Spending Clause

Trump Administration Finally Wins a Sanctuary City Grant Condition Case

The ruling comes after a long string of losses blocking other administration efforts to deny federal law enforcement funds to sanctuary jurisdictions. The different result in this case is largely a product of the unusual nature of the program involved.

|The Volokh Conspiracy |

Over the last two years, the Trump administration has suffered a long series of defeats in court decisions on its attempts to deny federal grants to "sanctuary cities"—jurisdictions that refuse to assist various federal efforts to deport undocumented immigrants. Both Democratic and Republican-appointed judges have struck down these policies as inconsistent with the constitutional requirement that conditions attached to federal grants must be authorized by Congress.

On Friday, the Trump administration finally prevailed in one of these cases. In City of Los Angeles v. Barr, a divided 2-1 panel of the US Court of Appeals for the 9th Circuit upheld the Justice Department's policy of giving preferences to state and local governments that assist federal immigration enforcement efforts, when it comes to assessing applications for the Community Oriented Policing Services (COPS) competitive law enforcement grant program. In 2017, the Justice Department indicated it would award additional points to applications from jurisdictions that emphasize "illegal immigration" as a "focus area" for their law enforcement efforts, and also to those that submit a  "Certification of Illegal Immigration Cooperation," indicating their willingness to aid federal immigration enforcement efforts in various ways. The appellate decision upholding this policy overruled a trial court ruling against the administration. The case has a different outcome from previous sanctuary city decisions largely because of the unusual nature of the grant program in question.

Normally, conditions attached to federal grants to state and local governments must be "unambiguously" authorized by Congress using its powers under the Spending Clause of the Constitution. The executive cannot make up its own new conditions. This is the main factor that led numerous courts to strike down Trump's January 2017 executive order that attempted to deny a wide range of federal funds to sanctuary jurisdictions, and the Justice Department's July 2017 policy imposing immigration-enforcement conditions on recipients of Edward Byrne Memorial law enforcement grants. In the COPS case, however, the majority, in an opinion written by Judge Sandra Ikuta, ruled that normal Spending Clause restrictions do not "readily apply" to cases involving preferences in competitive application programs:

[T]he applicable Spending Clause principles do not readily apply to an allocation of grant funds through a competitive grant process, such as the program in this case…. As a threshold matter, [the Department of Justice] does not propose to withdraw significant federal funds from a state or local jurisdiction unless they comply with specified federal requirements… Nor does DOJ propose to reinterpret the terms of a grant retroactively to impose costly new responsibilities on a recipient…. Nor does DOJ offer a financial inducement for an applicant to cooperate on illegal immigration issues that is so coercive that it is tantamount to compulsion… Rather, an applicant is free to choose one of many focus areas, and numerous applicants obtained funding without selecting illegal immigration or signing the Certification. Nor did DOJ impose surprise or ambiguous conditions on recipients of the funds…

At most, DOJ's decision to give additional points to applicants that select an illegal immigration focus or that agree to the Certification encourages applicants to focus on these federal priorities. Because an applicant is free to select other prioritized focus areas or not to apply for a grant at all, such a subtle incentive offered by DOJ's scoring method is far less than the coercion in Dole, which directly reduced the amount of funds allocated to a state, and which the Court held was consistent with Spending Clause principles…

This reasoning significantly limits the reach of the ruling. It suggests the case would likely have gone the other way had the DOJ's policy categorically denied grants to jurisdictions that failed to meet criteria relating to immigration enforcement, as opposed to merely giving some jurisdictions extra points in a competitive application process in which similar bonuses were also available for other focus areas.

Most federal grants to state and local governments, are not allocated based on competitive application processes, and most grant conditions are structured in the form of categorical requirements, not bonus points.

But I am still skeptical of the reasoning. Even though these extra points are not categorical requirements, they still do affect which jurisdictions get COPS grants and which do not. As such, any such criteria must be authorized by Congress under its spending power. There is no "competitive application process bonus point" exception to Congress' power of the purse.  And while the extra points in this case might have only a modest impact on the distribution of COPS grants, it is easy to imagine a process in which so many points are awarded for some factor that jurisdictions which refuse to comply have little or no chance of getting the grant in question.

