The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For over two years, the Trump administration has been trying to force "sanctuary cities" to assist federal efforts to deport undocumented immigrants by imposing various new conditions on federal grants to state and local governments that refuse to comply. And throughout that time, courts have repeatedly ruled against the administration's plans, on the ground that only Congress can authorize conditions on federal grants to state and local governments. The executive is not permitted to make up his own conditions in an attempt to pressure states into doing his bidding.
The latest such defeat for the administration came yesterday, in a decision issued by the US Court of Appeals for the Ninth Circuit, addressing a lawsuit brought by the City of Los Angeles seeking to overturn the administration's attempt to impose three immigration-related conditions on recipients of Edward Byrne Memorial Justice Assistance grants for law enforcement agencies.
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.
The Los Angeles case addresses only the second and third conditions. But, like every other federal court that has reviewed the administration's attempt to impose new conditions on the Byrne Grants, the Ninth Circuit struck down the conditions because "none of DOJ's proffered bases for statutory authority gives the Attorney General or the Assistant AG the power to impose the notice and access conditions." The conditions were not authorized by Congress, and therefore the president cannot impose them.
This latest ruling is nonetheless notable for two reasons. First, the opinion was authored by Judge Sandra Ikuta, a Republican George W. Bush appointee, and joined by fellow Bush appointee Judge Jay Bybee, often considered one of the most conservative judges sitting on any federal appellate court.
Some liberals have even called for Bybee's impeachment because of his role in drafting the notorious "torture memos" in the Bush administration, which—among other things—advocated an extremely broad interpretation of executive power. If your claims of executive authority are too broad to satisfy Judge Bybee, you may want to rethink them. Yet such is the sweeping nature of the Trump administration's assertions of executive power over immigration, that this is not the first time that Bybee ruled against them in a significant immigration-related case.
That said, it is not particularly surprising to see conservative judges ruling against the Trump Administration in a sanctuary city case. The "blue" jurisdictions bringing these lawsuits are relying on federalism principles long advocated by conservatives and enshrined in Supreme Court decisions authored by conservative justices such as Samuel Alito and the late Antonin Scalia. In previous sanctuary cases, conservative and liberal judges have largely ruled the same way—against the administration—with only very rare exceptions.
The second somewhat novel aspect of this case is Judge Kim Wardlaw's concurring opinion, expressing the concern that the majority, though rejecting the two conditions, nonetheless gives the executive too much leeway:
I concur with the majority to the extent it holds that the challenged immigration conditions were not authorized by Congress, and are thus unlawful. But once the
majority concluded that the challenged notice and access conditions are not lawful "special conditions" or "priority purposes" and were thus beyond the powers granted by Congress to the Department of Justice, it should have stopped, as in full stop. Everything else the majority writes about 34 U.S.C. § 10102(a)(6) is "unnecessary to the decision in the case and [is] therefore not precedential." Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)….. In other words, the rest of the asides cast by the majority are dicta. In dicta, the majority finds vague, unidentified powers bestowed upon the DOJ in an illustrative 2006 amendment to a "duties and functions" statute in a different subchapter of the Act that established the Byrne JAG program. See Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006). This putative power grab not only unnecessarily portends a circuit split, its analysis also stands contrary to every other court to have addressed the issue in a reasoned opinion….
[I]n dicta, unnecessary to its holding, the majority seems to adopt the DOJ's "independent power" construction of § 10102(a)(6), writing in passing that "the Attorney General and the Assistant [Attorney General for the Office of Justice Programs] through delegation have the authority to impose special conditions on all grants and determine priority purposes for formula grants, as those terms are properly
Not surprisingly, the majority takes a different view, and argues that their interpretation of the discretion given to the executive is "narrow"and that Wardlaw has set up a "strawman" argument:
Because we interpret the terms "special conditions" and "priority purposes" narrowly, we agree with our sister circuits that § 10102(a)(6) does not give the Assistant AG broad
authority to impose any condition it chooses on a Byrne JAG award….
In opposition to our interpretation of § 10102(a)(6), the concurrence constructs a strawman argument. It ignores our actual interpretation of § 10102(a)(6), and instead accuses us of adopting a "sweeping characterization" of DOJ's authority, Concurrence at 44, that allows the "essentially limitless" imposition of any conditions desired, Concurrence at 44–45…. Based on this strawman argument, the concurrence then accuses us of creating a split with our sister circuits, which have rejected
such a broad interpretation…..
While the concurrence has an easy time battering its strawman, the concurrence fails to explain how our actual ruling, that DOJ has the limited authority to impose special
conditions designed to meet needs for carrying out the Byrne JAG program, could abrogate or "subvert" Byrne JAG's funding scheme….
To fully understand the dispute between the majority and concurring opinions, you will likely have to read the relevant sections of both opinions. The issues are not easily summarized in a blog post. But my bottom line is that the majority's position does indeed interpret DOJ's power "narrowly," though Judge Wardlaw may well be justified in arguing that it should be interpreted even more narrowly still.
While the issues in this and other sanctuary cases may sometimes seem arcane, they have broader implications for federalism that go far beyond the specific issues at stake. If the administration can exploit vague statutory language like "special conditions" and "priority purposes" to impose all kinds of new conditions on recipients of federal grants—without any specific authorization by Congress, the president could use this power to pressure state and local governments to do his bidding on a wide range of issues.
The Byrne Grant cases are just one of several fronts in the ongoing legal battle over federalism and sanctuary cities. I provide a fairly complete overview in this recent Texas Law Review article, though it unavoidably omits a few developments that have occurred since it was published a few months ago. Most recently, the Trump administration has sought Supreme Court review of one of the issues in its challenge to California's "sanctuary state" law.