The Volokh Conspiracy
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On Friday, the Trump administration suffered yet another setback in its legal battle against "sanctuary cities"—jurisdictions that, in some respects, refuse to help the federal government deport undocumented immigrants. Federal Judge Edgardo Ramos of the Southern District of New York issued a ruling striking down three conditions that the administration sought to impose on states and localities that receive federal Edward Byrne Memorial Justice Assistance grants for law enforcement agencies.
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 8 USC Section 1373, a federal law that bars cities or states from restricting communications by their employees with the Department of Homeland Security and Immigration and Customs Enforcement (ICE) about the immigration or citizenship status of individuals targeted by these federal agencies.
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.
Judge Ramos' decision closely follows the reasoning of several previous rulings on the same policy issued by other federal courts. The administration has repeatedly lost these cases in multiple courts around the country, and before both Democratic and Republican-appointed judges. I analyzed the latest of them here, and nearly everything I said in that post applies to this most recent ruling, as well. For those following this issue, Judge Ramos' opinion contains a helpful summary of previous federal court decisions on the Sessions policy.
Like the other courts, Judge Ramos concluded that all three conditions are unconstitutional because none of them were authorized by Congress:
Congress has neither conditioned Byrne JAG funds on the three conditions here nor delegated the authority to impose these conditions to the Executive Branch. The Executive Branch does not have the power of the purse and "does not otherwise have the inherent authority as to the grant at issue here to condition the payment of such federal funds on adherence to its political priorities." Id.; see also City & County of San Francisco v. Trump, 897 F.3d 1225, 1235 (9th Cir. 2018) ("Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals.")….
The separation of powers acts as a check on tyranny and the concentration of power. "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." Chicago, 888 F.3d at 277. Because that is what Defendants attempted to do here by imposing the three challenged conditions, these conditions violate the separation of powers.
Judge Ramos also follows several previous rulings in holding that 8 USC Section 1373 is unconstitutional because it violates Tenth Amendment constraints on federal "commandeering" of state and local governments and in that respect runs afoul of the Supreme Court's recent decision in in Murphy v. NCAA, which invalidated a federal law barring states from "authorizing" sports gambling under state law. I explained in greater detail how the Murphy decision undermines Section 1373 and otherwise helps sanctuary cities here, here, and here.
While Judge Ramos' ruling breaks little new ground, it is significant because it applies to a case brought by seven states (New Jersey, Rhode Island, Connecticut, Massachusetts, Washington state and Virginia), and New York City. It therefore blocks the Trump policy over a wide range of jurisdictions, more than any of the previous decisions against the policy. The ruling also adds to the growing judicial consensus that this policy is unconstitutional, and that Section 1373 violates the anti-commandeering principle.
As Judge Ramos emphasizes, the sanctuary cases have important implications for federalism and separation of powers that go far beyond the specific context of immigration policy. If the administration were to prevail, the executive would have the power to circumvent congressional control over federal funds and use grant conditions to pressure state and local on a wide range of issues. Conservatives who might be happy to see the Trump administration wield such power against sanctuary cities are unlikely to cheer if a future Democratic administration use the same type of leverage to force red state and local governments to adopt liberal policies on issues like education, gun control, and transgender bathroom access. Fortunately, however, the courts have prevented the administration from getting away with this particular power grab, and that pattern seems likely to hold.