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Carter: Laboratories of Democracy

The United States Constitution was back at work last week in California where a Federal Court issued yet another restraining order against the President of the United States. This time, the restraining order focused on the President’s recent executive action instructing the Attorney General to ensure that any community refusing to enforce the President’s immigration directives loses eligibility to receive federal grants.

While the case focused specifically on the sanctuary communities in California, the judge’s restraining order applies nationwide and therefore directly impacts the Vermont communities that have decided to become so called “sanctuary cities.” While it’s important to note that the decision grants only a temporary restraining order against the President, the Court’s holding provides strong legal support for Vermont communities considering sanctuary status.

The Court held that the President’s Order likely violates Article I of the Constitution because only Congress has the power to dictate federal funding – and that Congress has frequently declined to make funds conditional on compliance with federal immigration laws.

The Court also concluded that the Executive Order likely violates the 10th Amendment because the Federal Government generally can only restrict funds if there’s a nexus between those funds and the federal program from which the government wants to restrict funds. For example, the President could not restrict highway funds destined for a Vermont community if that community becomes a sanctuary city because there’s no connection between highway funds and immigration enforcement.

The Court also noted that under the federalist system mandated by the 10th Amendment, states retain some level of sovereign power. Accordingly, the Federal Government may not compel states to enact or administer a federal regulatory program. So if the President wants to enforce immigration policy, he cannot deputize and compel state or city law enforcement to carry out that policy.

The Court’s holding preserves important constitutional protections regarding state’s rights and the power of communities to set their own policies based on the needs of the local populace - maintaining the vision of the founding fathers and the grand compromise of the constitutional convention more than two centuries ago.

And it echoes the words of Justice Louis Brandeis who remarked in a 1932 US Supreme Court decision, that a courageous state, if its citizens choose, may serve as a laboratory of democracy, and try novel social and economic experiments without risk to the rest of the country.

Jared Carter teaches legal activism, legal writing and appellate advocacy at Vermont Law School. He also directs the Vermont Community Law Center, a non-profit legal services organization focused on social justice, constitutional rights and consumer protection.
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