Unconstitutional Coercion

Erwin Chemerinsky
[Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law]

For most of American history it was conservatives who championed states’ rights, but now it is the Trump administration that is trying to trample the authority of state and local governments in clear violation of the Constitution.  Just a day after the inauguration, Acting Deputy Attorney General Emil Bove wrote a memo to the Justice Department calling on United States Attorneys to prosecute state and local officials who do not cooperate with the deportation efforts of the Trump administration.^[1]

President Trump also has expressed this, saying that state and local officials face prosecution for failing to assist his immigration policies.  He threatened that the federal government will cut off funds to state and local governments that do not cooperate.^[2]

But these pronouncements, which obviously are meant to intimidate state and local officials, ignore that similar efforts in Trump’s first term were declared unconstitutional.  Then, too, Trump adopted a policy to cutoff federal law enforcement money to local governments that did not cooperate with Immigration and Customs Enforcement (ICE).  The United States Court of Appeals for the Ninth Circuit held that this was unconstitutional.^[3]  Also, California adopted a law limiting state and local cooperation with federal immigration officials.  The United States Court of Appeals for the Ninth Circuit upheld this law as constitutional.^[4]

There is no reason to believe that these new Trump efforts will fare any better in the courts.  The Supreme Court long has held that the federal government may not commandeer state and local governments and force them to administer federal mandates.  In 1992, in New York v. United States, the Court declared unconstitutional a federal law that required that every state clean up its nuclear waste by 1996 or face significant legal consequences.^[5]  The Court held that this violates state sovereignty and the Tenth Amendment. 

The Court concluded that it was “clear” that because of the Tenth Amendment and limits on the scope of Congress’s powers under Article I, “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program.”^[6] The Court explained that allowing Congress to commandeer state governments would undermine government accountability because Congress could make a decision, but the states would take the political heat and be held responsible for a decision that was not theirs.

Similarly, in 1997, in Printz v. United States, the Court declared unconstitutional a provision of the Brady Handgun Control Act that required that state and local law enforcement departments conduct background checks before issuing permits for firearms.^[7]  The issue was whether the Brady Handgun Violence Prevention Act violated the Tenth Amendment in requiring that state and local law enforcement officers conduct background checks on prospective handgun purchasers. With Justice Scalia writing for the Court and with the same split among the Justices as in most of the other federalism cases, the Court found the provision unconstitutional.

Justice Scalia’s majority opinion emphasized that Congress was impermissibly commandeering state executive officials to implement a federal mandate. He observed that historically, and particularly in the early years of the United States, Congress had not exercised such a power. Reaffirming New York v. United States, the Court held that Congress violates the Tenth Amendment when it conscripts state governments. In addition to finding the Brady Law unconstitutional on this ground because it compels state officers to act, Justice Scalia said that the law also violates separation of powers. He explained that the Constitution vests all executive power in the president and that Congress impermissibly had given the executive authority to implement the law to state and local law enforcement personnel. Justice Scalia wrote: “The Brady Act effectively transfers this responsibility to thousands of [chief law enforcement officers] in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove). The insistence of the Framers upon unity in the Federal Executive — to insure both vigor and accountability — is well known. That unity would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws.”^[8]

Subsequently, in Murphy v. NCAA, the Court used the Tenth Amendment to invalidate a federal statute on the ground that it was impermissible coercion of a state government.^[9] The Professional and Amateur Sports Protection Act (PASPA) prohibits state or local governments from allowing gambling on professional or amateur sports activity. TIn other words, the federal law does not make sports gambling a federal crime, but instead allows the attorney general, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations.

The Act allows existing forms of sports gambling to continue in four States. Also, the law allowed New Jersey to set up sports gambling if it chose in Atlantic City within a year of PASPA’s enactment. New Jersey did not do so. Subsequently, after the year period had lapsed, pursuant to an initiative giving it the authority to do so, the legislature enacted a 2012 law allowing sports gambling. When this was not allowed, New Jersey enacted a law repealing most of the state’s laws that prohibited such sports gambling.

