Is Federal Anti-Sanctuary Law Constitutional?
Sections 1373 and 1644 are key to constraining sanctuary cities
By George Fishman on February 26, 2025
Summary
Sections 1373 and 1644 of Title 8 are integral to the successful enforcement of our immigration laws. They are designed to ensure that sanctuary states, cities, and localities cannot prohibit their law enforcement officers from, on a voluntary basis, letting U.S. Immigration and Customs Enforcement know when aliens whom ICE wants to place in removal proceedings are to be released from their custody. This allows ICE officers to assume custody of the aliens upon their release.
Many sanctuary jurisdictions have in place statutes or policies that do exactly what sections 1373 and 1644 forbid — they prohibit their law enforcement officials from even voluntarily revealing to ICE the immigration status of aliens in detention, and from disclosing their release dates.
The actions of these sanctuary jurisdictions have serious consequences. As the Trump administration explains, they result in ICE officers having “to engage in difficult and dangerous efforts to re-arrest aliens who were previously in local custody, endangering [the] officers, the particular alien, and others who may be nearby” and result in “criminal aliens [being able to] evade[] the detention and removal that Congress prescribed, and … instead return to the civilian population, where they are disproportionately likely to commit additional crimes”.
Attorney General Bondi has directed the Department of Justice to bring legal challenges against sanctuary jurisdictions’ offending statutes and policies. In fact, the Trump administration has already filed suit against Illinois, its governor, the City of Chicago, its mayor, and other local officials in Illinois.
The fundamental question looming over the Trump administration’s battle with sanctuary jurisdictions over sections 1373 and 1644 is their constitutionality. The 2nd Circuit has found section 1373 to be constitutional in at least one respect — it has ruled that the federal government can constitutionally condition New York City’s receipt of federal law enforcement grants on its compliance with section 1373. On the other hand, a number of federal district courts around the country have found section 1373 to be unconstitutional. On appeal, the appellate courts have deliberately avoided the constitutional question and have based their rulings as to DOJ’s ability to condition eligibility for law enforcement grants on section 1373 compliance on purely statutory grounds. However, these appellate courts, both conservative and liberal, have expressed doubt as to the constitutionality of section 1373.
The primary premise for the contention that sections 1373 and 1644 are unconstitutional is that they violate the Tenth Amendment to the U.S. Constitution by “commandeering” state and local law enforcement into enacting or administering a federal regulatory program.
The Supreme Court has, in fact, ruled that “commandeering” is in violation of the “dual supremacy” of the states and the federal government under the Constitution. In the three most important cases:
The Supreme Court, in a decision written by Justice Sandra Day O’Connor, ruled that provisions of the “Low-Level Radioactive Waste Policy Amendments Act of 1985” were unconstitutional. They required states to either enact legislation providing for the disposal of radioactive waste generated within the states’ borders, or to take possession of the waste, which the Court concluded was impermissibly compelling states to enact or administer a federal regulatory program.
The Supreme Court, in a decision written by Justice Antonin Scalia, ruled that provisions of the “Brady Handgun Violence Prevention Act” were unconstitutional. They required state and local law enforcement officers to conduct background checks on prospective handgun purchasers, which the Court concluded was impermissibly compelling states to enact or administer a federal regulatory program.
The Supreme Court, in a decision written by Justice Samuel Alito, ruled that provisions of the “Professional and Amateur Sports Protection Act” were unconstitutional. They prohibited state authorization of sports gambling, which the Court concluded was impermissibly dictating to state legislature what they could and could not do.
https://cis.org/Report/Federal-AntiSanctuary-Law-Constitutional
