The Constitution established a sovereign federal government while leaving in place the sovereign state governments. While the Constitution limited state sovereignty, it did not eliminate it. States are free to pass their own laws and maintain their own court systems, and most of the laws we encounter in our daily lives are state laws (all the more reason to care about state elections). On Monday, the Supreme Court issued an opinion in Murphy v. NCAA, 584 U.S. ___ (2018) concerning the Professional and Amateur Sports Protection Act (PAPSA), a law from the early 90s which made it illegal for a state to authorize a sports gambling scheme, with some grandfathered exceptions. The Court held PAPSA to be unconstitutional for a few reasons, and today’s post focuses on one of them: the “anticommandeering” principle, the idea that the federal government cannot force states to adopt or enforce federal law. This important principle has implications beyond this specific case.

The anticommandeering principle relates to the dual-sovereignty structure I referenced above. It has its roots in the 10th Amendment, which states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The principle is well explained in a 1992 opinion by Justice O’Connor, New York v. United States, 505 U.S. 144 (1992). There, the Court provided some Constitutional history, noting a key difference between the Articles of Confederation and the Constitution is that under the Constitution, Congress may regulate individuals, not the states. In earlier cases, the Court has held that even where Congress has Constitutional authority to act, it may not commandeer the state legislative process to compel the enactment and enforcement of a federal program, nor require or prohibit the passing of certain state legislation, nor conscript state governments as agents of the federal government. Put simply, Congress cannot dictate what a state legislature can and cannot do. Congress may offer incentives in the form of federal funds, as federal spending ability is a core Congressional power, but cannot use outright coercion.

The Murphy Court highlights three reasons the anticommandeering principle is important. The first is that the Constitution intentionally divides authority between federal and state governments for the protection of individuals. The second is that the rule promises political accountability, because voters should know which elected officials deserve credit or blame for legislating. Third, the principle prevents Congress from shifting regulatory costs to the States. If Congress wants it, Congress can publicly pay for it, and deal with the political consequences (theoretically, of course).

So what does all of this have to do with sanctuary cities? The current Administration’s efforts to fight sanctuary cities have remained just that: the Administration’s efforts. Through Executive Order, the President has tried to directly tie federal funds to federal immigration law. The problem is that the President does not have the authority to do so. Only Congress can condition receipt of federal dollar on certain criteria (and then only in non-coercive ways) and Congress has not done so here. While States may not make their own immigration laws (a federal power), neither may the Executive step around Congress to withhold money from the states. Murphy reaffirms that the 10th Amendment is not dead, and restates important limits on federal government power.

Final note: sports gambling and sanctuary cities are obviously not the same thing, and while the anticommandeering argument is fair and supported by case-law, the legal details are more nuanced and their are counter-arguments. It will be interesting to see if Congress chooses to address the issue.

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