and resale of personal information contained in the records of state departments of motor vehicles, restricting the states’ ability to disclose/sell drivers’ personal information without their consent. The Court concluded that the law “did not run afoul of the federalism principles enunciated” in the “commandeering” cases. The Court explained that “the DPPA does not require the States in their sovereign capacity to regulate their own citizens. [It] regulates the States as the owners of data bases. It does not require [a State] Legislature to enact any laws or regulations, and it does not require State officials to assist in the enforcement of federal statutes regulating private individuals.”

    In a very real sense, sections 1373 and 1644 both regulate states and localities “as the owners of data bases” — not of driver’s license information but of “information regarding the immigration status, lawful or unlawful, of any individual”. Additionally, they do not require states or localities to enact any laws or regulations, and do not require state officials to assist in the enforcement of federal statutes regulating private individuals. Thus, sections 1373 and 1644 could be upheld against a commandeering challenge on this basis.

  • Third, the Supreme Court does not consider it unconstitutional commandeering for federal law to make “compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field”. Sections 1373 and 1644 may fall under this rubric, the contention being that Congress presented states with the choice of either being allowed to subject aliens to their criminal justice systems, but in a way that does not obstruct federal immigration enforcement, or not being allowed to subject aliens to their criminal justice system at all. The question would be: Did Congress actually have the intention to, and if so make it “clear and manifest”, require that if states want to prosecute and sentence aliens for crimes, they must comply with sections 1373 and 1644?

Introduction

Sections 1373 and 1644 of Title 8 of the U.S. Code are integral to the successful enforcement of our immigration laws. They are designed in part to ensure that sanctuary jurisdictions (states, cities, and localities) cannot prohibit their law enforcement officers, on a voluntary basis, from letting the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) know when aliens whom ICE has an interest in placing in removal proceedings are to be released from their custody. This allows ICE officers to assume custody of the aliens upon their release.

Section 1373 of Title 8 was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) It provides in relevant part that:

• Notwithstanding any other provision of Federal, State, or local law, 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, [DHS] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

• Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

  (1) Sending such information to, or requesting or receiving such information from, [DHS].

  (2) Maintaining such information.

  (3) Exchanging such information with any other Federal, State, or local government entity.

The House Judiciary Committee report on H.R. 2202 (the House-passed foundation for IIRIRA) explained § 1373’s rationale:

The Committee intends to give State and local officials the authority to communicate with the INS [then Immigration and Naturalization Service] regarding the presence, whereabouts, and activities of illegal aliens. This section is designed to prevent any State or local law, ordinance, executive order, policy, constitutional provision, or decision of any Federal or State court that prohibits or in any way restricts any communication between State and local officials and the INS. The Committee believes that immigration law enforcement is as high a priority as other aspects of Federal law enforcement, and that illegal aliens do not have the right to remain in the U.S. undetected and unapprehended.

The Senate Judiciary Committee report on S. 1664 (the Senate-passed foundation) also provided a rationale:

Effective immigration law enforcement requires a cooperative effort between all levels of government. The acquisition, maintenance, and exchange of immigration-related information by State and local agencies is consistent with, and potentially of considerable assistance to, the Federal regulation of immigration and the achieving of the purposes and objectives of the Immigration and Nationality Act [INA].

A similar provision, § 1644 of Title 8, was also enacted in 1996 as part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, providing in relevant part that:

Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [DHS] information regarding the immigration status, lawful or unlawful, of an alien in the [U.S.]

The conference report stated as to § 1644, using language often identical to the Judiciary Committee report’s language on H.R. 2202, that:

• Various localities have enacted laws preventing local officials from disclosing the immigration status of individuals to INS.

• The conference agreement provides that no State or local government entity shall prohibit, or in any way restrict, any entity or official from sending to or receiving from the INS information regarding the immigration status of an alien or the presence, whereabouts, or activities of illegal aliens. It does not require, in and of itself, any government agency or law enforcement official to communicate with the INS.

  The conferees intend to give State and local officials the authority to communicate with the INS regarding the presence, whereabouts, or activities of illegal aliens. This provision is designed to prevent any State or local law, ordinance, executive order, policy, constitutional provision, or decision of any Federal or State court that prohibits or in any way restricts any communication between State and local officials and the INS. The conferees believe that immigration law enforcement is as high a priority as other aspects of Federal law enforcement, and that illegal aliens do not have the right to remain in the [U.S.] undetected and unapprehended.

The Importance of §§ 1373 and 1644

The Trump administration argued in its unsuccessful Petition for a Writ of Certiorari to the Supreme Court regarding the 9th Circuit’s 2019 decision in U.S. v. California that:

[Pursuant to the INA, a]n alien who has committed a specified crime must be taken into immigration custody and detained pending removal proceedings “when the alien is released” from criminal custody, including from a state prison or jail … .

When an alien is ordered removed, federal immigration officials must remove him “within a period of 90 days.”… During the “removal period,” federal officials “shall detain the alien,” and “[u]nder no circumstances” may release an alien convicted of a specified crime. … When an alien who has been ordered removed is jailed or imprisoned on a criminal charge or conviction, the removal period begins on “the date … released.”… Federal authorities “may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment.”

As those removal and detention provisions illustrate, “[c]onsultation between federal and state officials is an important feature of the immigration system.” [Quoting the Supreme Court’s 2012 decision in Arizona v. United States.]

This necessary consultation is effectuated through ICE “detainers”. 8 C.F.R. § 287.7 provides that:

A detainer serves to advise another law enforcement agency that [DHS] seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise [DHS], prior to release of the alien, in order for the [DHS] to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.

In addition, § 287.7 also provides that:

Temporary detention at Department request. Upon a determination by [DHS] to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by [DHS].

I do not deal in this report with this related and equally important issue of state and local law enforcement entities’ compliance with ICE detainers requesting that they hold such aliens in custody for up to an additional 48 hours to facilitate ICE officers assuming custody.

Sanctuary Jurisdictions

Attorney General Pam Bondi has stated that “So-called ‘sanctuary jurisdictions’ include state or local jurisdictions that refuse to comply with 8 U.S.C. § 1373.” A prime example is California. Its “Values Act” provides in part that California law enforcement agencies shall not:

• Use agency or department moneys or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, including any of the following:

  (A) Inquiring into an individual’s immigration status.

  (B) Detaining an individual on the basis of a hold request [including an ICE detainer].

  (C) Providing information regarding a person’s release date or responding to requests for notification by providing release dates or other information unless that information is available to the public. [Emphasis added.]

• Transfer an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination.

Similarly, Illinois’s “TRUST Act” provides in part that:

• A law enforcement agency or law enforcement official may not inquire about or investigate the citizenship or immigration status or place of birth of any individual in the agency or official’s custody or who has otherwise been stopped or detained by the agency or official.

• Unless presented with a federal criminal warrant, or otherwise required by federal law, a law enforcement agency or official may not:

  (6) provide information in response to any immigration agent’s inquiry or request for information regarding any individual in the agency’s custody; or

  (7) provide to any immigration agent information not otherwise available to the public relating to an individual’s release or contact information, or otherwise facilitate for an immigration agent to apprehend or question an individual for immigration enforcement. [Emphasis added.]

Cities also have similar provisions in place. Chicago’s “Welcoming City Ordinance” provides in part that:

• Requesting Information Prohibited. No agent or agency shall request information about or otherwise investigate or assist in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.

• Disclosing information prohibited. Except as otherwise provided under applicable federal law, no agent or agency shall disclose information regarding the citizenship or immigration status of any person unless required to do so by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains, or if such individual is a minor or is otherwise not legally competent, by such individual's parent or guardian. [Emphasis added throughout.]

• Unless an agency or agent is acting pursuant to a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law, no agency or agent shall ... while on duty, expend their time responding to ICE inquiries or communicating with ICE regarding a person’s custody status or release date.

As do other local jurisdictions. Cook County, Ill., which includes Chicago, has an ordinance (11-0-73), that provides in part that:

Unless ICE agents have a criminal warrant, or County officials have a legitimate law enforcement purpose that is not related to the enforcement of immigration laws … County personnel shall not expend their time responding to ICE inquiries or communicating with ICE regarding individuals’ incarceration status or release dates while on duty. [Emphasis added.]

The Harms Inflicted by Sanctuary Jurisdictions Flouting of §§ 1373 and 1644

What happens when sanctuary jurisdictions forbid communication between ICE and state and local law enforcement agencies? The 9th Circuit admitted in U.S. v. California that “SB 54 [the “Values Act”] may well frustrate the federal government's immigration enforcement efforts.” It explained that:

The [U.S.] notes that SB 54 requires federal officers to, “in effect, stake out a jail and seek to make a public arrest. ... Arrests of aliens in public settings generally require five officers and present risks to the arresting officer and the general public.” It contends that “Congress did not contemplate that, as a consequence of letting state detention proceed first, federal officers who sought to detain an alien for immigration purposes would need to race to the front of a local detention facility and seek to effectuate an arrest before the alien manages to escape.” Compounding the problem, the [U.S.] further claims, are provisions of SB 54 that preclude agencies from providing personal information and release dates to immigration authorities.… So not only would California require DHS to stake out jails to detain aliens upon their release,” the [U.S.] continues, “but California would require DHS to do so indefinitely because the agency would not otherwise know if and when any given alien would be released.”

