Sanctuary cities protect undocumented aliens by adopting policies regarding: (1) inquiries into immigration status, (2) immigration-related detentions, or (3) information-sharing with federal officials. On January 25, President Trump issued Executive Order 13768, which threatens to withhold federal funds from jurisdictions that violate 8 U.S.C. §1373.[1] Section 1373, part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, provides that no federal, state, or local officials may “prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Executive Order 13768 thus targets the third type of sanctuary policy described above. Some municipalities have filed suit challenging the Executive Order.

Sanctuary jurisdictions pledge confidentiality of information regarding immigration status to secure undocumented aliens’ cooperation. Doing so enables such jurisdictions to provide services to undocumented aliens and encourages the undocumented to seek local authorities’ protection of against those who exploit them.

In City of New York v. United States, 179 F.3d 29 (1999), cert. denied, 528 U.S. 1115 (2000), the Second Circuit upheld section 1373. By Executive Order 124, then-Mayor Koch had prohibited city officials from transmitting information regarding any alien to federal immigration authorities unless: (1) a law required such disclosure, (2) the alien consented, or (3) the alien was suspected of criminal activity. The Second Circuit rejected the City’s Tenth Amendment anti-commandeering challenge to section 1373. In its view, the anti-commandeering doctrine did not invalidate statutes that merely precluded state and local governments’ interdiction of voluntary information-sharing between their employees and immigration authorities. Id. at 35.

The Court acknowledged that section 1373 implicated Tenth Amendment concerns because “obtaining . . . pertinent information, which is essential to the performance of a wide variety of state and local governmental functions, may in some cases be difficult or impossible if some expectation of confidentiality is not preserved.” Id. But such concerns did not require upholding New York City’s challenge, because the City had “single[d] out a particular federal policy for non-cooperation while allowing City employees to share freely the information in question with the rest of the world.” In short, the City’s policy served solely a vehicle for “reduc[ing] the effectiveness of a federal [immigration] policy.” Id. at 37.[2]

Government Collection of and Exercise of Dominion over Information

The federal and state governments collect an extraordinary range of information from individuals and private entities, much of it confidential. Individuals may often be hesitant to provide information without assurances that its uses will be limited.[3] State and federal statutory provisions control the dissemination of government records to protect important interests.[4] Such statutes may (1) generally authorize agency control over documents, (2) protect particular categories of documents or information, or (3) govern public access more generally. At least three bodies of doctrine define a government’s powers over its own records: the “official information” evidentiary privilege, freedom of information laws and related public records statutes, and the fair information practices principles.

Historically control over government records, and their confidentiality, was discussed as a part of debates regarding the existence and scope of an “official information” privilege that allowed government entities to withhold confidential information in judicial proceedings. These issues were intertwined with claims of executive privilege, the executive branch’s assertion of the authority to make such decisions at its sole discretion. The “official information” privilege debate has involved Supreme Court precedent, the ALI’s Model Rules of Evidence, the Proposed Federal Rules of Evidence, and the Uniform Law Commissioners’ Uniform Rules of Evidence. While the broadly stated privilege in the proposed federal rules and the ALI Model Rules has not been adopted, the rejection was due not to the concept that governments lack a strong interest in controlling dissemination of certain types of information in their files, but to a concern regarding the executive branch exclusively controlling such determinations. Even so, “rules” of evidence respect federal and state statutes making certain government information confidential.

