Of Sanctuaries and Sanctimony

Chicago: Protestors March Against Border Security Bill (Photo by Scott Olson/Getty Images)

Chicago: Protestors March Against Border Security Bill
(Photo by Scott Olson/Getty Images)

There has been a lot of agitation and, predictably, litigation over the President’s firm intent to whip “sanctuary cities” into line. The general tenor of the online commentary has been “Federalism Lives!” exultation, from Left (Jeffrey Rosen) to Libertarian (my colleague Ilya Somin, whose post links to like-minded writers). Courtesy of the Rehnquist-Roberts Court’s constitutional doctrines on federal funding and “commandeering,” the chorus chimes, the President cannot do what he has proposed to do by executive order—yank federal funds from non-cooperative jurisdictions.

For reasons I’ll explain at somewhat painful length, it’s not at all certain he can. The “let’s hear it for federalism” folks may yet be right—but for somewhat different reasons than they think.

The constitutional rules, emerging from Printz v. United States (1997) and other cases, are these:

Within its enumerated powers (a given, in the immigration context), the federal government can preempt states and local governments all day long. To “preempt” states means to prohibit them from doing this or that thing. However, the feds may not “commandeer” state or local legislatures or executives. To “commandeer” means to demand the performance of an affirmative act. If the feds want states to do stuff, they have to give them money, which the states may accept or decline as they see fit. The conditions attached to those grants must be clearly stated in the statute; must be somehow “germane” or related to the purposes of the grant; and must not, on the authority of NFIB v. Sebelius (2012), be unduly “coercive.”

What does this mean for “sanctuary” jurisdictions that fail to cooperate with federal authorities in enforcing immigration laws? Hard to say. It’s unclear what makes a jurisdiction a “sanctuary,” and non-cooperation can take many forms. Jurisdictions’ self-declaration has zero legal significance. Federal law does not define the term, and the executive order commits the designation to the Secretary of Homeland Security.

Cases involving sanctuary-type issues, however, make it clear that the anti-commandeering rule applies with full force: federal authorities may not tell the locals to do anything at all. For example, when the feds learn that local agencies have a deportable alien in their custody, they send a “detainer” to the local authorities, to the effect that they “shall maintain custody” for 48 hours to arrange a transfer. Is that an order or just a request? If it were the former, it would be unconstitutional “commandeering.” Hence it’s just a request, and the receipt of a federal “detainer” does not protect local authorities against lawsuits for wrongful detention and the like. The leading case, Galarza v. Szalczyk, (3d Cir. 2014), is a bit over the top, but the holding and reasoning are basically right.

If the feds can’t order the locals about, can they yank funding from non-cooperating jurisdictions? The executive order says “yes” and, read for all it is worth, threatens annihilation. It declares it the federal government’s policy to “ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Section 9 of the order says that “the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants.” Does this mean any federal grants? For good measure, the Office of Management and Budget is directed to compile information “on all Federal grant money that currently is received by any sanctuary jurisdiction.” (Both italics added.)

You fail to comply, the categorical language seems to suggest, there goes your Medicaid money. And education funds. And all else. On that reading, the order does indeed run afoul of the clear statement rule, and the germaneness requirement, and probably the anti-“coercion” principle as well. But that is not the only way to read the order; and its enforcement, in any case, is unlikely to play out in that fashion.

Unlike some other stuff with DJT’s signature, this particular order reads like it was actually reviewed by a lawyer. Thus, Section 9 applies “to the extent consistent with law,” presumably including extant case law on germaneness or “coercion.” The withholding of funds is committed to the AG’s and the Secretary’s discretion—but again, only consistent with law. Wherever the law has created entitlements for states (as for Medicaid), the discretion is withheld. So long as the AG and the Secretary stay within those bounds, it’s hard to see a constitutional problem.

What, though, of the “willful refus[al] to comply with 8 U.S.C. 1373”? Since you’ve been aching to know what that section of the U.S. Code says, here it is, in relevant part:

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not 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.

Ilya’s post argues that 8 U.S.C. 1373 is itself unconstitutional, as a “commandeering” provision. I very much doubt it. Putting aside that Printz explicitly reserved the question of whether the “commandeering” principle applies to mere information-sharing statutes, 1373 does not commandeer anything at all. It merely preempts certain laws and practices. That, at any rate, is the plain holding of a Second Circuit case decided shortly after Printz.

