trump

By Maseeh Moradi*

The recent immigration executive order promises in its title to protect “the nation from foreign terrorist entry.” It does so by barring the entry of, among hundreds of millions of others, all of my aunts, uncles, and cousins (my own parents, once aliens, now citizens, would have been barred as well). Protecting the nation from terrorists evidently means banning everyone from Iran, even though no national from there, or any of the other listed countries, has committed deadly acts of terrorism in the United States since and including 9/11. The order does not care if one is in poor health, elderly, or requires a full minute to walk from one wall of a room to the other. It thus also bans my 97-year-old grandmother, one of the lights of my life.

My grandmother’s name is Tavoos, which means peafowl in Farsi. It fits well, as she is the most beautiful person I know, possessing a heavenliness that only time can bestow. Her beauty comes from raising seven children in rural Iran’s lower class during the mid-20^th century, waking up before dawn to begin her daily 16 hours of backbreaking farming and cooking. It’s the beauty of being in the wrinkled twilight of a full life, one marked by the exultation of seeing a son realize his dreams in America and the endless sorrow of burying a daughter many decades too soon.

Grandma Tavoos has been a widow for a quarter of a century now, and during this period she has visited us regularly, and for six months at a time, on a B2 visa. She loves being here, semi-skipping during her morning walks in our backyard and around the block, and, though not able to speak English, excitedly waving to our neighbors. She is deeply proud of these interactions—when she returns to Iran, she always brags about having met, and exchanged smiles, with those Americans. She enjoys watching the NBA, especially the final two rounds of the playoffs (her favorite player ever is Shaq). Ten years ago, we took her to Santa Cruz for a weekend, and it was a transformative experience; she claims that was the closest she has ever been to heaven. When her stay is over, she always takes back two extra suitcases. One is filled with Americana she will gift to her many grandchildren and great-grandchildren. The other brims with large containers of Heinz Hot & Spicy Ketchup, her favorite flavor, but one that is harder to find in Iran (a perfect meal for her is plain Basmati rice drenched with this condiment).

Grandma Tavoos helped raise and educate me. Seventy-two years her junior, I had much to learn. During elementary and secondary school, I was usually the first one home, and she, along with her pots of bubbling fesenjan and aush-e-reshteh, would be there to greet me and ask about my day. Once, in 7^th grade, I came home sobbing after doing poorly on a grammar test. She soothed me, telling me that having weaknesses is something to celebrate as a hallmark of existence; after all, even the most beautiful peafowl still has ugly feet. She is wise like this; she always knew the right Hafez couplet, or the right story from her own childhood, to recite when I needed perspective. She originally taught me to read and write Farsi, crafting daily, one-hour lessons during the summer after I completed 5^th grade. During those sessions, she was my teacher, not grandma, and would be hard on me until I mastered the lesson. At the end of the hour, the roles would flip, and I would teach her English. She eventually knew the English words for all of the fruits in our house.

In recent years, her mind has stayed as lucid as ever, but her body has worn down. During this time, we have brought her over primarily to take care of her. We help feed and shower her; she showers us in return with the countless poems, legends, and fables she has written and learned over her lifetime.

But the executive order threatens all of that now. Our current administration thinks allowing her into the country would be too much of a threat. While it’s certainly possible that the Supreme Court will strike the order down, or it will be re-written before then, the order’s effects transcend its text; the damage has been done. How can we risk bringing over a soon-to-be centenarian when our president has shown a propensity to act so callously and capriciously at a moment’s notice? Lately, my grandma ends our phone calls with, “I hope I’ll get to see you again at least one more time.” I use confident words to assuage her, but my quivering voice more faithfully reflects my feelings.

My story is just a drop in the ocean of casualties resulting from this order and the rhetorical posture of this administration; many families are facing the prospect of being ravaged. But no executive order, and no demagogue, can outlaw that which is lodged in our hearts. Grandma Tavoos will always be as close as can be, right there in my heart, her wisdom and beauty an inextricable part of my identity. You can exploit people to your political advantage, conflate them with terrorists, threaten to deport them, bar their entry, and even intern them, but you can never sap their capacity to appreciate and love.

*Maseeh Moradi is a 2L at Harvard Law School and a Senior Online Editor for the Harvard Law & Policy Review.

By Andrew Hanson*

In his “Contract with the American Voter,” Donald Trump promised to “cancel all federal funding” to “sanctuary cities” on his first day in office. Can the federal government force states and cities to comply with its immigration enforcement agenda? It depends on how it tries to induce the state and local governments to act. While future grants of federal funding may potentially be conditioned to induce state action, it would be plainly unconstitutional for the federal government to cancel all federal funding to “sanctuary cities.”

Federal law allows the federal government to enter into agreements with state and local governments to carry out federal immigration enforcement.[1] However, the statute explicitly states that the state and local governments are not required to enter into agreements with the federal government, and agreements are not required for state and local governments to cooperate with the federal government. Thus, state and local governments are free to choose whether to enter into an agreement or whether to cooperate with the federal government’s immigration enforcement procedures.

