Trump's Immigration Agenda and the Constitution

The incoming Trump Administration’s plans to stem illegal immigration have triggered threats of resistance from several Democrat-run states and localities.  Conflicts between federal enforcement authorities and blue states will place severe pressures on our system of federalism, as they did in the first Trump term and, in the reverse way, under President Joe Biden.  

Donald Trump campaigned on a promise to undertake the “largest deportation effort in American history.” Promises of resistance arose immediately after his November election.  Denver Mayor Mike Johnston suggested that he would deploy his city’s police forces to keep federal officials from carrying out deportations – now known as “removal” – in federal law.  Although he later withdrew his comments, Johnston also warned that Denver’s citizens would forcibly confront federal law enforcers, in effect staging an insurrection: “More than us having [Denver Police Department] stationed at the county line to keep them out, you would have 50,000 Denverites there … It’s like the Tiananmen Square moment with the rose and the gun, right?”  

Johnston breathed defiance of federal law despite the high costs of illegal immigration to Denver. His city offers free health and other welfare benefits to illegal aliens, along with access to a legal defense fund.  Since December 2022, 43,000 illegal aliens have arrived in Denver, of whom about half have stayed.  One study has found that Denver has spent $356 million to house and feed the migrants, and eight percent of the city’s 2025 budget will go to caring for them.  Johnston has had to propose cuts in spending for the police and fire departments as a result.

California is also planning to challenge Trump. California became the nation’s first “sanctuary state” in Trump’s first term. In 2022, it spent $22.8 billion on benefits and services to illegal aliens, notwithstanding a huge state deficit.  Governor Gavin Newsom has convened a special session of the state legislature to “Trump-proof” the state.  Other states, including Illinois and Massachusetts, are also considering forms of resistance.  

A majority of states, however, are prepared to support and assist federal deportation efforts.  Some 26 Republican state governors have signed a joint letter stating they “stand united in support” of Trump’s plans to protect American citizens from “disastrous open border policies.”

Sanctuary Jurisdictions

Although the term “sanctuary” jurisdiction has no legal definition, these states and cities share two characteristics:  they restrict the sharing of information about illegal aliens with federal authorities, in particular the Immigration and Customs Enforcement (ICE), and they bar police, fire, and other departments from co-operating with ICE in locating and detaining aliens.  California, for example, prohibits state and local officials from notifying ICE when they release an illegal alien from prison, the ideal moment when federal authorities should remove a convicted felon from the country.  California officials will not share their knowledge about migrant communities, which would be a “force multiplier” supplementing federal enforcers’ capabilities in removing illegal aliens.

The avowed state resistance to the enforcement of federal law invokes an unfortunate parallel to the similar efforts of state and local officials to resist federal efforts to end racial segregation and enforce Brown v. Board of Education and its progeny.  On one memorable occasion, President Dwight Eisenhower used federal military forces to overcome state and local defiance of federal court orders to desegregate the Little Rock, Arkansas public schools. But the parallel to the earlier period is not exact. While states cannot attempt to obstruct the enforcement of immigration law, under current law, they are also free to refuse to cooperate with federal authorities. Indeed, current law even places roadblocks in the way of states that want to enforce federal law with their legal systems directly.  

The Trump administration, however, may be able to resort to new, untried legal tactics to overcome resistance. It may ask the courts to re-examine obsolete doctrine limiting states' ability to complement federal enforcement efforts. States such as Texas and Florida that engaged in self-help during the Biden years to stall illegal immigration might also be able to trigger judicial re-consideration of these barriers to cooperation with the White House’s agenda.

The Current Legal Framework Regarding Federal-State Relations in Immigration

Three principles set by the U.S. Supreme Court dictate the legal and constitutional framework in which the Trump Administration and the states (whether seeking to resist or support federal immigration efforts) must operate. The first, outlined in Arizona v US (2012), concerns the broad relationship between federal and state regulation of illegal aliens. The second articulates what is called the “anti-commandeering” doctrine. The third concerns the scope and limits of federal power to secure the cooperation of the states voluntarily by attaching conditions to federal grants to them.

The most important barrier to the Trump administration’s program of securing state cooperation will be Arizona v. US. In that case, the Supreme Court affirmed that the federal government has “broad, undoubted power over the subject of immigration and the status of aliens…. to determine immigration policy.” States inevitably possess powers that will affect immigrants in their everyday operations, such as criminal law and the rules of property, contracts, and accidents. But states, according to the Supreme Court, cannot regulate immigration when Congress has decided that federal law must command exclusively or when state law conflicts with federal law by “stand[ing] as an obstacle to the accomplishment and execution of [Congress’] full purposes and objectives.”  

Thus, Arizona held that the state could not complement federal immigration enforcement by also punishing – as a matter of state law – an alien’s failure to comply with federal immigration law requiring registration.  The Court reasoned that the entire “field” of alien registration was one that Congress had reserved exclusively.   Even state law that mirrored federal law was prohibited.  Arizona police officers, the Court held, could not arrest aliens solely on the ground that they were in the United States illegally – that is only the preserve of federal agents.

