Trump admin crackdown on sanctuary cities dealt another blow

Last week, the 7th Circuit Court of Appeals upheld a nationwide permanent injunction that prohibits the Department of Justice from withholding federal grants to police departments in jurisdictions with so-called “sanctuary city” policies.

The City of Chicago sued the Department of Justice last year over its threats to withhold or revoke federal grant funding under the Byrne Memorial Justice Assistance Grant Program for police departments in cities that it believes violate federal statue 8 USC 1373, which requires certain types of cooperation with federal immigration officials.  A district court found that in establishing its own conditions on federal grants, the DOJ:

  • took action that it was not authorized to do under the law authorizing the Byrne JAG grant program;
  • violated the Spending Clause, which states that only Congress can decide how federal funds shall be spent (unless Congress explicitly authorizes others to do so).

The Appeals Court affirmed the district court’s finding. In its ruling, it mocked the DOJ’s tortured reading of the official powers of the Assistant Attorney General, which says the AAG may:

exercise such other powers and functions as may be
vested in the Assistant Attorney General pursuant to this
chapter or by delegation of the Attorney General, including
placing special conditions on all grants, and determining
priority purposes for formula grants

The DOJ argued that this sentence gave the AAG broad authority to place conditions on grants; the appeals court was having none of this, and pointed out that a plain reading of the sentence would only allow the AAG to exercise such authority as was delegated from the Attorney General — and in this case the Attorney General has no such authority to delegate.

A second question in the ruling, as to whether the injunction should apply just to Chicago or should be nationwide (as the district court ruled), was more controversial. Generally federal courts (short of the Supreme Court) try not to issue nationwide injunctions, as they interfere with other federal courts’ ability to rule within their own jurisdiction and thus prevent wider discussion and a diversity of legal viewpoints on an issue. They do make exceptions, however, and this was one. The district court argued, and a majority on the Appeals Court affirmed, that since the issue was a narrow legal one and not subject to disputes of facts, the public interest would be ill-served by allowing it to be re-litigated repeatedly, and the nature of competition for limited Byrne JAG grants requires a level playing field, a nationwide injunction was warranted.

The Appeals Court Ruling has a tidy summary of the reason this case is so important:

Underlying this case are the sometimes‐clashing interests
between those of the federal government in enforcing its
laws and those of the state or local government in policing
and protecting its communities. Here, the federal executive
branch, in the person of the Attorney General, has concluded
that its interests will be best served by harnessing the local
authorities to identify and to make accessible persons in
their custody who are potentially in the country unlawfully,
so as to facilitate efficient civil immigration enforcement.
State and local law enforcement authorities, however, are
concerned with maximizing the safety and security of their
own communities. For some communities, those goals might
be maximized by cooperating with the federal immigration
authorities and assisting them in identifying and seizing undocumented individuals in their communities.
Other communities, such as the City in this case, however,
have determined that their local law enforcement efforts
are handcuffed by such unbounded cooperation with immigration
enforcement. They have concluded that persons who
are here unlawfully—or who have friends or family members
here unlawfully—might avoid contacting local police to
report crimes as a witness or a victim if they fear that reporting
will bring the scrutiny of the federal immigration authorities
to their home. In the case of domestic violence or crimes of that nature, the reluctance to report that is endemic
to such offenses could be magnified in communities where
reporting could turn a misdemeanor into a deportation. And
the failure to obtain that victim and witness cooperation
could both hinder law enforcement efforts and allow criminals
to freely target communities with a large undocumented
population, knowing that their crimes will be less likely
to be reported. Those competing interests, between the Attorney
General in pursuing civil immigration compliance
and the state and local law enforcement authorities in ensuring
the safety and security of their communities, are placed
into direct conflict because the Attorney General in requiring
these conditions forces the states and localities to devote resources
to achieving the federal immigration goals or forfeit
the funds. State and local law enforcement authorities are
thus placed in the unwinnable position of either losing
needed funding for law enforcement, or forgoing the relationships
with the immigrant communities that they deem
necessary for efficient law enforcement.

So the nationwide injunction still stands. That means that the letter that Mayor Durkan recently received from the DOJ threatening to withhold Byrne JAG funding over Seattle’s “welcoming city” policies arguably places the DOJ in contempt of court. Seattle City Attorney Pete Holmes has suggested that before; we’ll see if he and Durkan raise the issue in their response to the DOJ.

Earlier this month the DOJ’s war against sanctuary cities was dealt another blow. Last year, they rewrote the rules for another federal grant program, the COPS “community-oriented policing” grant program, In that case, they awarded “bonus points” for grant applicants that signed an official “Certification of Illegal Immigration Cooperation.”  The City of Los Angeles took them to court, and on April 11 a district court judge ruled against the DOJ using logic similar to the Seventh Circuit’s ruling. Unlike the Byrne program where Congress wrote specific rules about how the money should be divided up among states and cities, the COPS program is a head-to-head competition, so there was a much more straightforward rationale for issuing a nationwide injunction to ensure a level playing field: if other cities could still earn “bonus points” for cooperating with immigration officials, then Los Angeles would always be at a competitive disadvantage.

Since this is a bedrock principle of Attorney General Jeff Sessions’ tenure at the DOJ, one can assume that he will appeal both cases up to the Supreme Court. However, until a “circuit split” exists where different appeals courts issue conflicting rulings, it’s unclear that the Supreme Court will have any interest in taking up either case — or any of the other legal challenges to the Trump administration’s war against sanctuary cities. The Cities of San Francisco and Santa Clara have their own case, which is on appeal to the Ninth Circuit Court of Appeals. That court heard oral arguments earlier this month, and could rule at any time. In the meantime, Seattle’s own lawsuit against the Trump Administration is currently stayed until the Ninth Circuit rules on the Santa Clara/San Francisco case.

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