Conservatives used to care about states’ rights. Now, Trump is trampling all over them | Opinion

For most of American history, it was conservatives who championed states’ rights. Now, the conservative Trump administration is trying to trample the authority of state and local governments — in clear violation of the Constitution.

Just one day after Donald Trump’s inauguration, Acting Deputy Attorney General Emil Bove wrote a memo to the Justice Department calling on U.S. attorneys to prosecute state and local officials who do not cooperate with the deportation efforts of the Trump administration.

Trump has expressed this as well, saying that state and local officials will face prosecution for failing to assist with his immigration policies and threatening to cut off federal funds to state and local governments that do not cooperate.

But these pronouncements, which are obviously meant to intimidate state and local officials, ignore that similar efforts in Trump’s first term were declared unconstitutional. Then, too, Trump adopted a policy to cutoff federal law enforcement money to local governments that did not cooperate with Immigration and Customs Enforcement (ICE). The U.S. Court of Appeals for the Ninth Circuit held that this was unconstitutional.

There is no reason to believe that these new Trump efforts will fare any better in the courts. The Supreme Court long has held that the federal government may not commandeer state and local governments and force them to administer federal mandates. In 1992, in New York v. United States, the high court declared a federal law that required that every state clean up its nuclear waste by 1996 or face significant legal consequences unconstitutional, holding that the law violated state sovereignty and the 10th Amendment.

In 1997, in Printz v. United States, the court declared unconstitutional a provision of the Brady Handgun Control Act that required that state and local law enforcement departments conduct background checks before issuing permits for firearms. Once more, the court said the federal government cannot conscript state and local governments and compel them to enforce federal law.

Nor can the Trump administration move ahead with their stated policies by cutting off federal law enforcement money. Congress can put strings on federal grants, but only if the conditions are clearly stated, if they relate to the purpose of the program and if they are not unduly coercive. Congress has not conditioned federal law enforcement money on state and local governments cooperating with ICE, meaning the Trump administration cannot add requirements not found in the federal spending law.

More importantly, the Supreme Court has been clear that the federal government cannot coerce state and local action by withholding federal funds. Prior cases reflect the Supreme Court’s commitment to upholding basic principles of federalism that safeguard the autonomy of state and local governments. The Trump administration threats ignore these principles and all of the decisions affirming them.

Indeed, there are compelling reasons for cities to adopt their own policies around immigration. For example, victims of crime and witnesses to crime will not come forward to the police if they fear deportation. Public health officials fear that sick people, including those with communicable diseases, will not go for treatment if they fear that it could lead to their deportation. Of course, their untreated communicable diseases can spread to all of us. Education officials worry that parents will not send their children to school if they think it might lead to deportation. Educating children, whether documented or undocumented, is a moral obligation and essential for society.

It will take courage for state and local officials to fight back. But it is their legal and moral duty to not acquiesce to unconstitutional intimidation. Based on decades of legal precedents, the law is very much on their side.

This story was originally published February 6, 2025 at 5:00 AM with the headline "Conservatives used to care about states’ rights. Now, Trump is trampling all over them | Opinion."