Legal Sidebari

Immigration Enforcement & the Anti-
Commandeering Doctrine: Recent Litigation
on State Information-Sharing Restrictions
December 18, 2019
Although the federal government is vested with exclusive power to regulate the entry and removal of non-
U.S. nationals (aliens), the impact of immigration is acutely felt in local communities. Some states and
local governments have agreed to assist in the enforcement of immigration laws, such as by identifying
and apprehending aliens for removal. Others have chosen not to assist in immigration enforcement efforts.
In some cases, these states and localities have adopted measures—sometimes labeled “sanctuary” laws
and policies—that limit cooperation between state or local law enforcement and federal immigration
authorities. For instance, California’s SB-54 generally prohibits law enforcement agencies from using
agency money or personnel to investigate, interrogate, detain, detect, or arrest persons for the purpose of
immigration enforcement.
State laws and policies restricting participation in immigration enforcement have come under scrutiny
following the January 25, 2017 issuance of Executive Order 13768, which seeks to strengthen
immigration enforcement. Section 9(a) of the Executive Order directs the Attorney General and the
Secretary of the Department of Homeland Security to withhold federal grant funds to states and localities
that fail to comply with 8 U.S.C. § 1373 (Section 1373). Section 1373 provides that “a Federal, State, or
local government entity or official may not prohibit, or in any way restrict, any government entity or
official from sending to, or receiving from, . . . [federal immigration authorities] information regarding
the citizenship or immigration status, lawful or unlawful, of any individual.”
After the issuance of the Executive Order, then-Attorney General Jeff Sessions announced new conditions
on the receipt of federal funds under the Edward Byrne Memorial Justice Assistance Grant Program
(Byrne JAG Program) for Fiscal Year 2017, including that recipients certify compliance with Section
1373. The Byrne JAG Program grants federal funds to states, the District of Columbia, and territories for
non-federal criminal justice initiatives. For Fiscal Year 2018, the Department of Justice added further new
conditions on grant recipients, including certifying compliance with 8 U.S.C. § 1644 (Section 1644),
which contains similar requirements to Section 1373 (Fiscal Year 2019 also requires grant recipients to
certify their compliance with Sections 1373 and 1644).
Congressional Research Service
https://crsreports.congress.gov
LSB10386
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

---

Congressional Research Service
2
In opposition to these new conditions, several states and localities sued, challenging the withholding of
federal funds based on states and local governments allegedly failing to comply with Sections 1373 and
1644. The plaintiffs claim Sections 1373 and 1644 unconstitutionally restrain states and localities from
prohibiting law enforcement entities from sharing information with federal immigration authorities,
reasoning that these statutory provisions constitute impermissible state coercion. Congress may be
interested in this conflict between sanctuary policies and Sections 1373 and 1644 because it raises
questions as to the extent that Congress, consistent with anti-commandeering principles, can facilitate
information-sharing by states and localities with the federal government.
The Supremacy Clause and the Anti-Commandeering
Doctrine
The Constitution establishes a system of dual sovereignty between the federal and state governments,
including by providing for a national Congress with enumerated powers and, by way of the Tenth
Amendment, expressly reserving those powers to the states that were not delegated to the federal
government. But the Constitution’s Supremacy Clause declares that federal law is “the supreme Law of
the Land.” Accordingly, when Congress exercises its enumerated powers, it may render unenforceable
(preempt) otherwise valid state laws. The Supreme Court has repeatedly recognized that federal law
preempts a broad range of state or local activities addressing immigration-related matters, though not
every state enactment “which in any way deals with aliens is a regulation of immigration and thus per se
preempted.”
But there are constitutional constraints on the federal government’s ability to influence state or local
activity, including under the anti-commandeering doctrine. The doctrine, rooted in the Tenth Amendment
and the Constitution’s enumeration of Congress’s powers, instructs that “even where Congress has the
authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power
directly to compel the States to require or prohibit those acts” on behalf of the federal government. For
example, in its 1992 decision New York v. United States, the Supreme Court struck down a federal law
that required states to either (1) enact legislation disposing of radioactive waste generated within their
borders; or (2) take title to and possession of the waste. And in 1997, Printz v. United States expanded on
New York, holding that Congress’s command for state officials to implement a federal scheme of
background checks on prospective handgun purchasers contravened anti-commandeering principles.
More recently, in 2018, the Supreme Court addressed the anti-commandeering doctrine in Murphy v.
National Collegiate Athletic Association. The Court struck down the Professional and Amateur Sports
Protection Act (PAPSA)—which prohibited state and local governments from allowing gambling on
sports activity—on the basis it was an impermissible coercion of state government. The Court reasoned
that PAPSA compelled state legislation in violation of the Tenth Amendment by preventing state
legislatures from rescinding existing gambling restrictions. Writing for the majority, Justice Alito
described any distinction between a federal law directly instructing a state to take an affirmative act and
one prohibiting state legislative activity as “empty,” explaining “[t]he basic principle—that Congress
cannot issue direct orders to state legislatures—applies in either event.”
States and Local Governments’ Challenges to Sections
1373 and 1644
In their challenges to the federal government’s withholding of the Byrne JAG Program funds, the state
and local government plaintiffs generally raise three arguments: (1) the Attorney General lacks statutory
authority to place conditions on the receipt of Byrne JAG Program funds; (2) the executive branch

