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The Anticommandeering Doctrine

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The sports betting case decided by the Supreme Court today, Murphy v. NCAA, No. 16-476, involves the "anticommandeering doctrine."  As Justice Alito explains in his opinion for the Court, "The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States."  This doctrine is a relatively new one as constitutional law doctrines go.  Today's opinion identifies a 1992 case, New York v. United States, as the "pioneering case."

The "sanctuary city" cases also involve the anticommandeering doctrine.  The jurisdictions that want to release known criminals back into their populace rather than cooperating with Immigration and Customs Enforcement for their deportation claim that the federal government is trying to commandeer state and local resources for the enforcement of federal immigration law.

The Murphy case involves congressional limitations and requirements on the state legislature, however.  That seems to present an easier question.  No, Congress cannot stop a state legislature from repealing a state-law prohibition on an otherwise legal activity.  (The Court itself did once prevent the repeal of an anti-discrimination law, but that involved an equal protection violation rather than congressional commandeering.)

A federal law which prevents state and local governments from forbidding their employees to spend infinitesimal amounts of government resources to share information with ICE (which is what 8 U.S.C. ยง 1373 does) seems pretty far removed.  It does not appear that this case will have a large impact on the sanctuary cases.

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The state probably could forbid state employees--not so sure about local governments--but isn't the issue the spending power? Also, letting an alien go free is also a separate act of concealment, so I wonder how that fits into the mix.

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