Mayor Rahm Emanuel says Chicago will sue the Department of Justice over Attorney General Jeff Sessions' latest attempt to punish so-called sanctuary cities—jurisdictions that typically do not ask people in their custody or who use government services their citizenship status.
At stake are $2.3 million in grants used by Chicago police to purchase equipment—including tools and weapons used to militarize the force.
Last month the Department of Justice announced a new guidance requiring cities to comply with a federal law forbidding local rules that block communication with law enforcement or city officials about a person's immigration status. This isn't a new fight—the Department of Justice has been pushing cities to follow this regulation since Donald Trump took office. But the July guidance added two new rules, and it clearly described the carrot and stick the Justice Department wants to wield against cities.
First, it tells states, cities, and counties that they must allow immigration officials into their detention facilities if they're looking to determine the immigration status of anybody being held there. Second, it says jails and prisons must inform the Department of Homeland Security (DHS) 48 hours before releasing somebody if the DHS or Immigration and Customs Enforcement (ICE) has sent over a detainer order—a request that a local jail hold a deportable immigrant so that the feds can come take that person into custody.
Cities and states have been told they must comply with these regulations to maintain their funds from the Edward Byrne Memorial Justice Assistance Grants program. Chicago is suing to try to stop these new requirements. "The federal government should be working with cities to provide necessary resources to improve public safety, not concocting new schemes to reduce our crime fighting resources," Emanuel said in a statement.
Chicago's conflict with the feds is particularly notable because Chicago is one of the few places whose policies do in fact defy federal law on communication. (So is the surrounding Cook County.) When the Department of Justice began its crackdown under Trump, an awkward truth quickly became apparent: A "sanctuary city" is not inherently operating in violation of federal immigration law or defying the government. The Justice Department could identify fewer than 10 local governments that were actually defying the feds in any notable way.
But Chicago genuinely is one of those cities, so a challenge between them and the Department of Justice has broader implications. What are the limits of the federal government's ability to control what information states and cities provide to them?
President Trump's first attempt to use an executive order to force compliance from sanctuary cities ran aground in federal courts as an unconstitutional breach of separation of powers and the authorities of the states. Analyzing the new guidance over at the Washington Post, law professor and constitutional expert Ilya Somin says these new rules have the same problems:
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. Sessions and Trump may be at odds on other issues right now. But they are united in their desire to make up new grant conditions and impose them on states and localities after the fact.
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.That power might still be limited by the requirement that conditions be related to the purpose of the grant. But, given the existence of a vast array of federal grants for many different purposes, this would be only a modest constraint.
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.
Somin's example at the end isn't theoretical. Under President Barack Obama's administration, the Department of Justice and Department of Education attempted to block North Carolina from enacting a controversial law dictating which restrooms people used in government buildings. And the feds warned that grants could be withheld (but declined to do so while the courts were still tackling the matter) on the basis that the state was defying the administration's guidance that transgender students and employees must be accommodated.
It's worth wondering whether this push against sanctuary cities is mostly for show, given the limits of government power. Last week the Justice Department threatened four cities that they wouldn't be allowed to have access to a new grant program unless they proved they would comply with the guidance above. As the Los Angeles Times noted, none of the four cities who received the threatening letters even operate their own jails. They don't even have any control over whether local county-run detention facilities cooperate with ICE.
Also worth remembering: The Justice Department's methods of controlling city behavior might be unconstitutional, but you shouldn't confuse concern about that with support for the underlying grants themselves. The Intercept has a new report on Chicago's tendency to send SWAT teams to 911 calls for mental health–related matters. The funding that Emanuel is trying to protect gets used for some truly terrible practices that need to be reformed. But the Justice Department isn't interested in those problems.
UPDATE: Read the actual lawsuit here.