Can Trump Withhold Federal Funding from Sanctuary Cities?

Can President Trump withhold federal funding from sanctuary states and cities? I believe the answer to this question is not clear cut, so I will say the answer is yes and no. Let me try to explain my hedging. There is not a great deal of precedent by the Supreme Court under Spending Power (there is no doubt Congress has a great deal of authority under the Spending Clause), but a good case to investigate is the 1987 decision for South Dakota v. Dole. This was a bipartisan decision by the Court with conservative and liberal justices on both sides of the 7-2 decision. Chief Justice Rehnquist delivered the majority opinion and Justices O’Connor and Brennan delivered dissenting opinions. The case involved Congress withholding highway transportation funds to the state of South Dakota unless they increased their drinking age to 21. At the time, 18 to 20 year olds could drink “near beer” (3.2% alcohol) in South Dakota. The Court held that Congress had the Constitutional authority to apply these types of coercive / encouragement spending regulations on states. Let’s evaluate the details the case.

Rehnquist says “Congress may attach conditions on the receipt of federal funds” and Congress has the power “to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.” In United States v. Butler (1936) the Court held Congress has the power “to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” In other words, the spending power of Congress can encompass powers not enumerated in the Constitution. Spending power is not unlimited however, there are four restrictions: first the legislation must pursue “the general welfare”; second the legislation must pursue its objectives unambiguously; third “the statute must be reasonably related to the purpose of the expenditure”; and finally “the legislation may not violate any independent Constitutional prohibition”. The federal condition for South Dakota was seen to meet the “general welfare” because it tries to prevent drunk driving fatalities on federal highways. The condition in the legislation was not ambiguous because it was clearly defined. The federal grants are legitimate because they relate to one purpose – “safe interstate travel”. Since the amount of federal funds being withheld was only about 5%, the law was not seen as coercive, but instead as encouragement for states to raise the drinking age: “encouragement to state action found in this statute is a valid use of spending power.” In Massachusetts v. United States (1978): “The federal interest in particular national projects or programs” can have spending requirements attached to the funding.

Justice O’Connor was not convinced that point three is met: the legislation must be related to the federal funding. She does not feel “safe interstate travel” and the drinking age condition are “reasonably” related. As O’Connor says: “Rather than a condition determining how federal highway money shall be expended, it is a regulation determining who shall be able to drink liquor.” United State v. Butler (1936) was the “last time this Court struck down an Act of Congress as beyond the authority granted by the Spending Clause.” The Court held that the FDR Agriculture Adjustment Act was “an exercise of regulatory (Commerce Clause), not spending power.” The Butler Court held the Spending Clause does not give “power to Congress to tear down the barriers, to invade states’ jurisdiction, and to become a parliament of the whole people, subject to no restriction save such as are self-imposed.”

The Trump administration would have to be careful in how it words a law restricting money to a sanctuary city. I do not believe Trump can simply strip all funding going to cities because it depends on what the money is being used for. For instance, if federal money is going to education and that money is being used to support the education of illegal aliens then part of that money be withheld, but they need to word everything carefully and do their due diligence in gathering data on much illegal aliens use federally funded money given to cities. What makes this process complicated is that each sanctuary state and city may use federal funding differently. I noticed a lot of federal funding goes to “head start” educational programs. If illegal aliens use these head start programs then I believe it is okay to limit funding by the amount that illegal aliens use the program. I do not know if a court would grant Trump the right to withhold all monies for programs even if they are partially used by illegal immigrants. It will be interesting to see what happens.