Trading COVID Aid for a Sanctuary Crackdown Is Problematic

Aid to budget-strapped states and localities is a key priority in House Democrats’ $3 trillion COVID-19 relief bill, the HEROES Act (H.R. 6800), which passed the House on a largely party-line vote in May. This idea, however, lacks traction in the Senate. With states and localities facing collapsing tax revenues and climbing public health costs amid the pandemic, the bipartisan National Governors Association in April proposed that Congress provide $500 billion in aid. Responding to this request, the HEROES Act includes nearly $ 1 trillion to help stabilize their budgets.

Republican legislators are divided on the issue of state aid, with some opposing bailouts of states in future COVID-19 relief packages. In April and May, President Trump expressed his opposition to aid to states unless his priorities were included in such a relief package, stating at a White House event that in exchange for aid to states and localities, “[w]e’d have to talk about things like sanctuary cities, as an example.” He subsequently tweeted “The elimination of Sanctuary Cities, Payroll Taxes, and perhaps Capital Gains Taxes, must be put on the table.”

With the Senate expected to take up COVID-19 relief again in July, it remains to be seen whether Senate Republicans will seek to link aid to states to sanctuary politics. But doing so would be bad policy and likely illegal.

Attacks on so-called sanctuary policies are bad policy

Conditioning state and local aid on terminating “sanctuary” policies is extremely problematic.

First, there is no agreed-upon definition of “sanctuary jurisdiction,” which is not a formal legal term and is not defined in the U.S. Code. The Trump administration has issued guidance interpreting the term to mean willful noncompliance with a section of Immigration and Nationality Act (INA) – 8 U.S.C. § 1373 – that prohibits states and localities from placing restrictions on sharing information concerning individuals’ citizenship or immigration status with federal authorities. However, that provision does not require jurisdictions to collect information regarding citizenship or immigration status, nor does cover sharing additional information beyond that concerning citizenship or immigration status.

A number of self-proclaimed “sanctuary jurisdictions” adhere to applicable federal legal requirements – including § 1373 – and/or have had federal courts conclude that their challenged policies do not violate federal laws. Many other jurisdictions targeted by the Trump administration as maintaining “sanctuary polices” do not identify as sanctuary jurisdictions and have disputed the designation or resisted being deemed non-cooperative.

Second, to the extent the Trump administration has identified specific policies to challenge, such as policies limiting law enforcement collection of information concerning immigration status or policies against honoring warrantless detainers, such policies often have a firm grounding in law and good governance. Trust policies that limit information collection are in place to reassure immigrant communities that they can come forward as victims and witnesses to report crime to law enforcement, improving community safety as a whole. And localities have adopted policies declining to honor warrantless detainers following a series of court decisions that have held localities liable for honoring them.

Third, research suggests that cities and localities deemed to be sanctuary jurisdictions do not experience any increase in crime, and may even be safer than other jurisdictions, suggesting that trust policies produce public safety benefits.

The Trump administration cannot unilaterally attach immigration enforcement conditions to state aid

Were Congress to enact aid to states and local governments without conditions and the Trump administration attempted to unilaterally attach conditions on that aid, such an action would likely be found to be unlawful based on an analysis of recent court decisions.

As a way to enlist so-called sanctuary jurisdictions and other localities in federal immigration enforcement, the Trump administration has tried to require states, cities, and counties applying for Byrne Justice Assistance Program (“Byrne JAG”) grants to abide by three new conditions:  1) certifying compliance with § 1373, 2) allowing federal immigration authorities to access local jails, and 3) providing at least 48-hour notice before releasing an undocumented immigrant in their custody when a detainer request is issued.

While one federal appellate court has upheld the administration attaching these conditions to Byrne JAG grants, most appellate courts ruling on the issue have found the new conditions impermissible. Several federal judges have cited the unilateral conditions to be in violation of the separation of powers – namely the legislative branch’s “power of the purse.”

Congress cannot attach unrelated conditions to state aid

While the Trump administration likely cannot unilaterally attach “anti-sanctuary” conditions to COVID-19 aid, it may try to work with Congress to condition state and local aid consistent with President Trump’s April and May 2020 statements. Were Congress and the Trump administration to reach a deal including “anti-sanctuary” conditions, these conditions would be consistent with Congress maintaining the “power of the purse.” However, even if passed by Congress, such conditions would likely be illegal.

1. The federal government cannot commandeer state and local officials

In a pair of 1990s federalism cases – New York v. United States, 505 U.S. 144 (1992) and Printz v. United States, 521 U.S. 898 (1997) – the U.S. Supreme Court articulated an “anti-commandeering” principle that limits the federal government from compelling state and local officials to carry out federal regulatory programs. Under this line of cases, a deal between the Trump administration and Congress that would require state and local officials to carry out specific tasks relating to immigration enforcement, such as honoring federal immigration detainers, would likely be found to be unlawful.

Applying these cases to the immigration realm, federal courts have found that mandatory immigration detainers would be unlawful and have even questioned the constitutionality § 1373 itself. Because principles of federalism and democratic accountability require that voters understand which level of government is responsible for a particular policy, the Tenth Amendment places limits on the federal government forcing state and local officials to carry out such policies.

2. Anti-sanctuary conditions must be related to the aid in question

Even if the anti-commandeering principle were sufficiently addressed, the U.S. Supreme Court limits the types of conditions that can be placed on grant funding. In South Dakota v. Dole, 483 U.S. 203 (1987), the Court set out a multi-part test such conditions must satisfy. Under the test, among other factors, the condition is permissible if it is reasonably related “to the federal interest in particular national projects or programs.”

Given the absence of a nexus between immigration enforcement and pandemic-related state budget shortfalls, conditioning COVID-19-related state aid on “anti-sanctuary” policies likely fails this test.

3. State aid cannot be conditioned on overly coercive requirements

In National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), which upheld the Patient Protection and Affordable Care Act, the Court held that when Congress offers a financial inducement, the accompanying conditions cannot be so coercive as to amount to “compulsion.”

Given the dire straits of state budgets during the current economic crisis, conditioning desperately-needed billions of dollars in state aid on adopting various immigration enforcement policies could be seen as amounting to “compulsion,” rendering those conditions to be impermissible.


President Trump’s proposal to condition COVID-19 aid to states and localities on anti-sanctuary jurisdiction policies is problematic for policy and legal reasons. Were the administration to try to implement such policies unilaterally, they would likely be found to be unlawful. But even if Congress were to strike a deal with the president to attach those types of conditions to COVID-19 relief funding to states, those conditions would still likely be improper.

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