Nor is section 1373 a grant condition; it’s a free-standing prohibition, enforceable if need be by judicial injunctions. It is not easy to explain why the feds have to keep sending money, especially for law-enforcement purposes, to jurisdictions that ignore the prohibition. And suppose that a federal grant program states in bold, unmistakable letters that the recipient government shall comply with all applicable federal laws (those prohibiting the diversion of funds, say, or other forms of corruption). Is that clear enough, and sufficient to encompass 1373? I’d think so.

Let’s say the feds implement the order in the way just sketched. Locals refuse to cooperate or even to provide information. Feds say: fine. Here is a federal grant or other program to assist local law enforcement. It’s germane. It’s under our discretion and within our jurisdiction (the Justice Department or Homeland Security). It requires your compliance with federal (preemptive) law. And since you won’t cooperate in our enforcement efforts, we won’t cooperate in yours. The money is gone. Constitutional? Almost certainly, yes. Even under the hopelessly incoherent NFIB decision, it can’t be “coercive,” for there’s not enough money on the table.

What follows? For one thing, lawsuits filed by San Francisco and some other jurisdictions are, at best, wildly premature—“unripe,” as the lawyers say. That doesn’t necessarily mean they are stillborn. The Ninth Circuit’s recent travel ban decision strongly suggests that the ordinary rules governing preliminary injunctions, standing, statutory interpretation, and other lawyerly distractions no longer apply in these sorts of cases—perhaps because immigration is now, like climate change or gay marriage, one of those issues that “arouses the judicial libido,” to purloin a fine phrase of Justice Scalia’s. Or perhaps on account of a novel judicial maxim that anything coming out of this White House is presumptively unconstitutional. In that judicial world, anything can happen. Until it does, though, the lawsuits are best viewed as tarted-up press releases.

A more interesting and productive question is the locals’ likely response to a federal withholding of funds, within the constitutional bounds just sketched. For now, they are putting on a brave “We won’t care” face. The funds are just a small part of our budgets, and this is about principle! Maybe. But the withdrawals would hit individual agencies—sheriffs’ offices, prisons, the police—that depend on federal programs to fund everything from office parties to pensions; and all the action, as always, is on the margin. Wait for these agencies to squawk and scream. At that point, the sanctuary federalists will have to show their true colors. I’d look for them to fall back on: You feds can’t commandeer us. But you still owe us the money, and more of it. The Tenth Amendment, and all that.

I cheerfully join the sanctuaries’ anti-commandeering campaign on constitutional grounds (though not necessarily on policy grounds). If the feds want to enforce their laws, let them do it on their own, or else pay up. But the bargain has to go both ways. I’ll be equally supportive of yanking the money from non-compliant jurisdictions.

In truth, few of the Justice Department and Homeland Security “assistance” programs at issue should exist in the first place. They’ve militarized police departments, driven incarceration rates to insane levels, turbocharged law enforcement for pure profit, and distorted law-enforcement policies in all sorts of other ways. Both the feds and the locals like these “cooperative” arrangements on account of their shared interest in maximizing inputs, meaning money. Such a system is impervious to anything but a bone-rattling exogenous shock—like, perhaps, the contretemps over “sanctuaries,” which gives each side powerful ideological reasons to break off this incestuous relationship and thereby restore, willy-nilly, a piece of federalism.

What a wonderful world that would be.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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  1. nobody.really says

    Within its enumerated powers (a given, in the immigration context), the federal government can preempt states and local governments all day long. To “preempt” states means to prohibit them from doing this or that thing. However, the feds may not “commandeer” state or local legislatures or executives. To “commandeer” means to demand the performance of an affirmative act. If the feds want states to do stuff, they have to give them money, which the states may accept or decline as they see fit. The conditions attached to those grants must be clearly stated in the statute; must be somehow “germane” or related to the purposes of the grant; and must not, on the authority of NFIB v. Sebelius (2012), be unduly “coercive.”

