It’ll be struck down under the Tenth Amendment.

1. The Anti-Commandeering Doctrine and the Legal Status of § 1373 Before Murphy.—As expounded by the Supreme Court in Printz and New York, the anti-commandeering rule bars the “compelled enlistment of state executive officers for the administration of federal programs.” 174 Section 1373 attempts to circumvent this prohibition by forbidding higher-level state and local officials from mandating that lower-level ones refuse to help in enforcing federal policy. More specifically, it requires that “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.” 175

This convoluted structure potentially avoids constitutional problems. The law does not directly require state and local governments to turn over any information to the federal government. It merely bars them from instructing their subordinates to refuse such assistance. The final decision on whether to help or not, however, is presumably left to lower-level state and local government employees. This consideration is what led the Second Circuit to uphold the constitutionality of § 1373 against a challenge brought by the city government of then-New York City Mayor Rudolph Giuliani.176 Ironically, Giuliani is today serving as President Trump’s personal lawyer in his efforts to deal with legal issues arising from possible collusion with Russia during the 2016 election.177 The Second Circuit concluded that § 1373 does not qualify as commandeering because its requirements “do not directly compel states or localities to require or prohibit anything. Rather, they prohibit state and local governmental entities or officials only from directly restricting the voluntary exchange of immigration information with the INS.” 178

But the same principle that forbids direct commandeering also counts against the indirect approach adopted by § 1373. As Justice Antonin Scalia explained in his majority opinion in Printz, the purpose of the anti-commandeering doctrine is the “[p]reservation of the States as independent and autonomous political entities.” 179 That independence and autonomy is massively undermined if the federal government can take away the states’ power to decide what state and local officials may do while on the job. As Scalia put it in the same opinion, federal law violates the Tenth Amendment if it “requires [state employees] to provide information that belongs to the State and is available to them only in their official capacity.” 180 The same is true if, as in the case of § 1373, the federal government tries to prevent states from controlling their employees’ use of information that “is available to them only in their official capacity.”

To be sure, Scalia also noted that the statute at issue in Printz imposed investigative and reporting requirements on states,181 which are likely more onerous than the dictates of § 1373. But nothing in Scalia’s reasoning depends on the degree to which a statute undermines state autonomy or blocks states from controlling the flow of information acquired by state employees acting in “their official capacity.” The fact that a law imposes such requirements is itself sufficient to violate the anti-commandeering principle, even if some impositions of this type are more onerous than others.