Hickenlooper says he won't allow Trump to deport anyone in Colorado

[Jazzhead]

How is a mandate that cannot be enforced a mandate?   

I think the way things usually work is for the federal government to attach strings to the provision of discretionary funding.   Like the famous threat to withhold federal highway dollars from states that didn't reduce their speed limits to 55.   States love the federal government's "help" with their spending budgets, but the feds can attach most any condition they want to such discretionary funding.     

[r9etb]

But that was as applied to an individual mandate.  There are tons of federal mandates that withhold federal funds from states or other governmental units that refuse to comply.

It was.  However, as precedent the ruling would apply more generally.  For the precedent to have wider effect, other Federal threats to withhold funds would have to be challenged in court.

[Oceander]

How is a mandate that cannot be enforced a mandate?   

I think the way things usually work is for the federal government to attach strings to the provision of discretionary funding.   Like the famous threat to withhold federal highway dollars from states that didn't reduce their speed limits to 55.   States love the federal government's "help" with their spending budgets, but the feds can attach most any condition they want to such discretionary funding.     

It was.  However, as precedent the ruling would apply more generally.  For the precedent to have wider effect, other Federal threats to withhold funds would have to be challenged in court.

I believe the difference lies in the nature of the mandate.  For example, if the federal government mandated that each state build the parts of a federal highway system that runs through that state, but then conditions federal funding for that mandate on the state doing something else - e.g., requiring all road contractors be unionized - that would be illegal, but simply offering federal funds with strings attached is not illegal. 

[Maj. Bill Martin]

It was a majority ruling striking down the provision of Obamacare that would withhold all Medicaid funding to states that elected to not participate. 

My recollection was that they did not make this specific, and thus made it general; and given that it's a favored federal tactic, I think the precedent is established for states that wish to push back in general.

@Weird Tolkienish Figure @r9etb

The argument is that Congress cannot unduly pressure states to do something that should be within the discretion of states.  They can "encourage" states to do something, but not "punish" them if they don't.  So, depriving a state of all Medicare funds because it refused to expand Medicare was too much of a punishment, and therefore an unconstitutional use of the spending power.

At the other end, the Court once held that it was okay to deprive a state of 5% of highway funds if they didn't raise the drinking age to 21, holding that that an extra 5% amounted more to encouragement than a punishment.  I'm shorthanding this, but that's the gist.

What's a bit interesting about this, though, is that immigration is treated differently under the Constitution, and it really wouldn't be just a spending clause argument.  Congress' power regarding immigration is plenary - it completely pre-empts the power of states to regulate in that regard.  So I think Congress likely could pass a law outlawing "sanctuary city" legislation or orders, and perhaps be able to enforce it via spending or other hammers.  I don't think they could force cooperation, necessarily, but they could take action against affirmative actions by a state or locality that violated/interfered with federal immigration law/policy.

It would be an interesting argument.  Almost the flip side of the basis for striking down most of Arizona's immigration law.  In any case, I think we'd all agree that Hickenlooper's statement:  "There will not be any deportation force coming into the state of Colorado," is meaningless.  He can't do that, as Mississippi found out in the 60's.

[IsailedawayfromFR]

time to try those harboring illegals for a felony using the US criminal laws on the books.  Then we can prosecute using civil action.

"Any person who . . . encourages or induces an alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."

Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

    * assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or

    * encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or

    * knowingly assists illegal aliens due to personal convictions.

Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.

http://www.americanpatrol.com/REFERENCE/AidAbetUnlawfulSec8USC1324.html

[IsailedawayfromFR]

Interestingly, that's not possible -- probably the most important aspect of the USSC Obamacare ruling said the gov't can't do that.

You care to elaborate on that?

[Oceander]

@Weird Tolkienish Figure @r9etb

The argument is that Congress cannot unduly pressure states to do something that should be within the discretion of states.  They can "encourage" states to do something, but not "punish" them if they don't.  So, depriving a state of all Medicare funds because it refused to expand Medicare was too much of a punishment, and therefore an unconstitutional use of the spending power.

At the other end, the Court once held that it was okay to deprive a state of 5% of highway funds if they didn't raise the drinking age to 21, holding that that an extra 5% amounted more to encouragement than a punishment.  I'm shorthanding this, but that's the gist.

What's a bit interesting about this, though, is that immigration is treated differently under the Constitution, and it really wouldn't be just a spending clause argument.  Congress' power regarding immigration is plenary - it completely pre-empts the power of states to regulate in that regard.  So I think Congress likely could pass a law outlawing "sanctuary city" legislation or orders, and perhaps be able to enforce it via spending or other hammers.  I don't think they could force cooperation, necessarily, but they could take action against affirmative actions by a state or locality that violated/interfered with federal immigration law/policy.

It would be an interesting argument.  Almost the flip side of the basis for striking down most of Arizona's immigration law.  In any case, I think we'd all agree that Hickenlooper's statement:  "There will not be any deportation force coming into the state of Colorado," is meaningless.  He can't do that, as Mississippi found out in the 60's.

@Maj. Bill Martin

Very nice analysis.  Thanks. 

[Mom MD]

It's one of the the safest cities in the US for its size....

Also one of the most conservative.  Which is likely why TV portrays it as dysfunctional

[EC]

That portion of the ruling -- that the fedgov can't use the threat of withholding funding as a stick to force compliance with federal mandates -- is a good thing.

The loophole is right there in the ruling.

Don't threaten to. Just do it.

[Smokin Joe]

I have been dying to see this showdown for years. Let's see what happens to these overextended states and cities when the fed money spigot is turned off.

BTW, if you visit CO, stay the hell out of Colorado Springs. It is easily the deadliest city in the world if the program Homicide Hunter is any indication. There are people killing each other in strange ways every 5 minutes there.

If Kenda is any indication, they don't get to repeat their crimes with new victims, though.

[Smokin Joe]

time to try those harboring illegals for a felony using the US criminal laws on the books.  Then we can prosecute using civil action.

"Any person who . . . encourages or induces an alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."

Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

    * assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or

    * encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or

    * knowingly assists illegal aliens due to personal convictions.

Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.

http://www.americanpatrol.com/REFERENCE/AidAbetUnlawfulSec8USC1324.html

IIRC, conspiracy to commit a crime is a crime in itself. Certainly, Conspiracy to violate or be accessory to the violation of Federal Immigration laws would be a Felony.
His Guvnahship would not be immune to prosecution under such laws should charges be levied, nor would any member of his administration who is in cahoots with him.

Chickenlooper just doesn't want to lose the tax revenue from the weed the cartels have brought in and are marketing in the state (and that's just the legal stuff, about 50% of the market there). It would never make it through the border legally.

[DB]

So the lawless in powerful places think they can continue with impunity.

We'll see.