By: Sam Lohner
Published: October 29, 2025
The Trump administration continues to escalate its aggressive policy towards immigrants in the United States. However, there are real constitutional problems with the policies his administration is attempting to enact. The federal government may govern its citizens, but it may not coerce the states into carrying out the Trump administration’s political agenda.[1] Therefore, Executive Orders 14159 and 14287 are coercive and constitute an exertion of authority which does not belong to the President.
Executive Order 14159
Many of President Trump’s campaign promises centered on vastly increasing deportations of “illegal immigrants”. On his first day in office, he signed Executive Order (“EO”) 14159.[2] Section 17 of the EO, titled “Sanctuary Jurisdictions”, stated that the Attorney General (“AG”) and Secretary of Homeland Security (“DHS”) shall “undertake any lawful actions to ensure that so-called ‘sanctuary’ jurisdictions . . . do not receive access to Federal funds . . . [and] undertake any other lawful actions, criminal or civil, that they deem warranted based on any such jurisdiction’s practices that interfere with the enforcement of Federal law.”[3] Section 18 of the EO called on the DHS Secretary to provide state and local law enforcement with “information necessary to fulfill law enforcement, citizenship, or immigration status verification requirements.”[4] The President does not have the authority to require that state officials carry out this policy.[5]
EO 14159 also highlighted Section 287(g) of the Immigration and Nationality Act.[6] Agreements with DHS and law enforcement entities, originally authorized in 1996 by Section 287(g), authorize state and local law enforcement officials to perform functions of federal immigration enforcement.[7] With a 287(g) agreement, law enforcement officers are authorized to screen detained people for immigration violations, comply with ICE warrants on immigrants, or investigate people’s immigration status during routine police duties.[8] Between January and May of this year, the number of these agreements more than quadrupled.[9] 287(g) agreements delegate much of federal agencies’ work to local law enforcement, which allows federal resources to extend further by using state resources for some tasks. Therefore, 287(g) agreements may strain state and local governments’ resources, particularly when training officers to participate in the program.[10] These agreements can make communities less safe because migrants are less likely to report crimes they may experience in jurisdictions with 287(g) agreements.[11] Accordingly, many jurisdictions do not participate in 287(g) agreements and may even identify themselves as “sanctuary jurisdictions” to signal they are a safe reporting space to residents who may be victims of crime but potentially afraid to report their experience for fear of arrest for an immigration-related offense.[12]
Executive Order 14287
President Trump signed EO 14287 on April 28, 2025, which asserted that “Federal supremacy with respect to immigration, national security, and foreign policy is axiomatic.”[13] This line is problematic because federal powers concerning immigration are not absolute.[14] Federal powers relating to immigration are “[not] expressly affirmed by the Constitution,” though it is implied as “necessary and proper,” as a function of sovereignty.[15] Immigration is not a purely international affairs matter.[16] The deportation of migrants that are currently in the United States, especially those pursuing asylum in accordance with existing legal pathways, is also a domestic matter. Accordingly, it does not fall solely within the federal government’s discretion.[17]
EO 14287 also required the AG and DHS Secretary to generate a list of sanctuary jurisdictions, which it defines as “states and local jurisdictions that obstruct the enforcement of federal immigration laws,” publish the list, and notify the jurisdictions.[18] The EO then called on the Director of the Office of Management and Budget to oversee the suspension or termination of federal funds to the list of sanctuary jurisdictions, and authorized the AG and DHS Secretary to “pursue all necessary legal remedies and enforcement measures.”[19]
When the DHS published a list of “sanctuary jurisdictions” in accordance with EO 14287—which would be subject to retaliatory measures—the list was met with widespread criticism and quickly removed from the DHS website.[20] Along with the expected criticism from self-proclaimed sanctuary jurisdiction officials, there was backlash from jurisdictions seemingly included by mistake.[21] Officials in one rural, Trump-supporting county included on the list theorized they had been included by mistake because they voted to become a “Second Amendment Sanctuary County.”[22] Huntington Beach, California was also included on the list despite filing a lawsuit to challenge California’s sanctuary law and declaring themselves a “non-sanctuary city.”[23] The list contained misspellings and lacked any information about the criteria used to determine what made a jurisdiction a “sanctuary jurisdiction.”[24] The definition provided in the EO was incredibly broad and vague, leaving much discretion to the AG and DHS Secretary.[25]
“Sanctuary Jurisdiction” Response