The majority also rejected Los Angeles' argument that the Justice Department's award of extra points for immigration enforcement exceed the scope of its authority under the COPS statute, which is intended to award grants to promote "community-oriented policing." Judge Ikuta concluded that "community-oriented policing" has little in the way of  determinate meaning, and that pretty much any  criteria relating to law enforcement or public safety would fall within the scope of the law. She therefore concluded that DOJ's determination that giving extra points for immigration enforcement is acceptable deserves deference under the Supreme Court's famous decision in Chevron v. Natural Resources Defense Council, which generally requires courts to defer to executive agencies' interpretations of law they are tasked with enforcing, in cases where Congress has not addressed the issue and the agency's position is "reasonable."

Judge Kim Wardlaw's dissent effectively refuted this reasoning:

Because the term "community-oriented policing" had in 1994 and has through today a commonly understood meaning that excludes federal immigration enforcement functions, the new federal immigration preferences are, as the district court held, ultra vires as a matter of law…

Congress did not authorize COPS grants for anything other than placing additional state and local cops on the beat to promote community partnerships. 34 U.S.C. § 10382 authorizes DOJ to evaluate the applications of law enforcement agencies competing for limited grant funding, but in exercising this discretion, DOJ must adhere to Congress's express purpose of promoting local and state law enforcement agencies' efforts to "interact[] directly with members of the community…"

The illegal immigration focus area impermissibly extends preferences to partnerships between local police and federal immigration authorities, contravening the Act's identified purpose of "law enforcement officers interacting directly with members of the community…"  It is telling that in no other focus area on the application is the applicant required to explain how it would use the grant to partner with the federal government as opposed to partnering with the community it serves….

All policing is ultimately designed with public safety in mind. But, all policing is not community-oriented policing, which fosters partnership between the police and their communities, not the partnerships between police and federal immigration enforcement that the federal immigration preferences require. Because such a focus is directly at odds with, and arguably undermines the very purpose of, the Act and the COPS grant program, the Attorney General exceeded his authority by adding them as preferences for grant awards.

As Judge Wardlaw points out, there is substantial evidence indicating that local-police participation in immigration enforcement not only fails to promote good relations with the community, but actively undermines them, by making immigrant and minority communities reluctant to cooperate with police.

Judge Wardlaw did not directly address the Spending Clause issue, because she concluded that DOJ exceeded its authority even aside from it. But, as she notes, "the fundamental point [on both questions] is the same: Congress did not authorize the Attorney General to act with unfettered discretion in imposing conditions for COPS grants unrelated to community-oriented policing."

While previous sanctuary city cases have seen a high level of agreement between Democratic and Republican-appointed judges, the panel here split along partisan and ideological lines. Judge Ikuta and Judge Jay Bybee, the two judges in the majority, are both conservative Republican appointees. Judge Wardlaw is a liberal appointed by Bill Clinton.

Traditionally, conservative judges are more committed to policing conditions attached to federal grants to state governments than liberal ones are. Conservatives are also far more skeptical of Chevron deference, often seeking to confine its scope as much as possible. In this case, however, the conservative majority created a dubious loophole in, and applied sweeping Chevron deference, while the liberal dissenter took a seemingly more conservative position on both issues.

The judges' votes may be explained by the unusual nature of the program in question. But if this is a case where the immediate subject matter at issue (immigration) overrode the conservative majority's usual jurisprudential instincts, that would be unfortunate. It is also a mistake that conservatives might have reason to regret in the future. As Judge Wardlaw notes, "[t]oday's political agenda is to increase federal immigration enforcement; tomorrow's may be to increase enforcement of federal gun registration and licensing. Both are  related to public safety; neither is related to community-oriented policing."

For their part, liberal judges can perhaps be criticized for taking a harder line on federalism in "sanctuary city" cases than with other dubious extensions of federal power. But this trend may be part of a more general rethinking of constitutional federalism on the left. Some liberals have also become less supportive of Chevron deference. A recent survey of federal judges found considerable Chevron skepticism among both liberals and conservatives.

