NEW YORK CITY — The executive order signed by President Donald Trump on Wednesday threatens to cut all federal funding from jurisdictions that serve as so-called sanctuary cities that limit cooperation with federal authorities in efforts to deport immigrants charged or convicted of crimes.
A paragraph in the executive order specifies that jurisdictions that don't cooperate with federal immigration authorities shall be deemed "not eligible to receive federal grants ... except as deemed necessary for law enforcement purposes."
For New York City — where Mayor Bill de Blasio has vowed to fight Trump — that could theoretically mean the loss of $8.8 billion in federal aid the city is expecting this fiscal year for things such as HIV/AIDS prevention and badly needed affordable housing.
But experts say there are a lot of barriers to Trump actually being able to carry out his threat, including the 10th Amendment of the U.S. Constitution and a recent ruling by the Supreme Court on the expansion of Medicaid under the Affordable Care Act, also known as Obamacare.
"It helps that there are many cities affected by this and there will be a lot of challenges," said Bill Ong Hing, a professor of law and director of the Immigration and Deportation Defense Clinic at the University of San Francisco who was co-counsel on a precedent-setting Supreme Court asylum case.
Here's why Trump's executive order may not actually be effective in eliminating vital federal funding to New York City and the more than 200 other sanctuary cities and counties.
THE 10TH AMENDMENT
This amendment to the Constitution bars the federal government from forcing non-federal entities from doing their bidding.
"The federal government cannot commandeer non-federal entities, like state or local entities, into doing things for them that they don't want to do," Hing said.
One of the best examples of this is the Brady Bill, which sought to require local law enforcement to oversee local gun sales, including registration and background checks on buyers — instead of the federal government.
"The Brady Bill would have forced local law enforcement to keep records and to do the registration and the Supreme Court said you can't do that," Hing said. "You just can't forcibly make a sub-national entity do stuff for you."
That argument is carried over to the enforcement of immigration laws which is a responsibility of the federal government.
"As the mayor said, it is well established by Supreme Court authority that the federal government can’t use the threat of withholding funds to coerce the states to conform with federal government issued policies," Zachary Carter, the city's corporation counsel and a former U.S. attorney, said this week. "It’s a bedrock principle of federalism and quite frankly a bedrock conservative principle — somewhat ironically."
THE TAXING AND SPENDING CLAUSE OF THE U.S. CONSTITUTION
While the federal government can't force local governments to do things it is responsible for, it is well established that they can put conditions on the receipt of federal funding. But the condition has to meet four requirements.
First, the amount of funding being taken away has to be a "reasonable amount," Hing said. In a federal highway funding case from a couple of decades ago, the federal government threatened to take away highway funds from states that allowed drivers younger than 21 to drink.
"If you don't satisfy that condition then you lose 5 percent of the federal highway funds. The Supreme Court felt that was a reasonable amount," said Hing. "That gives the context that taking away the whole of federal funding just isn't fair."
Second, the funding being threatened also has to be germane to the condition the government is trying to satisfy. So in trying to get states and cities to enforce immigration law, it's not likely that the Trump Administration can threaten to remove federal housing money.
"They have to relate to one another," Hing said. Hence, as de Blasio and Carter have argued, only NYPD funds could be at stake because of the role police would have to play in enforcing federal immigration policy.
Previous Supreme Court rulings "suggests narrowness very clearly — or demands narrowness — that it only can relate to the specific agencies that are the subject," de Blasio said.
Third, there has to be a specific reference in the funding legislation to the condition the federal government is trying to enforce.
"In other words, in the legislation that provides the funding, there has to be a reference to you only get this money if you do immigration enforcement. That requires the cooperation of Congress because all these different federal funding programs don't have that clause in it," Hing said.
The Republicans have control of the White House and Congress, but there's no guarantee they'd be willing to change all the necessary federal funding legislation.
Finally, the threat to take away funding can't be coercive.
"It becomes coercive when you threaten to take away everything," Hing said.
The most recent example comes when Republicans sued to remove the Medicaid funding provision of Obamacare. Under the original plan, the federal government wanted states to agree to expand Medicaid to enroll pregnant women and poor groups, or "if the state didn't do that they would lose all their federal Medicaid money," Hing said.
"The Supreme Court said no, no, that's too coercive," Hing said. "Ironically, the challenge by Republicans to Obamacare is going to hurt them on this issue."
HOW MUCH FEDERAL FUNDING DOES NEW YORK CITY STAND TO LOSE?
Given the likelihood that states and cities would sue to stop the loss of federal funding, only a "modest amount" would be at stake, said Hing. "I doubt if they could penalize more than 5 to 10 percent of something that's germane to immigration enforcement."
So, in a hypothetical scenario, New York could lose between $7.5 million to $16 million which is 5 to 10 percent of the $150 to $160 million in NYPD anti-terrorism funding the city believes is at stake.
The loss of any federal funds in the city's massive $84.67 billion proposed budget would hurt, but the mayor says the city is prepared.
The city placed more than $5 billion in reserve, the highest amount ever, to deal with the type of scenario it's facing now. That includes a $1 billion general reserve fund that the city would only use a small percentage of to cover the lost NYPD funding. A $16 million penalty would amount to less than a tenth of a percent of the city's total reserves.
De Blasio said that since most of the money the city believes to be at stake is anti-terrorism money that the NYPD uses to do things such as protect the United Nations and the constant flow of world leaders to New York — "things that are crucial to the standing of the United States in the world" — Washington would be taking a political risk by cutting the money.
SUPREME COURT WILD CARD
Hing believes the Trump administration is expecting lawsuits over the executive order.
"They're hoping to get a favorable judge that will misinterpret and misapply the law," said Hing.
And Trump is expected to announce his choice to fill the Supreme Court vacancy left by the death of Antonin Scalia soon.
"If this gets to the Supreme Court, the Supreme Court is political no matter what people say," Hing said. "So in terms of who Trump appoints to the Supreme Court, that is something for sanctuary cities to worry about."
Carter and de Blasio said that even with the Republican makeup of the court, they believe precedent is on their side.
"So it was a Republican dominated court and a decision written by Chief Justice Roberts," said de Blasio about when the court ruled on Obamacare Medicaid funding expansion. That was "a real recent decision, and it’s a very clear decision."