A lawsuit has been filed opposing the EO’s threat to revoke federal funding from sanctuary jurisdictions.[26] Following the first EO, San Francisco reprised their complaints against a similar EO from Trump’s first term.[27] Twenty city and county governments joined San Francisco in the suit against the Trump administration. [28]The alleged sanctuary jurisdictions filed a complaint for declaratory and injunctive relief on February 7, 2025, and moved for a preliminary injunction.[29] The complaint referenced San Francisco’s previous successful suits during the President’s previous term, in response to EO 13768, EO 14159’s predecessor, in which the Trump administration made similar attempts to withhold federal funds from “sanctuary jurisdictions.” [30] In their complaint, the jurisdictions argued that sanctuary policies, by which local governments “declin[e] to provide local resources to assist with all federal immigration initiatives, commands, and requests” or provide non-immigration status information to federal authorities, do not violate federal law.[31] The judge granted the preliminary injunction on April 24, 2025.[32] The Trump Administration filed a notice of interlocutory appeal to the Ninth Circuit on June 20.[33]
As of July 8, 2025, thirty-four more localities joined the lawsuit following their inclusion on the disastrous “sanctuary jurisdiction” list. [34]The Second Amended Complaint details the list and its removal.[35] It also lists further instances of implementation of the directive to freeze funds by various federal agencies and departments since the initial time of filing.[36] The Plaintiffs argue that the administration’s actions violate the Tenth Amendment under the anticommandeering doctrine.[37] They further assert that attempts by the executive branch to restrict funds to sanctuary jurisdictions violates the separation of powers and the spending clause, as these restrictions may only be carried out by Congress and are coercive.[38] The complaint also argues that the EOs were so vague that they violated due process.[39] Finally, the plaintiffs state that the President violated appropriations law by withholding already-appropriated funding without seeking Congressional approval.[40]
Anticommandeering Doctrine
Despite the Trump administration’s assertions otherwise, the Supremacy Clause does not allow for commandeering of state government in furtherance of the current administration’s political agenda.[41] The Supreme Court has held that the federal government cannot force state officers to carry out federal mandates.[42] The federal government may directly govern individuals, but not states, and is limited to offering noncoercive incentives to participate in federal programs through funding authorized by Congress.[43] More recently, the U.S. Supreme Court held that Congress has limited influence over the actions of state legislatures.[44] The existence of 287(g) programs is not inherently coercive. However, jurisdictions are being threatened to participate in these programs with threats to cut unrelated federal funds which support vital state programs.[45] Under the Trump administration EOs, declarations that a state or local government is a “sanctuary jurisdiction” may also make that jurisdiction a target for federal funding cuts.[46] These threats fly in the face of the reasoning of Printz v. United States and the anticommandeering doctrine.[47] In short, the Trump administration EOs are unconstitutional.
As these cases work their way through the justice system, it is imperative that courts recognize the importance of the anticommandeering doctrine. These EOs commandeer state governments to carry out the work of federal agencies. Courts must take a stand and find that the vagueness of these EOs, while problematic, is not the core of the issue.[48] The real threat that EOs 14159 and 14287 pose is to the powers the United States Constitution reserves to the states.[49]
[1] See U.S. Const. amend. X (any powers not expressly delegated to the federal government are reserved for the states and individuals); New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (Brandeis, J., dissenting) (effusing the significance of states acting as laboratories of democracy).
[2] Exec. Order No. 14,159, 90 Fed. Reg. 8443 (2025).
[3] Id. at 8446.
[4] Id.
[5] See U.S. Const. amend. X; Printz v. United States, 521 U.S. 898, 925 (1997) (“Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs”).
[6] Exec. Order No. 14,159, 90 Fed. Reg. at 8445.
[7] See Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigration and Customs Enforcement (last visited July 11, 2025, 3:38 PM), https://www.ice.gov/identify-and-arrest/287g [hereinafter Delegation of Immigration Authority Section 287(g)]; Gisela Salomon & Rebecca Santana, The Revival of an Old Program Delegates Trump Immigration Enforcement to Local Police, The Associated Press (May 20, 2025, 5:02 PM), https://apnews.com/article/287-g-agreements-immigration-law-enforcement-trump-migration-arrests-2a5673cd6c922edd597cb31b532a6b6d.
[8] Delegation of Immigration Authority Section 287(g), supra note 7.
[9] Salomon, supra note 7.
[10] See id. (expanding 287(g) agreements to reach the target goal of deporting roughly 11 million people); Lawsuit Protecting Sanctuary Jurisdictions from Illegal Federal Overreach Grows to 50 Local Governments, City Attorney of San Francisco (July 21, 2025, 10:21 PM), https://sfcityattorney.org/2025/07/09/lawsuit-protecting-sanctuary-jurisdictions-from-illegal-federal-overreach-grows-to-50-local-governments/.
[11] See Salomon, supra note 7 (“where 287(g) agreements are in place, people in the country illegally are less likely to reach out to law enforcement authorities…for fear that authorities will turn around and arrest them instead).
[12] Ximena Bustillo, Homeland Security Pulls Down List of ‘Sanctuary’ Cities and Counties After Backlash, NPR (June 2, 2025, 4:30 PM), https://www.npr.org/2025/06/02/nx-s1-5421232/homeland-security-sanctuary-cities-immigration (defining “sanctuary jurisdictions” as jurisdictions which, “prohibit local law enforcement from assisting federal immigration officials on immigration-related operations”).
[13] Exec. Order 14,287, 90 Fed. Reg. 18765 (2025).
[14] Cf. Fong Yue Ting v. United States, 149 U.S. 698, 723 (qualifying federal power over immigration by holding that the federal government has the authority to expel migrants who have taken no steps to become citizens).