---

Congressional Research Service
3
usurped Congress’s spending power by dictating additional conditions beyond those imposed by
Congress, thereby violating the principle of separation of powers; and (3) requiring compliance with
Sections 1373 and 1644 commandeers state involvement in federal immigration enforcement in violation
of the Tenth Amendment.
While this litigation raises numerous legal questions, this Legal Sidebar focuses on anti-commandeering
challenges to Sections 1373 and 1644. Specifically, the plaintiff states and localities claim the condition
requiring certification of compliance with Sections 1373 and 1644 is unlawful because (1) these statutory
provisions constitute commandeering; and (2) the availability of federal funds cannot be conditioned on
complying with unconstitutional laws. Relying on Murphy, they contend Sections 1373 and 1644
unconstitutionally dictate what a state legislature may not do—limit state and local officers from sharing
immigration-related information with the federal government. To counter, the DOJ argues the anti-
commandeering doctrine does not apply to voluntary grant programs for which states and localities may
decline to participate. Additionally, the DOJ argues that Sections 1373 and 1644 do not violate the
doctrine because the statutory provisions are laws of general applicability and, alternatively, they fall
within an information sharing exception that was arguably suggested by the Supreme Court in a few pre-
Murphy decisions.
This conflict between these federal statutory provisions and state and local policies limiting information
sharing raises questions of whether Sections 1373 and 1644 unconstitutionally dictate state legislative
activity by barring states and localities from passing legislation restricting the voluntary exchange of
information by local law enforcement and federal immigration authorities. In all six cases listed in Table
1, the respective district courts held that Section 1373 is unconstitutional and therefore cannot serve as an
applicable federal law to condition funds for purposes of the Byrne JAG Program. In the two cases that
include a challenge to the FY 2018 condition requiring compliance with Section 1644, the district courts
concluded Section 1644 was unconstitutional for the same reason. Regarding the other conditions, all six
cases also held that the Attorney General lacked statutory authority under the Byrne JAG Program
statutory scheme to impose additional conditions on the receipt of funds.
Of special note, in some of these cases, the reviewing court considered the continuing import of the
Second Circuit’s decision in City of New York v. United States, which rejected an anti-commandeering
challenge to Section 1373. But post-Murphy, some courts have called into question the appellate
decision’s continued viability. Indeed, the U.S. District Court for the Southern District of New York
concluded in 2018, in States of New York v. Department of Justice that “City of New York cannot survive
Murphy.” The district court explained that the Second Circuit’s holding rested on a distinction between
“affirmative obligations and proscriptions”—the “empty” distinction rejected by the Supreme Court in
Murphy. The outcome of current litigation may provide critical insight into the constitutionality of
Sections 1343 and 1644.
In total, six district courts have issued permanent injunctions against the challenged statutes and funding
conditions. In addition, five courts have granted mandamus relief, thereby compelling the Attorney
General to distribute withheld Byrne JAG Program funds. These decisions have been appealed to their
respective circuit courts. One circuit so far—the Third Circuit—has issued a ruling, affirming the lower
court’s ruling on different grounds and declining to address the anti-commandeering question. The other
appeals remain pending.