    * * *

    I cheerfully join the sanctuaries’ anti-commandeering campaign on constitutional grounds (though not necessarily on policy grounds). If the feds want to enforce their laws, let them do it on their own, or else pay up.

    Agreed. But I still have questions.

    Who gets to speak for the state in deciding whether to take federal money to pursue federal purposes? After all, state legislators and governors pass laws and arrange for hiring staff to enforce those laws. Do individual staff members have the discretion to say that they’d rather spend their time pursuing federal projects? And if a superior branch of government tells the staff to NOT spend their time and resources in that manner—say, “Stop wasting time communicating with federal immigration officials and get back to the job the state hired you to do!”—does 8 U.S.C. 1373 give the federal government the power to supersede those orders? That sounds a lot like commandeering to me.

    Don’t state judges enforce federal law—for example, drug possession laws? Do those judges have the discretion to refuse? Does each judge get to exercise that discretion individually? Do they get to pick among the federal laws, deciding to enforce some and not others? If a state’s highest court reaches a decision on this matter, are subordinate courts bound by that decision?

    And do any of these principles also apply to tribunals operating outside of the judicial branch—for example, tribunals governed by administrative law judges?

    And finally, have people stopped using the section sign (§) in citations such as 8 U.S.C. 1373?

    But the bargain has to go both ways.

    Again, agreed. States should not be able to commandeer the feds, either. Only Congress can commandeer the feds. If Congress has created a program for disbursing funds based on some criteria, only Congress can change the criteria—not the Executive Branch, right?

    Alas, no. Congress has granted a tax exemption to educational institutions. The IRS adopted a rule limiting that exemption to educational institutions that don’t discriminate based on race. And in Bob Jones University v. United States (1983), the Supreme Court upheld that additional restriction, finding that Congress intended to include a common law condition of public interest along with the other conditions on granting the tax exemption. In effect, the Executive Branch is able to commandeer a policy laid down by Congress to pursue the Executive’s (perhaps laudable) objectives. Oy.

    Nor is section 1373 a grant condition; it’s a free-standing prohibition, enforceable if need be by judicial injunctions.

    Fine; so enforce it by injunction. That shouldn’t justify enforcing it by denying eligibility for receiving federal grants.

    It is not easy to explain why the feds have to keep sending money, especially for law-enforcement purposes, to jurisdictions that ignore the prohibition.

    Uh … maybe to enforce all those laws other than 8 U.S.C. 1373? The feds found that rationale compelling up until today, anyway.

    And suppose that a federal grant program states in bold, unmistakable letters that the recipient government shall comply with all applicable federal laws (those prohibiting the diversion of funds, say, or other forms of corruption). Is that clear enough, and sufficient to encompass 1373? I’d think so.

    Dunno. In Agency for International Development v. Alliance for Open Society International, Inc. (2013), the Supreme Court held that certain conditions on a grant, even when stated clearly, wrongfully intrude upon autonomy—in this case, on free speech rights. When the feds seek to insert themselves in between state employees and their employer, the Court might well regard this as going too far, too.

    • gabe says

      ” When the feds seek to insert themselves in between state employees and their employer, the Court might well regard this as going too far, too. ”

      I guess this would also cover the Obama Administrations interference with the Sovereign State of Arizona’s duly elected Governor and Representatives decision to prosecute all those violations of Congressionally approved laws on immigration and suing the State of Arizona in court for *enforcing* the laws.

      As Andy McCarthy points out, laws, or certain sections thereof, even if not rigorously enforced, are STILL laws. How is that a State may be sued for compliance WITH the law?

      Now, if you want an example of commandeering – this would be it!, wherein the Obama Federales command the Arizona officials to not enforce the law. funny, how this all works isn’t it?

      https://pjmedia.com/andrewmccarthy/2017/02/22/trumps-immigration-guidance-the-rule-of-law-returns/

      As you say, are the Judges or officials of the State to pick and choose which laws to enforce (yep, an allowance for *prosecutorial discretion* must be made).

      Then again, as I snarkily allude to below:

      Is the State to accept the Feds “mea culpa” on commandeering?
      Will the State accept the full version: “Mea culpa, mea culpa, mea MAXIMA culpa” – translated: We have sinned in commandeering your precious resources – so we are going to discontinue ALL aid and funding. after all, we want to avoid even the *occasion of sin* — So No soup for you!!!!!!

