2nd Circuit Hits a Homer on Sanctuary Cities

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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What a constitutional home run the Second United States Circuit Court of Appeals just clobbered against, among others, the “sanctuary city” of New York. It cleared the way for Attorney General Barr to require recipients of certain federal funds to cooperate with federal authorities. It would take the Yankees announcer John Sterling to do the opinion justice. Let us just say, “It is high. It is far. It is — gone.”

And no wonder. The panel of judges in the case — Reena Raggi, who wrote the opinion, along with Jose Cabranes and Ralph Winter — would be like a lineup of sluggers comprising, say, Mickey Mantle, George Herman “Babe” Ruth, and Barry Bonds. The judges were unanimous and, with the confidence that only big league hitters can muster, they swept aside contrary opinions of several other federal circuits.

The case is known as New York et al v. United States Department of Justice. It involves New York City and seven states. The judges characterize the main legal question as “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 of the United States.”

Those conditions, the judges noted, require recipients of federal grants to certify that they will: Comply with “federal law prohibiting any restrictions on the communication of citizenship and alien status information with federal immigration authorities”; “provide federal authorities, upon request, with the release dates of incarcerated illegal aliens”; and give the Feds “access to incarcerated illegal aliens.”

The judges note that the case “implicates several of the most divisive issues confronting our country” and showing up in headlines. They mention “national immigration policy, the enforcement of immigration laws, the status of illegal aliens in this country, and the ability of States and localities to adopt policies on such matters contrary to, or at odds with, those of the federal government.”

Intertwined with that, the judges mark, is a “foundational” question of “how, if at all,” federal, state, and local governments should “coordinate in carrying out the nation’s immigration policy.” And a “corollary question” of the extent to which states and localities seeking federal grant money for enforcement of their own laws may seek “to extricate themselves from, hinder, or even frustrate the enforcement of federal immigration laws.”

The decision doesn’t go so far as to make states unwilling agents of the federal immigration authorities. Instead, the point it marks is that the states can not count on federal money while seeking to confound federal enforcement actions. That is, the federal government can attach conditions to the grants it makes. The ones at issue are so-called Byrne grants for criminal justice assistance.

We’ve been waiting for a serious ruling on a sanctuary cities question since before President Trump was sworn in, when we issued an editorial in the form of a letter the President-elect could send to the mayor of Chicago, Rahm Emanuel, who had stopped by Trump Tower to plead for sanctuary cities. The Sun is about as pro-immigration as a newspaper can get, but sanctuary cities have always struck us as a constitutional affront.

This is the most satisfying part of the Second Circuit’s decision, though it goes through statutes, too, in great detail. The judges quote Chief Justice John Marshall, in McCulloch v. Maryland: “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.”

It’s beyond our ken whether this case will end up at the Supreme Court. Certainly the circuits are in conflict on key points in this dispute — a fact well-marked by Judges Raggi, Cabranes, and Winter. They don’t appear unnerved by the point. The case is already another marker that the President whom the Democrats mocked with the question “have you even read the United States Constitution?” keeps winning in court.


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