However, just as states cannot independently duplicate the enforcement of immigration law, Arizona also teaches that states cannot try to obstruct or depress enforcement.  (In this respect, the parallel with the desegregation era holds.)  Under Arizona, any state and local laws conflicting with federal law are preempted. For example, a federal court of appeals recently ruled that a Washington State county could not prohibit a county airfield from servicing flights chartered by ICE to remove illegal immigrants.  The operators provided the flights with essential services such as fueling and landing stairs.  The court found that the county was improperly attempting to regulate how ICE transported removable aliens and so intruded into the exclusive federal authority over immigration enforcement.  

Second, current Supreme Court doctrine militates against federal-state collaboration over immigration, making some (passive) state resistance viable.  The Court’s case law prohibits the national government from forcing or “commandeering” state officers to enforce federal law. In New York v. US (1992), Printz v. US (1997), and Murphy v. NCAA (2018), the Court has articulated the principle of “anti-commandeering.”  Under this doctrine, the federal government cannot directly compel a state executive or legislative body to take certain actions. Under Printz, federal law cannot force state officers, for example, to conduct background checks on prospective gun purchasers. Likewise, Washington cannot compel states to enact laws under New York. Murphy extended the anti-commandeering principle to include federal mandates prohibiting the states from taking legislative action (there, from rescinding restrictions on gambling).  

The anti-commandeering doctrine was pivotal in litigation in the first Trump Administration over federal immigration enforcement.  For example, 8 USC § 1373(a) prohibits local and state governments and agencies from enacting laws or policies that limit communication with the Department of Homeland Security about “information regarding the immigration or citizenship status” of individuals. A 2017 Executive Order sought to limit federal funding to states that refused to comply with Section 1373.  Several sanctuary jurisdictions argued that the section was an unconstitutional violation of the anti-commandeering doctrine and that receipt of federal funds could not be made conditional on compliance with it. Their theory was that Congress could not directly dictate what a state legislature may not do – limit information sharing by its officials with the federal government. Several lower courts agreed with the cities and states.

A third structural principle concerns federal grants to states and localities conditional on their compliance with federal immigration law or cooperation (including information-sharing) with federal officials. During his first term, President Trump sought to employ this technique—often without success—in Executive Order 13768. Conditions on federal grants to induce states to take action are often employed when Congress cannot directly compel states to act as it desires.  

For instance, Congress might condition federal aid to a state’s highway program on the state’s setting a specific age drinking minimum – a condition that the Supreme Court upheld in South Dakota v. Dole (1987). Since states heavily depend on federal funds, conditional grants give the federal government enormous leverage over their policy choices. The Supreme Court has fashioned parameters for permissible conditions to prevent a radical imbalance in federal-state relations.    

In the landmark 2012 case NFIB v. Sebelius upholding “Obamacare,” the Court sought to distinguish grant conditions that merely encouraged the states to take the desired actions from unconstitutionally coercive ones. It found that Congress had put “a gun to the head” of the states by requiring them to expand their Medicaid programs or lose all existing Medicaid funds. Given the size of the states’ health care programs, this threat risked more than 10 percent of a state’s overall budget. While the Court declined to draw finer lines, it considered that Congress had gone too far.

Trump’s Immigration Agenda, Congress and the States

These restrictions on federal power will set the scope of the Trump immigration agenda. Of course, the national government will set a great deal of immigration policy independently. The executive branch will decide enforcement priorities, such as whether to continue the Biden administration’s catch-and-release asylum policies or its permissive Dreamers program. Congress will have to devote funds to renew the construction of the border wall, hire more border agents and immigration judges, and change asylum and visa rules.

But Trump’s success will also depend on state cooperation. The federal government does not have enough agents and resources to track down every illegal alien in the nation. Just as with citizens and legal residents, however, aliens come into constant contact with state and local government. They encounter the criminal justice system, use public benefits, and work in the local economy.  State officers could vastly increase the capability of the federal government to locate and remove illegal aliens.  Both red and blue states should at least agree on removing aliens who have committed felonies such as violent crimes or drug trafficking.

The challenge for the Trump administration is how to persuade states, with their own views on the immigration question, to cooperate without crossing the line into unconstitutional coercion. This challenge is not unique to immigration, nor does it neatly break down into red versus blue states. It is a persistent dynamic in every area where the federal government plays a role in social and economic life beyond its core subjects.

