Sanctuary Cities

Trump Administration Continues to Lose Sanctuary City Cases—this Time Respecting New Fiscal Year 2018 Grant Conditions Imposed on State and Local Government Receiving Federal Law Enforcement Grants

The administration continues to try to impose grant conditions on state and local governments that were never authorized by by Congress. In two new decision, courts continue to rule against them.

|The Volokh Conspiracy |

Two recent federal district court decisions add to the Trump Administration's already extensive losing streak in cases where it has tried to force "sanctuary cities" to help enforce federal immigration policy. The cases are notable because they are the first to address the revised fiscal year 2018 version of a Justice Department policy seeking to force recipients of federal law enforcement grants to help the federal government deport undocumented immigrants. The new policy has much the same constitutional flaws as its 2017 predecessor.

In 2017, then-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.

Federal judges repeatedly ruled that these conditions are unconstitutional because, among other things, they were never authorized by Congress. For fiscal year, 2018, the Justice Department nonetheless sought to impose slightly revised versions of the same three conditions, plus two new ones, summarized in today's ruling by Judge William Orrick of the US District Court for the Northern District of California, in a case brought against the administration by the City and County of San Francisco, and the state of California:

The nondisclosure condition provides that:

Consistent with the purposes and objectives of federal law enforcement statutes and federal criminal law (including 8 U.S.C. 1324 and 18 U.S.C. chs. 1, 49, 227), no public disclosure may be made of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under 18 U.S.C. ch. 49, or any alien who has come to, entered, or remains in the United States in violation of 8 U.S.C. ch. 12…

The information condition, which the DOJ disputes is a condition in the first instance, requires award recipients to collect certain information from sub-grant recipients…. For example, California would not be able to authorize a sub-grant "unless it first obtains from the proposed subrecipient responses to the questions identified in the program solicitation as 'Information regarding Communication with the Department of Homeland Security (DHS) and/or Immigration and Customs Enforcement (ICE)." Id. Those questions include whether the jurisdiction has "any laws, policies, or practices related to whether, when, or how employees may communicate with DHS or ICE," and require applicants to provide a copy of the law or policy, describe the practices, and explain how it complies with Section 1373….

Judge Orrick's opinion, issued today, holds that these two new conditions have much the same constitutional flaws as the three old ones. Quite simply, they were never authorized by Congress, and only Congress has the power to authorize federal grants to state and local governments and impose conditions on recipients. In addition, today's ruling reiterates his October 2018 ruling striking down the the three fiscal year 2017 conditions, which the Justice Department tried to carry over to 2018.

He also reiterated the part of that ruling striking down Section 1373 as independently unconstitutional because it violates Tenth Amendment ban on federal "commandeering" of state governments to help enforce federal law. This part of the October 2018 ruling is similar to the decisions of other federal judges who have ruled on the same policy, in cases filed by the cities of Chicago and Philadelphia. Judge Orrick followed these and other federal court decisions in ruling that Section 1373 is unconstitutional under the Supreme Court's recent decision in Murphy v. NCAA, which invalidated a federal law barring states from "authorizing" sports gambling under state law. I explained in detail how the Murphy decision undercuts Section 1373 here, here, and here.

As Judge Orrick notes, a similar decision striking down the two new conditions was recently issued by the District court for the Central District of California, in a case brought by the City of Los Angeles.

The administration's persistent violations of the Constitution in this field are a testament to their zeal in targeting sanctuary cities. But, so far at least, courts have virtually uniformly ruled against them, in decisions written by both Republican and Democratic-appointed judges. While the specific grant programs at issue in most of these cases are not all that significant, the sanctuary litigation has important broader implications for federalism and separation of powers. If Trump prevails, the executive would have the power to circumvent congressional control over federal funds and invent new grant conditions to pressure state and local governments on a wide range of issues. Conservatives who applaud Trump's attacks on sanctuary cities may not be so happy if a liberal Democratic administration gets away with using similar tactics against "red" jurisdictions in the future.

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  1. I wonder when this issue will bubble up with the “gun sanctuary” counties and cities and that trend. Are we going to see a total reversal of positions by everybody due to the topic?

    Anyway, at least Somin tones down the hyperbole in this post. It’s “continues to lose” rather than “unprecedented actions by Trump attacking the foundations of all that we hold dear….”

    1. Oh yes, “2A sanctuary” cities are BAAAAAD, y’see, because reasons, while illegal alien sanctuary cities are GOOOOD because shut up.