      I wonder will the State be so willing to pick and choose which commandeering they will permit? much as they appear willing to decide which laws they will enforce.

      You want the money – then enforce the laws.
      You don;t want to be commandeered, then don;t take the money! – not for drug enforcement, not for schools, not for highways, not for green energy, etc.

      • nobody.really says

        ” When the feds seek to insert themselves in between state employees and their employer, the Court might well regard this as going too far, too. ”

        I guess this would also cover the Obama Administrations interference with the Sovereign State of Arizona’s duly elected Governor and Representatives decision to prosecute all those violations of Congressionally approved laws on immigration and suing the State of Arizona in court for *enforcing* the laws.

        As Andy McCarthy points out, laws, or certain sections thereof, even if not rigorously enforced, are STILL laws. How is that a State may be sued for compliance WITH the law?

        Now, if you want an example of commandeering – this would be it!

        You are free to use language any way you choose. But for purposes of this discussion, it may behoove us to use the definition of commandeering set forth in Greve’s post, which I quote in the first paragraph of my comments. To repeat, federal pre-emption is not commandeering. Rather, when the feds seek to compel state agents to perform duties to achieve federal purposes, or to appropriate state assets for that end — THAT’s commandeering.

        So: Feds pre-empting Arizona officials regarding immigration policy–not commandeering. Feds compelling state officials to issue documents to immigrants identifying them as eligible for DOCA protections–commandeering.

        • gabe says

          Nobody:

          Yep, I took certain liberties with the term “commandeering” – but we are not in a court of law. A rhetorical device.

          Although, I suspect that the same may be said for your use of the term “preemption: to describe the Obama administration’s command that Arizona NOT enforce the law. Typically preemption applies to Federal preeminence over a duly enacted law NOT a directive to IGNORE that same duly enacted law.

  2. gabe says

    Ahhh! Only the *clever* skilled in the arcane methods / reasonings of the law can argue (albeit, successfully, perhaps?) , though they may be “Shocked, Shocked, I tell you” to find that commandeering is going on here when “goodies are withheld from a reluctant partner.

    Commandeering – Indeed, Sir! Then again, I suppose it depends on what side of the mirror one chooses to view the exchange (or lack thereof).

    Nope, I think, a really *clever* Federal advocate would argue to this effect.

    Yes, sir! We recognize the evils of commandeering. It is a sinful endeavor. In an effort to avoid this behavior, we are therefore, eliminating funds for X,Y,Z IN ORDER to avoid any allegations / suspicions of commandeering.
    We no longer ask you to respect our requests (demands?) AND we will not be providing you with any money.

    Now how can that be considered commandeering. We, Federales, are no longer asking you to do anything AND we won;t be providing you with any money. We shall do it ourselves and we will disassociate ourselves from your Civil Asset Forfeiture *grabbag* (denies due process, don;t you know), Weapons Modernization (commando style policing) Programs, etc. etc. Goodness gracious, just think of all the possibilities for “commandeering” going on here in your nice little State. No, Governor, we shall be withdrawing all funding as it would appear that they all seem to corrupt good governance.

    On a more serious note.

    Good piece by Greve and comments by nobody. They touch upon the complexities of the issue and attempt to navigate between good policy (whatever that may be) and good law (again, whatever that may be).

  3. Scott Amorian says

    Of course, once funds are no longer accepted by the district, the funds become available to pay for federal officers placed in the same district to do basically the same work. The locals lose control. The locals want their public to trust the police, not fear them. With the feds in control the local police retain their public trust, and the fear is transferred to the feds.

  4. Mike Greve says

    In response to nobody’s thoughtful question:

    The answer to the question about state judges is Testa v. Katt: they have to enforce federal law, provided they’re open and authorized to hear comparable state law claims. In that limited sense they can be “commandeered.” That’s generally inferred from the Supremacy Clause (“and the JUDGES in each state shall be bound thereby…”). There’s more to be said but that’s the gist of it. I’m not aware of a post-Printz case that presents the “state ALJ” question; I’d have to look that up. Maybe I’ll put the question on a FedCourts exam.