The first and most obvious tool is the power of the purse. The Trump Administration will surely try to use federal grant conditions again to lever “sanctuary” jurisdictions into cooperating with its deportation program. But its prospects of success will be much improved if Congress grants broad and explicit authority to set conditions on federal spending programs. The Supreme Court has said that Congress may attach conditions to federal dollars that require states to take action that the federal government could not order itself. Even though Sebelius held that conditioning all Medicaid funding on cooperating with Obamacare programs went too far, the Court has also held that withholding lesser amounts would not violate the Constitution. In South Dakota v. Dole, for example, the Court upheld a program that withheld five percent of a state’s federal transportation dollars if it did not raise the drinking age to 21. Congress could declare that it will withhold federal criminal justice grants, say constituting no more than 5 percent of all federal funding for the state unless a state cooperates with ICE.  

But a problematic constitutional issue lurks. Current law does not contain clear spending conditions that require cooperation with federal immigration agents.  If Congress does not enact them in a new law, the Trump administration will have to argue in court that it has the implicit authority to add new conditions to encourage state cooperation. The Supreme Court did not address this question in its Spending Clause decisions, and litigation could stall the Trump administration for two years or more. Moreover, the Court might well decide that attaching conditions to federal grants to states on the sole initiative of the executive violated the separation of powers by encroaching on Congress’ spending power. The only way the White House could be sure of the power of the purse is to ask Congress to wield it.

The new Administration could not only ask Congress to authorize it to condition funding on cooperation with ICE. It could also seek legislation that conditions various grants on state and local withdrawal of benefits to illegal migrants. For example, federal aid to state and local public housing could be denied to jurisdictions offering free or subsidized housing to illegal residents. Likewise, federal aid to state transportation programs could be lost if recipient states grant them driving licenses. The Administration could spearhead a broad program to end federal funding that enables states and localities to subvert federal immigration enforcement.  

Persuading Congress to deploy its spending power to underwrite Trump’s immigration program could be essential in another way. Conditional spending involves carrots as well as sticks. States and localities might be more amenable to cooperation with ICE if the federal government offered generous support to police forces and other state agencies that chose to cooperate with ICE rather than punishing states that refused cooperation.

Trump’s Immigration Agenda and the Court

While spending could produce the most immediate changes in immigration enforcement, the most significant reform would require Supreme Court consent.  Because cities and states possess, by far, the greater share of officers and government enforcement infrastructure, such as agencies, courts, and facilities, Washington D.C. needs states' assistance for its most far-reaching social and economic goals. Arizona v. United States, however, places a formidable roadblock in the way of Trump’s agenda because of its bar on states from enforcing — at all — federal immigration law.  

But according to federal immigration power such breadth, Arizona might prove vulnerable. A 5-3 vote decided it, and three of the Justices in the majority (Kennedy, Ginsburg and Breyer) are no longer on the Court. Three Justices (Scalia, Thomas, and Alito) partially dissented, and the late Justice Scalia’s opinion was compelling. Adding the three Trump Justices — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — to the Court means that Arizona is up for grabs.

The particular outlook of the Court’s new conservative majority further suggests that Arizona is ripe for reversal. The six conservative Justices have shown far more support for state authority than the Court of 2012.  They are also intent on interpreting the Constitution based not just on its text but on the original understanding of the Constitution’s ratifiers, as confirmed by the subsequent history and tradition of governmental practice. From that perspective, Arizona’s sweeping exclusion of states from immigration is dubious.  

The Constitution does not, in its text, describe a power over immigration or assign one to the federal government. The history of the Constitution’s ratification and governmental practice in its wake – which the originalist majority on the Court has consulted to resolve questions of constitutional interpretation – do not support the exclusivity of federal power over immigration.  The Supreme Court would not identify a federal power over immigration until The Chinese Exclusion Case in 1889.  Indeed, the earlier practice suggests that states took the lead role in managing immigration for the nation’s first century; The Chinese Exclusion Case had to find the power as inherent in the United States’ nationhood, rather than in the constitutional text.  That kind of jurisprudential reasoning, while highly characteristic of the late 19th and early 20th century cases, has fallen into disfavor.  An exclusive federal power over immigration, from which Arizona deeply drew, cannot survive the current Court majority’s originalist demands for clear historical proof.

Overruling Arizona?

The Trump administration could ask the Court to overturn Arizona, but Texas and other states might beat them to the courthouse steps.  Governor Greg Abbott has set up a case to spark just such a confrontation between the federal and state governments by deploying barriers along the Rio Grande River and calling up Texas National Guard units to attempt to interrupt illegal migration across the US-Mexico border. Abbott’s actions plainly violate Arizona, but that may well be the governor’s plan. If he continues to try to stop illegal migration that Washington, D.C. will not, he will succeed in prompting a case that will go to the Supreme Court. The Trump administration might assist by continuing the Biden administration’s effort to enjoin Texas’s efforts, despite their agreement with Trump’s general immigration agenda. Suppose the Supreme Court reverses itself and allows states to enforce federal law independently. In that case, that may be the most significant of the long-term constitutional consequences of our struggle over immigration.

John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute.

Robert Delahunty is a Washington Fellow of the Claremont Institute Center for the American Way of Life.