      1. Defiant U.S. sheriffs push gun sanctuaries, imitating liberals on immigration:

        link

    2. My state of WA may be offering 2A sanctuary against unlawful initiative passed by traitor progressives.

      1. Illinois, or at least non-Chicago and collar counties of Crook County Illinois, has done so already. Downstate IL counties were the first to do this, as far as I am aware.

  2. Instead of just funding, Trump should direct the AG to prosecute officials in cities and states offering sanctuary to illegals. If leftist activist judges unlawfully interfere, they should be investigated and possibly prosecuted too.

    Enough is enough.

    1. Categorizing himself as the “last of” the shitlords might be over-optimistic, but his idea that the DOJ should attempt to imprison officials who are carrying out the legal wishes of their constituents suggests that the rest of his username is accurate.

      1. Except the wishes of their constituents are against federal law. Plus, their constituents are largely subversive marxists.

        Oh, and fuck you moron

        1. Not to mention that none of them pay any taxes or contribute to our collective defense. They go to their worthless tech jobs by day and eat vegan dinners and have gay sex by night.

          1. I don’t give a fuck about any of that. It’s the Marxism and the desire to dominate the rest of us that is the problem.

            Their ongoing presence is rapidly becoming untenable.

            1. Complain all you want, so long as you comply with the liberal-libertarian preferences of your betters. Losing a culture war has consequences, especially for you losers. Your obsequiousness is appreciated.

              1. We’re not going to comply.

            2. You can’t separate their desire to have anal relations with other men with Marxism.

          2. Wait, are the tech jobs marxist or the tech companies earning outrageous profits? I forgot which narrative we’re on here.

            1. Marxists believe in riches for themselves, and no on else.

    2. Investigated is not enough. We need a strong leader like Pinochet or Videla who will unleash a reign of terror on the “progressives” who are ruining this country.

  3. Trump Administration Continues To Lose Sanctuary City Cases In Courts Other Than the Supreme Court.

    1. Largely due to crooked progressive judges who rule unlawfully.

    2. It’s weird how actual lawyers who write here seem to think the number of times you lose in lower courts is indicative of something.

      1. It certainly is indicative of something. The number of subversive judges who heed the communist call instead of the law.

        Based on your phrasing, I’m sure that wasn’t the answer you were looking for.

        1. Fair point. But yeah, I meant it the other way. I’m still waiting for the lawyers here to explain how enforcing federal law violates federal law. Sure, I follow Orrick’s logic that Congress explicitly authorizes grant funding and procedure. But per that Congress authorized procedure, recipients must be in compliance with federal law and sanctuary cities are not. It’s not like the AG invented a grant condition. He created a condition after someone is already in violation per federal law that is supposed to pressure municipalities to meet the original criteria.

          1. Isn’t that just enforcement? I’ve never heard someone say that enforcement methods must be expressly authorized. Not that this is a good example of a legal activity because I question its constitutionality, but I don’t think state police were ever asked to have their legislature pass a law authorizing DUI checkpoints. Police are tasked with enforcing laws, including drunk driving, and they devised that enforcement method.

          2. They did explain it. The administration is not enforcing the law; the law does not authorize those conditions, and no, the executive is not allowed to invent the conditions unilaterally. Also, as the article makes clear, the federal government does not have the power to force states to do something. Federal law only has force if it is constitutional. If the feds want to do it, they have to do it themselves if the states won’t comply.

  4. Judge Orrick yet again!! LOL

    He’s written so many opinions on this matter, and so many of them have been demonstrably silly. Long ago, he abandoned some of the earlier arguments he embraced, which were quite embarrassing.

    This particular opinion doesn’t seem to contain any improvements. There is still no compelling case that the Sec 1373 funding condition was not authorized by Congress.

    As a standalone requirement, however, it does appear likely that Sec 1373 would be unconstitutional under Murphy.

    1. It is difficult to keep up with this judicial idiocy. Haven’t read the latest nonsense. The last ruling overlooked 34 U.S.C. ? 10102(a)(6), which gives authority to the AAAG to place special conditions on all grants and to determine priority purposes for formula grants; failed to grasp that, under ? 10153(a)(5)(D), grantees in the Byrne JAG program may be required to comply with all applicable federal laws; and, didn’t understand that 8 U.S.C. ? 1373 independently requires states or local government entities to comply with federal law regardless of federal grant funding. I have no doubt this latest exercise in judicial resistance is just as shockingly bad.

      1. Whining, whimpering wingnuts are among my favorite faux libertarians

        Carry on, clingers. So far as stale thinking can carry anyone, that is.

      2. As this article, and many others make clear, U.S.C. ? 1373 is unconstitutional, and therefore has no force at all. Hence, by definition, states and local government entities can’t be required to do anything by it. Your argument is shockingly bad.

