Ed. Note: The following post was written last week and, in a moment of weakness, submitted to the New York Times as an op-ed. Yesterday, it was politely declined. 

As Adriene Holder, the Attorney-in-Charge of the Legal Aid Society’s civil practice, said, “Mayor de Blasio is not the court, judge and jury.” Where does he come off deciding that there are 170 offenses that he deems too evil, too icky, too unworthy, for a piece of the $16 million he has set aside in his budget to provide free lawyers for immigrants facing deportation?

These immigrants may not the same ones you’re hearing about, as they aren’t necessarily undocumented. These may be completely lawful immigrants, well-documented, here since they were six months old. They may have families and businesses. They may pay taxes and hold green cards, allowing them to work like anyone else. They aren’t the illegals Trump wants to rid from our midst.

And yet, they aren’t worthy of Bill de Blasio’s largesse. As commissioner of the Mayor’s Office of Immigrant Affairs, Nisha Agarwal, spun it:

“And so the importance is, how do we prioritize the use of city dollars to provide resources to the most number of people who have the strongest cases moving forward,” she said. “That’s really the thinking about what’s going on here. It’s not about who we exclude, it’s about who we include.”

Rhetorical shift aside, someone who’s read the equal protection clause might take issue with Agarwal’s way of thinking. No matter which way you pitch it, it’s hard to favor some and exclude others in a constitutionally palatable way.

Yet, that’s a higher-order problem, only reached after a fairly lower-level, banal question can be answered. By what authority does the Mayor of New York get to take tax money from his constituents and give it away as a gift? There is no question that the mayor, the city, has no duty to provide free representation to individuals subject to federal deportation proceedings. There is no immigration Gideon, not that we’ve done Gideon well enough for those for whom indigent representation is an actual right. But deportation? Nope. They got nothing.

The New York Constitution, Article VIII, Section 1, prohibits New York City from giving gifts to, or in aid of, any individual. Where there is no duty to expend tax money, and yet the money is spent for an unenumerated purpose as a matter of noblesse oblige, or more accurately, anti-Trump charity, is it not a gift? And if so, then it’s in violation of the New York State Constitution.

While the Constitution allows for charity to the needy, does a class of people characterized by their being subject to deportation under federal law enjoy protection under the enumerated exception?

Subject to the limitations on indebtedness and taxation applying to any county, city, town or village nothing in this constitution contained shall prevent a county, city or town from making such provision for the aid, care and support of the needy as may be authorized by law, nor prevent any such county, city or town from providing for the care, support, maintenance and secular education of inmates of orphan asylums, homes for dependent children or correctional institutions and of children placed in family homes by authorized agencies, whether under public or private control, or from providing health and welfare services for all children[.]

While the “aid, care and support of the needy” falls outside the realm of a gift, the fact that it’s specifically excepted suggests that the aid of free representation to undocumented immigrants on the taxpayer’s dole is very much a prohibited gift. Expressio unius est exclusio alterius. They set forth what was allowable, thus demonstrating that anything unmentioned was prohibited.

Whether there should be a right to indigent representation to anyone subject to federal deportation is a fair question, though some may wonder whether the answer should come after we’ve fulfilled the extant duty under Gideon v. Wainwright to provide a defense to the prosecuted poor. But until such a duty is created, whether by legislation or by constitutional mandate, Mayor de Blasio’s grace to some is a gift too far. As much as one opposed the administration’s efforts to deport, there is no solution to be found by a gift in violation of New York’s Constitution.

Post Script: For many, the only question asked is whether the outcome aligns with their sensibilities. At the moment, immigrants are a hot topic, even though the same people who cry and scream about their humanity never gave a damn about the same misery before. Fair enough. People are full of shit that way, and if something isn’t on their social justice radar, it doesn’t exist.

But few consider whether the authority exists for different levels or branches of government to get involved with politically fashionable issues, even though they ostensibly have nothing to do with them. The authority of New York City to confiscate money from its residents is based on the limits of its lawful authority to spend that money. It can’t use tax monies to buy de Blasio’s second cousin a new house, no matter how badly she needs one or what a great person she is. Not even if the people of New York City universally agree that she should have a new house. It’s just not a purpose for which taxes can be used because it would be a gift, no matter what.

Much as you may feel that aliens subject to deportation deserve to be represented by counsel, it’s not within the scope of the City’s authority to use tax money to pay for it. Well-intended graft, like honest graft, is still graft. De Blasio has no authority to gift money to the social justice victim du jour, and later, when the money isn’t there to be used for a purpose for which the city has authority, it will be too late to look back and wonder why nobody noticed that he gave it away.