Saturday, July 4, 2015

Kathryn Steinle: Sad Death in a City of Refuge and How Congress Can Address the Failure of CoRs to Protect The Public

The City and County of San Francisco sacrificed one of its newer residents last week as part of its on-going flaunting of US immigration laws. Across the Nation, as we learned the identity of the accused shooter of Kathryn Steinle, we felt the anger burning in our minds and hearts. How is it possible that the City's Sheriff's Department released a convicted (seven times), felon on the thin excuse that ICE detainer requests are "not legal?" How is it possible, in the first instance, that ICE surrendered the accused to the Sheriff "as a courtesy" so that the City could prosecute him on outstanding warrants, knowing as ICE did that the Sheriff's Department would NOT honor ICE detainer requests?

Much of this Kafkaesque insanity derives from the City and County of San Francisco suffering under a delusion. Its delusion is that it is responsible for the determination of United States immigration and naturalization policy. Under the US Constitution, however, the City and County of San Francisco has no power to determine immigration and naturalization law. Only the United States Congress, pursuant to Article I of the Constitution, has the power to make such law.

The City and County of San Francisco may view its status as a matter of high principle. In fact, here is what the City says about its City and County of Refuge status:
In 1989, San Francisco passed the "City and County of Refuge" Ordinance (also known as the Sanctuary Ordinance) which prohibits City employees from helping Immigration and Customs Enforcement (ICE) with immigration investigations or arrests unless such help is required by federal or state law or a warrant. The Ordinance is rooted in the Sanctuary Movement of the 1980's, when churches across the country provided refuge to Central Americans fleeing civil wars in their countries. In providing such assistance, faith communities were responding to the difficulties immigrants faced in obtaining refugee status from the U.S. government. Municipalities across the country followed suit by adopting sanctuary ordinances.
In recent years, the Sanctuary Movement has experienced a rebirth, as grassroots organizations, faith communities, and local government have stood firmly against repressive immigration proposals in Congress and immigration raids that separate families. In February 2007, Mayor Gavin Newsom reaffirmed San Francisco's commitment to immigrant communities by issuing an Executive Order that called on City departments to develop protocol and training on the Sanctuary Ordinance. 
So San Francisco adopted its City and County of Refuge Ordinance. Its ordinance quite directly declared the City's refusal to cooperate with federal law enforcement. San Francisco's neat principle comes with a price, and Kathryn Steinle appears now to be the latest known victim of San Francisco's "principled" stand.

Before government officials begin spinning their lines, YOU NEED TO KNOW that THERE IS SOMETHING THAT CONGRESS CAN DO about American cities that choose to sacrifice the lives of American citizens in the name of "Sanctuary." Congress can CONDITION THE RECEIPT OF FEDERAL FUNDS on COMPLIANCE by program recipients with ICE detainer requests.

The Congress has the SPENDING CLAUSE power to coerce Cities of Sanctuary to comply with detainer requests or forgo federal funds. 

Understand, I am not saying that Congress can, or should, simply enact a law demanding that Cities, Counties and States provide that cooperation. Such unfunded mandates offend important federalism principles. Rather, I am saying that Congress can require that cooperation of cities, counties and States as a condition of the receipt of federal program funds by them.

On several occasions, the Supreme Court has confirmed that Congress can condition the receipt of federal funds on compliance with federal program requirements. For example, back in the late 1970s, Congress conditioned receipt by the States of a portion of highway funding on their raising the legal drinking age to 21 years. South Dakota complained that the funding condition violated the 21st Amendment. [The 21st Amendment, ending Prohibition, gave plenary power over the sale and distribution of alcohol to the States.] In South Dakota v. Dole, affirming the constitutionality of the requirement and the program, the Supreme Court explained the interplay of the Spending Clause power and such federal program requirements:

The Constitution empowers Congress to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." []. Incident to this power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power "to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives." []. The breadth of this power was made clear in United States v. Butler, [], where the Court, resolving a longstanding debate over the scope of the Spending Clause, determined that "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." Thus, objectives not thought to be within Article I's "enumerated legislative fields," [], may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.
The spending power is of course not unlimited, [], but is instead subject to several general restrictions articulated in our cases. The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of "the general welfare." []. In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. [] Second, we have required that if Congress desires to condition the States' receipt of federal funds, it "must do so unambiguously . . ., enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation." [] . Third, our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated "to the federal interest in particular national projects or programs." []. Finally, we have noted that other constitutional provisions may provide an independent bar to the conditional grant of federal funds. [].

Essentially, South Dakota v. Dole (and other Supreme Court cases) confirm that the Constitution allows Congress to pursue policy goals by a "carrot and stick" approach. In South Dakota, the Court recognized that the goal Congress sought to achieve was to raise the legal drinking age across the Nation to improve safety. The "carrot" was a portion of reserved federal highway funding; the "stick" was the loss of that portion of funds by States that would refuse to bring their legal drinking age limit into compliance with federal policy.

To be clear, as South Dakota makes clear, Congress cannot tie just any carrot to just any stick. In other words, "conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs.'" In South Dakota, the connection between drinking age, driver licensing, and highway funding was sufficient to permit Congress to apply that carrot and stick.

So what can Congress do in response to the murder of Kathryn Steinle?

Congress can condition the receipt of relevant funding on actual cooperation of program recipients with requirements designed to serve policy goals identified by Congress. In South Dakota v. Dole, receipt of a portion of highway funds depended on raising drinking ages as desired by Congress. More recently, National Federation of Independent Businesses v. Sebellius, the first Supreme Court case about Obamacare, the Court actually rejected a portion of the Obamacare statute that conditioned receipt of ANY MEDICAID FUNDING BY STATES with States' agreement to expand Medicaid programs as proposed the Act. Chief Justice Roberts concluded that COMPLETE DENIAL OF MEDICAID FUNDS to States was too big a stick, and that the proper stick might have been to limit MEDICAID funding to pre-Obamacare levels. [Most will recall this case for a separate holding by the Court sustaining the constitutionality of the "Individual Mandate" on the ground that the mandate was a tax, not a penalty.]

Congress can identify the funds appropriated in relation to immigration, naturalization, law enforcement, community policing, and justice programs. Then, Congress can condition receipt of a relevant portion of funds (not necessarily all, Congress would have to make that decision, as a matter of policy, and in keeping with the Supreme Court's decisions on the subject). Having forecast how the money it appropriates will be distributed and for what purposes, Congress would need only to impose as a condition of receipt of the funds a requirement of cooperation with ICE detainer requests as a condition on the receipt of funds.

How would this impact the City and County of San Francisco? Well, of course, that depends on the size of the carrot and the size of the stick. 
Here is what we know for sure. San Francisco receives a relatively princely sum from the federal government.The City and County of San Francisco receives about a QUARTER BILLION DOLLARS in federal funding annually. But that is only about 5% of the City's general funds each year.
Perhaps not all of that $250,000,000.00 in federal funds would be affected by a congressional "carrot and stick." Perhaps it would. That determination belongs to Congress, guided by an understanding that the Supreme Court does give such programs a careful review to insure that relevant Tenth Amendment interests are preserved, and that Congress has not overstepped.

But, had Congress the will to do so, it could invite San Francisco and other federal grantees to respect our Constitutional order, and to give place to national policy over its own preferences about immigration and naturalization. Whether Congress will act, of course, remains to be seen.