[15] United States v. Curtiss-Wright, 299 U.S. 304, 318; U.S. Const. art. 1, § 8, cl. 18.
[16] See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 157 (1993) (noting the Attorney General has limited statutory authority to dictate domestic removal procedures).
[17] See Curtiss-Wright, 299 U.S. at 319 (“[F]ederal power over external affairs [is] in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited”).
[18] Exec Order No. 14,287, 90 Fed. Reg. at 18761.
[19] Id. at 18762.
[20] E.g., Molly Ashford, 10 Rural Nebraska Counties Ended Up on a Federal ‘Sanctuary Jurisdiction’ List. State and Local Officials Say It’s a Mistake, Nebraska Public Media (May 30, 2025, 4:00 PM), https://nebraskapublicmedia.org/en/news/news-articles/nebraska-counties-erroneously-added-to-sanctuary-list/; List of ‘Sanctuary Jurisdictions’ Removed from US Government Website Following Criticism, The Associated Press (June 1, 2025, 6:41 PM), https://apnews.com/article/immigration-sanctuary-jurisdictions-list-a372c7501746e4f2b7e117ba22ebccac [hereinafter List of ‘Sanctuary Jurisdictions’ Removed]; Ximena Bustillo, Homeland Security Pulls Down List of ‘Sanctuary’ Cities and Counties After Backlash, NPR (June 2, 2025, 4:30 PM), https://www.npr.org/2025/06/02/nx-s1-5421232/homeland-security-sanctuary-cities-immigration.
[21] See List of ‘Sanctuary Jurisdictions’ Removed, supra note 20 (“[t]he misunderstanding appears to rise from the fact that these counties do not maintain detention facilities…[and] had no communication with the Department of Homeland Security prior to the list being published.”).
[22] Id.
[23] Id.; see also Press Release, Dep’t of Just. Off. of Pub. Affs., Justice Department Files Statement of Interest in Support of City of Huntington Beach Lawsuit Against Unconstitutional California Immigration Law (June 17, 2025) (on file with author) (describing DOJ involvement in case).
[24]See List of ‘Sanctuary Jurisdictions’ Removed, supra note 20; Bustillo, supra note 12.
[25] See Exec. Order 14,287, 90 Fed. Reg. at 18761; see also Bustillo, supra note 12 (discussing lack of transparency in selection criteria for jurisdictions on the published list pursuant to EO 14287).
[26] See generally Compl. For Declaratory & Injunctive Relief ¶ 3, City & Cnty. of San Francisco v. Trump, No. 25-1350 (N.D. Cal. Feb. 7, 2025).
[27] Id. at ¶¶ 1-2.
[28] Id. at ¶¶ 12-16.
[29] Id. at ¶¶ 6-8.
[30] Id. at ¶¶ 61–62; e.g., City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1235 (9th Cir. 2019); City & Cnty. of San Francisco v. Barr, 965 F.3d 753, 757 (9th Cir. 2020); City & Cnty. of San Francisco v. Garland, 42 F.4th 1078, 1084 (9th Cir. 2022).
[31] Compl. ¶¶ 78–83.
[32] City & Cnty. of San Francisco v. Trump, 779 F. Supp. 1077, 1083 (N.D. Cal. 2025).
[33] City & Cnty. of San Francisco v. Trump, No. 25-cv-01350-WHO, 2025 U.S. Dist. LEXIS 1507060, at *13-14 (N.D. Cal. Aug. 5, 2025).
[34] Id. at *9.
[35] 2d Am. Compl. ¶ 394.
[36] Id. at ¶¶ 393–99.
[37] Id. at ¶¶ 401–13 (citing U.S. Const. amend. X; Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992); Murphy v. NCAA, 584 U.S. 453 (2018)).
[38] Id. at ¶¶ 414–27 (citing U.S. Const. art. I, § 8; U.S. Const. art. II, § 3, cl. 5; Clinton v. City of New York, 524 U.S. 417, 447 (1998); NFIB v. Sebelius, 567 U.S. 519, 579, 584 (2012); South Dakota v. Dole, 483 U.S. 203, 208-210)).
[39] Id. at ¶¶ 428–32 (citing U.S. Const. amend. V; United States v. Williams, 553 U.S. 285, 304 (2008)).
[40] Id. at ¶¶ 437–42 (citing 2 U.S.C. §§ 622(2)(A)(i), 681, 683-85; 31 U.S.C. §§ 1301(a), 1341(a)(1)(A)).
[41] Printz, 521 U.S. at 929.
[42] Id. at 925.
[43] See NFIB v. Sebelius, 567 U.S. 519, 579-80 (2012); U.S. Const. art. I, § 8, cl. 1.
[44] Cf. Murphy v. NCAA, 584 U.S. 453, 471 (2018) (striking down a federal law which barred state legislatures from allowing sports gambling).
[45] Compl. at ¶ 154.
[46] List of ‘Sanctuary Jurisdictions’ Removed, supra note 20.
[47] Printz, 521 U.S. at 929.
[48] 2d Amended Complaint ¶¶ 428–32.
[49] See U.S. Const. amend. X (“[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”).