Return to Federalism gives hope to the future

Noah M. Horwitz

On April 19, the Seventh Circuit Court of Appeals (the federal appellate court for much of the Midwest that is based in Chicago) upheld a nationwide injunction against the Trump administration’s efforts to end sanctuary cities, places where the federal government does not find an eager partner in the state or city with respect to immigrant enforcement. Attorney General Jeff Sessions sought to cut off federal funding to Chicago if the city did not assist in the recent deportation revival. So Chicago sued Sessions.

From a public policy perspective, this is good news to me. I am not in favor of expanded deportation and favor comprehensive immigration reform that legalizes the vast majority of undocumented immigrants. But the decision is also an important victory for the Constitution 

*Judge Harry Leinenweber first issued the nationwide injunction. He was nominated to the bench by President Reagan. A three judge panel of the appellate court unanimously upheld the injunction (though one would have limited its geographic scope). All were nominated by Republican presidents, the same party as Sessions and his anti-immigrant push.

The rationale for these decisions, as well as a complementary case out of California, expand upon jurisprudence developed during the Clinton and Obama presidencies which was intended to constrict the power of the federal government relative to the states. Jurisprudence that was intended by a conservative Supreme Court to be a check against a liberal president. It appears though that what was good for the goose is now, in fact, good for the gander.

In a 5-4 decision in 1997, the Supreme Court in Printz v. United States held unconstitutional the federal government “commandeering” local law enforcement by compelling them to conduct federally-mandated background checks. And in 2012, National Federation of Independent Business v. Sebelius, best known for salvaging most of Obamacare, threw out a provision that would have punished states that declined to expand Medicaid by forfeiting their federal funds as being unconstitutional. Both cases, among many others, are now being used by liberal and conservative jurists alike to constrict the power of the Trump administration.

The lesson is humbling, because it forces all of us to recognize that leaders with our political and policy predilections won’t be in the majority forever. It cuts both ways.

Policy values on these issues are absolutely imperative. The deportations sought under the actions declared unconstitutional are horrid for a variety of reasons that have nothing to do with the law. (And for that matter, the Constitution is not an exclusive failsafe against bad, or even evil, governmental action; that much is left to the people.) The legal implications can and should exist completely independent.

Current political disputes, domestic and foreign, will matter little in 100 years. What will matter is the constitutional order on which this country was founded, for if it can survive, I have little doubt the Republic it fostered may too. The recent decision of the Seventh Circuit gives me some hope that future may well come to pass.

Horwitz is a second-year law student from Houston. He is a senior columnist.