The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The City of Chicago has filed a lawsuit challenging the constitutionality of the Justice Department's new policy withholding federal law enfocement grants from "sanctuary cities"—jurisdictions that in some respects refuse to assist federal efforts to deport undocumented immigrants:
Chicago sued U.S. Attorney General Jeff Sessions over his threat to withhold federal funding from cities that don't cooperate with the Trump administration's crackdown on undocumented immigrants.
The Justice Department's decision to impose "sweeping conditions" on Chicago and other cities if they don't police federal immigration violations is "unauthorized and unconstitutional," the city claimed in a complaint filed Monday. The suit comes just days after the Justice Department released new conditions for cities to qualify for a grant that provides states and cities with funding for local law enforcement.
The new conditions "fly in the face of longstanding city policy that promotes cooperation between local law enforcement and immigrant communities," Chicago said in the complaint….
To qualify for the federal grant, called the Edward Byrne Memorial Justice Assistance Grant, cities and states are now barred from imposing restrictions on the sharing of local immigration status information with the U.S. government. They must also provide the Department of Homeland Security with unlimited access to police stations to interrogate those arrested, and give at least a 48-hour notice before the release of someone suspected of immigration violations.
Last year, Chicago received $2.3 million under the grant.
Scott Shackleford has a helpful discussion of the background of the lawsuit at the Reason website.
The immediate stakes in this case are modest. The Byrne grant is a relatively small program and the $2.3 million Chicago gets from it is a tiny fraction of the city's total $9.8 billion annual budget. But the broader issues raised by the case are extremely important. Attorney General Jeff Sessions and the Justice Department are trying to make an end run around both federalism and the separation of powers. I summarized the potential dangers here:
Longstanding Supreme Court precedent indicates that only Congress can impose conditions on grants given to states and localities, and that those conditions must be "unambiguously" stated in the text of the law "so that the States can knowingly decide whether or not to accept those funds." Neither compliance with Section 1373 nor the other two conditions the DOJ seeks to impose are included in the authorizing legislation for the Byrne grants…..
Should the administration manage to get away with this, it will set a dangerous precedent that goes far beyond the relatively small Byrne program and the specific issue of sanctuary cities. If the president can unilaterally add new conditions to one federal grant program, he can do the same thing with others. This would give presidents a massive club to coerce state and local governments on a wide range of issues….
Some conservatives may cheer when the current administration uses this tool against sanctuary cities. But they are likely to regret their enthusiasm if a liberal Democratic president uses the same tactic to force states to increase gun control, adopt a "common core" curriculum, or pursue liberal policies on transgender bathroom accommodations.
Allowing the executive to impose its own after-the-fact grant conditions also threatens the separation of powers. It goes a long way towards taking control over spending away from Congress and transferring it to the president. This, of course, violates the text of Article I of the Constitution, which clearly gives the power of the purse to the legislature, not the executive.
As conservatives often pointed out during the Obama Administration, the modern executive has already appropriated far too much power that more properly belongs to Congress or the states. It is dangerous to let it seize even more.
In its complaint, Chicago raises many of the same federalism and separation of powers issues as I did in my post. It also argues that 8 U.S.C. Section 1373, which the Justice Department policy requires grant recipients to follow, is unconstitutional because it violates the Tenth Amendment. I believe this contention is sound, for reasons I outlined here.
Chicago also argues that the Justice Department conditions violate the Fourth Amendment by requiring cities to detain people for more than 48 hours in cases where there is no "probable cause" indicating that a crime may have been committed. I leave that issue to commentators with greater expertise on the subject.
In January, President Trump issued an executive order that also sought to coerce sanctuary cities by withholding federal funds. That order had many of the same constitutional defects as the new Justice Department policy, and it was eventually invalidated by a federal court. Hopefully, the Justice Department policy will meet the same fate.
As Scott Shackleford notes, those who support Chicago's position in this lawsuit need not believe that it is a good idea for the city to continue to receive Byrne grants. They are often used for dubious purposes and end up subsidizing abusive police practices. Chicago is not the most attractive possible plaintiff for a case involving law enforcement grants. Under Mayor Rahm Emmanuel, the city's police department has been racked by scandals over excessive use of force by officers. More generally, it would be good if state and local governments reduced their dependence on federal grants, and raised more of their funds themselves. Such a shift would give them stronger incentives to adopt good policies and compete for "foot voters."
But it often happens that unappealing litigants nonetheless uphold important constitutional principles. For example, some of the Supreme Court's most important free speech decisions protected the rights of racists, communists, and others who were hardly exemplary champions of the Constitution. Whether or not the City of Chicago is a sympathetic plaintiff and whether or not the Byrne program is a good policy, the administration should not be allowed to use it to undermine constitutional federalism and the separation of powers.