Sanctuary cities resist Trump's deportation plan. It could cost their residents. | Opinion
The doubling down on sanctuary city promises will likely draw more migrants to those communities, which some mayors have welcomed despite the heavy costs.
Denver Mayor Mike Johnston recently became the latest Democratic leader to engage in a chest-pounding call to arms in resistance to the incoming Trump administration's plan to deport people who entered the United States unlawfully.
While a post-election poll by YouGov for CBS News shows that a massive 73% of adults want President-elect Donald Trump to prioritize the repatriation of illegal migrants, the mayor pledged to not only have Denver police "stationed at the county line to keep (Immigration and Customs Enforcement) out" but also that "you would have 50,000 Denverites there."
Johnston said it would be like a "Tiananmen Square moment" and answered yes when questioned whether he'd be ready to go to jail.
That moment soon passed, however, as lawyers apparently explained to the mayor that armed resistance to the federal government is often called – wait for it – insurrection.
It appears that Johnston was not keen on becoming the Jefferson Davis of the left, so he backpedaled, stating, “Would I have taken it back if I could? Yes, I probably wouldn’t have used that image."
Yet, Johnston is not alone in pledging resistance to repatriation efforts. Cities are reaffirming or adopting sanctuary city status, including most recently Boston. The cities pledge to continue their ban on any cooperation with the federal government in detaining or removing unlawful migrants. Other mayors are pledging to use city funds to pay for the defense costs of those fighting deportation.
The doubling down on sanctuary city promises will likely draw more migrants to those communities, which some mayors have welcomed despite the heavy costs of housing, education and other city services.
Immigration proved to be one of the top issues for voters in this year's election, which brought control of both houses of Congress and the White House to the GOP. Citizens overwhelmingly supported new tough immigration measures, including deportations.
With Democratic cities joining the "resistance," they may find the costs even higher. Congress cannot compel cooperation without triggering constitutional concerns. In Federalist #46, James Madison recognized the right of state officials to oppose federal policies, including "the refusal to co-operate with officers of the Union."
In cases such as Printz v. United States (1997), which involved federal requirements that states cooperate on gun control measures, the Supreme Court enforced an anti-commandeering line that allowed states to refuse such federal orders.
Cities rely on federal money to pay for migrant services
However, this is a two-way street. Just as cities and states do not have to carry water for the federal government, the federal government does not have to supply the water to the states. The second Trump administration and Congress can play hardball by barring federal funds in various areas for these cities.
With their status as sanctuary cities, housing, law enforcement and social programming costs will continue to rise. Many of those budgets are heavily infused with federal funding. However, if cities resist or frustrate federal policy, there are ample reasons why the federal government might restrict funding.
Such measures can go too far. The Supreme Court has warned that financial penalties can be so coercive that they effectively commandeer states. However, the federal government is not required to spend money on services where costs are rising at least in part because of resistance to federal law.
Under constitutional law, the federal government cannot be a bully, but it does not have to be a chump.
It's clear that elected leaders like Johnston did not think very long or well before starting a war with the incoming administration. In addition to the possible loss of federal funds, acts of resistance can trigger criminal liability if they amount to actively shielding or hiding unlawful migrants sought by Immigration and Customs Enforcement.
Under federal immigration law, it is a felony when anyone in "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation."
That is not triggered by a simple refusal to cooperate, but some officials have been accused of crossing the line, including state judges. It also could endanger private groups that work closely with these cities in housing and transporting unlawful migrants.
Obama defended federal government's power over immigration
Moreover, as I wrote recently, Trump can cite a curious ally in this fight: Barack Obama.
During the Obama administration, the federal government largely triumphed over states in barring their interference with federal immigration policies. Back then, Democrats supported President Obama in claiming that the federal government had overriding authority on immigration in cases like Arizona v. United States.
The pressure on cities could grow if the Trump administration prioritizes members of violent gangs such as Mara Salvatrucha (MS-13) or Tren de Aragua for deportation. To resist those efforts would be politically unpalatable in cities dealing with crime associated with such gangs.
It could take years to hash out these efforts. However, if Denver's Mayor Johnston is any measure of the resistance, the chest-pounding may decline when the federal funding dries up.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage."