A Doctrine Without Exception: Critiquing an Immigration Exception to the Anticommandeering Rule

Federal courts across the country have heard numerous lawsuits about the legality of “sanctuary cities,” which limit cooperation with the federal government’s immigration enforcement efforts. For example, a sanctuary city might reject detainer requests issued by federal immigration officials or limit the amount of information state or local officials provide to federal immigration agents.

To curb this kind of noncooperation, several decades ago, Congress enacted 8 U.S.C. § 1373 (§ 1373), which makes it unlawful for state and local government officials to “prohibit, or in any way restrict, any government entity or official from sending [information] to, or receiving [it] from” federal immigration officials. Although § 1373 was unsuccessfully challenged shortly after its enactment, in recent years the statute has gained renewed attention as the federal government attempted to enforce its terms by threatening to withdraw federal policing funding from noncompliant jurisdictions. Cities and states have been remarkably successful in these recent lawsuits, as district courts across the country have found the federal efforts to enforce § 1373 by withdrawing federal grant funding to be unlawful under both administrative law and constitutional grounds. And some district courts have found the statute itself to be unconstitutional and in violation of the anticommandeering rule, which prohibits the federal government from instructing states and cities to enact federal policies.

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