The Supreme Court declared PASPA to be unconstitutional. The Court, in an opinion by Justice Samuel Alito, found the federal law to be impermissible commandeering of the state. The Court explained that in New York v. United States and Printz v. United States, it had held that Congress cannot compel state legislative or regulatory activity. The Court explained that the anti-commandeering principle serves as “one of the Constitution’s structural safeguards of liberty,” promotes political accountability, and prevents Congress from shifting the costs of regulation to the states.^[10] The Court said that 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.”^[11]

The Court said that the Act compels state legislation by requiring states to have laws prohibiting sports gambling. The Court declared: “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.”^[12]

These cases establish an anti-commandeering principle:  the federal government cannot force state and local governments to enact laws or regulations or administer a federal mandate. This anti-commandeering principle is based on the Tenth Amendment and is seen as integral to federalism.  Simply put, it means that the Trump administration cannot force state and local law enforcement officers to cooperate with federal immigration authorities.

Nor can the Trump administration do this by cutting off federal law enforcement money.  The Supreme Court has been clear that Congress can put strings on federal grants so long as the conditions are clearly stated, they relate to the purpose of the program, they are not unduly coercive, and they do not violate constitutional rights.^[13]

  Congress has not conditioned federal law enforcement money on state and local governments cooperating with ICE.  The Trump administration cannot add requirements not found in the federal spending law.  In the first weeks of the Trump administration, it announced many new conditions on federal spending.  But Congress, not the President, has the spending power and the conditions must be imposed by federal statutes.

More importantly, the Supreme Court has been clear that the federal government cannot coerce state and local action by withholding federal funds.  In 2012, in National Federation of Independent Business v. Sebelius, the Court declared unconstitutional a provision of the Patient Protection and Affordable Care Act that required state governments receiving Medicaid funds to provide coverage to those within 133 percent of the federal poverty level.[14]  Those not complying would lose all federal Medicaid funds. 

Chief Justice Roberts, writing for the Court, said that “[i]n this case, the financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’ — it is a gun to the head.”^[15] The Court explained that “Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs. . . . The threatened loss of over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”^[16]

These cases reflect the Supreme Court’s upholding basic principles of federalism which safeguard the autonomy of state and local governments.  The Trump administration threats ignore these principles and all of the decisions affirming them.

Indeed, there are compelling reasons for cities to adopt such policies of not cooperating with federal immigration officials.   Victims of crime and witnesses to crime will not come forward to the police if they fear deportation.  Indeed, it was for exactly this reason that in 1979 the Los Angeles Police Department adopted Special Order 40, which provides that “Officers shall not initiate police action with the objective of discovering the alien status of a person. Officers shall not arrest nor book persons for [violating] the United States Immigration code.”^[17]

Public health officials fear that sick people, including those with communicable diseases, will not go for treatment if they fear that it could lead to their deportation.   Of course, their untreated communicable diseases can spread to all of us.   Education officials worry that parents will not send their children to school if they think it might lead to deportation.  Educating children, whether documented or undocumented, is a moral obligation and essential for society.^[18]

It will take courage for state and local officials to fight back. But it is their legal and moral duty to not acquiesce to unconstitutional intimidation.  Based on decades of legal precedents, the law is very much on their side.

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[1] Maria Sacchetti & Jeremy Roebuck, DOJ threatens to prosecute local officials over immigration enforcement, Washington Post (January 22, 2025), https://www.washingtonpost.com/national-security/2025/01/22/justice-immigrantion-memo-sanctuary-cities/

[2] Emily Badger, Trump Raises New Threat to Sanctuary Cities: Blocking Transportation Dollars, New York Times (January 31, 2025), https://www.nytimes.com/2025/01/31/upshot/sanctuary-cities-trump-transportation-funds.html

[3] City and County of San Francisco v. Barr, 965 F.3d 753 (9^th Cir. 2020); City of Los Angeles v. Barr, 929 F.3d 1163 (9^th Cir. 2019); City and County of San Francisco v. Trump, 897 F.3d 1225 (9^th Cir. 2018);

[4] United States v. California, 921 F.3d 885 (9^th Cir. 2019).

[5] 505 U.S. 144 (1992).

[6] Id. at 188.

[7] 521 U.S. 898 (1997).

[8]  Id. at 922.

[9] 138 S. Ct. 1461 (2018).

[10] Id. at 1475.

[11] Id. at 1475.

[12] Id. at 1478.

[13] South Dakota v. Dole, 483 U.S. 203 (1987).

[14] 567 U.S. 519 (2012).

[15] Id. at 581.

[16] Id. at 581-582.

[17] Special Order 40, https://lapdonlinestrgeacc.blob.core.usgovcloudapi.net/lapdonlinemedia/2021/12/SO_40.pdf

[18] The Supreme Court has recognized the importance of education for undocumented as well as documented children.  See Plyler v. Doe, 457 U.S. 202 (Texas law denying a free public education to children of undocumented individuals violated equal protection).