The Trump administration contends in the complaint it recently filed in the United States District Court for the Northern District of Illinois against the state of Illinois and Governor JB Pritzker; the City of Chicago and Mayor Brandon Johnson; the Chicago police superintendent; Cook County, Ill., and its board of commissioners; and the Cook County sheriff regarding the “Trust Act”, the “Welcoming City Ordinance”, and Ordinance 11-0-73 that:

• [R]estricting basic information sharing and barring DHS access to aliens in state or local custody upon their release … require[s] federal immigration officers either (1) to engage in difficult and dangerous efforts to re-arrest aliens who were previously in local custody, endangering immigration officers, the particular alien, and others who may be nearby, or (2) to determine that it is not appropriate to transfer an alien to local custody in the first place, in order to comply with their mission to enforce the immigration laws.

• If ICE lacks knowledge of criminal aliens’ release dates from state custody, ICE cannot exercise its statutory responsibility of effecting an arrest upon the alien’s release.

In its Petition for a Writ of Certiorari regarding U.S. v. California, the Trump administration further explained that:

• [A]s a result of SB 54, criminal aliens have evaded the detention and removal that Congress prescribed, and have instead returned to the civilian population, where they are disproportionately likely to commit additional crimes.

• The practical consequences … are significant. SB 54 is the statewide rule for a jurisdiction in which … ICE issued nearly 58,000 immigration detainers … and conducted more than 14,000 administrative arrests of aliens during fiscal year 2019. ICE and CBP [U.S. Customs and Border Protection] have both reported that SB 54 creates serious real-world harms.

• [R]estricting the circumstances under which state and local law enforcement officials can share information with and transfer aliens to federal immigration authorities … makes it more difficult for federal officers to identify, apprehend, detain, and remove aliens under the procedures specified by Congress. The result is that more removable aliens — often with criminal records — are released into the community … and federal officials have sometimes declined to transfer aliens to state law enforcement, even when they are wanted on serious state criminal charges. … Those developments undermine both public safety and the rule of law.

The Trump Administration Throws Down the Gauntlet

On December 20, 2024, America First Legal, founded by Trump White House Deputy Chief of Staff Stephen Miller, sent a letter to certain state and local officials stating that “The INA specifically preempts State and local restrictions on local officials’ communications with DHS.” The letter then stated that “The Supreme Court has clearly explained: ‘There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision.’ Congress did exactly that in Section 1373.” The letter concluded that “[t]herefore, sanctuary policies forbidding State or local officials from communicating with DHS are unlawful” and “sanctuary jurisdictions are strictly prohibited from requiring their employees to violate federal immigration law”. Then came the kicker: “We have identified your jurisdiction as a sanctuary jurisdiction that is violating federal law” and “we are sending this letter to put you on notice of this risk and insist that you comply with our nation’s laws.”

On January 21, Acting Deputy Attorney General Emil Bove sent a memo to all U.S. Department of Justice (DOJ) employees stating that “laws and actions that threaten to impede Executive Branch immigration initiatives, including by prohibiting disclosures of information to federal authorities engaged in immigration enforcement activities, threaten public safety and national security”. He directed that “The U.S. Attorney’s Offices and litigating components of [DOJ] shall investigate incidents involving … violations of … statutes, such as … § … 1373.”

Then, on February 5, Attorney General Bondi’s Sanctuary Jurisdiction Directives directed that “[a]ll litigating components of [DOJ] and each U.S. Attorney’s Office … shall, where supported by the evidence, prosecute violations of federal laws such as … [§] 1373” and that “[c]onsistent with statutory authority and past practice, [DOJ] will require any jurisdiction that applies for certain Department grants to be compliant with U.S.C. § 1373(a).”

The next day, February 6, the U.S. filed its aforementioned complaint, seeking “to prohibit the State of Illinois and its subdivisions from enforcing several state and local laws … designed to … interfere with … the Federal Government’s enforcement of federal immigration law”, and “hav[ing] the purpose and effect of making it more difficult for, and deliberately impeding, federal immigration officers’ ability to carry out their responsibilities in those jurisdictions”, all “in violation of the Supremacy Clause of the [U.S.] Constitution”.

The complaint alleges that:

• The challenged provisions of Illinois, Chicago, and Cook County law reflect their intentional effort to obstruct the Federal Government’s enforcement of federal immigration law and to impede consultation and communication between federal, state, and local law enforcement officials that is necessary for federal officials to carry out federal immigration law and keep Americans safe.

• These provisions intentionally obstruct the sharing of information envisioned by Congress, including basic information such as release dates and custodial status, thereby impairing federal detention of removable aliens, including dangerous criminals, as required by federal law.

The complaint contends that:

• [Chicago’s “Welcoming City Ordinance] runs directly afoul of … § 1373 by forbidding city officers from “expend[ing] their time responding to ICE inquiries ... regarding a person’s custody status, release date, or contact information,” … and further providing that such officers may not “request, maintain, or share the citizenship or immigration status of any person,”… . Chicago [cannot] point to its purported savings clause to avoid that reality. The savings clause allows agents to undertake those activities “if required to do so by statute, federal regulation, court order, or a lawfully issued judicial warrant,” … but rather than require States and local governments to share and maintain that information, federal law only prohibits restrictions on those activities. Chicago has therefore prohibited the activities that federal law expressly contemplates States will do.

• The Cook County law, Ordinance 11-O-73 … similarly limits the ability of Cook County law enforcement officers to provide the Federal Government with basic information about noncitizens who are in their custody and are subject to federal immigration custody.

The U.S. asks that the “Court issue preliminary and permanent injunctions that prohibit Defendants … from enforcing the challenged provisions”, which “constitute and create obstacles to the enforcement of federal immigration law” and are therefore preempted by Federal immigration law as in “violat[ion of] the Supremacy Clause and … therefore invalid” and in “violat[ion of] ... § 1373 and … therefore invalid.”

Are §§ 1373 and 1644 Constitutional?

The fundamental question looming over the Trump administration’s battle with sanctuary jurisdictions over §§ 1373 and 1644 is whether they are, in fact, constitutional. One federal appellate circuit — the 2nd Circuit — has found § 1373 to be constitutional in at least one respect — the federal government can constitutionally condition a jurisdiction’s (New York City’s) receipt of DOJ law enforcement grants on its compliance with the provision. However, the court’s conclusion had nothing at all to do with the attributes of § 1373. According to its ruling, pretty much any eligibility condition would seemingly be fine so long as the state had “a legitimate choice” as to whether to accept the condition in exchange for federal funds.

On the other hand, a number of federal district courts around the country have found § 1373 to be unconstitutional on its face. Importantly, in all of these cases the appellate courts have decided the issue at hand — the ability of DOJ to condition the receipt of law enforcement grants on compliance with § 1373 — on statutory grounds, deliberately avoiding the constitutional issue. However, in dicta these appeals courts, both conservative and liberal, have expressed dubiousness as to the constitutionality of § 1373.

In 2018, the 5th Circuit’s conservative Judge Edith Jones noted in her majority opinion in City of El Cenizo v. Texas that “The plaintiffs acknowledge that the Tenth Amendment prevents Congress from compelling Texas municipalities to cooperate in immigration enforcement.” The Tenth Amendment provides that “The powers not delegated to the [U.S.] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Judge Jones wrote that the U.S. “Congress could not pass a federal” version of the Texas statute (SB4) at issue, which, among other things, provides that “[a] local entity or campus police department may not … prohibit or materially limit the enforcement of immigration laws”, including by “prohibit[ing] or materially limit[ing] a person who is a commissioned peace officer” or certain other officials from “sending [information relating to the immigration status, lawful or unlawful, of any person under a lawful detention or under arrest] to or requesting or receiving the information from [DHS]”. Judge Jones went on to note that § 1373 “itself has not been immune from Tenth Amendment scrutiny” and observed that “the Tenth Amendment would likely preclude Congress from enforcing Section 1373 with the penalties provided by SB4”. Ironically, her opinion upheld the right of the state of Texas to do what the federal government (in her opinion) cannot.

In U.S. v. California, the 9th Circuit explained that “we need not address whether § 1373 is itself unlawful, though we note that various district courts have questioned its constitutionality”. The district court had determined that “a Congressional mandate prohibiting states from restricting their law enforcement agencies’ involvement in immigration enforcement activities — apart from, perhaps, a narrowly drawn information sharing provision — would likely violate the Tenth Amendment.”

Other appellate decisions deciding cases on statutory grounds and thus disregarding lower court determinations that § 1373 was unconstitutional include the 3rd Circuit in 2019 in City of Philadelphia v. Attorney Gen. (3d Cir. 2019), the 7th Circuit in 2020 in City of Chicago v. Barr, and the 9th Circuit in 2020 in City of San Francisco v. Barr.

Commandeering

The primary premise for the argument that §§ 1373 and 1644 are unconstitutional is that they violate the Tenth Amendment by “commandeering” state and local law enforcement into enacting or administering a federal regulatory program.

Let me explain. The Supreme Court ruled in 1992 in New York v. United States, with Justice Sandra Day O’Connor writing the majority opinion, that “The Federal Government may not compel the States to enact or administer a federal regulatory program.” Further:

[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. ... [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.

How come? Justice Samuel Alito, writing for the majority in the Supreme Court’s 2018 decision in Murphy v. Nat'l Collegiate Athletic Ass’n, explained that:

• The Constitution confers on Congress … only certain enumerated powers. … And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.

• The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States.