The cities—political subdivisions of the states—that choose not to enter an agreement or cooperate with the federal government are referred to as “sanctuary cities.” In other words, sanctuary cities are locations that have either formally or informally decided they would not assist the federal government in enforcing federal immigration laws. For example, if an unlawfully present individual is arrested for a minor offense (and it is determined they are not lawfully present in the United States), sanctuary cities will release the individual after they have resolved the state offense rather than turning them over to federal officials for immigration proceedings. Various cities throughout the country are considered sanctuary cities. It is estimated that there are more than sixty sanctuary cities, including New York, Los Angeles, and Chicago.

It is not clear how, exactly, Trump would fulfill his threats. But the details are crucial to predicting whether it would be legally permissible. His rhetoric suggests a blanket cancellation of all federal funding and presumably no future federal funding to sanctuary cities. An alternative approach could be cuts to specific programs related to law enforcement. The specific program(s) to be effected or the amount(s) of funding to be withheld has not been disclosed. Either way, cities may have valid legal challenges to defend against these threats.

As expressed recently in the Affordable Care Act case, it is well-settled law that the federal government may not commandeer the legislative processes of the states by compelling them to enact or enforce a federal program.[2] However, there are ways for the federal government to incentivize states to act. The federal government can use the Spending Clause to grant federal funds to states and the political subdivisions of states.[3] It can also condition those grants upon the states’ taking certain courses of action.[4]

But this spending power has limits.[5] Federal funding agreements are like a contract, the legitimacy of which depends on whether the sates and political subdivisions of states voluntarily and knowingly accepted the terms of the agreement.[6] Just as changing the terms of an existing contract would be a breach of the agreement, so too would changing the terms of an existing funding agreement. Respecting this limit ensures that the federal government does not “undermine the status of the States as independent sovereigns in our federal system.”[7] The federal government may incentivize state and local governments, but when that pressure turns into compulsion, it runs contrary to our system of federalism.[8]

That is not to say the federal government cannot condition future funding agreements upon compliance with the Trump administration’s immigration enforcement policies. But the Trump administration is probably unable able to substantially alter existing funding arrangements (i.e., they cannot “cancel all federal funding” to sanctuary cities).

The ACA case, NFIB v. Sebelius, is complex and contains multiple holdings. Seven members of the Court agreed that the federal government could not withhold existing Medicaid funding in order to persuade states to expand the Medicaid program.[9] In addition, Chief Justice Roberts and Justices Breyer, Kagan, Ginsburg, and Sotomayor all permitted the conditioning of future funding upon compliance with the federal government’s conditions.[10]

To cancel all federal funding to cities, which could mean billions of dollars in some cities, seems to be more akin to the impermissible “economic dragooning” that leaves cities “with no real option but to acquiesce,”[11] rather than the “relatively mild encouragement” that the Court has found to be permissible.[12]

It remains to be seen whether the Trump administration will try to limit a small percentage of certain federal funding grants or pursue across-the-board cuts to penalize cities that do not fall in line. What does seem clear is that the latter approach is impermissible. Such drastic indiscriminate cuts would be devastating and likely leave them without any real option but to submit. That would be a textbook definition of intruding on our system of federalism. For a party that prides itself on being proponents of states’ rights, it seems odd for a Republican administration to also advocate for a centralized power that quashes state dissent through brute force. But, alas, everything is out of order this year, and the unexpected is truly possible.

Perhaps, with the realities of the office and the Constitution finally dawning on him, he will walk back from this stance like he has with various other campaign promises (see e.g., here and here). But with Trump, who knows?

* Andrew Hanson is a 3L at Harvard Law School.

[1] See 8 U.S.C. § 1357(g).

[2] See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2602 (2012); id. at 2660 (Scalia, J., dissenting); Printz v. United States, 521 U.S. 898, 933 (1997); New York v. United States, 505 U.S. 144, 161 (1992).

[3] See NFIB, 132 S. Ct. 2566, 2601 (2012).

[4] See Coll. Sav. Bank v. Fla. Prepaidpostsecondary Ed. Expense Bd., 527 U.S. 666, 686 (1999).

[5] NFIB, 132 S. Ct. at 2602.

[6] See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).

[7] NFIB, 132 S. Ct. at 2602.

[8] Id.

[9] Id. at 2607 (opinion of Roberts, C. J., joined by Breyer and Kagan, JJ.); id. at 2666 (dissenting opinion of Scalia, J., joined by Kennedy, Thomas, and Alito, JJ.).

[10] Id. at 2607 (opinion of Roberts, C. J., joined by Breyer and Kagan, JJ.); id. at 2642 (opinion of Ginsburg, J., joined by Sotomayor, J., concurring in part and dissenting in part).

[11] See NFIB, 132 S. Ct. at 2604.

[12] S.D. v. Dole, 483 U.S. 203, 211 (1987).

A Drop in the Ocean of Casualties

“Economic Dragooning”: Limiting Trump’s Ability to Punish Sanctuary Cities