  5. The last ruling overlooked 34 U.S.C. ? 10102(a)(6), which gives authority to the AAAG to place special conditions on all grants

    Needless to say, 34 U.S.C. ? 10102(a)(6) does not give the AAG that authority. It vests in the AAG any such authority created by other statute. Note that Donald J. Trump is not the AAG.

    under ? 10153(a)(5)(D), grantees in the Byrne JAG program may be required to comply with all applicable federal laws

    “Applicable” being the key word. If there were an applicable law, the DOJ would be pursuing it, instead of just withholding unrelated monies.

    1. “Needless to say, 34 U.S.C. ? 10102(a)(6) does not give the AAG that authority. It vests in the AAG any such authority created by other statute.”

      Yes. There’s no way that statute gives the Assistant, not even the full but the Assistant, Attorney General a free-flowing right to place special conditions on grants. That would be a clear violation of even the watered-down version of the non-delegation doctrine currently in place because there’s no intelligible principle.

      1. “The Assistant Attorney General shall?exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” 34 U.S.C. ? 10102(a)(6).

        All grants. Wonder what that could mean?

        1. “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General,”

          This is the key part of the sentence.

          1. Uh, I guess “…including placing special conditions on all grants, and determining priority purposes for a formula grants” weren’t actually meant by Congress to convey any authority. Now I get it, the words don’t really mean anything. Pretty useful interpretive technique when the statutory language plainly contradicts your claims.

            1. “Uh, I guess “…including placing special conditions on all grants, and determining priority purposes for a formula grants” weren’t actually meant by Congress to convey any authority.”

              Right. Those are examples of the other powers and functions that can be vested in the Assistant Attorney General by other provisions in the Chapter.

              “Now I get it, the words don’t really mean anything.”

              I’m not the one ignoring the wording of the statute.

              “Pretty useful interpretive technique when the statutory language plainly contradicts your claims.”

              If your interpretation was correct, the statute would be so laughably unconstitutional that it wouldn’t matter anyway.

              1. “Those are examples of the other powers and functions that can be vested in the Assistant Attorney General by other provisions in the Chapter.”

                Thank you for clarifying that. Let’s re-write that provision, just so future AAGs will not be so confused. “The Assistant Attorney General shall?exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants (but don’t misunderstand, we really don’t mean “all grants,” we just mean these as examples of some other powers and functions that could be vested in the AAG by other provisions in this chapter, which we’re not doing now, so, come to think of it, there is no reason actually for noting this now, so just ignore it) and determining priority purposes for formula grants.”

                As a small aside it is odd though that this language was added as part of the same legislation that created the Byrne JAG Program.

                1. “Let’s re-write that provision, just so future AAGs will not be so confused.”

                  Or we could just leave it the way it’s written, especially now that its plain meaning has been explained so many times.

                  “As a small aside it is odd though that this language was added as part of the same legislation that created the Byrne JAG Program.”

                  Why?

                  And I’m still waiting for your explanation as to how your interpretation doesn’t render 4 U.S.C. ? 10102 unconstitutional.

                  1. Why is it of any importance that Congress specifically granted the power to impose special conditions in the same legislation that created the Byrne JAG program? Could it be because Congress intended to confer the power to impose special conditions with respect to that program? Or, we could use your theory of interpretation and presume that Congress intended its amendments to have no real effect.

                    I wasn’t aware you made any constitutional arguments, apart from just claiming that the law was “laughably unconstitutional.” That’s not really an argument, just so you know.

                    This whole nonsense is reminiscent of the embarrassing statutory misconstruction in the lower courts with respect to the travel order case.

                    1. So, under your reading, how does the Assistant Attorney General decide which special conditions to impose on which grants?

                    2. Probably depends on enforcement needs and department priorities. I wouldn’t argue that the government has unlimited discretion to impose any condition and would agree that there are constitutional limits for truly coercive and non-germane conditions, which is not the case here.

                    3. Those restrictions aren’t written into the statute. Why don’t you try rewriting the statute, like you did above, so that future Assistant Attorney Generals aren’t confused?

                    4. Not necessary because they’re already part of another law called the Constitution.

                      This is getting tiresomely absurd. Fitting given that the federal judiciary already passed tiresomely absurd a while back with regard to this administration.

                    5. “Not necessary because they’re already part of another law called the Constitution.”

                      Allow me to quote yourself. “That’s not really an argument, just so you know.” You are trying to have your cake and eat it too. Special conditions you want? Those are totally okay based on this generic “grant” of power. Special conditions you don’t want? Those are totally unconstitutional.