The fact that Friday's ruling is limited to cases involving criteria for extra points in competitive grant processes significantly limits its potential impact as a precedent for the future. But it is still an unfortunate result.

NOTE: This decision was issued on the same day as my recent Washington Post article on liberals and federalism litigation in the Trump era, which is why I could not include it in that article. It was published after the article was already completed, submitted and slated for publication. The article and the decision both came out at almost the same hour.

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  1. Two Bush appointees V. one Obama appointee – globalist disappointed, surprise, surprise!

    1. Actually a Clinton appointee, later considered by Obama for the S.C.

    2. Sanctuary City is just another way of saying “We are going to break the law when we don’t like it. The politicians in these S.S.’s should go to prison.

      1. What law are they breaking?

        1. DEAR DAVID: The law against immigrating to the U.S. without permission. There are laws that deny would be migrants from coming to the U.S. lacking a visa or other permission. Pretty easy to figure out before you made a comment that makes you look dumb.
          Whether it’s by crossing the U.S. border with a “coyote” or buying a fake U.S. passport, a foreign national who enters the U.S. illegally can be both convicted of a crime and held responsible for a civil violation under the U.S. immigration laws. Illegal entry also carries consequences for anyone who might later attempt to apply for a green card or other immigration benefit.

        2. It’s a federal crime for a non-citizen to cross the US border into the US without inspection.

          1. The politicians in these cities are not migrants who entered illegally.

            They are breaking no law.

            If they were, the Trump-Barr DOJ would no doubt be eager to prosecute.

    3. Judge Bybee was (is) part of the torture posse. Judge Ikuta is a reliable Republican vote bearing the Kozinski seal of right-wing approval. Neither is particularly fit to judge others. Just two more culture war casualties with high titles and a prime spot at the public teat.

      1. Care to provide proof Rev. Nope, as you can’t, so instead you burble along hoping no one will notice that you are a lying pig.

  2. These are the mestizos Somin wants to fill America with.

    “Bryan Gonzalez, 19; Jonathan Jimenez, 18; Lesly Portillo, 18; Yadira Villarreal, 19; and an unnamed 15-year-old were arrested for the armed robberies, which took place between March 16 and March 29.”

    1. Undocumented immigrants are less likely to commit a crime for a simple basic reason. They want to be here. They are also family oriented, never take on debt, and work harder.

      But nope – all you see is brown people to demonize because you can’t live up to their commitment to finding a better life for themselves.

      1. The fact is that illegal aliens are 100% likely to commit a crime, for the simple basic reason that their presence here is a crime. Then you add such crimes as illegally taking employment, identity theft and use of fraudulent ID, utilizing public services by pretending to be citizens…

        Set all those aside, I suppose you meant violent and property crimes. We don’t really know the rate at which illegal aliens commit these crimes, both because they ARE pretending to be here legally, (So that some fraction of their crimes are inevitably listed as crimes by citizens.) and because ‘sanctuary’ jurisdictions are going out of their way to keep criminal illegal aliens from being caught.

        1. We don’t really know the rate at which illegal aliens commit these crimes, both because they ARE pretending to be here legally, (So that some fraction of their crimes are inevitably listed as crimes by citizens.) and because ‘sanctuary’ jurisdictions are going out of their way to keep criminal illegal aliens from being caught.

          Well, we do have some estimates.

          1. Even accepting those numbers, they count black and Hispanic citizens in with “Americans.” Only compare them to the white and Asian crime rate and get back to me

            1. Who authorized you to give me homework assignments?

              You want to make a point? Get the data yourself.

              Besides, Brett claimed that there is absolutely no way to know the crime rate for illegals. I was responding to that.

              1. My point is perfectly clear. Immigrants should be compared against our historical, law abiding population, not our criminal underclass.

          2. That’s the percentage of illegal immigrants (and legal immigrants) in prison, not the crime rate for those populations.

            American criminals don’t get deported on release. That means that the same American criminals (if, as is usually the case, they continue committing crimes) will have more opportunities to be put in jail; and thus are likely to be over represented in the prison population compared to how likely they are to offend.