---

Congressional Research Service
4
Table 1. Current Litigation: Tenth Amendment Challenges to Sections 1373 and 1644
State and Local Government Challenges Byrne JAG Program Conditions
Procedural
Case
Holding and Reasoning
Remedy
Posture
Status
City and County of San
District court granted
Francisco v. Sessions
District court held that
permanent nationwide
Nos. 17-cv-4642,
§ 1373 violated Tenth

injunction and mandamus
17-cv-4701
Amendment as
Argument
relief compelling
On appeal to
N.D. Cal.
commandeering and
heard on
distribution of funds; but
9th Cir.

therefore cannot serve as an
Dec. 2, 2019.
stayed nationwide scope

City and County of San
applicable federal law for
Waiting for
of injunction pending
Francisco v. Barr
funding.
ruling.
appeal.
Nos. 18-17308, 18-17311
Relied on Murphy.

9th Cir.
City and County of San
District court granted
Francisco v. Sessions
District court held that
permanent nationwide
No. 18-cv-5146
§§ 1373 and 1644 were
injunction and mandamus
Stayed
N.D. Cal.
unconstitutional under the
relief compelling
On appeal to
pending

Tenth Amendment’s anti-
distribution of funds; but
9th Cir.
completion of
City and County of San
commandeering principles.
stayed nationwide scope

appeal in case
Francisco v. Barr
Incorporated reasoning from
of injunction pending
above.
No. 19-15947
case above.
appeal.
9th Cir.

District court granted
permanent injunction
enjoining the challenged
conditions and granted
injunction requiring
District court held that
Immigration and Customs
Supreme Ct.
§ 1373 violated the Tenth
Enforcement (ICE) to
3d Cir. ruled
City of Philadelphia v.
granted
Amendment’s anti-
comply with city policy
on appeal and
Sessions
extension
commandeering principles.
requiring ICE to seek a
issued an
No. 17-cv-3894
until Nov. 21,
Relied on Murphy.
judicial warrant in order
opinion on
E.D. Pa.
2019 to file a

for the City to hold an
Feb. 15, 2019.

petition for a
3d Cir. affirmed on different
alien temporarily; issued

City of Philadelphia v.
writ of
grounds, reasoning the
declaratory judgment
Request for
Attorney General of the
certiorari.
conditions were imposed
declaring the city
circuit panel
United States
As of Dec.
without statutory authority.
complied with § 1373; and
rehearing
No. 18-2648
17, 2019, no
Did not address anti-
granted mandamus relief
denied.
3d Cir.
petition has
commandeering.
compelling distribution of

been filed.

funds.

3d Cir. affirmed, but
vacated judicial warrant
injunctive relief.


City of Chicago v.
Case was
District court held that the
Sessions
argued and
Attorney General cannot
No. 17-cv-5720
District court issued
taken under
impose compliance condition
N.D. Ill.
permanent nationwide

advisement
because § 1373 violates the

injunction; but stayed
On appeal to
by Panel on
Tenth Amendment as
City of Chicago v. Barr
commandeering.
nationwide scope of
7th Cir.
Apr. 10,
No. 18-2885
permanent injunction.
2019.
Relied on Murphy.
7th Cir.
Waiting for


ruling.

---

Congressional Research Service
5
Procedural
Case
Holding and Reasoning
Remedy
Posture
Status
States of New York v.
Department of Justice
District court granted
Nos. 18-cv-6471,
District court held that §1373

permanent injunction
18-cv-6474 (consolidated)
was facially unconstitutional
Argument
limited to parties in suit
On appeal to
S.D.N.Y.
under anti-commandeering
heard on June
and mandamus relief
2d Cir.

doctrine of Tenth
18, 2019.
compelling distribution of

State of New York v.
Amendment.
Waiting for
funds.
Department of Justice
Relied on Murphy.
ruling.

