Interesting legal theory

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This article puts forth an interesting legal theory, though I’m not sure it’s applicable. The novel legal theory revolves around whether President Trump’s executive order on sanctuary cities is unconstitutional. I’m betting this theory fails.

In the article, Damon Root brings up the original Obamacare lawsuit, otherwise known as National Federation of Independent Business v. Sebelius, aka NFIB v. Sebelius. Mr. Root notes that “At issue was whether Congress exceeded its Spending Clause powers when it threatened to cut off all existing Medicaid funding to any state that refused to expand Medicaid in accordance with the new health care law. The federal government’s Medicaid expansion amounted to a ‘gun to the head,’ the Supreme Court held. ‘A State that opts out of the Affordable Care Act’s expansion in health care coverage…stands to lose not merely ‘a relatively small percentage’ of its existing Medicaid funding, but all of it.'” That sort of ‘economic dragooning…leaves the States with no real option but to acquiesce.'”

The difference between the commandeering of state budgets in NFIB v. Sebelius and cutting off of law enforcement grants is that the ACA told states that they had to expand Medicaid. The federal government, through the ACA, said that states that didn’t expand Medicaid would lose all Medicaid funding. The withholding of funding to sanctuary cities isn’t commandeering because these sanctuary cities opted to apply for grants in exchange for helping the Department of Homeland Security with immigration-related issues.

In NFIB v. Sebelius, the federal government told states what they had to do without giving them an option. Cutting off funds to sanctuary cities isn’t the same because these cities applied for (think requested) federal grants. In exchange for these grants, those cities sign maintenance of service agreements that obligate them to specific things. In this instance, that means helping DHS capture illegal aliens.

The short story is simple. These sanctuary cities want the money but they refuse to enforce the law. That isn’t commandeering. That’s negotiating in bad faith.

What’s ignored is what’s important. After Congress appropriates the money, it’s the Executive Branch’s responsibility to ensure that the money is spent in accordance to the law. With sanctuary cities, they aren’t spending the money in accordance with our nation’s laws. It isn’t just within the Trump administration’s rights to monitor how cities spend this grant money. It’s their affirmative responsibility to verify that this grant money is spent in compliance with our nation’s laws.

Summarizing, commandeering is when the federal government tells local governments what they must spend their money on. In this instance, cutting off grants that cities requested in exchange for doing things that the federal government wants done isn’t commandeering. That’s simple contract law.