Justice Antonin Scalia, writing for the majority in the Supreme Court’s 1997 decision in Printz v. United States, stated that:

It is incontestible that the Constitution established a system of “dual sovereignty.” … Although the States surrendered many of their powers to the new Federal Government, they retained “a residuary and inviolable sovereignty,” The Federalist No. 39 … (J. Madison). … Residual state sovereignty was … implicit … in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, § 8, which implication was rendered express by the Tenth Amendment's assertion that “[t]he powers not delegated to the [U.S.] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Scalia explained why dual sovereignty came about:

The Framers’ experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal-state conflict. … Preservation of the States as independent political entities being the price of union, and “[t]he practicality of making laws, with coercive sanctions, for the States as political bodies” having been, in Madison's words, “exploded on all hands,” … the Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people - who were, in Hamilton's words, “the only proper objects of government[.]”… “[T]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” [quoting the Supreme Court’s decision in New York] The great innovation of this design was that “our citizens would have two political capacities, one state and one federal, each protected from incursion by the other” — “a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” [Quoting Justice Kennedy’s concurring opinion in U.S. Term Limits Inc. v. Thornton.]

Justice Alito agreed in Murphy, letting Justice O’Connor’s opinion in New York explain:

The Constitution, [Justice O’Conner] noted, “confers upon Congress the power to regulate individuals, not States.”… In this respect, the Constitution represented a sharp break from the Articles of Confederation. “Under the Articles of Confederation, Congress lacked the authority in most respects to govern the people directly.”… Instead, Congress was limited to acting “‘only upon the States.’”… Alexander Hamilton, among others, saw this as “‘[t]he great and radical vice in ... the existing Confederation.’”…. The Constitutional Convention considered plans that would have preserved this basic structure, but it rejected them in favor of a plan under which “Congress would exercise its legislative authority directly over individuals rather than over States.”

Justice Scalia expounded on the benefits of our constitutional system of dual sovereignty:

• This separation of the two spheres is one of the Constitution’s structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” [Quoting the Court’s 1991 decision in Gregory v. Ashcroft.]

• [T]he Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day. [Quoting the Court’s decision in New York.]

Then came the latter-day invasion of the sovereignty snatchers. Justice Scalia further explained in Printz that “there is not only an absence of executive-commandeering statutes in the early Congresses, but there is an absence of them in our later history as well, at least until very recent years”. As he expounded:

Federal commandeering of state governments is such a novel phenomenon that this Court’s first experience with it did not occur until the 1970’s, when the Environmental Protection Agency promulgated regulations requiring States to prescribe auto emissions testing, monitoring and retrofit programs, and to designate preferential bus and carpool lanes. The … Fourth and Ninth Circuits invalidated the regulations on statutory grounds in order to avoid what they perceived to be grave constitutional issues … and the District of Columbia Circuit invalidated the regulations on both constitutional and statutory grounds. … After we granted certiorari to review the statutory and constitutional validity of the regulations, the Government declined even to defend them, and instead rescinded some and conceded the invalidity of those that remained, leading us to vacate the opinions below and remand for consideration of mootness. [Citing the Court’s 1977 decision in EPA v. Brown.]

[L]ater opinions of ours have made clear that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs. In Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. [1981] … and FERC v. Mississippi [1982] … we sustained statutes against constitutional challenge only after assuring ourselves that they did not require the States to enforce federal law. In Hodel we … concluded that the Surface Mining Control and Reclamation Act of 1977 did not present the problem they raised because it merely made compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field. … In FERC, we construed the most troubling provisions of the Public Utility Regulatory Policies Act of 1978 to contain only the “command” that state agencies “consider” federal standards, and again only as a precondition to continued state regulation of an otherwise pre-empted field. … We warned that “this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations[.]”

When we were at last confronted squarely with a federal statute that unambiguously required the States to enact or administer a federal regulatory program, our decision should have come as no surprise. At issue in New York … were the so-called “take title” provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985, which required States either to enact legislation providing for the disposal of radioactive waste generated within their borders, or to take title to, and possession of, the waste-effectively requiring the States either to legislate pursuant to Congress's directions, or to implement an administrative solution … . We concluded that Congress could constitutionally require the States to do neither.

Justice Alito wrote similarly in Murphy:

• Although the anticommandeering principle is simple and basic, it did not emerge in our cases until relatively recently, when Congress attempted in a few isolated instances to extend its authority in unprecedented ways. The pioneering case was New York.

• New York was clear and emphatic. The opinion recalled that “no Member of the Court ha[d] ever suggested” that even “a particularly strong federal interest” “would enable Congress to command a state government to enact state regulation.”… “We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts[. ]Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program’[. ]Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents.”

As to the statute at issue in Printz, Justice Scalia wrote for the majority that:

• The question presented … is whether certain interim provisions of the Brady Handgun Violence Prevention Act … commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks, violate the Constitution.

• [T]he Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme. Regulated firearms dealers are required to forward Brady Forms not to a federal officer or employee, but to the CLEOs [chief law enforcement officers], whose obligation to accept those forms is implicit in the duty imposed upon them to make “reasonable efforts” within five days to determine whether the sales reflected in the forms are lawful.

As Scalia noted, “Petitioners here [the CLEOs for Ravalli County, Montana, and Graham County, Arizona] object to being pressed into federal service, and contend that congressional action compelling state officers to execute federal laws is unconstitutional.” And, as Scalia observed, “The power of the Federal Government would be augmented immeasurably if it were able to impress into its service — and at no cost to itself — the police officers of the 50 States.”

The Supreme Court ruled in Printz, in Justice Scalia’s majority opinion, that:

• It is no more compatible with this independence and autonomy that their officers be “dragooned” … into administering federal law, than it would be compatible with the independence and autonomy of the [U.S] that its officers be impressed into service for the execution of state laws.

• We … conclude categorically, as we concluded categorically in New York: “The Federal Government may not compel the States to enact or administer a federal regulatory program.”… The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule.

• We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

Justice Clarence Thomas, in his concurring opinion, wrote that:

The Court today properly holds that the Brady Act violates the Tenth Amendment in that it compels state law enforcement officers to “administer or enforce a federal regulatory program.”… Although I join the Court's opinion in full, I write separately to emphasize that the Tenth Amendment affirms the undeniable notion that under our Constitution, the Federal Government is one of enumerated, hence limited, powers.

The Supreme Court answered one remaining question in its 2018 decision in Murphy. The case involved the “Professional and Amateur Sports Protection Act” (PASPA), which “generally makes it unlawful for a State to ‘authorize’ sports gambling schemes”. Justice Alito stated in his majority opinion that:

• The Plaintiffs [at the district court level, the major professional sports leagues and the NCAA, argued] that PASPA was “critically different from the commandeering cases because it does not command the States to take any affirmative act … [and that w]ithout an affirmative federal command to do something … there can be no claim of commandeering.” [Emphasis in original.]

• Noting that the laws challenged in New York and Printz “told states what they must do instead of what they must not do,” [the once plaintiffs, now] respondents contend that commandeering occurs “only when Congress goes beyond precluding state action and affirmatively commands it.”

However, Justice Alito shot this argument down, calling the distinction to be “empty”. He wrote that “It was a matter of happenstance that the laws challenged in New York and Printz commanded ‘affirmative’ action as opposed to imposing a prohibition. The basic principle — that Congress cannot issue direct orders to state legislatures — applies in either event.” The Supreme Court ruled that “The PASPA provision at issue here — prohibiting state authorization of sports gambling — violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do.” Further, “PASPA ‘regulate[s] state governments’ regulation’ of their citizens. [Quoting New York.] The Constitution gives Congress no such power.”

Do §§ 1373 and 1644 Constitute Commandeering?

A reader might jump to the conclusion that the Supreme Court’s denunciation of commandeering as unconstitutional, especially in the opinions of conservative icons Justices Scalia and Alito, dooms §§ 1373 and 1644. However, as Ira Gershwin once wrote, “It Ain’t Necessarily So”.

Ministerial Reporting Requirements

Justice Scalia noted in Printz that:

The Government points to a number of federal statutes enacted within the past few decades … which require only the provision of information to the Federal Government, [but] do not involve the precise issue before us here, which is the forced participation of the States’ executive in the actual administration of a federal program. We of course do not address these or other currently operative enactments that are not before us; it will be time enough to do so if and when their validity is challenged in a proper case.

Thus, the Court in Printz left as an open question whether federal requirements for the provision of information can be considered unconstitutional commandeering, as Justice O’Connor emphasized in her concurring opinion:

[T]he Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid. See, e. g., 42 U. S.C. § 5779(a) (requiring state and local law enforcement agencies to report cases of missing children to [DOJ].¹

The 9th Circuit in U.S. v. California went so far as to take as a lesson of Printz that “the Supreme Court has implied the existence of a Tenth Amendment exception for reporting requirements.” However, Justice Scalia himself seemed dubious as to the constitutionality of ministerial reporting requirements, writing in Printz that:

The Brady Act does not merely require CLEOs to report information in their private possession. It requires them to provide information that belongs to the State and is available to them only in their official capacity; and to conduct investigation in their official capacity, by examining databases and records that only state officials have access to. In other words, the suggestion that extension of this statute to private citizens would eliminate the constitutional problem posits the impossible.

He also wrote that:

The Government … maintains that requiring state officers to perform discrete, ministerial tasks specified by Congress does not violate the principle of New York because it does not diminish the accountability of state or federal officials. This argument fails even on its own terms. By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for “solving” problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects. … Under the present law, for example, it will be the CLEO and not some federal official who stands between the gun purchaser and immediate possession of his gun. And it will likely be the CLEO, not some federal official, who will be blamed for any error (even one in the designated federal database) that causes a purchaser to be mistakenly rejected.

