The Scholar: St. Mary's Law Review on Race and Social Justice


On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.

There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply with 8 U.S.C. § 1373, practically no city constitutes a sanctuary jurisdiction; (3) 8 U.S.C. § 1373, absent specific spending clause obligations, threatens to run afoul of federalism principles as laid out in the Supreme Court case Printz v. United States; (4) the order vests discretionary authority in the Secretary of Homeland Security (Secretary) to designate a jurisdiction as a sanctuary; and (5) the stripping of federal funds from “sanctuary jurisdictions” flirts with the prohibition against federal government coercion via threats of defunding as described in National Federation of Independent Business v. Sebelius.

The Administration’s current plan, represented in Executive Order No. 13768, is a vague, unsophisticated, and an unconstitutional attempt to require states and local law enforcement to assist the federal government with enforcing immigration law. Examining the background of federal power with regards to immigration, the author will examine the Administration’s Executive Order in the context of limitations on federal power, as well as determine ways the federal government can receive local law enforcement’s aid without violating any constitutional principles.

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The Scholar: St. Mary's Law Review on Race and Social Justice

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St. Mary's University School of Law


Steven Marrone