Donald Trump’s presidency heralds a shift in politics and law enforcement. This shift portends multiple implications for the City of Minneapolis. Among those include immigration.
Both the City of Minneapolis and Hennepin County have policies dictating that their employees will not enforce federal immigration law, leaving that up to federal authorities. As Carol Becker points out in her companion piece, this makes both Hennepin County and Minneapolis sanctuary cities. Or governments. What are the legal implications of such a choice for these two governments and their officials?
A decision not to enforce immigration laws raises constitutional questions about federalism, federal supremacy, and immigration. Federalism is the principle of divided power between national and state governments. It is in the Tenth Amendment. Federalism is both about checking political power, but also about devolving authority to the state level in many cases.
On the other hand, the Constitution also has two other relevant constitutional clauses. The first is the Supremacy Clause, and it is in Article Six, section two of the Constitution. The supremacy clause declares that the Constitution, the Bill of Rights, and all federal laws shall be the supreme law of the land. Additionally, Article One, section eight, clause four, grants the national government the power over immigration and naturalization.
There is a tension between federalism and the Supremacy Clause. As the Supreme Court has interpreted this tension, federal law, policy, and administrative rules, including executive orders, are supreme and can, in some cases, preempt or override state and local law. But in some cases, despite federal law, if there is not a direct conflict, states and local governments still can enact their own laws.
For example, we have laws at the national level making the use, sale, and possession of marijuana a crime, while states, such as Minnesota, have chosen to legalize both its medical and recreational use. This means that in Minnesota, recreational use of marijuana is legal under state law, but under federal law, it is still illegal. It is merely by presidential order and congressional statute that federal authorities have chosen not to enforce national marijuana laws in Minnesota. During the first Trump presidency his first Attorney General Jeff Sessions talked of wanting to enforce these laws in states such as Minnesota but eventually was prevented from doing so. But he could have done so.
As the Supreme Court has interpreted the interplay between the Supremacy Clause and federalism, it has also said that generally, the national government cannot order, direct or, in its words, commandeer states to enforce federal law or to comply with it. There are some exceptions, such as in the cases with federal minimum wage laws.
Why this is important is that immigration is a constitutional power entrusted to the national government. the federal government. State and local governments do not have the authority to act here, or at the least, do not have the authority to obstruct. They may choose not to act and the national government cannot directly force or compel them to act. Yet the Supreme Court has ruled in cases such as South Dakota v. Dole that the national government has the authority to withhold money or use financial incentives to induce certain behavior. It has done so in cases of speed limits and blood alcohol levels for DWI enforcement. So long as these financial incentives or sanctions are not coercive, they would be constitutional. Look to see the Trump administration pressing the limits of its ability to use its finances and money to encourage Minneapolis and Hennepin County to enforce immigration law.
But there is another option that officials must worry about. There may be a thin line between refusing to enforce and engaging in activities that actually hinder federal enforcement. It could be possible that the Trump administration might seek to bring aiding abetting or obstruction of justice criminal charges against individual city or county officials if they take action that obstructs the enforcement of federal immigration law.
As both Hennepin County and Minneapolis contemplate how to react to the Trump administration, the Constitution gives the national government a lot of tools that could induce compliance or make life uncomfortable for officials who stand in their way.
The Mn Constitution is implicated as are State statutes pertaining to powers and duties cities —— including public safety. The Mpls City Council thinks it has the same public safety powers as any state agency because it is a charter and not a statutory city. But the Mn constitution devolves power, I one represented the City and after that the School District. My boss told me in day one to know the state constitution as I would be defending the City against a claim that it lacked certain powers that were unpopular at the time. Enforcement of Federal law is not such a power. Our police department has not the resources.