I should note that, as opposed to conducting required background checks, §§ 1373 and 1644 neither carry with them a financial burden for states and localities nor make them take the blame for anything.

Some justices did try to point out during Printz’s oral argument the extreme nature of the claim that states could deny access to the federal government of even vital law enforcement information:

[Unidentified Supreme Court Justice]: Supposing they amended the statute to say that all the investigations shall be done by Federal employees, FBI agents or something, but that the chief law enforcement officer of each community must make available to the Federal officer any records that will help him find out this information, would that be constitutional?

Mr. Halbrook, the counsel for the petitioners, responded “No, Your Honor” (it would not be constitutional, except in the context of a subpoena). He went on to say not to worry, the states could be counted on to provide the information voluntarily: “[T]his is the kind of thing where cooperative federalism really works. There's always been the sharing of information voluntarily. It’s not a problem.”

[Justice] I take it it’s your position that it would be unconstitutional to require access by a Federal investigator to State conviction records, is that correct? Is that your position?

[Halbrook] Access from a police department, perhaps, but by the same token, there's no constitutional power that the States would have to require the Federal Government to share their records, but it's the kind of thing that comes under cooperative federalism —

Later on in the questioning:

[Justice] And even if it’s 10 minutes a month required by the officer, if the Federal Government orders it, you can’t do it. … If it’s 10 minutes a month or 10 minutes a year. That’s your position.

[Halbrook] That's our position, absolutely.

It remains to be seen whether the Supreme Court will carve out ministerial reporting requirements from the commandeering ban. It might be that §§ 1373 and 1644 turn out to be the catalysts forcing a ruling out of the Court. Keep in mind that the answer may not be all or nothing. As the district court in U.S. v. California stated, “Whether the constitutionality of an information sharing requirement is absolute or whether it turns on how much the requirement effectively integrates state law enforcement into a federal regime is an interesting, and seemingly open, constitutional question that may prove dispositive in another case.” In any event, I would expect the Supreme Court to carve out an exception for at least some ministerial reporting requirements — say for vital law enforcement information.

Chief Justice Rehnquist’s Opinion in Reno v. Condon

There is a Supreme Court case from 2000 that sits uneasily amidst New York and Printz and Murphy — Reno v. Condon — and the majority opinion was authored by another conservative icon, Chief Justice William Rehnquist. The case bolsters the ability of §§ 1373 and 1644 being able to withstand a commandeering challenge.

Condon involved the “Driver’s Privacy Protection Act of 1994” (DPPA):

• DPPA … regulates the disclosure and resale of personal information contained in the records of state DMVs. State DMVs require drivers and automobile owners to provide personal information … as a condition of obtaining a driver’s license or registering an automobile. Congress found that many States, in turn, sell this personal information to individuals and businesses.

• The DPPA establishes a regulatory scheme that restricts the States’ ability to disclose a driver’s personal information without the driver’s consent.

• The DPPA's provisions do not apply solely to States. The Act also regulates the resale and redisclosure of drivers’ personal information by private persons who have obtained that information from a state.

South Carolina challenged the DPPA, “contend[ing] that [it] violates the Tenth Amendment because it ‘thrusts upon the States all of the day-to-day responsibility for administering its complex provisions[]’ … and thereby makes ‘state officials the unwilling implementors of federal policy[]’”. But the Supreme Court ruled, per Chief Justice Rehnquist’s majority opinion, that “We hold that in enacting this statute Congress did not run afoul of the federalism principles enunciated in New York … and Printz.” Rehnquist explained that:

We think, instead, that this case is governed by our decision in South Carolina v. Baker [1988].… In Baker, we upheld a statute that prohibited States from issuing unregistered bonds. … We … noted:

“The [National Governor's Association] … contends that … [the statute] has commandeered the state legislative and administrative process because many state legislatures had to amend a substantial number of statutes in order to issue bonds in registered form and because state officials had to devote substantial effort to determine how best to implement a registered bond system. Such ‘commandeering’ is, however, an inevitable consequence of regulating a state activity. Any federal regulation demands compliance. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect.”

Like the statute at issue in Baker, the DPPA does not require the States in their sovereign capacity to regulate their own citizens. The DPPA regulates the States as the owners of data bases. It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. We accordingly conclude that the DPPA is consistent with the constitutional principles enunciated in New York and Printz.

Rehnquist then discussed whether the Court’s ruling was premised upon the DPPA regulating both the states and private parties:

As a final matter, we turn to South Carolina's argument that the DPPA is unconstitutional because it regulates the States exclusively. The essence of South Carolina’s argument is that Congress may only regulate the States by means of “generally applicable” laws, or laws that apply to individuals as well as States. But we need not address the question whether general applicability is a constitutional requirement for federal regulation of the States, because the DPPA is generally applicable. The DPPA regulates the universe of entities that participate as suppliers to the market for motor vehicle information — the States as initial suppliers of the information in interstate commerce and private resellers or redisclosers of that information in commerce.

The Reno v. Condon oral argument contained this exchange:

[Justice] As I understand it, your central theory is that unless the statute regulates both private conduct and State conduct, it's invalid under a Tenth Amendment concern. … [D]oes that principle mean, for example, that Congress could not pass a statute the obverse of this, requiring States to send their — all of the information about criminal conduct, finger prints, missing children, and so forth, to a central bureau in Washington for review and use and for Federal purposes?

* * *

It would routinely require the police to report all missing children, and finger prints, and something of that kind. … [I]t requires the information … .

* * *

Does your principle apply to my hypothetical?

Charles Condon, South Carolina’s attorney general, responded that “I believe that in terms of the core of this case, it could.”

And there was a similar line of questioning later on:

[Justice] Do you say that to the extent that the Federal Government requires you to turn over records, that that would fall under your principle, too, but as a matter of comity you're not objecting, or that that’s distinguishable when the Federal Government says, South Carolina, you will give your driver’s license information to certain Federal agencies for certain purposes?

[Condon] I think in terms of the principles, we're at the comity level, especially when —

[Justice] So that if you wanted to insist on that being unconstitutional, you can say they’re our records, and we don't have to give them to anybody.

[Condon] Again, that's not the case before here. There's time enough for that.

So, as in Printz, a justice was trying to point out the extreme nature of the claim that states can withhold law enforcement information, and, in this case, driver’s license information, from the federal government.

Justice Alito in Murphy tried to play down the implications of Condon, perhaps because of it being in such tension with New York and Printz and Murphy. Alito wrote that:

The anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage.

That principle formed the basis for the Court’s [2000] decision in Reno v. Condon … which concerned a federal law restricting the disclosure and dissemination of personal information provided in applications for driver’s licenses. The law applied equally to state and private actors. It did not regulate the States’ sovereign authority to “regulate their own citizens.”

But Justice Rehnquist had specifically stated in Condon that the decision was not based on the DPPA being “evenhanded”, but on the basis of:

[T]he DPPA does not require the States in their sovereign capacity to regulate their own citizens. The DPPA regulates the States as the owners of data bases. It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. We accordingly conclude that the DPPA is consistent with the constitutional principles enunciated in New York and Printz.

In a very real sense, §§ 1373 and 1644 both regulate states and localities “as the owners of data bases” — data bases not of driver’s license information but of “information regarding the immigration status, lawful or unlawful, of any individual”. Additionally, they “do[] not require” states or localities “to enact any laws or regulations”, and they “do[] not require state officials to assist in the enforcement of federal statutes regulating private individuals”.

It is very possible that §§ 1373 and 1644 would be upheld against a commandeering challenge on these bases. While it is true that §§ 1373 and 1644 are not statutes of “general applicability”, but apply only to governmental entities and officials, Chief Justice Rehnquist made clear that the Court in Condon did not even “address the question whether general applicability is a constitutional requirement for federal regulation of the States”.

A Precondition to Continued State Regulation?

Could it be that §§ 1373 and 1644 do not constitute commandeering because they qualify as Supreme Court-approved “ma[king] compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field”? The Trump administration makes the case that they do. In its Reply Brief regarding its Petition for a Writ of Certiorari in U.S. v. California, the U.S. argued to the Supreme Court that:

California asserts that … “‘[t]he States possess primary authority for defining and enforcing the criminal law.’” [quoting the Supreme Court’s 1993 decision in Brecht v. Abrahamson. … Whatever the merits of that proposition outside the context of foreign nationals, it is beyond dispute that the [U.S.] has “exclusive[]” control over “any policy toward aliens.” [Quoting the Supreme Court’s 1952 decision in Harisiades v. Shaughnessy.] … The federal government accordingly could, if it chose, preempt States from enforcing their criminal laws against aliens and instead pursue immediate federal detention or removal. [Emphasis added by the U.S.]

In its Petition for a Writ of Certiorari, the U.S. expanded on its argument:

Congress could have concluded that any removable alien convicted or even arrested by a State should be removed immediately by federal authorities while their location is known. But Congress instead decided to allow States to subject aliens to their criminal-justice systems ([citing 8 U.S.C. 1231(a)(4)(A)] providing that federal authorities “may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment”). In allowing States to do so, Congress imposed certain conditions, including that States not use their criminal-justice systems to obstruct federal immigration enforcement. To be sure, some of those conditions were implicit rather than express … .