            1. That’s a reasonable criticism.

        2. The fact is that illegal aliens are 100% likely to commit a crime, for the simple basic reason that their presence here is a crime.

          That is not correct. (Hint: illegal entry is a crime; “presence” is not.)

          [Snip the rest of a comment in which Brett simply makes up facts.]

      2. For starters, they are NOT ”undocumented” immigrants, they are ILLEGAL Immigrants!! Use of the word “undocumented” is a game used to hide what is happening, namely, massive ILLEGAL entry into our country. If Reason can’t even use words properly, but instead choose to use “word magic” to disguise what is happening, well.. this is one of the many reasons I will be cancelling my subscription.

        1. Let’s ditch political correctness.

          Call a bigot a bigot, rather than letting the bigots hide behind terms such as “traditional,” “color-blind,” “family values,” “conservative,” and “Republican.”

          Stop providing special, snowflakey privilege to superstition. In particular, stop providing public funds to schools that teach nonsense to appease rubes and suppress science to flatter superstition.

          Stop accrediting schools that teach nonsense, too. Teaching (or appeasing) Biblical creationism is, among adults, no better than teaching that the moon is made of green cheese or that storks deliver babies.

          Stop pretending that our can’t-keep-up backwaters, and the depleted human residue that remains in our rural and southern stretches after generations of bright flight, deserve respect.

          CGN’s call for an end to political correctness is welcome and overdue.

        2. this is one of the many reasons I will be cancelling my subscription.

          Anyone who believes CGN has a subscription to Reason: there’s a structure over the East River in New York City that I would like to sell you.

          1. Yep, I do have a subscription, so what? And if anything needs selling it is your obviously worn out brain. Funny that Mr. let all the illegals (NOT undocumented) come here whether they obeyed the law or not thinks he is smart. Poor widdle Davey.

      3. Who is talking about illegal immigrants? I don’t use the patently dishonest “I support immigration, just not illegal immigration.” I don’t want any low IQ third worlders, whether they come legally or illegally, or whether they’re “citizens” born to illegals.

        1. Some other country heard from.

      4. They are NOT undocumented, they are here ILLEGALLY!!! As for “brown people” stop lying. The color of one’s skin has ZIP to do with whether they are obeying the law or not.

        1. I like how you replied twice to this post, both times because it said undocumented and set you off.

          Triggered much, snowflake?

  3. I have served both as a National Science Foundation panel reviewer and grant recipient over the years. Decades ago, the NSF added a requirement that proposals must address the “broader societal impact” of the proposed research program. The review panel is also provided instructions to consider specific factors in making the final funding recommendation.

    Since these factors are determined by the relevant NSF program director, and were not explicitly added by Congress in the authorizing legislation or appropriations, is the author of this post suggesting that every NSF grant over the last 25 years is invalid?

    1. I address in my comment below that it has indeed been common, for many years, for administrations to add things to consider in grant applications that weren’t created by Congress.

      It seems the administration is learning from some of its initial mistakes and perhaps getting better legal advice.

    2. Having written and reviewed NSF grant applications, I have to agree with Vandalla that the phrase “broader societal impact” has certainly evolved in the view of the relevant NSF program directors over the past two decades.

  4. “As Judge Wardlaw points out, there is substantial evidence indicating that local-police participation in immigration enforcement not only fails to promote good relations with the community, but actively undermines them, by making immigrant and minority communities reluctant to cooperate with police.”

    Where “immigrant and minority communities” is a euphemism for “illegal aliens”.

    1. Suddenly lost your taste for euphemism, Mr. Bellmore?

      Planning to start calling a bigot a bigot, and rejecting use of euphemisms such as “traditional values,” “color-blind,” “family values,” and “Republican?”

      Ready to stop appeasing (and accrediting) the teaching of nonsense on conservative-controlled campuses as “religious freedom?”

      Ready to start calling our can’t-keep-up backwaters what they are and to stop using the “heartland” euphemism for the depleted human residue that remains after generations of bright flight?

