Trump’s Unconstitutional Plan to Withhold all Federal Funding From Sanctuary Cities and States

Donald Trump recently announced he plans to withhold all federal funds to sanctuary jurisdictions which restrict assistance to federal immigration deportation efforts, beginning February 1:

President Donald Trump said Tuesday that starting Feb. 1 he will deny federal funding to any states that are home to local governments resisting his administration’s immigration policies, expanding on previous threats to cut off resources to the so-called sanctuary cities themselves.

Such an action could have far-reaching impacts across the U.S., potentially even in places that aren’t particularly friendly to noncitizens.

This plan is blatantly unconstitutional, violating both federalism and the separation of powers. Courts have repeatedly struck down similar Trump efforts during both his first term and the current one. See my analysis of recent court decisions on these issues here, here, and here. See also my Texas Law Review article surveying and assessing litigation arising from Trump’s first-term attacks on sanctuary jurisdictions. There and in other writings, I also explain why immigration sanctuaries (and conservative gun sanctuaries) are beneficial, and help protect our constitutional system.

Courts have repeatedly ruled that Trump cannot withhold funds from sanctuary jurisdictions because Congress, not the president, determines federal spending and attached conditions, and because even congressionally authorized conditions are subject to constitutional constraints, including that they cannot be coercive, and that they must be related to the purposes of the grants.

Trump’s most recent plan is even more blatantly unconstitutional than most of his previous efforts, because it appears to cover all federal grants to sanctuary jurisdictions, not just some subset of them. Thus, it would be an even bigger usurpation of congressional power, and even more obviously coercive and violative of the relatedness requirement. If Trump goes forward with it, I hope and expect courts will rule against him.

Conservatives and others who may be inclined to support Trump on this should ask whether they would want the next Democratic president to be able to use similar tactics to pressure red states into adopting left-wing policies on gun control, transgender rights, environmental policy, and any number of other issues. And, for those keeping score, I have repeatedly made similar points about the Biden Administration’s (less extensive, but still unconstitutional) attempts to pressure conservative “gun sanctuary” jurisdictions (most recently here).

There are good reasons to cut a variety of federal grants to state and local governments, in order to reduce dependence and incentivize competition for “foot voters.” But that cannot and should not be accomplished by executive usurpation of congressional power, and the use of grants to coerce states and localities into doing the president’s bidding.