                    6. Not sure you even read what I wrote based on your comments (or maybe you really couldn’t understand?) But, to spare you some time and further embarrassment, let me explain why you fail. You’re not really making legal arguments. You simply disagree with the administration’s policy choices. Fine, apparently so do a lot of district court judges. But these policy attacks masquerading as legal arguments will ultimately fail in a sober appellate review, just like they failed in that travesty the lower courts orchestrated in the travel order case(s).

                    7. “You’re not really making legal arguments. You simply disagree with the administration’s policy choices.”

                      No, you are not really making legal arguments. You simply agree with the administration’s policy choices.

                      My legal argument, which I made in my very first response to Malvolio and have applied consistently throughout, is that your expansive reading of the statute “would be a clear violation of even the watered-down version of the non-delegation doctrine currently in place because there’s no intelligible principle.” That depends in no way, shape, or form on the administration’s policy preference.

                    8. Nice try but still fails and, by the way, and didn’t I say the government’s choice of conditions depends on enforcement needs and department priorities and that they wouldn’t have unlimited discretion to impose truly coercive and non-germane conditions? I understand your problem. Thinking is hard and it’s probably giving you a headache. Now is the time to place the sentence of your choice in quotations and out of context rather than just attempting to write an intelligent response.

                    9. “Nice try but still fails”

                      What a compelling counterargument. Truly the work of a master debater.

                      “and didn’t I say the government’s choice of conditions depends on enforcement needs and department priorities and that they wouldn’t have unlimited discretion to impose truly coercive and non-germane conditions?”

                      Yes, but that’s not in the statute, which is why I asked you to rewrite it. You want to read this textually unlimited grant of discretion as only granting the discretion you want. That’s not how it works. The very principles that render the discretion you don’t like unconstitutional also render the discretion you do like unconstitutional.

                      “I understand your problem. Thinking is hard and it’s probably giving you a headache.”

                      It’s cute that you are trying to play internet tough guy. You’re smarter than Sarcastr0, but not by much, so you can’t wow me with you intellect. And I can’t see you typing, so you can stop flexing into your camera.

                    10. Uh, let me try to make some sense out of this mess. So, anytime Congress writes a statute calling for the exercise of some discretion on the part of the executive, it must, within the statutory text, enumerate all constitutional limits on that discretion, otherwise, we should presume that the statute authorizes unconstitutional acts? Is that really your theory of interpretation this time? To presume the unconstitutionality of a statute? Nope, another big fail, but still very amusing.

                    11. No, you fucking moron, that’s not what I said at all.

                    12. Yup, it is. In fact, you went out of your way to say it. We can stop now because I think you’ve reached your limit, unless there are some more interpretative techniques you’d like to share.

    2. “”Applicable” being the key word. If there were an applicable law, the DOJ would be pursuing it, instead of just withholding unrelated monies.”

      I don’t think this gets you out of it. As I read it, it requires the recipients to be complying with ALL federal laws applicable to THEM, not applicable to the purpose of the grant.

      1. Well, that may indeed be how you read it, but it is not how Judge Orrick reads it.

      2. All valid laws. The laws forcing cities and states to affirmatively do things the enforce federal law are unconstitutional, on their face. There is no legal argument against that.

    3. Needless to say, 34 U.S.C. ? 10102(a)(6) does not give the AAG that authority. It vests in the AAG any such authority created by other statute. Note that Donald J. Trump is not the AAG.

      Also needless to say, the ruling (which MKE admittedly didn’t bother to read) did not “overlook” the statutes cited by MKE; it considered them and expressly rejected his interpretation of them.

      Moreover, Judge Orrick is only one of a series of judges who have rejected MKE’s interpretation of those provisions.

      1. Didn’t read every idiotic lower court decision in the travel order case(s) either. Needless to say the woke lower courts screwed up there just as they’re screwing up here. Judicial malfeasance on an unheard of scale.

  6. Ha ha, hilarious. At this point, I think Professor Somin is just baiting you guys.

    1. Slapping around the clingers can be fun.

  7. Sanctuary City is just another name for ‘open borders,’ where illegal aliens can live in peace alongside democrat/progressive/socialist/communists. They will receive a heads up if ICE comes around and in California, the illegal aliens can get a license to drive and free health care along with other free goodies.

    Aint this fucking great?

    Who needs a passport. Just go to a sanctuary city and get free shit !!

    1. By definition, if there are open borders, then the aliens wouldn’t be “illegal”, and would be subject to all standard rules of taxation and legal responsibility. In other words, no free goodies. In other words, you have no idea what you are talking about.

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  11. Well, unless you can get them all together and can use a bomb. Hmmm, sayyyy, are there are any places you can think of where central planners are collected together?

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