    2. Of course, if you paid any attention to the issue – like any, at all – you would know that undocumented immigrants live in communities that consist of native-born citizens, naturalized citizens, legal residents, and other individuals who are not by any stretch “illegal aliens.” But they are people who live with, are friends with, are related to undocumented immigrants. So what happens in these communities, when the police become deputized immigration agents, is the same thing that happens in black communities, when the police engage in regular shooting of unarmed black men and women – they call them less. Even if they’re legally here. Even if they have legitimate criminal activity to report. And they don’t cooperate with investigations.

    3. Here’s a question, Brett.

      Suppose you get robbed. It happens that the robbery is witnessed by a couple of illegal immigrants.

      They don’t come forward because they know the local police are cooperating with ICE. How do you like it?

      Or suppose an illegal immigrant is a crime victim. Do you really think it’s OK for them to be afraid to go to the police?

      I mean, you can yell, “They’re criminals! Criminals, I tell you!” all you want, but that doesn’t change the fact that, as Simon points out, they are part of the community, and you want them cooperating with police, etc.

      1. I’m skeptical that these marginal gains in cooperation with law enforcement are worth the costs to the functioning of immigration enforcement efforts and the general promotion of lawlessness. That’s especially so in cases like this, which only require the local jurisdiction to certify that they allow immigration officer access to arrested illegal immigrants and notify ICE before releasing deportable aliens from jail. Los Angeles is welcome to come to a different conclusion about that, of course – but it seems a little presumptuous to expect the federal government to write them a large check while the city actively obstructs their enforcement efforts.

        1. Well, if you’re skeptical, that settles it, I suppose.

          Besides, this goes further than what you describe.

          1. Well, if you’re skeptical, that settles it, I suppose.

            No one’s stopping you from presenting a counter-argument.

            Besides, this goes further than what you describe.

            From the dissent (i.e. the person trying to make DOJ look as bad as possible):

            Second, two months after the 2017 applications were due, DOJ announced a bonus consideration: applicants could submit a “Certification of Illegal Immigration Cooperation” (Cooperation Certification), which required a jurisdiction’s highest-ranking law enforcement official and government executive to certify that the jurisdiction had already or would “implement rules, regulations, policies, and/or practices that” provide DHS (1) “access to any of the governing body’s correctional or detention facilities in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States” (the “access” requirement) and (2) “advance notice as early as practicable . . . to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien” (the “notice” requirement).

            1. No one’s stopping you from presenting a counter-argument.

              Since you haven’t presented an argument beyond stating your own unsupported skepticism I don’t think it makes much sense to talk of a counter-argument. You advanced no argument to counter.

        2. What, exactly, are the “costs” of “less functional immigration enforcement” and “general promotion of lawlessness”? So-stated, these are just open-ended concepts, devoid of real content.

          On the one side of the ledger, we’re talking about how coordination with ICE could lead to greater crime rates, more serious criminal and gang activity, and then corresponding knock-on effects on businesses, employers, and economies. You’re saying that avoiding these outcomes, being merely “marginal gains,” are worth sacrificing in favor of – what, exactly? What is the “gain” to be realized by “promoting lawfulness,” precisely, and how will we know if we’ve achieved it?

          1. I think that removing deportable aliens in general and illegal aliens i particular is a good thing, and that frustrating the government’s ability to do so is a cost. I also think developing a culture where local authorities don’t cooperate with federal authorities is a problem, leading to situations like the judge and bailiff in Massachusetts tampered with court records to help an illegal immigrant escape from ICE agents. I assume you don’t.

            But not telling ICE about aliens who are arrested for committing crimes and not allowing ICE to interview them (which is all DOJ is looking for in this case) makes it more difficult for ICE to detain and deport criminal aliens. That, in turn, means that criminal aliens are find it easier to remain in our country committing crimes. How is that not a cost?

            (Having worked in sanctuary and non-sanctuary jurisdictions, I’m skeptical that the increased cooperation with law enforcement actually exists, and I’m dubious that most supporters of sanctuary policies actually believe it either.)

            1. I’m skeptical that the increased cooperation with law enforcement actually exists, and I’m dubious that most supporters of sanctuary policies actually believe it either.)