Nos. 19-267,
19-275 (consolidated)
State of Oregon v. Trump
District court held that
District court granted
No. 18-cv-01959
Opening brief
§§ 1373 and 1644 are
permanent injunction
D. Or.
On appeal to
by defendant
unconstitutional under the
limited to parties in suit

9th Cir.
due
Tenth Amendment’s anti-
and mandamus relief
State of Oregon v. Trump

Jan. 13, 2020.
commandeering principles.
compelling distribution of
No. 19-35843

Relied on Murphy.
funds.
9th Cir.
Source: Congressional Research Service
Preemption Challenge to State Information-Sharing
Restrictions
The litigation surrounding Sections 1373 and 1644 also includes a challenge by the United States to SB-
54, which regulates California’s participation in immigration enforcement by prohibiting involvement by
law enforcement agencies. In particular, the information-sharing proscription in California’s SB-54,
codified in Cal. Gov’t Code § 7284.6, prohibits local law enforcement from providing information
regarding an individual’s release date from custody, as well as providing personal information, such as a
home or work address. The United States requested the U.S. District Court for the Eastern District of
California to enjoin SB-54’s prohibition on information sharing, claiming it contravenes Section 1373. In
opposition, California maintained that Section 1373 is unconstitutional under Murphy because it dictates
state legislative activity. The United States claimed Murphy is not governing precedent, arguing that the
Tenth Amendment’s anti-commandeering principles do not hinder sharing information between the
federal government and state and local governments. Although the district court remarked that the
constitutionality of Section 1373 is “highly suspect,” it denied the United States’ requested relief on SB-
54’s information-sharing prohibition on the ground that it does not directly conflict with Section 1373.
The district court observed that Section 1373 addresses the exchange of information on immigration
status in contrast to SB-54’s prohibition on sharing release dates and personal information.
The United States is also challenging three California laws governing the state’s regulation of private and
public employers’ involvement in immigration enforcement, as well as measures requiring the state
attorney general to inspect the circumstances and conditions in detention facilities housing aliens.
Although the district court generally upheld the California sanctuary measures, the United States
prevailed in arguing that two provisions unlawfully discriminate against employers who voluntarily
cooperate with federal immigration authorities.
On appeal to the Ninth Circuit, the United States argued Section 1373 prohibits SB-54’s information-
sharing provisions, claiming Section 1373 impliedly applies to information beyond immigration status.
The Ninth Circuit panel affirmed the denial of injunctive relief on SB-54, agreeing with the district court
that Section 1373 and SB-54 do not conflict. While the circuit court generally affirmed the district court’s
holdings on the other challenged state provisions, the United States prevailed in its argument that the

---

Congressional Research Service
6
district court erred when it denied the United States’s request to enjoin the AB-103 provision—codified
in Cal. Gov’t Code § 12532—that requires the state attorney general to review the circumstances
surrounding the apprehension and transfer of immigration detainees.
Following the Ninth Circuit’s decision, the United States filed a petition for a writ of certiorari. A
response to the petition is expected no later than December 23, 2019.
Table 2. Current Litigation
United States’s Challenge to SB-54’s Information-Sharing Restriction as Preempted
Holding and
Procedural
Case
Remedy
Status
Reasoning
Posture
District Court denied
United States v.
request for
District court held
California
preliminary injunction
that § 1373 does not
No. 18-cv-490
on SB-54.
Petition for writ of
conflict with SB-54.
9th Cir. ruled on
E.D. Cal.

certiorari filed with

appeal and issued

9th Cir. affirmed the
Supreme Court on
9th Cir. affirmed,
opinion on
United States v.
denial of motion for a
Oct. 22, 2019.
agreeing section
Apr. 18, 2019.
California
preliminary injunction

SB-54 does not
No. 18-16496
as to SB-54’s
conflict with § 1373.
9th Cir.
information-sharing
restrictions.
Source: Congressional Research Service


Author Information

Kelsey Y. Santamaria

Legislative Attorney





Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10386 · VERSION 1 · NEW

---