A second body of laws, the federal Freedom of Information Act (“FOIA”) and state public records laws, seek to resolve the public’s right to information as the ultimate sovereign authority in a democracy.[5] FOIA’s framers understood the tension between public access to information and the need for confidentiality. Virtually every state FOIA law also reflects a recognition that public access must be tempered by government’s ability to keep some records confidential. As Chairman John E. Moss noted at the beginning of the subcommittee’s hearings on FOIA in 1965:

A successful democracy will never be built on freedom of information achieved simply by affording to any and all persons unrestricted access to official information. Because of the scope and complexity of modern government, there are, literally, of infinite number situations wherein information in the hands of government must be afforded varying degrees of protection against public disclosure. The possibilities of injury to private and public interests through ill-considered publication are limitless.[6]

Thus, FOIA contains two provisions protecting personal privacy, a provision to safeguarding proprietary information, and an exemption for law enforcement records.[7] In addition, FOIA exemption 3 incorporates other specific statutes that protect various types of government information.[8] State public access laws adopt many of the same protections.[9] Indeed, so powerful are these provisions that individuals can bring “reverse FOIA” actions to prevent agencies from releasing such information. See, Chrysler v. Brown, 441 U.S. 281, 317-18 (1979).

A third “body of law” involves a core data protection principle, namely that use of personal information should be restricted to the purposes for which it is collected, unless permission is given. The Fair Information Practices, as initially outlined by the Secretary of HEW’s Advisory Committee on Automated Personal Data Systems in 1973, include the admonition that “[t]here must be a way for an individual to prevent information about him obtained for one purpose from being used or made available for other purposes without his consent.”[10]

Can Congress commander information from state and local government?

The federal government has broad authority to require information as a part of a regulatory scheme. However, the anti-commandeering doctrine may limit information demands directed at states, particularly when they undermine states’ and localities’ law enforcement and public benefits programs. In New York v. United States, 505 U.S. 144 (1992), the Supreme Court held that the federal government cannot compel states or localities to exercise their regulatory powers. This anti-commandeering doctrine rests on the concept of states as independent sovereigns protected by the Tenth Amendment. Id. at 166, 168-69.

In Printz v. United States, 521 U.S. 898 (1997), the Justices debated, but did not decide, whether anti-commandeering principles allowed states and localities to disregard federal information-sharing mandates. The majority distinguished federal statutes that “require only the provision of information to the Federal Government,” from those that required state participation “in the actual administration of a federal program.” Id. at 918. Concurring, Justice O’Connor noted that the Court had “refrained from deciding” the validity of “purely ministerial reporting requirements” imposed on state and local authorities. Id. at 935 (O’Connor, J., concurring). She referenced a statute cited by the Government and amici, 42 U.S.C. § 5779, which requires law enforcement agencies report cases of missing children to the Department of Justice for compilation into an annual national statistical report.

In Reno v. Condon, 528 U.S. 141 (2000), the Court reviewed Congress’ power to exercise control over state DMV records. The Drivers Privacy Protection Act (“DPPA”) limited state government release of information to others as well as third parties’ acquisition and sale of such data. The Supreme Court rejected the Tenth Amendment challenge, explaining that the DPPA regulated states merely as a database owners, not as sovereigns. Id. at 151.

Many of the information-statutes statutes that concerned the Government and amici in Printz deal with information that is either not personal, like a list of places of public accommodation or a list of waste sites, or for use in compiling statistics. Even if the anti-commandeering doctrine permits such statutes, it should prohibit a requirement that a state or local governments provide confidential personal information about individuals. Individuals can claim less of a privacy interest in statistical or de-identified information.[11] Moreover, release of statistical or de-identified information is far less likely to diminish the state or municipality’s ability to offer reasonable assurances of confidentiality.

So far, the anti-commandeering principle has been applied to Congress’ exercise of its Commerce Clause powers. Perhaps the doctrine does not apply in the immigration and naturalization context, where the federal government’s “plenary” power has been largely unconstrained.[12] But except for Congress’ powers to enforce obligations the Constitution places directly upon states, such as the Extradition Clause and the Fourteenth Amendment, neither New York v United States nor Printz suggest that Congress’s powers to commandeer turn on the enumerated power federal authorities invoke. Nothing inherent in the power over immigration and naturalization suggests that state or local governments have any obligation to assist the national government.