    The question about 1373 (I don’t know how to find the paragraph sign on a keyboard) is excellent, and difficult. The problem, I agree, is the “or official” language: it seems odd to say that no government agency can prohibit an individual official from supplying information. Presumably the decision ought to be made by an agency head, not by some wayward individual. On that account maybe you can call this the functional equivalent of commandeering; I think that’s Ilya’s position, or close to it. I’m uncomfortable with it, and I don’t think the courts are much into “functional equivalents” these days. I think the problem is the interference with the ordinary operation of state and local government. It’s real; I just can’t think of a way to couch tht as a viable claim. But maybe that’s just me.

    Correct: the “greater” power to sue for injunctive relief does not automatically entail the “lesser” power to withhold funds. The way I put it suggests that it does; my bad. What I meant to say is this: a lot of these grant programs afford DoJ and DHS an awful lot of discretion in setting eligibility criteria etc. And all federal grant programs are frameworks for bilateral bargains; and the parties often agree on conditions far removed from the statutory parameters. So there’s a lot of room for the feds to “enforce” 1373 that way. In that context, it seems odd for the junior governments to say: we won’t provide information, but they should give us money.

    FWIW: SF and other plaintiffs say they are complying with 1373, and they want declaratory relief to that effect. They also want relief from the statute, because it’s unconstitutional. Go figure.

    Thx for comments.

    • nobody.really says

      …Testa v. Katt….

      Awesome! I never took fed jur., so this distinction had been rattling around in the back of my mind for a while.

      The question about 1373 … is … difficult. [I]t seems odd to say that no government agency can prohibit an individual official from supplying information. Presumably the decision ought to be made by an agency head, not by some wayward individual. On that account maybe you can call this the functional equivalent of commandeering….

      I’m not sure that really gets to the crux of the problem. Even if we’re talking about the head of the agency, if the state legislature creates an agency and appropriates funds solely to do X, can some federal agent exercise her discretion to insist that the head of the agency appropriate agency resources for the purpose of exchanging data with her?

      Consider two scenarios: 1. The agency head simply declines to cooperate, citing the desire to focus on his statutory purposes. 2. The state legislature expressly forbids sharing of information. If we conclude that the legislative prohibition under Scenario 2 is preempted, that scenario simply becomes Scenario 1. And under Scenario 1, it is unclear to me that the feds can commandeer agency cooperation.

      Perhaps the agency could be barred from discriminating in how it disseminates info—that is, the agency must provide the data to the feds on the same terms that it provides it to similarly situated parties. And to the extent that an agency or official receives communications (mail), the agency or official could not seek to bar the feds from sending them communications. But if an agency does not otherwise engage in the practice of disseminating info on people’s citizenship or immigration status, then I don’t see how 8 U.S.C. 1373 would compel them to do so—or to bar the legislature from barring state employees from wasting government resources on tasks unrelated to their legislatively assigned duties.

      SF and other plaintiffs say they are complying with 1373, and they want declaratory relief to that effect. They also want relief from the statute, because it’s unconstitutional. Go figure.

      Given my analysis, I see no conflict in that posture.

      [I]n Bob Jones University v. United States (1983), the Supreme Court upheld that additional restriction, finding that Congress intended to include a common law condition of public interest along with the other conditions on granting the tax exemption. In effect, the Executive Branch is able to commandeer a policy laid down by Congress to pursue the Executive’s (perhaps laudable) objectives. Oy.

      [A] lot of these grant programs afford DoJ and DHS an awful lot of discretion in setting eligibility criteria etc. And all federal grant programs are frameworks for bilateral bargains; and the parties often agree on conditions far removed from the statutory parameters. So there’s a lot of room for the feds to “enforce” 1373 that way. In that context, it seems odd for the junior governments to say: we won’t provide information, but they should give us money.

      Ok, I guess we’re reaching the limits of our knowledge of Trump’s intentions.

      There’s a distinction between entitlements and competitions. The Bob Jones case involved an agency withholding a congressionally defined entitlement on the basis of arguably unrelated criteria. (To be fair, the Court did not say that agencies get to exercise unbridled discretion; rather, the Court said that the agency was imposing a congressionally approved, if unstated, additional criterion. So that’s some constraint, I guess.)

