When the Obama administration issued guidance on transgender bathroom use to public schools receiving federal funding, indicted Texas Attorney General Ken Paxton won a nationwide injunction blocking the policy, arguing it was "federal overreach" to threaten schools with a loss in federal funding "to force them to conform." The Obama administration never made that explicit threat, but Paxton's successful suit provides exactly the type of road map that progressive strongholds can now follow to block Donald Trump's deportation policies, argues attorney Adam Sieff.
Incoming White House chief of staff Reince Priebus has already said the administration might withhold funding from Los Angeles if it refuses to compromise local policing efforts by cooperating with federal immigration authorities.
A significant amount of money is at stake. Just this year, Los Angeles will receive upwards of $500 million in federal funds to support a variety of programs relied upon by tens if not hundreds of thousands of Angelenos—altogether, more than 5% of the city’s $8.78 billion annual budget comes from the federal government. If the Trump Administration stands on its threat, Los Angeles will face a rending moral quandary concerning which of its many millions of citizens to damn.
But it needn’t come to that. Thanks to an arcane constitutional rule that protects states' rights known as the “anti-commandeering doctrine,” Los Angeles can and should sue the federal government if it tries to force the city’s hand.
The idea here is for the city to provide a check on Trump's power by challenging the feds' use of funding as a means of coercion. In certain cases, the federal government can legally use its spending power as a carrot to entice states and cities to align local policy with that of the federal government. Using federal highway funding, for instance, as a way to encourage drunk driving or speed limit laws of a state is allowed because that funding is rationally related to the policy. But denying a city all funding due to its immigration policy would easily run afoul of the constitution.
The federal government runs into trouble when its required conditions have little to do with the money at issue, or when it effectively coerces the states by presenting them with loaded offers they cannot realistically refuse.
This is where the Trump Administration’s threat to withhold all of L.A.’s federal funding falls apart. Because the President cannot unilaterally allocate or rescind federal funds on his own, he would need to order the Republican Congress to pass a bill that conditions L.A.’s federal funding on the city’s cooperation with the enforcement of federal immigration policies.
As Sieff explains, a major Supreme Court decision that directly relates to this threat came in the court's 2012 ruling against an Affordable Care Act provision requiring states to expand their Medicaid enrollment or lose existing Medicaid funding. The justices adopted the plaintiff's argument that this was unconstitutional coercion.
A functionally analogous anti-immigration funding bill that threatens to strip previously granted federal law enforcement funding would be equally coercive, and would fail for the same reason.
Our nation has a sordid history of invoking states' rights doctrines to stall the advance of a more tolerant and equal society. Facing a President Trump, progressive cities like Los Angeles have an obligation to turn the tables.