In sum, Congress presented States with a choice: (1) subject aliens to their criminal-justice systems in a way that does not obstruct federal immigration enforcement, or (2) do not subject aliens to their criminal justice system at all [citing the Supreme Court’s decision in Hodel]. Rather than choosing one of those two options, California has tried to have it both ways: subjecting aliens to its criminal-justice system while simultaneously obstructing federal immigration enforcement. … The Constitution does not confer a right on California to make that choice. Once California has made the decision to take aliens into its criminal justice system rather than leaving them subject to exclusive federal regulation, the State does not have a Tenth Amendment “choice” to adopt a law that “makes the jobs of federal immigration authorities more difficult” — thereby imposing “‘risks to the arresting officer and the general public’” — when it relinquishes custody of such aliens.

But, is that what was going on? Did Congress really present the states with an implied choice and are compliance with §§ 1373 and 1644 embedded in that choice?

In 1989, the Supreme Court concluded in Will v. Michigan Department of State Police that “Congress should make its intention ‘clear and manifest’ if it intends to pre-empt the historic powers of the States [quoting the Court’s 1947 decision in Rice v. Santa Fe Elevator Corp.] or if it intends to impose a condition on the grant of federal moneys.” In Rice, the Supreme Court had stated that “we start with the assumption that the historic police powers of the States were not to be superseded … unless that was the clear and manifest purpose of Congress”.

It is certainly true that, as the 3rd Circuit concluded in 2019 in City of Philadelphia v. Attorney Gen., that:

While the federal government has “broad, undoubted power over the subject of immigration and the status of aliens,” [quoting the Supreme Court’s decision in Arizona], the “States possess primary authority for defining and enforcing the criminal law,” United States v. Lopez … (1995) …. These powers intersect when a state or city arrests an individual whom ICE would also like to apprehend for removal proceedings.

It would seem hard to argue that Congress made its intention “clear and manifest” that if states wanted to prosecute and sentence aliens for crimes, they had to comply with §§ 1373 and 1644. If that is what Congress really had in mind, why did Congress stop at prohibiting states and localities from interfering with the voluntary choices of their law enforcement officers? Why didn’t Congress go further and categorically require the cooperation of state and local law enforcement agencies and officers? Congress arguably could also have done this as simply “ma[king] compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field”. If the reason Congress didn’t was that it didn’t believe that it constitutionally could, that doesn’t bode well for the “precondition to continued state regulation” argument.

The 9th Circuit concluded in U.S. v. California that:

We cannot simply assume that Congress impliedly mandated that state and local governments would act in accordance with these statutes. Even if Congress had every expectation that they would, and opted not to codify its belief based on the presumption that states would conduct their law enforcement activities in concert with federal immigration efforts, it is a state’s historic police power — not preemption — that we must assume, unless clearly superseded by federal statute … .

[fn] A state’s ability to regulate its internal law enforcement activities is a quintessential police power. [Citing the Supreme Court’s 2000 decision in United States v. Morrison.] (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”).

As California notes, “There is [] nothing in the federal regulatory scheme requiring States to alert federal agents before releasing a state or local inmate.” The Fifth Circuit has aptly noted [in City of El Cenizo] that

[f]ederal law does not suggest the intent — let alone a “clear and manifest” one — to prevent states from regulating whether their localities cooperate in immigration enforcement.

However, the issue of whether Congress made its intent clear is not so clear cut. The Supreme Court in Rice stated that “[s]uch a purpose may be evidenced [by Congress] in several ways”, one of which being that “the state policy may produce a result inconsistent with the objective of the federal statute”. The Trump administration has certainly made the case that noncompliance with §§ 1373 and 1644 has produced results inconsistent with the objectives of the INA.

Can it be plausibly argued that Congress actually contemplated forbidding noncomplying states from prosecuting or incarcerating criminal aliens? The language in the INA providing that federal authorities “may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment” comes from § 3 of the Act of March 4, 1929, which provided that:

An alien sentenced to imprisonment shall not be deported under any provision of law until after the termination of the imprisonment. For the purposes of this section the imprisonment shall be considered as terminated upon the release of the alien from confinement, whether or not he is subject to rearrest or further confinement in respect of the same offense.²

The House Committee on Immigration and Naturalization’s report explained that:

In the case of prisoners released on parole under convictions by State courts, it was the practice of the department until recently to take the prisoner into custody immediately on his parole if deportable for any reason. Objections were made by one of the States to this practice, on the ground that it was an infringement on the right of the State to retain custody of the prisoner during the period he is out on parole. The Solicitor of the Department of Labor recently advised the Secretary of Labor that the statute did not authorize the practice of the department, and accordingly it has been discontinued so that under the present law the alien is not deported until the end of the term for which sentenced or until he is unconditionally released from confinement. Your committee is convinced that the law should be made clear that the alien is deportable immediately upon his release from confinement. If he belongs to a deportable class he should be deported even though it may not be against the public policy of the State, under whose laws he has been convicted, that he should be allowed to go at large on parole. The authority of Congress in relation to the deportation of aliens is supreme and the law or practice of a State can not and should not allow an alien to remain in this country for a moment longer than permitted by act of the National Legislature, which alone is charged with the duty and responsibility of ridding the country of undesirable aliens. Accordingly … the bill provides that the alien may be deported immediately upon his release on parole.³ [Emphasis added.]

That report language is as bold a statement from Congress on this issue that I can find.

While I don’t believe that a “precondition” argument for the constitutionality of §§ 1373 and 1644 is as strong as the arguments regarding ministerial reporting requirements and the Supreme Court’s decision in Condon, it is certainly intriguing and persuasive. The argument would benefit from more evidence of Congress’s actual intent.

Federal Appellate Courts Consider §§ 1373 and 1644 With Mixed Results

The 2nd Circuit

In 1999 in City of New York v. United States, the 2nd Circuit considered a constitutional challenge to §§ 1373 and 1644 that arose within days of the enactment of § 1373 in an effort by New York City to protect Executive Order No. 124. As the court stated:

• In August 1989, Edward Koch, then New York City's mayor, issued Executive Order No. 124. The Order prohibits any City officer or employee from transmitting information regarding the immigration status of any individual to federal immigration authorities [with certain exceptions]. … Mayor Koch's successors, David Dinkins and Rudolph Giuliani, have reissued the Executive Order.

• Eleven days after [IIRIRA] was signed by the President, the City commenced this action … for declaratory and injunctive relief, claiming that Sections [1644] and [1373] do not invalidate the City’s Executive Order because they are facially unconstitutional.

The court explained New York City’s arguments:

• [T]he City contended that Sections [1644] and [1373], which are directed at state and local government entities (or officials) and not private parties, violate the Tenth Amendment because they directly forbid state and local government entities from controlling the use of information regarding the immigration status of individuals obtained in the course of their official business. The City maintained further that such interference with a state’s control over its own workforce — i.e., over its power to determine the duties of its employees with regard to confidential information that the employees acquire in their official capacity — lies outside Congress's plenary power over immigration.

• The City's Tenth Amendment claim rests on two basic arguments. The first is that the scope of state sovereignty under the Amendment includes the power to choose not to participate in federal regulatory programs and that such power in turn includes the authority to forbid state or local agencies, officials, and employees from aiding such a program even on a voluntary basis. The second argument is that the federal government may not use its powers to legislate in certain areas to disrupt the actual operation of state and local government by, for example, regulating the use of state and local resources — here officially-acquired information — and/or the duties or responsibilities of state and local employees.

  The City’s scope-of-state-sovereignty argument relies principally upon language in Printz … that suggests that states may not be denied a bona fide choice as to whether or not to participate in a federal regulatory program. In the City's view, such a choice includes the power to forbid even voluntary cooperation by state and local officials and workers in such a federal program.

But the 2nd Circuit disagreed that §§ 1373 and 1644 were forcing the city to enact or administer a federal regulatory program:

Congress [here] has not compelled state and local governments to enact or administer any federal regulatory program. Nor has it affirmatively conscripted states, localities, or their employees into the federal government’s service. These Sections do not directly compel states or localities to require or prohibit anything. Rather, they prohibit state and local governmental entities or officials only from directly restricting the voluntary exchange of immigration information with the INS.

In fact, 2nd Circuit took the city to be “ask[ing the court] to turn the Tenth Amendment's shield against the federal government’s using state and local governments to enact and administer federal programs into a sword allowing states and localities to engage in passive resistance that frustrates federal programs”. It wrote that:

If Congress may not forbid states from outlawing even voluntary cooperation with federal programs by state and local officials, states will at times have the power to frustrate effectuation of some programs. Absent any cooperation at all from local officials, some federal programs may fail or fall short of their goals unless federal officials resort to legal processes in every routine or trivial matter, often a practical impossibility. For example, resistance to Brown v. Board of Education [1954] … was often in the nature of a refusal by local government to cooperate until under a court order to do so.

A system of dual sovereignties cannot work without informed, extensive, and cooperative interaction of a voluntary nature between sovereign systems for the mutual benefit of each system. The operation of dual sovereigns thus involves mutual dependencies as well as differing political and policy goals. Without the Constitution, each sovereign could, to a degree, hold the other hostage by selectively withholding voluntary cooperation as to a particular program(s). The potential for deadlock thus inheres in dual sovereignties, but the Constitution has resolved that problem in the Supremacy Clause, which bars states from taking actions that frustrate federal laws and regulatory schemes. See [the Supreme Court’s 1996 decision in] Barnett Bank v. Nelson … citing [the Court’s 1941 decision in] Hines v. Davidowitz. …

We therefore hold that states do not retain under the Tenth Amendment an untrammeled right to forbid all voluntary cooperation by state or local officials with particular federal programs. Given that the City’s challenge … is facial and that the Executive Order is on its face a mandatory non-cooperation directive relating solely to a particular federal program, we need not locate with precision the line between invalid federal measures that seek to impress state and local governments into the administration of federal programs and valid federal measures that prohibit states from compelling passive resistance to particular federal programs. It suffices to say that, at least in the context of the City’s facial challenge, Sections [1644] and [1373] are of the latter variety.

