February 6, 2014 4:03PM

When the Levee Breaks: How the SAFE Act Could Unconstitutionally Strip States of FEMA Funding

The Strengthen and Fortify Enforcement (SAFE) Act (HB 2278) is part of the House’s attempt to split up comprehensive immigration reform into individual bills. The Act suffers from the fundamentally misguided belief of many Republicans that enforcement has to come before any attempt to rationalize our broken immigration system. Of course, if we fix our Kafka-esque immigration system, then many of the problems with unauthorized immigrants will greatly diminish, if not disappear. Focusing on enforcement is like someone saying during prohibition, “before we can talk about legalizing alcohol we first need to stop all these bootleggers and gangsters.”

The SAFE Act is also a constitutional boondoggle with many dangerous and suspect provisions that guarantee the act will be tied up in court battles, not to mention to litany of expected civil liberties abuses that will arise if the Act is ever enforced. The ACLU and the Center for American Progress have already pointed out many of the civil liberties concerns, as well as the bad policies that animate the Act.

Gone unnoticed is a large and consequential problem that has constitutional ramifications: the Act denies law enforcement and Department of Homeland Security funding to states or municipalities that have policies or practices that “prohibit law enforcement officers of a state...from assisting or cooperating with Federal immigration law enforcement[.]” If a state or municipality has such a policy then they “shall not be eligible to receive...any...law enforcement or Department of Homeland Security grant.” (Section 114).

California has just such a law. The TRUST Act, signed by Governor Brown in October 2013, prohibits California state officials from detaining people when U.S. Immigration and Customs Enforcement (ICE) issues a “hold” request (in order to transfer them to federal immigration authorities) if they have been convicted of only minor crimes.

Shockingly, if the SAFE Act is passed, then California will lose all “law enforcement or Department of Homeland Security (DHS) grants.” This includes FEMA grants, which is under the DHS. For a state that periodically catches fire and has a geologically unstable fault-line running along nearly its entire length, this truly puts them in a difficult situation.

Just in September, California was granted $20 million for 100 new police officers. Oakland, described as a “violence-plagued, cash-strapped city has cut the size of its police force from 830 officers in 2009 to just over 600,” received $4.5 million of that money. California would also be ineligible to receive Emergency Federal Law Enforcement Assistance (EFLEA) grants, which in past gave $1 million to assist California during the Rodney King riots and $4.96 million for assistance during the 1989 San Francisco earthquake.

Most devastating would be losing the $177.5 million that California received from FEMA in 2013 alone. California is one of our most disaster prone states, and a geological sword of Damocles constantly hangs over its head. In fact, the threat of losing law enforcement and FEMA funding is so perilous to all states, not just California, that the SAFE Act may be a heretofore unseen example of unconstitutionally coercive federal spending.

Because our Constitution doesn’t allow the federal government to simply command the states into compliance, the federal government accomplishes many things via conditional spending grants to the states. If states comply with the conditions, then they get funding. Since the New Deal, however, the Supreme Court has held that at some point “pressure turns into compulsion” and the conditions on the spending are too onerous on the state to be constitutional.  In two cases, South Dakota v. Dole (1987) and the Obamacare case, NFIB v. Sebelius (2012), the Court has broadly sketched out the parameters of when “pressure turns into compulsion.”

But the sketch is very minimal. In Dole, the Court ruled that conditioning five percent of federal highway funding on a state changing its drinking age to 21 (yes, that’s why we have a “national” drinking age) is not unconstitutionally coercive. It’s just five percent of highway funding, after all, and states, the Court said, have a real choice whether to comply. In a less famous part of the Obamacare decision, however, the Court ruled that conditioning all existing Medicaid grants on states complying with the Affordable Care Act was unconstitutionally coercive.

Although commentators have focused on the size of the conditional grant in order to determine whether something is unconstitutional, the question really centers on whether or not a conditional spending grant is coercive. The absolute monetary size of the grant certainly has something to do with coercion, but other factors can be taken into account. As the Court said in Steward Machine Co. v. Collector (1937), whether “undue influence [is] exerted by the national Government on the States” is a “question of degree” and “at times, perhaps, of fact.”

Therefore, it is legitimate to look not just to the size of the grants, but to the type of grants used to induce states into not passing laws like the TRUST Act. Highway funding is one thing, but national security, law enforcement, and FEMA grants are entirely different. Although, from a policy standpoint, both FEMA and federal law enforcement grants have sketchy track-records that have garnered well-deserved criticisms from conservatives and libertarians, those criticisms are irrelevant to whether California and other states feel they need the money.  

A state like California, as well as all others, would almost assuredly feel compelled to repeal laws like the TRUST Act should the SAFE Act become law. This type of federal pressure is unconstitutional coercion.