      In contrast, I sense that Greve is talking about competitions, which necessarily involve agencies exercising judgment about which applications are the best. I can’t say that I know a lot about the nitty-gritty. But it surprises me that as a matter of law we would acknowledge that agencies can exercise unbridled discretion in awarding grants. I would generally think that the grant-makers would have to at least purport to make their awards based on the statutorily prescribed criteria. And having done so, it would be challenging to later withhold the award based on unrelated criteria.

      I think of various regulatory agencies that must pass judgment on proposed mergers of firms within their jurisdiction. These agencies can withhold approval until the firms agree to provisions unrelated to the merits of the mergers. I generally regard this practice as an abuse of discretion—for what it’s worth.

      In short, we’re observing a junior government saying, We won’t provide information because we are not obligated to do so, and you can’t otherwise commandeer our cooperation. And you should give us money because we best fulfill the relevant criteria for disbursing the money–even if we fail to fulfill some unrelated criteria.

      • gabe says

        Nobody:

        Apparently, it is not only the readers of LLB that value highly the opinions of both yourself and Michael Greve but also the Governor of the State of Washington, who is reported to have issued an executive order (Ok, a little different than a Legislative authorization) that will forbid any State employee from providing information to the Federales or otherwise cooperating with them on matters of immigration.

        This promises to be fun.

        Of course he did not simultaneously say that he no longer wants Federal money for law enforcement efforts, etc.

        And this report follows closely upon a report in the previous day’s edition of the local ragsheet, The Seattle Times, that “Gov. Jay Inslee is being mentioned for the Presidency.” (Hmmm! By whom, one wonders?)

        Go figure, indeed!

        BTW: You do raise a very interesting question: re: *discrimination* related to the distribution of certain demographic information.

        I wonder, can the Federal Government assert a claim of discrimination against a Sovereign State?
        Can it prevail? or in other words, can a State be said to be guilty of discrimination against the Federal Government?

        Even funnier: Could the Federales posit standing based upon the very argument(s) that the States of Washington and Minnesota employed in the case before Judge Robart? (Yeah, well you see your Honor, this willful failure to provide information may very well affect many of our Federal Citizens and many of the Corporations of this country; not to mention some of the usual refrains of national security, and will cause additional expenses and possible loss of revenue).

        Could be interesting.

  5. mike greve says

    I don’t mean to turn this into AdLaw/FedCourts esoterics, but:

    Bob Jones has very little to do with this; the question is what the feds can do to states (not some private outfit).

    nobody’s scenarios are genuinely interesting and worth thinking about. But the formalist in me continues to think it’s not a true commandeering problem. The best argument on the states’ side may be Gregory v. Ashcroft (1991) (clear statement requirement for federal statutes that threaten to upset the “usual balance” of federalism). I happen to dislike that canon but if I were a sanctuary jurisdiction, that’s where I’d put my money.

    It may be surprising that we allow “unbridled discretion” with respect to non-entitlement funding programs; shouldn’t that at least be subject to review for abuse of discretion? Answer, no. Committed to agency discretion by law, and therefore unreviewable. Lincoln v. Vigil, 508 U.S. 182 (1993). Unanimous; never questioned (I’ pretty sure).

    Finally: I’m no CivPro expert but declaratory judgment actions are designed to get you out of a pickle: you suffer losses whether you perform (say, on a contract) or not. In addition the threat must be imminent, and it must be the case that there’s no adequate remedy at law. I don’t begin to see how any of that is true here.

    To revert to my original(ly intended) point: everything here hangs on nuances, not on any grand proclamations or first-order principles. If the administration and the courts could remain mindful of that, that would be progress.

    • gabe says

      Prof. Grevbe:

      May I ask a question (or two):

      1) Are you saying that the Court should not seek to “constitutionalize” these issues, or in other words, they should recognize the nuances and attempt to limit their outcome(s) to the case / controversy at issue.
      2) Is it possible that the Court stepped on it *big time* with their various commandeering decisions? Is a State not susceptible to simple contract claims?

      Seems to me that there is a heck of a lot that can be construed as commandeering by a certain judicial mindset.

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