Legal Commentary

Hadar Aviram's post on San Francisco's battle with the feds over immigration policy highlights one of the gaping holes carved in state autonomy by the 1996 amendments to federal immigration and welfare laws. Those amendments bar state and local governments from restricting their agencies or employees from sending or receiving information about an individual's immigration status, thereby allowing state and local officials to defy the laws that create their offices and instead employ their state-conferred powers for federal purposes. (§434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. § 1644, and §642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C.A § 1373).

Such federal laws are, in my view, a sneaky end-run around constitutional doctrines protecting state and local autonomy. It is well-established that the Congress itself cannot order a state to implement federal immigration law. How, then, can Congress delegate to state or local employees the power to use the state's legal authority and tax dollars in defiance of state law? That those employees themselves are acting voluntarily is irrelevant: They are acting on city time, using the city's powers and money, in defiance of state law. Such employees, therefore, are themselves commandeering state powers for federal ends. If Congress could not itself commandeer state legal authority, how can Congress delegate such commandeering power that it lacks to a third party like a state employee? (Shameless self-promotion: I defended this view of state autonomy in "Dissecting the State," 97 Mich. L. Rev. 1201 (1999)).

To my astonishment, however, Judge Ralph Winter wrote an opinion for a Second Circuit panel upholding the '96 amendments on the ground that the feds were not "commanding" anyone to do anything: federal law simply stopped non-federal officials from interfering with other people's decision voluntarily to cooperate with the feds. To construe Printz v. United States as barring such federal authorization for voluntary cooperation would, in Judge Winter's view, "turn the Tenth Amendment's shield ... into a sword allowing states and localities to engage in passive resistance that frustrates federal programs." City of New York v. United States, 179 F.3d 29, 35 (2nd Cir 1999).

Judge Winter's reasoning, I think, is transparently preposterous. It would be nice if San Francisco could be induced to re-litigate the Printz issue decided by City of New York. To my knowledge, the Ninth Circuit has not yet ruled on the question, and it would be a shame for the issue to be decided by reasoning as casual as Judge Winter's. It is possible that the Ninth Circuit might uphold the '96 amendments under Reno v. Condon, as a permissible command to share data rather than exercise "sovereign" regulatory powers. I think that such a result would be a mistake, but it would be a far narrower exception to state sovereignty than the gap in state autonomy created by Judge Winter's reasoning.