              Once again, your skepticism is not an argument. You adduce neither facts nor logic in support of your position. Here’s my counter-argument: I think there is increased cooperation with law enforcement, which is beneficial.

              That’s as good as your claims.

              1. Working in sanctuary jurisdictions, I have seen plenty of illegal immigrant witnesses refuse to cooperate with the police or disappear as the court date neared. Working in non-sanctuary jurisdictions, I have seen plenty of illegal immigrants call the police and participate in the court process. I haven’t noticed any real difference moving between the two. Obviously, I recognize that this is anecdotal, and that by definition the number of illegal immigrants who don’t participate are people I will have trouble seeing. But I would add that the sort of cooperation that DOJ was seeking here – facilitating the ability to identify and deport criminal aliens – seems particularly important, and particularly unlikely to deter the kind of cooperation that we’re talking about.

                Do you think that Los Angeles or any other sanctuary jurisdiction performed a more rigorous analysis than the above when deciding their policy? If a rigorous study showed that sanctuary policies don’t encourage cooperation with law enforcement (or that lack of such policies don’t deter illegal immigrants from cooperation) would that change your view about these policies?

                1. Of course it wouldn’t. Just like that a gun law wouldn’t reduce crime wouldn’t change their view, because they’re complete and utter liars.

                2. Here is a different opinion on the matter:

                  The foundation of the Major Cities Chiefs Association’s nine point position statement is based upon five
                  key concerns with local police enforcing federal immigration law. These concerns are:
                  1. It undermines the trust and cooperation with immigrant communities which are essential elements of
                  community oriented policing.

                  1. Everything after the colon is a quote from the linked document. We really need an edit or preview function.

                  2. Those “associations” are of big city chiefs appointed by Democrat Party mayors. They also ardently support gun control, while almost none of their rank and file do. Who cares?

                    1. If you can’t accept that police chiefs know more about police work than you or Nas then you are demonstrating that your IQ is seriously deficient, not that any further evidence was needed.

        3. I think they can get access if they get a warrant.

      2. I’d like it better if they hadn’t come forward because they’d been back in their home countries.

        You can say “They’re part of the community!” all you want, but that doesn’t change the fact that they’re not SUPPOSED to be part of the community.

        I want them cooperating with the police back home.

        1. IOW, you won’t answer.

          1. Brett is perfectly willing to bite the bullet – literally, I suppose – in order to bring about his white-supremacist worldview. Noble.

            1. Sorry, but whites ARE supreme, both in creative ability and ability to create successful civilizations.

              1. Well. . . some of us are.

                Some, like you, have zero creative ability and have no idea how to create a successful civilization.

                You (obviously) don’t even know what a civilization is.

                1. I might not know what a civilization is, but I know what it is not. And third worlders grunting at each other in the savannah does not constitute a civilization.

            2. I am perfectly happy to deport white illegal aliens, and would not particularly care to deport non-white legal aliens. That “White supremacy” is all in your head. Accusing conservatives of being racists has become something of a spinal reflex on the left.

              As it happens, not that you’ll care, I’m in an inter-racial marriage, and live in a mixed race neighborhood. My son is probably darker than half the people I’d like to see deported.

              And by the “Only the guilty defend themselves!” mindset of people on the left, by mentioning that I’ve likely convicted myself of racism in your view…

              1. Brett does seem to be to the left of the President on this issue.

                1. Not so far as I can tell. Has he proposed deporting any citizens lately? (I mean, aside from the handful who got naturalized under false pretenses, of course…)

                  I don’t care about race. I do care about culture. They are to some extent correlated, but that doesn’t make them the same thing.

                  Immigrants to the US will be beneficial or detrimental, depending on the culture they bring with them, which can largely be seen by looking at how successful/pleasant the places they’re coming from are. If a country is buried under snow and in the dark half the year, and non the less peaceful and prosperous, their culture probably has a lot to be said for it, and they will bring those positive cultural endowments with them.

                  If a country is blessed with a pleasant climate and abundant natural resources, and is none the less a “shithole”, well, the same can be said, with the opposite sign.

