The Volokh Conspiracy
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In a ruling issued yesterday, the Trump administration and Attorney General Jeff Sessions suffered yet another setback in their legal battle against Chicago's "sanctuary city" policies. Last year, Attorney General Jeff Sessions sought to cut Byrne Memorial Justice Assistance Grant funds to state and local governments that fail to meet three conditions:
1. Prove compliance with federal law that bars cities or states from restricting communications between their employees and 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 detailed opinion, federal Judge Harry D. Leinenweber, ruled that all three conditions are unconstitutional. He invalidated the second and third requirements because they were never authorized by Congress, which under the Constitution, is the only branch of government with the power to impose conditions on federal grants to state governments. That part of the decision largely follows his September 2017 ruling issuing a preliminary injunction against these two requirements. That ruling was later upheld by the US Court of Appeals for the Seventh Circuit in April of this year. Yesterday's decision largely makes the September ruling permanent, by issuing a final decision against against these two conditions. However, the injunction against the Sessions conditions is now limited to the City of Chicago, rather than nationwide (the appropriateness of a nationwide injunction in this case is scheduled to be considered by the en banc Seventh Circuit).
More significant is Judge Leineweber's ruling against the first condition, which mandates compliance with 8 U.S.C. Section 1373, a controversial federal law mandating 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." In his September 2017 decision, Judge Leinenweber refused to issue a preliminary injunction against this condition, because he concluded that it was authorized by Congress, and that Section 1373 was not unconstitutional in and of itself. Yesterday, however, he reversed that stance, in light of the Supreme Court's recent decision in recent decision in Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act, a federal law barring states that previously prohibited sports gambling from passing laws "authorizing" it. The Court ruled that PASPA violates the anti-commandeering rule of the Tenth Amendment, which prevents the federal government from coercing state and local governments, including for the purpose of helping to enforce federal law. Judge Leinenweber's opinion offers the most detailed judicial analysis yet, of how Murphy (combined with previous Supreme Court anti-commandeering decisions) dooms Section 1373. Here is an excerpt:
First, Section 1373 supplants local control of local officers; the statute precludes Chicago, and localities like it, from limiting the amount of paid time its employees use to communicate with [federal immigration enforcers]. This weighs heavily on the constitutionality analysis. A state's ability to control its officers and employees lies at the heart of state sovereignty. "To say that the Federal Government cannot control the State, but can control all of its officers, is to say nothing of significance. Indeed, it merits the description 'empty formalistic reasoning of the highest order.'" Printz [v. United States], 521 U.S. at 931 (citation omitted). Adding credence to this constitutional objection is the fact that the information at issue is state-owned and only accessible to city employees in their official capacities…
Rather than requiring state employees to share immigration information with federal authorities, Section 1373 prohibits state policymakers from preventing their employees from sharing… Yet as Murphy demonstrates, this draftsmanship does not diminish the infringement on state sovereignty…..
Second, the statute indirectly constrains local rule-making by precluding city lawmakers from passing laws, like the Welcoming City Ordinance, that institute locally-preferred policies which run counter to Section 1373. This was the concern squarely addressed in Murphy, where the Court observed that a "more direct affront to state sovereignty is not easy to imagine" than in a federal law that "dictates what a state legislature may and may not do…"
Third, Section 1373 redistributes local decision-making power by stripping it from local policymakers and installing it instead in line-level employees who may decide whether or not to communicate with INS. This effects a federally-imposed restructuring of power within state government….
Finally, because Section 1373 eliminates the City's ability to control its employees' communications with INS, the statute prevents Chicago from extricating itself from federal immigration enforcement. Section 1373 thus impermissibly forecloses New York [v. United State]'s "critical alternative": the option of non-participation in a federal program.
Judge Leinweber also offers a thorough rebuttal to arguments advanced by the administration to the effect that the anti-commandeering rule does not apply to federal mandates that merely require "information-sharing." He concludes that "[a] federal need for state information does not automatically free the federal government of the sometimes laborious requirement to acquire that information by constitutional means." I previously criticized the information-sharing argument myself here.
Yesterday's decision using Murphy to invalidate Section 1373 follows a similar ruling by a federal district court in Philadephia, and also one in California concluding that "Section 1373 does just what Murphy proscribes," in a case involving a Trump administration challenge to California's "sanctuary state" laws. But the Chicago ruling is particularly significant because of the thoroughness and sophistication of Judge Leinenweber's ruling, and because he had previously refused to strike down Section 1373, prior to Murphy. I explained in greater detail how the Murphy decision helps sanctuary cities here, here, and here.
The administration has also suffered a long series of defeats on nearly all the federalism issues at stake in its other efforts to target sanctuary policies. These rulings have come at the hands of both Democratic and Republican-appointed judges. The latter include Judge Leinenweber, who is a Republican appointed by Ronald Reagan. These cases are significant not only for their impact on immigration policy, but because of their implications for constitutional federalism more generally. Should the administration prevail, it would give the executive branch the power to impose other spending conditions that were not authorized by Congress and the ability to coerce state and local governments on a wide range of other issues.
UPDATE: Reason's Scott Shackleford has a post discussing this ruling here. He too considers the impact of Murphy.