The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When it comes to litigation over its efforts to deny federal funds to sanctuary cities, the Trump administration is losing so much it may get tired of losing. Earlier this week, it a federal district court ruled that the President's executive order attempting deny federal funds to sanctuary cities was unconstitutional. In September, another federal court ruling blocked two of the three immigration-related conditions Attorney General Jeff Sessions sought to impose on state and local governments receiving Edward Byrne law enforcement grants. The administration also suffered a defeat in a November 15 ruling in Philadelphia v. Sessions, in which federal district Judge Michael Baylson issued an temporary injunction blocking enforcement of all three parts of the Sessions policy against the City of Philadelphia.
These defeats for the administration are good news for sanctuary cities. But, even more importantly, they are victories for federalism and separation of powers, for reasons I summarized 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…."
Should the administration manage to get away with [its efforts to impose new grant conditions], it will set a dangerous precedent that goes far beyond… 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.
The Sessions policy at issue in the Philadephia case tries to impose three conditions on state and local governments receiving federal Edward Byrne Memorial Justice Assistant Grant funds:
1. Prove compliance with federal law that bars cities or states from restricting communications between the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) about the immigration or citizenship status of a person in custody.
2. Allow DHS officials access into any detention facility to determine the immigration status of any aliens being held.
3. Give DHS 48 hours' notice before a jail or prison releases a person when DHS has sent over a detention request, so the feds can arrange to take custody of the alien after he or she is released.
In a long and detailed opinion, Judge Baylson rejected all three conditions on largely the same basis as Judge Harry D. Leinenweber rejected the second and third in City of Chicago v. Sessions: that the conditions were never authorized by Congress. As I explained in an earlier post on Sessions' policy, the Supreme Court has repeatedly ruled that only Congress can impose conditions on federal grants to state and local governments, and those conditions must be unambiguously specified in advance, in the text of the relevant law. None of the three Sessions conditions were authorized by Congress. Therefore, the executive's attempt to impose them after the fact is an egregious violation of both federalism and separation of powers. Judge Baylson concludes that, because it lacks congressional authorization, the Sessions policy likely violates both the Constitution and the Administrative Procedure Act of 1946.
In Chicago v. Sessions, the court upheld the first condition—which requires grant recipients to comply w with 8 U.S.C. Section 1373, which mandates 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." Judge Leinenweber ruled that this condition is legal because the authorizing statute requires Byrne grant recipients to "comply with all provisions of this part and all other applicable Federal laws" (emphasis added). In Philadelphia v. Sessions, Judge Baylson rejects this argument because "the much debated phrase 'all other applicable Federal laws' is susceptible to a number of reasonable readings" and thus "this malleable language does not provide the clear notice that would be needed to attach such a condition" to a state or local government's receipt of federal funds.I think Judge Baylson is clearly right on this point for reasons I outlined in detail here.
Judge Baylson further ruled that the Sessions policy violate the Supreme Court's requirement that conditions imposed on state and local governments must be related to the purpose of the grant program in question. He concludes that immigration enforcement is sufficiently distinct from the criminal justice purposes of the Byrne program that conditions related to the former cannot be imposed on a program meant solely to promote the latter.
Baylson also differs with Chicago v. Sessions on another important issue: whether Section 1373 is unconstitutional because it seeks to "commandeer" state and local governments in violation of the Tenth Amendment. Judge Leinenweber had to address this "unique and novel constitutional question" because he (wrongly) concluded that Congress had authorized Sessions to require compliance with Section 1373 as a condition of the Byrne grants. He ruled that Section 1373 is not unconstitutional. Judge Baylson tentatively reaches the opposite conclusion, while acknowledging that it was not essential for him to consider the issue, since he had already ruled against the grant conditions on other grounds (he also concludes that Philadelphia is actually in compliance with Section 1373 anyway, which means that Sessions could not pull its Byrne funds even if the Section 1373 condition were legal).
For reasons I covered here, I think Baylson is right about the constitutionality of Section 1373, and Leinenweber is wrong. But I agree that this is a genuinely hard question. Fortunately, courts hearing these sanctuary cities cases need not address it, if they get the easier questions right: If Congress never required cities to comply with Section 1373 as a condition of receiving federal grants, then—as far as these grant condition cases are concerned—it does not matter whether Section 1373 is independently unconstitutional for other reasons.
Like the September ruling in Chicago v. Sessions, the November 15 ruling in Philadelphia v. Sessions just imposes a preliminary injunction, not a final decision. But, in both cases, the ruling on the former clearly prefigures what the court is likely to do on the latter. Indeed, one of the criteria for getting a preliminary injunction is that the lawsuit in question is likely to prevail on the merits.
With the sole exception of Judge Leinenweber's decision on the Section 1373 condition, the Trump administration has so far lost every single ruling on every one of its efforts to pull federal funds from sanctuary cities. The losses cannot all be attributed to liberal Democratic "so-called judges," as Trump might put it. Two of the three judges who ruled against the administration in these cases are GOP appointees. Judge Baylson was appointed by George W. Bush, and was previously appointed a US Attorney by Ronald Reagan. Leinenweber is a Reagan appointee. Litigation on both the Chicago and Philadelphia cases is likely to continue in appellate courts. But it seems improbable that the administration will do much better there.