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.