--- title: Sanctuary Cities: Trump Executive Orders Unconstitutional description: Five reasons, including why the federal government can't force state and city governments to enforce its immigration laws canonical: https://time.com/4720749/trump-sanctuary-cities-unconstitutional/ author: Devin Watkins article:opinion: true article:content_tier: free article:published_time: 2017-03-31T16:38:55.000Z article:modified_time: 2026-08-04T07:54:28.832Z article:section: Ideas og:title: 5 Ways Trump's Anti-Sanctuary City Orders Are Unconstitutional og:description: Including why the federal government can't force states and cities to enforce its laws og:url: https://time.com/4720749/trump-sanctuary-cities-unconstitutional/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt0386794db5d25280/6988c0cb8e060145d5469c50/donald-trump-sanctuary-cities-executive-order-sessions-unconstitutional1.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 og:image:width: 3666 og:image:height: 2062 og:image:alt: President Donald Trump og:type: article twitter:card: summary_large_image twitter:title: 5 Ways Trump's Anti-Sanctuary City Orders Are Unconstitutional twitter:description: Including why the federal government can't force states and cities to enforce its laws twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt0386794db5d25280/6988c0cb8e060145d5469c50/donald-trump-sanctuary-cities-executive-order-sessions-unconstitutional1.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 ---  # 5 Ways Trump's Anti-Sanctuary City Orders Are Unconstitutional > Sponsored content. 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Inside TIME is the newsletter where TIME's Editor-in-Chief explains cover selection and the editorial reasoning behind major stories. It is free at time.com/newsletters. #### Who is the editor of TIME? Sam Jacobs is TIME's Editor-in-Chief. He writes Inside TIME, a twice-weekly newsletter about the newsroom's reporting and editorial decisions. #### Is Inside TIME free? Yes. Inside TIME is a free newsletter, available at time.com/newsletters. A paid TIME subscription is separate and available at time.com/subscribe-agent. ## Video: Justtice Department Seeks to Hold Back Grants to Sanctuary Cities [Watch (HLS stream): Justtice Department Seeks to Hold Back Grants to Sanctuary Cities](https://cdn.jwplayer.com/manifests/weNLyTnX.m3u8) (1:31)  _Published 2017-03-27. The Department of Justice will no longer give grants to sanctuary cities, as part of an ongoing Trump Administration crackdown on uncooperative local governments._ by [Devin Watkins](https://time.com/author/devin-watkins/) ## Devin Watkins Mar 31, 2017 4:38 PM UTC  Attorney General Jeff Sessions talks during the daily press briefing at the White House in Washington, D.C. on March 27, 2017. Attorney General Jeff Sessions talks during the daily press briefing at the White House in Washington, D.C. on March 27, 2017. Jabin Botsford—The Washington Post/Getty Images by [Devin Watkins](https://time.com/author/devin-watkins/) ## Devin Watkins Mar 31, 2017 4:38 PM UTC Attorney General [Jeff Sessions](http://time.com/4689960/jeff-sessions-russia-recuse-donald-trump/) recently announced that he will begin punishing states and local governments who refuse to help the federal government enforce its immigration laws — known as [sanctuary cities](http://time.com/4714159/sanctuary-cities-federal-grants-jeff-sessions/) — by taking away federal grants. Sessions even mentioned using a “claw-back” to retake money already given to local governments. Twofederal judges are already examining if they should be put on hold. The order is plainly unconstitutional. It undermines federalism in several ways. **1\. States can’t be forced to help enforce federal law.** In 1996, Congress enacted [8 U.S.C. § 1373](https://www.law.cornell.edu/uscode/text/8/1373), which attempts to stop states and cities from enacting policies that would block state employees from helping the federal government enforce its immigration laws. Yet the next year, the Supreme Court ruled that the federal government cannot force states and cities to help enforce _any_ federal law. As the late Justice Antonin Scalia wrote in the court’s opinion for [_Printz v. United States_](https://www.oyez.org/cases/1996/95-1478), states can be enticed to do so willingly, but they can’t be “commandeered.” States and cities do not have to obey — which directly contradicts Sessions’ requirement. **2\. The White House can’t make new requirements.** The executive order purports to create new conditions on federal grants to state governments. But the Administration has no authority to do so. The Supreme Court, in [_Pennhurst State School and Hospital v. Halderman_](https://www.law.cornell.edu/supremecourt/text/451/1) (1981), held that only Congress could impose conditions on federal grants to states — not a President. **3\. Even if Congress added the requirements, these are unclear.** Even where Congress imposes conditions on spending, it must “speak with a clear voice” and make the condition “unambiguous” so that states know what they are agreeing to by taking the money. Sessions’ “claw-back” threat spotlights how unclear the immigration-enforcement requirements — if they exist at all — are for the thousands of federal programs and grants potentially affected. Didn’t the states and cities have to qualify to get the money in the first place? **4\. It’s too late to add new requirements.