Immigration Enforcement & the Anti-Commandeering Doctrine: Recent Litigation on State Information-Sharing Restrictions
Legal Sidebari
Immigration Enforcement & the Anti-
Commandeering Doctrine: Recent Litigation
on State Information-Sharing Restrictions
Updated March 10, 2020
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).
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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 state and local information-sharing restrictions and Sections 1373 and
1644 because it raises questions as to the extent that Congress, consistent with the anti-commandeering
and related federalism 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
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authority to place conditions on the receipt of Byrne JAG Program funds; (2) the executive branch
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. Several district courts, as
shown in Table 1, have issued permanent injunctions against the challenged statutes and funding
conditions. A number of 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, district courts have 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. In addition,
a number of district 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.
Some circuit courts have weighed in on the matter. The Third Circuit issued a ruling, affirming the lower
court’s ruling on different grounds and declining to address the anti-commandeering question. Reversing
the lower court’s ruling, the Second Circuit held that Section 1373 does not raise commandeering
concerns as applied to a funding condition. The other appeals remain pending.
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. 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 that “City of New York cannot survive Murphy.” But in a recent opinion reversing the district court
decision, the Second Circuit found it unnecessary to address whether City of New York remains good law.
The Second Circuit distinguished City of New York as involving a facial challenge to Section 1373 in
contrast to an as applied challenge in this case. The viability of City of New York remains an open
question.
The outcome of current litigation may provide critical insight into the constitutionality of Sections 1373
and 1644.
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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 Mar. 9,
without statutory authority.
complied with § 1373; and
rehearing
No. 18-2648
2020, 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
Sessions
District court held that the
argued and
No. 17-cv-5720
Attorney General cannot
District court issued
taken under
N.D. Ill.
impose compliance condition
permanent nationwide
advisement
because § 1373 violates the
injunction; but stayed
On appeal to
by Panel on
City of Chicago v. Barr
Tenth Amendment as
No. 18-2885, 19-3290
commandeering.
nationwide scope of
7th Cir.
Apr. 10,
permanent injunction.
2019.
(consolidated)
Relied on Murphy.
Waiting for
7th Cir.
ruling.
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Procedural
Case
Holding and Reasoning
Remedy
Posture
Status
District court held that §1373
District court granted
States of New York v.
was facially unconstitutional
permanent injunction
Department of Justice
under anti-commandeering
limited to parties in suit
Remanded
Nos. 18-cv-6471,
doctrine of Tenth
and mandamus relief
2d Cir. ruled
to District
18-cv-6474 (consolidated)
Amendment.
compelling distribution of
on appeal and
court for any
S.D.N.Y.
Relied on Murphy.
funds.
issued an
further
opinion on
proceedings
State of New York v.
2d Cir. reversed, holding that
2d Cir. vacated
Feb. 26, 2020.
consistent
Department of Justice
§ 1373 does not violate the
permanent injunction and
with the 2d
Nos. 19-267,
Tenth Amendment as applied
mandate to distribute
Cir. opinion
19-275 (consolidated)
in this case to a federal
withheld funds.
funding requirement.
Appeal stayed
pending
State of Oregon v. Trump
District court held that
District court granted
decision in
No. 18-cv-01959
§§ 1373 and 1644 are
permanent injunction
City & County
D. Or.
On appeal to
unconstitutional under the
limited to parties in suit
of San
9th Cir.
State of Oregon v. Trump
Tenth Amendment’s anti-
and mandamus relief
Francisco v.
commandeering principles.
compelling distribution of
Barr, Nos. 18-
No. 19-35843
Relied on Murphy.
funds.
17308, 18-
9th Cir.
17311
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.
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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
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. Fully
briefed, the Supreme Court has not yet issued a decision on the petition.
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
Petition for writ of
District Court denied
certiorari filed with
United States v.
request for
Supreme Court on
District court held
California
preliminary injunction
Oct. 22, 2019.
that § 1373 does not
No. 18-cv-490
on SB-54.
conflict with SB-54.
9th Cir. ruled on
E.D. Cal.
Brief in opposition
appeal and issued
9th Cir. affirmed the
filed on Dec. 20,
9th Cir. affirmed,
opinion on
United States v.
denial of motion for a
2019.
agreeing section
Apr. 18, 2019.
California
preliminary injunction
SB-54 does not
No. 18-16496
as to SB-54’s
Reply brief filed on
conflict with § 1373.
9th Cir.
information-sharing
Jan. 2, 2020.
restrictions.
Source: Congressional Research Service
Author Information
Kelsey Y. Santamaria
Legislative Attorney
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