Precluding State Control Over State Employees

So far I have analyzed whether state and local governments themselves can be compelled to provide personal information about identifiable individuals to the federal government. But section 1373 merely requires states and localities to refrain from interfering individual public employees’ decisions to do so, and thus may appear less offensive to state sovereignty. However, depriving a sovereign of the right to control its own employees has significant implications — it severs the hierarchical relationship between senior officials and their subordinates.

The Supreme Court has long recognized federal agencies heads’ authority to control their subordinates’ disclosure of agency records. In Boske v. Comminger, 177 U.S. 459, (1900), the Court upheld a Treasury regulations restricting revenue officers’ disclosure of tax information, observing:

Reasons of public policy may well have suggested the necessity, in the interest of the government, of not allowing access to the records in the offices of collectors of internal revenue, except as might be directed by the Secretary of the Treasury. The interests of persons compelled, under the revenue laws, to furnish information as to their private business affairs would often be seriously affected if the disclosures so made were not properly guarded. Besides, great confusion might arise in the business of the department if the Secretary allowed the use of records and papers in the custody of collectors to depend upon the discretion or judgment of subordinates. Id. at 469-70.[13]

Frequently, statutory authorizations to obtain information include a provision prohibiting the information’s unauthorized disclosure. And the federal FOIA confers upon agencies, not individual employees, discretion to release records that fit within a FOIA exemption. Indeed, an individual agency official’s unauthorized disclosure of such records would frustrate the mechanisms that allow individuals to assert personal privacy or proprietary interests before the agency releases records in response to a FOIA request.[14]

Moreover, superior officials’ control over dissemination information via rule is essential to ensuring consistent agency treatment of undocumented immigrants. By allowing public employees to divulge information regardless of the state or local agency’s policies, section 1373 makes the agency’s adherence to its confidentiality promises dependent upon low-level officials’ idiosyncrasies.

However, when agency records reveal the misuse or misappropriation of government funds or authority, allowing the federal government to ensure employees’ ability to disclose such misdeeds would seem warranted. The federal government and many state governments have provided statutory protection for whistleblowers, employees who divulge information without authorization to report fraud and abuse.

And the Supreme Court has recognized public employees’ First Amendment right to speak on matters of public concern.[15] The federal government could attempt to characterize section 1373 as a focused statutory protection of state and municipal employees’ First Amendment rights, which coincidentally ensures that the public within those jurisdictions remains informed.

But the First Amendment protection for public employee speech is focused on enabling public employees’ participation in public debate,[16] not their covert provision of information to another governmental authority. Moreover, government entities have greater leeway in disciplining public employees for disseminating confidential personal information within government files. See, Harman v. City of New York, 140 F.3d 111, 119, 122-23 (1998). The information section 1373 allows state and local employees to divulge deals with individuals, and reveals nothing about the state and local governments that they have not already officially acknowledged, namely their provision of services to residents and others regardless of their immigration status.

Public employees lose First Amendment protection when speaking in an official capacity.[17] The employee speech protected by section 1373 could be viewed as official speech, because the employee has access to such information only as a result of encountering it during their official duties.[18] As one state supreme court has postulated,

A persuasive argument can be made that when persons are required to give information which they would otherwise be entitled to keep to themselves, in order to secure a government benefit or perform an obligation to that government, those receiving that information waive the right to use it for any purpose except those which are authorized by the agency of government which exacted the information.[19]

Though a recent Supreme Court case, Lane v. Franks, 134 S.Ct. 2369 (2014), suggests otherwise, the case involved unusual circumstances — termination of a public employee for his testimony in a public corruption trial. And the Supreme Court’s more general statements that public employees’ intimate knowledge of agencies makes them particularly valuable contributors to public debate on issues are also inapposite.[20] Those statements have not been made in situations like the one addressed here, disclosure of personal information outside the context of public debate.

