The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As co-blogger Jonathan Adler notes, the US Court of Appeals for the Seventh Circuit just issued a ruling in City of Chicago v. Sessions upholding a lower court decision against the Trump administration's plan to cut federal funds from "sanctuary cities" - jurisdictions that refuse to assist federal government efforts to deport undocumented immigrants. Attorney General Jeff Sessions had sought to cut Byrne Memorial Justice Assistance Grant funds to jurisdictions that refuse to meet three conditions:
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 September, a federal trial court issued an injunction barring enforcement of the second and third conditions, because they were never authorized by Congress, which has exclusive authority to control federal spending and attach conditions to federal grants to state governments. Yesterday, the Seventh Circuit upheld that ruling on much the same basis:
Our role in this case is not to assess the optimal immigration policies for our country; that is not before us today. Rather,the issue before us strikes at one of the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government—the separation of powers.
The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken. The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor…. did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever?vigilant in that endeavor.
In addition to undermining separation of powers, executive attempts to add new conditions to federal grants without congressional authorization, also threaten federalism. If the president is able to usurp such authority, he could use it to coerce state and local governments on a wide range of issues. Conservatives who may be happy to see Trump and Jeff Sessions use it to punish sanctuary cities may be less thrilled when a liberal Democratic president uses the same power to coerce states to adopt left-wing policies on education, gun control or transgender bathroom access.
Yesteday's ruling is just the latest in a long string of defeats for Trump in cases challenging his efforts to cut federal grants to sanctuary cities. Courts have repeatedly invalidated both the Sessions policy at issue in the Seventh Circuit ruling, and Trump's January 2017 executive order mandating a much broader cutoff of federal funds from sanctuary jurisdictions. Significantly, these losses have come at the hands of both Democratic and Republican-appointed judges. Judge Ilana Rovner, author of yesterday's Seventh Circuit opinion, was appointed by President George H.W. Bush (and previously appointed as a district court judge by Ronald Reagan). Judge Daniel Manion, who agreed with the majority's analysis of the conditional spending issue, is generally considered one of the most conservative appellate judges in the country.
The Seventh Circuit did not review the trial court's upholding of the requirement that jurisdictions receiving Byrne grants must comply 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." This is Trump's sole win in any of the sanctuary city cases so far. In my view, the trial judge got this issue wrong, for reasons I summarize here. The statute authorizing the Byrne program nowhere requires recipients to comply with Section 1373. In addition, Section 1373 is unconstitutional because it violates the Tenth Amendment. The Seventh Circuit is likely to review that ruling in the future, and hopefully they will reverse it. In Philadelphia v. Sessions, another case challenging the Sessions policy, a federal trial judge ruled against the administration on the Section 1373 issue, and his ruling is better-reasoned than the one in Chicago v. Sessions.
As Jonathan Adler points out, all three judges on the Seventh Circuit panel agreed that the Sessions' conditions are unconstitutional, but Judge Manion dissented on the issue of whether a nationwide injunction is appropriate. In my view, contrary to that of some of my co-bloggers, nationwide injunctions are an appropriate and necessary tool in cases where the government violates the Constitution nationwide in ways that do not depend on variations in local conditions or the details of individual cases. Judge Ilana Rovner's majority opinion in yesterday's decision offers a good summary of the reasons why. As she puts it, "for issues of widespread national impact, a nationwide injunction can be beneficial in terms of efficiency and certainty in the law, and more importantly, in the avoidance of irreparable harm and in furtherance of the public interest." This is particularly true in a case, like the present one, which "a narrow issue of law [that] it is not fact?dependent and will not vary from one locality to another." Ultimately, a nationwide violation of the Constitution requires a nationwide remedy.
The Seventh circuit ruling and other conditional grant decisions should not be confused with Sessions' recent lawsuit against California's sanctuary policies. While I believe California deserves to prevail on all three issues raised in the latter litigation, the questions involved are different from and more difficult than those at stake in the spending cases.
UPDATE: I have made a few minor additions to this post.