A Test

In South Dakota v Dole, the Supreme Court ruled that the Federal government could not withhold already committed funds from States in amounts that could coerce the States into obeying Federal diktats, such withholdings were legal but only in amounts that would be persuasive rather than coercive (as an aside, the Court did not get around to identifying a threshold or a threshold region that would separate the coercive from the merely persuasive).

Attorney General Jeff Sessions said Monday that he was reaffirming a[n]…Obama-era policy that threatened to pull grants from jurisdictions that bar officials from communicating with federal agencies about immigration, and implied that more sweeping rules were coming. He also said the Justice Department would try to take back previously granted funding from places that don’t comply with the communications law.

Sessions’ rationale seems entirely reasonable, on one plane.

When cities and states refuse to help enforce immigration laws, our nation is less safe.  I strongly urge our nation’s states and cities and counties to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws and to rethink these policies.

There are, though, a couple of problems with this, one legal and one political (and political philosophical).  The legal problem stems from that Supreme Court ruling.  While the inability to coerce was applied in a matter involving coercion of States, the extension of the principle to jurisdictions below States is straightforward.  If the Federal government cannot coerce States, it cannot bypass the State governments to coerce lesser jurisdictions within (and generally bound by) a State government.

The political problem is this—and it’s the larger problem in my view, since Court rulings can be overruled by later Courts.  Just how much do we want, in our federated form of governance—the 10th Amendment—and the sovereignty of We the People—our Constitution’s Preamble and the 9th Amendment—the Federal government to be able to coerce the States and lesser jurisdictions?

It seems entirely legitimate to prevent coercively a State or lower jurisdiction from flouting federal law, from disobeying it.  Forcing it to actively enforce federal law seems a different matter.  Where is the threshold?

If this level of coercion is appropriate or legitimate, how about that level of coercion?  If coercing States, et al., regarding immigration questions is OK, what about coercing States, et al., regarding gun (control) rights?  Speech?  Drinking ages (that South Dakota thing again)?  And on and on?

Where would it stop?  What is Sessions’ limiting principle?  What is the Federal government’s?

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