Other doctrines suggest the critical nature of senior government officials’ control over their subordinate’s actions. Though overruled with regard to generally applicable federal statutes, National League of Cities v. Usery, 426 U.S. 833, 845, 848 (1976), suggests that states have a substantial state interest in structuring public employment. Id. at 848. A state or locality’s effort to secure its employees’ allegiance and ensure that they protect confidential personal information warrant as much protection as a state or locality’s decisions regarding those employees’ wages and hours.

Cases embracing the unitary theory of the Executive Branch, like Printz v. United States and Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), similarly suggest the importance of subordinates’ accountability to senior officials.[21] Allowing the federal government to undermine state and local officials’ control over their subordinates would raise similar concerns. State and municipal executives’ authority over their employees and their concomitant electorally accountability for government employees’ actions is no less important than the President’s.

Even in terms of the accountability theory underlying the anti-commandeering doctrine itself, prohibiting states and municipalities’ exercise of authority over their own employee’s is problematic. Highly visible confrontations between elected state and municipal officials on one hand and federal officials on the other over federal information demands enhance the political protections of federalism. And by empowering low-level employees to act on their own, provisions like section 1373 deprive the state or local body politic of “the ultimate decision as to whether or not the State will” acceded to federal entreaties.[22]

The City of New York Court’s objection to the Koch Executive Order focused on the perceived City hostility to the federal government, reflected in a policy prohibiting release of information only to federal authorities.[23] The Court’s analysis suffers from three defects.

First, state refusal to share information because of its objection to federal policy is consistent with the tension between state and federal governments the Constitution’s framers envisioned. The Second Circuit posited that “[a] system of dual sovereignties cannot work without informed, extensive, and cooperative interaction of a voluntary nature between sovereign systems.” City of New York, 179 F.3d at 35. But the Framers also contemplated that the federal and state government would counterbalance each other to protect individual liberty.[24] Given the federal government’s special powers to threaten individual liberties, powers unavailable to private institutions, state and local governments may need to take actions uniquely targeting the federal government to properly acquit their counterweight role.

Second, state and local employees’ provision of information regarding immigration status to private or public entities is likely subject to implicit constraints on dissemination of information for purposes unrelated to government business (as well as general statutory constraints on disseminating confidential personal information within government files).

Third, focused state and local limitations upon divulging information to immigration authorities need not be viewed as an expression of animus. Focusing a non-disclosure policy on disclosure of personal information to a particular recipient is reasonable when individuals voluntarily providing information would be particularly likely to object to sharing the information with that recipient. Additionally, subordinate state and local officials will most likely feel justified in breaching an individual’s confidence when reporting the individual’s immigration status to the federal government, as opposed to some private entity or individual. Given the increased risk of confusion regarding the circumstances under which sharing personal information on immigration status with immigration officials is appropriate, a policy focused upon that question is reasonable.

Conclusion

Executive Order 13768’s provision regarding defunding states and localities that fail to comply with 8 U.S.C. §1373 rests on uncertain ground. Section 1373 probably violates the anti-commandeering doctrine and related federalism principles.

 

Bernard W. Bell is a Professor of Law and Herbert Hannoch Scholar at Rutgers Law School.

 

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[1] “Enhancing Public Safety in the Interior of the United States,” 82 Fed. Reg. 8799 (Jan. 25, 2017).

[2] In 2003 Mayor Michael R. Bloomberg issued a revised executive order restricting disclosure of a broader category of information. N.Y.C. Exec. Order 41, §1 (Sept. 17, 2003).

[3] Department of Health and Human Services, Records, Computers and the Rights of Citizens, Report of the Secretary’s Advisory Committee on Automated Personal Data Systems 80-81 (July, 1973)(hereinafter “Records, Computers and the Rights of Citizens”).

[4] Mark S. Wallace, Discovery of Government Documents and the Official Information Privilege, 76 Colum. L. Rev. 142, 149-52, 155-56 (1976); Communication from the Chief Justices Transmitting the Proposed Rules of Evidence, 98d Cong., 1st Sess., H. Doc. No. 98-46 78 (Feb. 5, 1973).