** After a new large spending program is created, even Congress can’t later add new major conditions. The Supreme Court considered this problem with Obamacare’s Medicaid requirement that either a state expand Medicaid or lose even its preexisting Medicaid funds in 2012’s [_NFIB v. Sebelius_](https://www.oyez.org/cases/2011/11-393). Seven justices found this unconstitutional. So even if Congress wanted to impose these conditions on current substantial funding, it couldn’t. It could only impose them on new funding. **5\. The requirements have nothing to do with many of the threatened programs.** Any condition attached to spending must be germane to the purpose of that spending. In [_South Dakota v. Dole_](https://www.oyez.org/cases/1986/86-260) (1987), the Supreme Court allowed Congress to condition a small portion of the federal highway funds on the requirement that the state enact a minimum drinking age of 21\. The Court found this constitutional because this was related to the purpose of the funds. Even Congress cannot use highway funds to force states to change education policy. If the Administration limits the order to the Department of Justice programs that Sessions talked about, they might be considered germane. But Trump’s executive order adds conditions to all federal grants, and the vast majority of them have purposes — like education or environmental protection — entirely unrelated to immigration. We will see how far the executive order reaches. **What Should Be Done Instead** Before Sessions’ announcement to begin enforcement, San Francisco and Santa Clara County were seeking to prevent these actions from going into effect. They have asked for a nationwide preliminary injunction, which a federal judge will consider on April 5 and April 12\. Seattle is also seeking to stop these actions, but likely will take longer for the courts to consider. Now that the Administration has started enforcing the order, the courts seems likely to issue the injunction and block it. Immigration reform is an important issue for the President, and an important reason for his election. But there are other ways of accomplishing this objective. For instance, the President could send federal agents to sanctuary cities to enforce federal law. Or he could ask Congress to pass a new law that tailors new law-enforcement grants to these purposes. As it stands, a President could use these kinds of threats to coerce states in all kinds of ways, including against policies dear to his fellow conservatives. Trump will not be in office forever, but the precedents he sets will live on. Accordingly, this threat to constitutional governance should be reconsidered or struck down. After all, the people elected Donald Trump to “drain the swamp” by taking power away from Washington and returning it to the states, not the other way around. ```json [{"@context":"https://schema.org","@type":"OpinionNewsArticle","@id":"https://time.com/4720749/trump-sanctuary-cities-unconstitutional/","mainEntityOfPage":{"@type":"WebPage","@id":"https://time.com/4720749/trump-sanctuary-cities-unconstitutional/"},"headline":"5 Ways Trump's Anti-Sanctuary City Orders Are Unconstitutional","datePublished":"2017-03-31T16:38:55.000Z","dateModified":"2026-08-04T07:54:28.832Z","description":"Including why the federal government can't force states and cities to enforce its laws","url":"https://time.com/4720749/trump-sanctuary-cities-unconstitutional/","keywords":["Law","Immigration"],"thumbnailUrl":"https://static.time.com/v3/assets/bltea6093859af6183b/blt0386794db5d25280/6988c0cb8e060145d5469c50/donald-trump-sanctuary-cities-executive-order-sessions-unconstitutional1.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","author":[{"@type":"Person","name":"Devin Watkins","jobTitle":null,"url":"https://time.com/author/devin-watkins/"}],"articleSection":"Ideas","image":[{"@type":"ImageObject","url":"https://static.time.com/v3/assets/bltea6093859af6183b/blt0386794db5d25280/6988c0cb8e060145d5469c50/donald-trump-sanctuary-cities-executive-order-sessions-unconstitutional1.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","width":1200,"height":675,"headline":"President Donald Trump","caption":"President Donald Trump","creditText":"Jabin Botsford—The Washington Post/Getty Images","representativeOfPage":true}],"publisher":{"@type":"Organization","name":"Time","url":"https://time.com/","logo":{"@type":"ImageObject","url":"https://time.com/images/logo.png","width":528,"height":156},"foundingDate":"March 3, 1923","sameAs":["https://www.facebook.com/time","https://www.instagram.com/time/?hl=en","https://twitter.com/time","https://www.pinterest.com/timemagazine"]}},{"@context":"https://schema.org","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"item":{"@id":"/section/ideas/","name":"Ideas"}},{"@type":"ListItem","position":2,"item":{"@id":"/tag/law/","name":"Law"}},{"@type":"ListItem","position":3,"item":{"@id":"https://time.com/4720749/trump-sanctuary-cities-unconstitutional/","name":"5 Ways Trump's Anti-Sanctuary City Orders Are Unconstitutional"}}]},{"@context":"https://schema.org","@type":"VideoObject","name":"Justtice Department Seeks to Hold Back Grants to Sanctuary Cities","description":"The Department of Justice will no longer give grants to sanctuary cities, as part of an ongoing Trump Administration crackdown on uncooperative local governments.","thumbnailUrl":"https://cdn.jwplayer.com/v2/media/weNLyTnX/poster.jpg?width=720","uploadDate":"2017-03-27T19:21:43.000Z","contentUrl":"https://cdn.jwplayer.com/manifests/weNLyTnX.m3u8","embedUrl":"https://time.com/4720749/trump-sanctuary-cities-unconstitutional/","duration":"PT1M31S","potentialAction":{"@type":"SeekToAction","target":"https://time.com/4720749/trump-sanctuary-cities-unconstitutional/?jw_start={seek_to_second_number}","startOffset-input":"required name=seek_to_second_number"}}] ```