I should note that the 9th Circuit in its decision in U.S. v. California expressed no concern with a state turning the Tenth amendment into a sword. The 9th Circuit quoted the underlying district court decision:

California’s decision not to assist federal immigration enforcement in its endeavors is not an “obstacle” to that enforcement effort. [The federal government’s] argument that SB 54 makes immigration enforcement far more burdensome begs the question: more burdensome than what? The laws make enforcement more burdensome than it would be if state and local law enforcement provided immigration officers with their assistance. But refusing to help is not the same as impeding. If such were the rule, obstacle preemption could be used to commandeer state resources and subvert Tenth Amendment principles.

The 9th Circuit then stated “We agree”, and that “Even if SB 54 obstructs federal immigration enforcement, the [U.S.]’ position that such obstruction is unlawful runs directly afoul of the Tenth Amendment and the anticommandeering rule.” Further:

SB 54 may well frustrate the federal government's immigration enforcement efforts. However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts. The [U.S.] stresses that, in crafting the INA, Congress expected cooperation between states and federal immigration authorities. That is likely the case. But when questions of federalism are involved, we must distinguish between expectations and requirements. In this context, the federal government was free to expect as much as it wanted, but it could not require California’s cooperation without running afoul of the Tenth Amendment.

In any event, the 2nd Circuit in City of New York examined the City’s argument that §§ 1644 and 1373 “offend the Tenth Amendment because they interfere with the operations of state and local government by regulating: (i) the use of confidential information that [they] acquire in the course of official business and that therefore belongs to the particular governmental entity and (ii) the scope and nature of the duties of employees of state and local governments regarding such information.”

As to the first contention, the court described the city’s argument as such:

[T]he City argues that Printz invalidated certain provisions of the Brady … Act on the ground that “[it] does not merely require [chief law enforcement officers] to report information in their private possession ... [but also] requires them to provide information that belongs to the State and is available to them only in their official capacity.”… Thus, the City argues, although Sections [1644] and [1373] do not require any state or local official to provide the INS with information that belongs to state and local government, these provisions nevertheless eviscerate its control over such information.

As to the second contention, the court described the city’s argument as such:

[T]he City argues that inherent in our dual-sovereignty system is the power of state and local governments to determine the duties and responsibilities of their employees. … “[W]hatever the outer limits of state sovereignty may be, it surely encompasses the right to set the duties of office for state-created officials and to regulate the internal affairs of governmental bodies.” [Quoting the 5th Circuit’s 1996 decision in Koog v. United States.]

The court conceded that “The City’s concerns are not insubstantial.” It stated that:

The obtaining of pertinent information, which is essential to the performance of a wide variety of state and local governmental functions, may in some cases be difficult or impossible if some expectation of confidentiality is not preserved. Preserving confidentiality may in turn require that state and local governments regulate the use of such information by their employees. Finally, it is undeniable that Sections [1644] and [1373] do interfere with the City’s control over confidential information obtained in the course of municipal business and over its employees’ use of such information.

The court then ruled that §§ 1373 and 1644 did not unconstitutionally interfere with Executive Order No. 124, but only because the executive order only barred cooperation with the INS rather than being “a general policy” that “prohibits [the] dissemination [of information] generally”:

• [T]he City has chosen to litigate this issue in a way that fails to demonstrate an impermissible intrusion on state and local power to control information obtained in the course of official business or to regulate the duties and responsibilities of state and local governmental employees. ….The City’s facial challenge … rests entirely on the interference of Sections [1644] and [1373] with th[e] Executive Order and that Order alone.

  The Executive Order is not a general policy that limits the disclosure of confidential information to only specific persons or agencies or prohibits such dissemination generally. Rather, it applies only to information about immigration status and bars City employees from voluntarily providing such information only to federal immigration officials. On its face, it singles out a particular federal policy for non-cooperation while allowing City employees to share freely the information in question with the rest of the world. It imposes a policy of no-voluntary-cooperation that does not protect confidential information generally but does operate to reduce the effectiveness of a federal policy. For example, the City argues that the Executive Order is essential to the provision of municipal services and to the reporting of crimes because these governmental functions often require the obtaining of information from aliens who will be reluctant to give it absent assurances of confidentiality. But again, the Executive Order does not on its face prevent the sharing of information with anyone outside the INS.

• Given the circumscribed nature of our inquiry, we uphold Sections [1644] and [1373]. Essentially, the foregoing discussion relating to the power of states to command passive resistance to federal programs governs the analysis here. The effect of those Sections here is to nullify an Order that singles out and forbids voluntary cooperation with federal immigration officials.

The court made clear that “Whether these Sections would survive a constitutional challenge in the context of generalized confidentiality policies that are necessary to the performance of legitimate municipal functions and that include federal immigration status is not before us and we offer no opinion on that question.”

It is not clear whether City of New York is still good precedent in the 2nd Circuit. On the one hand, in its 2020 decision in New York vs. Department of Justice, addressing whether DOJ could condition New York City’s receipt of DOJ law enforcement grants on its compliance with § 1373, the 2nd Circuit stated that “It has long been the rule in this circuit that a panel decision controls ‘unless and until ... reversed en banc or by the Supreme Court.’” On the other hand, while the 2nd Circuit in the 2020 case concluded that its analysis of relevant caselaw “cast[] doubt on the district court’s identification of facial unconstitutionality” of § 1373”, the Circuit did “not … pursue the point further because, even assuming some power reserved for the States to prohibit information sharing with federal immigration authorities, we conclude that § 1373 does not violate the Tenth Amendment as applied here to a federal funding requirement.” (Emphasis in original.)

In any event, the court in New York v. Department of Justice explained what the case was about:

The principal legal question presented in this appeal is whether the federal government may deny grants of money to State and local governments that would be eligible for such awards but for their refusal to comply with three immigration-related conditions imposed by the Attorney General. … Those conditions require grant applicants to certify that they will (1) comply with federal law prohibiting any restrictions on the communication of citizenship and alien status information with federal immigration authorities, [citing § 1373]; (2) provide federal authorities, upon request, with the release dates of incarcerated illegal aliens; and (3) afford federal immigration officers access to incarcerated illegal aliens.

The 2nd Circuit concluded that “the plain language of the relevant statutes authorizes the Attorney General to impose the challenged conditions”. Thus, the court then had to consider the constitutionality of the imposition of the challenged conditions:

• [W]e [cannot] agree with the district court that the challenged conditions impermissibly intrude on powers reserved to the States. … As the Supreme Court has repeatedly observed, in the realm of immigration policy, it is the federal government that maintains “broad,” [quoting the Court’s decision in] Arizona … and “preeminent,” power [quoting the Court’s 1982 decision in] Toll v. Moreno], which is codified in an “extensive and complex” statutory scheme [quoting Arizona]. Thus, at the same time that the Supreme Court has acknowledged States’ “understandable frustrations with the problems caused by illegal immigration,” it has made clear that a “State may not pursue policies that undermine federal law.”… As Chief Justice John Marshall wrote over 200 years ago, “the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.” [Quoting the Court’s 1819 decision in McCulloch v. Maryland.] … This fundamental principle, a bedrock of our federalism, is no less applicable today. Indeed, it pertains with particular force when, as here, Congress acts pursuant to its power under the Spending Clause. See U.S. CONST. art. I, § 8.

• [W]e think the district court’s reasoning insufficient to support its declaration of facial unconstitutionality. We do not pursue the matter in detail, however, because § 1373’s constitutionality is properly assessed here not on the face of the statute, but as applied to clarify a federal funding requirement.

As to § 1373’s constitutionality as an eligibility requirement for federal law enforcement grants, the court ruled that “In that context, [the section] does not constitute commandeering in violation of the Tenth Amendment.” The 2nd Circuit made clear that it was not deciding whether “§ 1373 can constitutionally be applied to States and localities only when they are seeking federal funding”:

To the extent the district court thought that § 1373 had to be constitutional in all its applications to be identified as an “applicable Federal law[ ]” warranting … [compliance] certification, it was mistaken. Even assuming arguendo that § 1373 can constitutionally be applied to States and localities only when they are seeking federal funding — a matter we do not here decide — the principle of severability would warrant upholding the statute as so narrowed.

The 2nd Circuit then “briefly discuss[ed] concerns raised by the district court’s facial assessment before explaining our conclusion that § 1373 does not violate the Tenth Amendment as applied here to States and localities seeking Byrne Program grants.”:

• This court has already considered [in City of New York], and rejected, a facial commandeering challenge to § 1373 … .

  The district court acknowledged this precedent, but concluded that it does not survive Murphy. … The district court concluded that Murphy’s reasoning required it to hold § 1373 facially violative of the Tenth Amendment because the statute’s proscriptions prevent States from “adopting [immigration] policies contrary to those preferred by the federal government,” or “extricating themselves from federal immigration enforcement.”…

  Murphy may well have clarified that prohibitions as well as mandates can manifest impermissible commandeering. But the conclusion that § 1373, on its face, violates the Tenth Amendment does not follow.