[5] Public access laws can be grounded other complementary principles, Bernard W. Bell, Entitlement to Public Records: Beyond Citizenship, 2015 Int’l J. on Open Gov’t 311 (Proceedings for the 10th International Symposium on the Law and Open Government (Paris, France), Les Editions IMODEV), accessible at http://ojs.imodev.org/index.php/RIGO/article/view/24.

[6] Hearings before a Subcommittee of the Committee on Government Operations, Federal Public Records Law, 89^th Cong., 1^st Sess. 5 (1965).

[7] 5 U.S.C. §§552(b)(6)(privacy), (b)(7)(C)(privacy); (b)(4)(proprietary information); (b)(7)(law enforcement records).

[8] 5 U.S.C. §552(b)(3).

[9] James T. O’Reilly, 3 Federal Information Disclosure §§27:15-17 (2016)(available on WESTLAW).

[10] Records, Computers and the Rights of Citizens at 41. So, for instance, the Privacy Act provides that individuals be informed of the routine use of their data and limits dissemination of data outside the routine use, and Health Insurance Portability and Accountability Act (“HIPAA”) regulations control secondary use of medical information. 5 U.S.C. §§552a(b)(3) & (e)(3); 45 C.F.R. §164.508(a).

[11] See, e.g., U.S. Dep’t of State v. Ray, 502 U.S. 164, 175–76 (1991).

[12] See David S. Rubenstein, & Pratheepan Gulasekaram, Immigration Exceptionalism (Aug. 2, 2016) (forthcoming 111 Nw. U. L. Rev.), accessible at https://ssrn.com/abstract=2730956.

[13] Accord, U.S. ex. rel. Touhy v. Ragan, 340 U.S. 462, 468 (1951).

[14] See, Executive Order 12600, §1, 52 Fed. Reg. 23781 (1987).

[15] Pickering v. Board of Educ., 391 U.S. 563, 568, 574-75 (1968); United States v. National Treasury Employees Union, 513 U.S. 454, 465-66 (1995). “The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.” Lane v. Franks, 134 S.Ct. 2369, 2377 (2014).

[16] Pickering, 391 U.S. at 572-73; Connick v. Myers, 461 U.S. 138, 147 (1983).

[17]Garcetti v. Ceballos 547 U.S. 410 (2006).

[18] Geoffrey R. Stone, Government Secrecy vs. Freedom of the Press, 1 Harv. L. & Pol’y Rev. 185, 190-92 (2007). Accord, Printz v. U.S., 521 U.S. at 932, n.17 (“The Brady Act does not merely require CLEOs to report information in their private possession. It requires them to provide information that belongs to the State and is available to them only in their official capacity.”)

[19] Rhinehart v. Seattle Times Co., 98 Wash.2d 226, 238 (1982), aff’d, Seattle Times Co. v. Rhinhart, 467 U.S. 20 (1984).

[20] Waters v. Churchill, 511 U.S. 661, 674 (1994) (plurality opinion); see, Pickering, 391 U.S. at 572.

[21] Printz, 521 U.S. at 922-23 (any congressional power to commandeer state officials would unduly infringe upon the President’s executive power); Free Enterprise Fund, 561 U.S. at 496, 498, 499 (double-layered tenure protection unconstitutional).

[22] See New York v. U.S., 505 U.S. at 168-69 (“By either of these methods, as by any other permissible method of encouraging a State to conform to federal policy choices, the residents of the State retain the ultimate decision as to whether or not the State will comply.”)

[23] Under Fourth Amendment doctrine, information exposed any other person or entity is no longer shielded by a “reasonable expectation of privacy.” See, Bernard W. Bell, Secrets & Lies: News Media and Law Enforcement Use of Deception as an Investigative Tool, 60 U. Pitt. L. Rev. 745, 762-73 (1999).

[24] Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)(“a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”); The Federalist No. 28, at 180-181 (Hamilton) & No. 51, at 323 (Madison) (C. Rossiter ed. 1961).