                  “You are what you eat”; It’s as true of immigration as diet, and why would I want the US to become more like Honduras? And that’s got nothing to do with skin color, and everything to do with what’s between their ears.

                  Yeah, if you want to, you can pretend somebody is more open to immigrants from Norway than Honduras because of their complexions. You’re not going to persuade many people, but you can still do it.

                  1. Racially diverse cultures can only be successful if they’re more or less equivalent in ability. That’s why Asians assimilate very well into white suburbs, but other groups do not.

                    1. While that’s likely true, one has to remember that racial groups, to the extent that they do have differences in their mean intelligence, represent very broad and largely overlapping bell curves. I do, after all, live in a mixed race suburb of Greenville, and I assure you that my neighbors of all colors have no trouble coexisting. Where they’re located relative to the mean IQ of their racial group is less important than where they’re located in terms of IQ, period.

                      It would be quite easy to condition immigration on IQ, and eliminate that as an issue, and indeed we’d want to do that anyway.

                      Culture is somewhat more intractable, since it is less easy to objectively measure.

                    2. Of course, but the differences in mean intelligence are so stark that if you admitted people without regard to IQ, you’re going to end up with very unintelligent people, as randomly picked sub-Saharan Africans and Amerindian Hispanics will be very low IQ.

                      Greenville, SC? Love that place. Got stuck for work in Spartanburg once, which was such a dump I rented a car and drove to Greenville just to get away.

                    3. It would be quite easy to condition immigration on IQ, and eliminate that as an issue,

                      Well, no. It wouldn’t be easy, or probably even possible in any rational sense.

                  2. Not so far as I can tell.

                    If you can’t tell Trump is a racist you’re not paying attention.

                    I don’t care about race. I do care about culture. They are to some extent correlated, but that doesn’t make them the same thing.

                    Immigrants to the US will be beneficial or detrimental, depending on the culture they bring with them, which can largely be seen by looking at how successful/pleasant the places they’re coming from are.

                    This is idiotic on too many counts to list.

                    Start with this. Why do you assume that immigrants to the US are a random sample of the population of their home country? Do you think a willingness to walk through Mexico says anything about a person’s drive or ambition?

                    Also, stop with the race/culture/group IQ crap. Leave it for RWH.

                    1. No, that willingness is pure survival instinct. That doesn’t have any correlation with IQ or ability o assimilate into a majority white, high IQ society.

      3. Just like the idiotic “WE’RE SEPARATING CHILDREN” meme, your hypo is pointless.
        Suppose you are robbed and the only witnesses have outstanding warrants for unpaid child support?
        Should we stop issuing arrest warrants?

  5. The grants are competitive, their is a limited appropriation and more applicants than there are funds so the grants are competitive. So DOJ has to use some method of deciding who gets the money other than just the fact they qualified for the grant criteria. Congress didn’t authorize first come first served as criteria, or random selection, or who cooperates most with federal agencies. But DOJ has to use to use some method to decide who gets the money.

    Seems to me they made a permissible choice in a competitive grant program, they get to pick the applicants they think won the competition from the applicants that met the program criteria.

    1. Sure. They get to set up a point system of some sort. But that overlooks the point.

      The issue is what features are entitled to weigh into the choices. Cooperation with immigration authorities, as Wardlaw points out, is not a part of “community policing.”

      1. I wonder if Wardlaw has a list of other laws he thinks don’t fall under the “commonly understood meaning” of community policing.

        Last I knew, the term had absolutely nothing to do with the type of crime, but instead focused on increasing the police officer’s familiarity with his assigned beat.

        1. I wonder if Wardlaw has a list of other laws he thinks don’t fall under the “commonly understood meaning” of community policing.

          Seems like there would be a lot of such laws. Do you have a problem with that?

        2. I was wondering if Judge Wardlaw has/will show the same reverence for the “commonly understood meaning” of “shall not be infringed” when given the opportunity.

          1. Which has what to do with anything under discussion?

  6. If the criteria for awarding every science (or arts/humanities) grant had to be spelled out by Congress with no discretion permitted on the part of the people evaluating the applications, it’s difficult to imagine how such grants programs could function, and it’s easy to imagine ways they could be gamed by people more skilled at inventing high-scoring applications than conducting scientific research etc.