  A commandeering challenge to a federal statute depends on there being pertinent authority “reserved to the States.” In Murphy, there was no question that, but for the challenged federal law, the States’ police power allowed them to decide whether to permit sports gambling within their borders. That conclusion is not so obvious in the immigration context where it is the federal government that holds “broad,” … and “preeminent” power…. [T]he [INA] … is Congress’s “extensive and complex” codification of that power.

• It is doubtful that States have reserved power to adopt — in the words of the district court — immigration policies “contrary to those preferred by the federal government.”…. While acknowledging a State’s “understandable frustrations with the problems caused by illegal immigration,” the Court [in Arizona] held that the “State may not pursue policies that undermine federal law.”… [Emphasis added by the 2nd Cir.]

  Here, the district court declared § 1373 facially violative of the Tenth Amendment without identifying what reserved power States have to enact laws or policies seemingly foreclosed by … § 1373, i.e., laws prohibiting their officials and agencies from engaging in even voluntary communications about citizenship and immigration status with federal authorities. A court undertaking that inquiry would have to recognize, as the Supreme Court [in Arizona] has, that “[c]onsultation between federal and state officials is an important feature of the immigration system” established by the INA. … A court would then have to consider how various INA provisions establish that consultation feature. In Arizona … the Supreme Court discussed various INA provisions encouraging or prohibiting restrictions on federal-state sharing of immigration-status information before concluding that the “federal scheme thus leaves room for a [State] policy requiring state officials to contact [federal immigration authorities] as a routine matter.”… The same conclusion may not be so easy to reach, however, with respect to a State policy prohibiting information sharing. Among the statutes cited in Arizona … to illustrate the importance placed on federal-state consultation by the INA is … § 1664. … Further, even outside the immigration context, the Supreme Court has not decided whether a federal law imposing “purely ministerial reporting requirements” on the States violates the Tenth Amendment. [Emphasis in the original.]

Of course, a court like the 9th Circuit would argue that “A state’s ability to regulate its internal law enforcement activities is a quintessential police power,” but in any event, the 2nd Circuit then dismissed the issue as academic:

While this authority casts doubt on the district court’s identification of facial unconstitutionality, we do not ourselves pursue the point further because, even assuming some power reserved for the States to prohibit information sharing with federal immigration authorities, we conclude that § 1373 does not violate the Tenth Amendment as applied here to a federal funding requirement. [Emphasis in the original.]

The 2nd Circuit reasoned that:

• While Congress cannot regulate the States, it’s constitutional powers, notably under the Spending Clause … do allow it to “fix the terms on which it shall disburse federal money to the States,” [quoting the Supreme Court’s 1981 decision in] Pennhurst State Sch. & Hosp. v. Halderman. … By setting such terms, Congress can “influenc[e] a State’s policy choices,” [quoting the Supreme Court’s decision in] New York … and even “implement federal policy it could not impose directly under its enumerated powers,” [quoting the Supreme Court’s 2012 decision in] NFIB v. Sibelius. … Thus, where Congress places conditions on a State’s receipt of federal funds — whether directly, or by delegation of clarifying authority to an executive agency — there is no commandeering of reserved State power so long as the State has “a legitimate choice whether to accept the federal conditions in exchange for federal funds.” [Quoting NFIB.]

• In sum, the district court erred in holding … § 1373 unconstitutional because the statute does not violate the anticommandeering principle of the Tenth Amendment as applied here to a federal funding requirement.

Thus, the 2nd Circuit’s constitutional blessing of § 1373 had nothing at all to do with the attributes of § 1373. Rather, any eligibility requirement at all would seemingly be fine “so long as the State has ‘a legitimate choice whether to accept the federal conditions in exchange for federal funds[]’”, and so long as, in the 2nd Circuit’s words, the requirement “promote[s] the ‘general welfare,’ (2) ‘unambiguously’ inform[s] States what is demanded of them, (3) reasonably relate[s] ‘to the federal interest in particular national projects or programs,’ and [does] not ‘induce the States to engage in activities that would themselves be unconstitutional.’” (Quoting the Supreme Court’s 1987 decision in South Dakota v. Dole.)

A legitimate choice? The 2nd Circuit explained that:

A State is deprived of “legitimate choice” only when the federal government imposes grant conditions that pass the point at which “pressure turns into compulsion.” [Quoting the Supreme Court’s decision in NFIB.]… Pressure can turn into compulsion when the amount of funding that a State would lose by not acceding to the federal conditions is so significant to the States’ overall operations as to leave it with no real choice but to agree.

The 7th Circuit

The 7th Circuit in its 2020 decision in City of Chicago v. Barr came to the opposite conclusion — that DOJ could not condition federal law enforcement grants on compliance with § 1773. While the court made a non-constitutional ruling based on its interpretation of the applicable statute, the court was quite sympathetic to Chicago’s constitutional arguments:

• Chicago, in deciding that its law enforcement needs would be better met if its undocumented residents could report crimes and communicate with its police force without fear of immigration consequences, is exercising its police power — an area of power long recognized as resting with the states. The Attorney General now seeks to pursue the federal government's interest in enforcing its immigration laws. Regulating immigration into this country is a legitimate federal interest, and the executive branch … has authority to enforce the nation’s immigration laws. But the methods the executive employs in pursuit of those legitimate ends must be lawful. … The federal government cannot merely conscript the police forces of the state or local governments to achieve its ends; that would eviscerate the principles of federalism that rest at the very foundation of our government.

• Under the Attorney General's compliance condition, a state or local government could not instruct its own employees that they must devote their time to law enforcement tasks that it deems a higher priority rather than respond to those information requests from ICE.

• The [district] court held that § 1373 violated the anticommandeering doctrine of the Tenth Amendment in light of … Murphy…. The court noted that a state’s ability to control its offices and employees is at the heart of state sovereignty and that § 1373 violates that in a number of ways: first, it supplants local control of officers, precluding Chicago and other localities from limiting the amount of paid time its employees use to communicate with federal immigration authorities; second, it indirectly constrains local rule-making by precluding local lawmakers from passing laws that implement the localities’ preferred policies, such as the Welcoming City Ordinance … a concern squarely addressed in Murphy; third, it redistributes local decision-making power by transferring that power from local policymakers to line-level employees who are empowered to decide for themselves whether or not to communicate with immigration authorities; and finally, because it eliminates the ability of a locality such as Chicago to control its employees’ communications with federal immigration authorities, § 1373 prevents that locality from extricating itself from federal immigration enforcement, thus foreclosing the “critical alternative” recognized in New York … of the option of non-participation in a federal program. … The court concluded that 1373 was unconstitutional on its face.

All that being said, the 7th Circuit concluded that “we need not address the district court’s compelling analysis of that Tenth Amendment issue”. (Emphasis added.)

But What About Preemption?

The 9th Circuit explained in its decision in U.S. v. California that:

Under the doctrine of conflict preemption, “state laws are preempted when they conflict with federal law. This includes cases where ‘compliance with both federal and state regulations is a physical impossibility,’ and those instances where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” [quoting the Supreme Court’s decision in Arizona, which, in turn, first quoted the Supreme Court’s 1963 decision in Fla. Lime & Avocado Growers, Inc. v. Paul and then quoted the Supreme Court’s 1941 decision in Hines]. The latter instances constitute so-called “obstacle preemption[]”… . The [Supreme] Court has emphasized that “[i]mplied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives’; such an endeavor ‘would undercut the principle that it is Congress rather than the courts that preempts state law.’ ... [A] high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act.” [Quoting the Supreme Court’s 2011 decision in Chamber of Commerce of U.S. v. Whiting.]

The Trump administration contended in its Petition for a Writ of Certiorari regarding U.S. v. California that California’s “Values Act” should be subject to “obstacle preemption”:

• Under any plausible understanding of conflict preemption, SB 54’s conceded purpose to obstruct — and effect of obstructing — federal law through its own regulatory scheme makes the state law unenforceable. Th[e Supreme] Court has explained that “any state legislation that frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause,” even if “the state legislature in passing its law had some purpose in mind other than one of frustration.” [Quoting the Court’s 1971 decision in Perez v. Campbell.]

• The [9th Circuit] asserted that, under th[e Supreme] Court’s commandeering precedents, the federal government “cannot issue direct orders to state legislatures,” … or “compel the States to implement * * * federal regulatory programs[]”… . But even assuming that reflects a correct understanding of Printz and Murphy as applied in the immigration context, the fatal flaw in the court’s reasoning is that it failed to identify any federal law that transgresses those limitations — i.e., that orders California to adopt or implement (or refrain from adopting or implementing) a regulatory program.

• [T]he government has not suggested that it could compel California’s active participation in immigration enforcement. To the contrary, SB 54 restricts the sharing of information with, and transferring of aliens to, federal authorities so that they may enforce the immigration laws.

And the Trump administration argues in its recently filed complaint against the state of Illinois, et al., that the challenged provisions “undermine federal immigration law’s protections for information sharing and are thus preempted under both express and conflict preemption principles”, citing §§ 1373 and 1644. It contends that “The Supremacy Clause prohibits Illinois, Chicago, Cook County, and their officials from obstructing the Federal Government’s ability to enforce laws that Congress has enacted or to take actions entrusted to it by the Constitution.”

The Supremacy Clause of the Constitution mandates that “[t]his Constitution, and the Laws of the [U.S.] which shall be made in Pursuance thereof ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Thus, a state enactment is invalid if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.]” [Quoting the Supreme Court’s decision in Hines.]

