This column by ACRU Fellow Ken Klukowski was published March 6, 2017 by Breitbart.
A county judge in Florida has ruled unconstitutional on Tenth Amendment grounds another of President Donald Trump’s executive orders on immigration, this one concerning federal funding for sanctuary cities.
This week President Trump is signing a new executive order (EO) to replace Executive Order 13769, the one restricting immigration from seven terror-prone nations that had been stayed (i.e., put on hold) by left-leaning judges in first by Washington State and later by the U.S. Court of Appeals for Ninth Circuit, which the president signed on Jan. 27 of this year.
Often overlooked is an EO the president signed earlier that week. On Jan. 25, Trump issued EO 13768, concerning several other immigration issues, such as prioritizing the removal of criminal aliens.
Regarding “sanctuary cities” — cities and counties that refuse to cooperate with federal authorities on deportations — Section 2(c) of the earlier EO requires federal agencies that such cities “that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.”
James Lacroix is an immigrant from Haiti who is in the United States under a special relief program after his country’s devastating 2010 earthquake. Since arriving, he has repeatedly driven without a license, which became a felony once he was labeled a habitual offender. So now he has been ordered deported after finishing his county jail time.
Lacroix petitioned for a writ of habeas corpus to order his release after he finished serving his jail time. The court for Florida’s Miami-Dade County noted that often:
Immigration and Customs Enforcement (“ICE”), the federal agency responsible for the deportation of those whose presence in this country is unlawful, will file a detainer or lodge a request with [local jail officials], seeking to have [local authorities] retain an inmate whom the [local authorities] would otherwise release, so that ICE can arrange to take custody of him.
The county jail continued to keep Lacroix under one such immigration hold. In the past Miami-Dade did not honor such requests, but changed course after Trump issued EO 13768, presumably so the county did not jeopardize the funding it receives from Washington, D.C.
Judge Milton Hirsch ordered Lacroix granted the writ of habeas corpus and ordered Lacroix released, holding that EO 13768 unconstitutionally coerces Miami-Dade County in violation of the Tenth Amendment. Hirsch construed the Supreme Court’s 2011 case Bond v. United States as empowering Lacroix to raise the claim that EO 13768 exceeds congressional authority under the Constitution’s Spending Clause, and therefore violates the Tenth Amendment.
The Supreme Court has previously only allowed states to make a coercion challenge against Congress. While this claim could possibly be raised by a county or city as part of the state, nothing in Supreme Court precedent suggests that individual persons can raise the claim. Moreover, all such Tenth Amendment claims have only been raised against the federal government, never in a case against state or local officials, as is happening here.
The case now goes to Florida’s court of appeals, and from there it can go to the Florida Supreme Court. Since it involves federal issues, it is possible for the U.S. Supreme Court to then weigh in on those claims.
The case is Lacroix v. Junior.