What Trump can and can't do to sanctuary cities

Governing - On Wednesday, President Donald Trump took his first move to defund cities that refuse to cooperate with federal efforts to deport undocumented immigrants. Trump signed an executive order directing the Secretary of Homeland Security to look at federal grant funding to cities “to figure out how we can defund those streams,” said White House Press Secretary Sean Spicer.

Many of the nation’s largest cities -- including Chicago, Los Angeles, New York City and San Francisco -- are immigrant sanctuaries and have said they won’t back down from their policy.

“We are going to fight this, and cities and states around the country are going to fight this,” said New York Mayor Bill de Blasio at a press conference after the executive order.

Federal funding makes up roughly 5 to 10 percent of most mid- to large-sized city budgets. There is no collective data on this topic, but looking at estimates from a handful of cities, the larger cities tend to get more in federal aid. New York City, for example, says it gets more than $8.5 billion in federal aid, which represents a little more than 10 percent of its total budget.

There are, however, two big unknowns here: Whether Trump has the constitutional authority to selectively strip funding and how much in funding is at stake.

When Trump first issued the threat back in November, constitutional law expert Noah Feldman noted that precedents set in two court cases -- both brought by conservatives -- could preclude Trump from carrying out his plan.

“The federal government can’t coerce states (or cities) into action with a financial ‘gun to the head,’ according to Supreme Court precedent developed by Chief Justice John Roberts in the 2012 Affordable Care Act case,” noted Feldman. “And federal officials can’t ‘commandeer’ state officials to do their work for them under a 1997 decision that involved gun purchases under the Brady Act.”

Such arguments to protect states’ rights could also be used to protect cities, argued Feldman.

Technically, tens of billions of grant dollars are at risk, but it’s unclear which programs would -- or could -- be targeted. In a somewhat comparable situation in the 1980s, the U.S. Supreme Court ruled that Congress could legally take away 5 percent of states' highway money if they didn’t raise the drinking age to 21. Interestingly, Trump’s executive order exempts law enforcement grants, which is the one area where he might have had constitutional grounds for defunding since local police are who he wants to strong-arm into reporting undocumented immigrants.

Major programs that could be affected include Section 8 housing vouchers, Head Start and domestic violence services -- essentially the most vulnerable population in cities would be made even more vulnerable.