However, as Justice Alito explained in his majority opinion in Murphy:

[While p]reemption is based on the Supremacy Clause … that Clause is not an independent grant of legislative power to Congress. Instead, it simply provides “a rule of decision.”… It specifies that federal law is supreme in case of a conflict with state law. Therefore, in order for [a federal law] to preempt state law, it must satisfy two requirements. First, it must represent the exercise of a power conferred on Congress by the Constitution; pointing to the Supremacy Clause will not do. Second, since the Constitution “confers upon Congress the power to regulate individuals, not States,” … the [federal] provision at issue must be best read as one that regulates private actors.

Alito further explained that:

• Our cases have identified three different types of preemption … but all of them work in the same way: Congress enacts a law that imposes restrictions or confers rights on private actors; a state law confers rights or imposes restrictions that conflict with the federal law; and therefore the federal law takes precedence and the state law is preempted.

• [E]very form of preemption is based on a federal law that regulates the conduct of private actors, not the States.

Alito gave an example:

The Court’s [2012] decision in Arizona … shows how this works. Noting that federal statutes “provide a full set of standards governing alien registration,” we concluded that these laws “reflect[ ] a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.”… What this means is that the federal registration provisions not only impose federal registration obligations on aliens but also confer a federal right to be free from any other registration requirements.

Then Alito concluded that:

Once this is understood, it is clear that the [federal] provision prohibiting state authorization of sports gambling is not a preemption provision because there is no way in which this provision can be understood as a regulation of private actors. It certainly does not confer any federal rights on private actors interested in conducting sports gambling operations. (It does not give them a federal right to engage in sports gambling.) Nor does it impose any federal restrictions on private actors. If a private citizen or company started a sports gambling operation, either with or without state authorization, [it] would not be violated and would not provide any ground for a civil action by the Attorney General or any other party. Thus, there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States. And that is exactly what the anticommandeering rule does not allow.

It seems that preemption claim regarding §§ 1373 and 1644 would run into the same problem that the preemption claim regarding the federal law prohibiting state authorization of sports gambling ran into in Murphy — they are not regulating private individuals. As the 9th Circuit concluded in U.S. v. California:

The [U.S.] suggests that [commandeering] principles do not extend here because “both sovereigns [are] regulat[ing] private individuals,” and the Supreme Court has held that it “is incorrect” to “assume that the Tenth Amendment limits congressional power to pre-empt or displace state regulation of private activities affecting interstate commerce.” [quoting the Court’s decision in Hodel] But although the INA and SB 54 both implicate noncitizens — private actors — SB 54 governs how California and its localities can interact with the federal government, not the activities of private individuals, and so Hodel is inapposite.

It Depends on What the Meaning of “Information Regarding the Citizenship or Immigration Status, Lawful or Unlawful, of Any Individual” Is

The whole debate over the constitutionality of §§ 1373 and 1644 might be of little import if the phrase “information regarding the citizenship or immigration status, lawful or unlawful, of any individual” is read literally, as in “Tell me the citizenship or immigration status of this individual.” According to such a reading, the question of an alien’s release date from state or local custody would be wholly beyond the scope of §§ 1373 and 1644. Thus, the U.S. argues in its Reply Brief in seeking a writ of certiorari regarding U.S. v. California that:

[R]elease dates and other personal information covered by SB 54 are at the very least “information regarding citizenship or immigration status,” … given that federal immigration law (1) directs detention and/or removal from the [U.S.] upon a criminal alien’s “release[]” from state custody … and (2) makes various other issues of citizenship or immigration status dependent on information covered by SB 54, such as an alien’s work address or authorization ... . [Emphasis added by the U.S.]

The 9th Circuit in U.S. v. California disagreed with the U.S., concluding that the literal definition of the phrase was the only acceptable definition:

[T]he [U.S.] argues that § 1373 actually applies to more information than just immigration status, and hence that SB 54's prohibition on sharing other information creates a direct conflict.

We disagree. Although the [U.S.] contends that “whether a given alien may actually be removed or detained by federal immigration authorities is, at a minimum, information regarding that alien's immigration status,” the phrase “information regarding the citizenship or immigration status, lawful or unlawful, of any individual” is naturally understood as a reference to a person’s legal classification under federal law, as the district court concluded.

[fn] This is consistent with our decision in Steinle v. City and County of San Francisco, in which we determined that “[t]he statutory text [of § 1373(a)] does not include release-date information. It includes only ‘information regarding’ ‘immigration status,’ and nothing in [§ 1373(a)] addresses information concerning an inmate’s release date .” ... Several district courts have reached similar conclusions regarding § 1373’s circumscribed scope. See, e.g., City and County of San Francisco v. Sessions … (N.D. Cal. 2018) … City of Philadelphia v. Sessions … (E.D. Pa. 2018) (“The phrase ‘citizenship or immigration status,’ plainly means an individual’s category of presence in the [U.S.] — e.g., undocumented, refugee, lawful permanent resident, U.S. citizen, etc. — and whether or not an individual is a U.S. citizen, and if not, of what country. The phrase ‘information regarding’ includes only information relevant to that inquiry. When an individual will be released from a particular City facility, cannot be considered ‘information regarding’ his immigration status.”), aff'd in part, vacated in part on other grounds sub nom … .

Phrases like “regarding” may generally have “a broadening effect, ensuring that the scope of a provision covers not only its subject but also matters relating to that subject,” [quoting the Supreme Court’s 2018 decision in Lamar, Archer & Cofrin, LLP v. Appling] … but if the term “regarding” were “taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes preemption would never run its course, for ‘[r]eally, universally, relations stop nowhere.’” [quoting the Supreme Court’s 1995 decision in N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.]

[fn] Indeed, the range of facts that might have some connection to federal removability or detention decisions is extraordinarily broad. See, e.g. , 8 U.S.C. § 1182 (listing various admissibility considerations, including vaccination history, education, financial resources, and membership in “the Communist or any other totalitarian party”)

.

The 9th Circuit argued that Congress could have easily used a more expansive phrase had it intended the phrase to have a more expansive meaning:

Congress has used more expansive phrases in other provisions of Title 8 when intending to reach broader swaths of information. See, e.g., 8 U.S.C. § 1360(a) (mandating the inclusion of “such other relevant information as the Attorney General shall require as an aid” to the creation of a central index of noncitizens entering the country); … § 1360(b) (“Any information in any records kept by any department or agency of the Government as to the identity and location of aliens in the [U.S.] shall be made available to the Service upon request.”). The [U.S.] claims that § 1373(c) demonstrates the extensive reach of § 1373(a), as unlike the latter, the former does not use the term “regarding” but instead refers simply and explicitly to “the citizenship or immigration status of any individual.”… But the fact that subpart (c) only concerns itself with immigration status suggests, given § 1373 focus on reciprocal communication between states and the federal government, that immigration status is the extent of subpart (a)’s reach as well … .

[fn] We note that a congressional report concerning [§ 1644] a statute with similar language to § 1373 indicated that it “provides that no State or local government entity shall prohibit, or in any way restrict, any entity or official from sending to or receiving from the [federal government] information regarding the immigration status of an alien or the presence, whereabouts, or activities of illegal aliens.”… But the fact that the report distinguished between the two categories — “information regarding the immigration status of an alien or the presence, whereabouts, or activities” — suggests that “information regarding the immigration status” does not include “the presence, whereabouts, or activities” of noncitizens. And in any event, “Congress’s ‘authoritative statement is the statutory text, not the legislative history.’” [quoting the Supreme Court’s decision in Whiting] [Emphasis added by the 9th Circuit.]

In summation, the district court correctly concluded that “Section 1373 and the information sharing provisions of SB 54 do not directly conflict.”

The 9th Circuit came to the same conclusion in 2020 in City of San Francisco v. Barr (9th Cir. 2020). (“Because § 1373 does not extend to contact and release status information … federal law does not preclude San Francisco from prohibiting the release of such information.”) And the 7th Circuit stated in its 2020 decision in City of Chicago v. Barr that “the Attorney General interprets the requirements of § 1373 incredibly broadly, maintaining that the information as to ‘citizenship or immigration status’ incorporates information beyond an individual's immigration status, including, for instance, an alien prisoner’s release date”.

Congress could, of course, easily provide a definitive answer to the question of the meaning of the phrase by amending the statutory language to be more precise (as it should have done in the first place in 1996). Assuming that is not to happen, the scope of the phrase — and thus the actual power of §§ 1373 and 1644 — will continue to be fought out in the courts.

Conclusion

The Supreme Court — including its most conservative justices — is serious about “commandeering” by the federal government constituting a violation of the Tenth Amendment. However, strong arguments can be made that §§ 1373 and 1644 do not constitute commandeering. In order for these provisions to constitute powerful weapons that the Trump administration can wield against sanctuary jurisdictions, the Supreme Court is going to have to eventually rule in their favor (and in favor of an expansive reading of their language).

End Notes

¹ Section 5779(a), which can now be found at § 41307 of Title 34 in slightly modified form, provided that “Each Federal, State, and local law enforcement agency shall report each case of a missing child under the age of 18 reported to such agency to the National Crime Information Center of [DOJ].”

² The antecedent of this language can be found at § 19 of the Act of Feb. 5, 1917 (“nor shall any alien convicted as aforesaid be deported until after the termination of his imprisonment”).

³ H.R. Rept. 70-2418 at 8 (1929).