    A difficulty is that sometimes there really is no alternative to trusting the administration, and hoping that elections take care of any problems.

  7. Two important and related issues here: “Sanctuary City,” as practiced across this Fruited Plain, is really an originalist conservative doctrine, properly understood: See, e.g., https://www.kennedyforlaw.com/sb-54-and-sanctuary-city

    Furthermore, this opinion, addressing grant matters, reveals the evils associated with the grant programs – the federal government, forbidden from directly regulating certain conduct, indirectly does so via tax and spend, giving money to bodies that comply with its outlook and withholding it from those who don’t, akin to political extortion.

    The Framers felt that federalism was an important doctrine in our governance, leaving to the states that which is legitimate state business [like local law enforcement standards!] and assigning to the national government the stuff properly there [without empowering the feds to commandeer state government to do federal bidding]. Sanctuary City respects original federalism notions; this invitation to extortion eviscerates it.

  8. The liberals who feel gun makers should be sued over gun deaths will, I’m sure, be okay with a law making it so that Americans can sue sanctuary cities if violence by an illegal befalls them while in a sanctuary city.

    Right? I mean, they’re so consistent.

  9. “But this trend may be part of a more general rethinking of constitutional federalism on the left.”

    that will last until the day the next Democratic president is sworn in.

  10. Given that non-white immigrants tend to be overwhelmingly statist, it’s not wrong for conservative whites to oppose mass non-white immigration. Why should someone be morally obligated to allow the immigration of people who will ruin their country?

  11. As a matter of de novo statutory interpretation, I agree with the dissent’s interpretation of “community oriented policing.” On the other hand, as a matter of Chevron deference, I think the majority makes a good point that it’s a fairly ambiguous term.

    I also agree with you that there isn’t a competitive grant exception to the spending clause when Congress is the one appropriating the money and only for specific purposes. That being said, given the administrative deference, this doesn’t change the outcome.

    1. When a statute gives the basis for selecting recipients, but not enough funds are appropriated to hand the money out to every recipient thus qualified, I can’t see any real problem with adding reasonable criteria to pick which of the statutorily qualified get the money.

      It should obviously be criteria related to the goal of the grant, and not otherwise prohibited, but nothing in the Constitution requires such situations to be resolved with a coin toss.

      Assisting, or at least not deliberately frustrating, federal law enforcement, isn’t a crazy condition to use on a federal law enforcement grant.

      Oh, and I think there actually IS an argument that it’s statutorily required, anyway.

      1. If Congress says you can add conditions related to X and the President adds a condition related to Y, would that be “not otherwise prohibited”? That’s basically my concern here. I don’t think the fact that it is a competitive grant changes the spending clause requirements. I agree completely with you that, if the condition is one authorized by Congress, the President can add it even if they’re not required to add that condition. I also think Chevron deference applies to the executive branch’s determination that this condition is one authorized by Congress. But I also don’t think this analysis changes whether it’s a competitive, discretionary fund or not.

  12. […] many cases of such opportunism, there are plenty of counterexamples, as well. With the exception of one unusual case, conservative judges have almost invariably ruled against the Trump administration’s recent […]

  13. […] many cases of such opportunism, there are plenty of counterexamples, as well. With the exception of one unusual case, conservative judges have almost invariably ruled against the Trump administration’s recent […]

  14. […] many cases of such opportunism, there are plenty of counterexamples, as well. With the exception of one unusual case, conservative judges have almost invariably ruled against the Trump administration’s recent […]

  15. […] many cases of such opportunism, there are plenty of counterexamples, as well. With the exception of one unusual case, conservative judges have almost invariably ruled against the Trump administration’s recent […]

  16. […] many cases of such opportunism, there are plenty of counterexamples, as well. With the exception of one unusual case, conservative judges have almost invariably ruled against the Trump administration’s recent […]

  17. […] many cases of such opportunism, there are plenty of counterexamples, as well. With the exception of one unusual case, conservative judges have almost invariably ruled against the Trump administration’s recent […]

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