Sanctuary Cities

Trump Administration Loses a Sanctuary City Case—Yet Again

The latest in a long line of court decisions ruling against Trump's efforts to pressure sanctuary cities into helping deport undocumented immigrants features an opinion by two conservative Republican judicial appointees.

|The Volokh Conspiracy |

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
circumscribed."

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.

NEXT: Indiana Supreme Court Applies Eighth Amendment to Curb "Oppressive" Asset Forfeitures

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  1. Let’s review class. Federalism means you move heaven and earth to force one specific county clerk to endorse a SSM no matter if you have an infinity of other clerks willing to do it regardless of how the state feels about it. It also means states are free to blow taxpayer money actively interfering with the Feds in immigration enforcement, shuffling around murderers and rapists to hide them and forcing private citizens not to cooperate but at the same time are not allowed to engage in immigration control on their own. Basically Federalism=whatever leftists want. Is the only definition that makes sense.

    1. The 14A is an explicit limit on state power, and it authorizes Congress to effect those limits. Federalism is a function of the Constitution, most specifically the 10A. But the 10A has no applicability to assertions by states of powers in violation of the 14A, since the 10A does not apply to “powers . . . prohibited by [the Constitution] to the States”. 14A are “powers . . . prohibited by [the Constitution]” and so there’s nothing left for the states to have reserved.

      This isn’t even a federalism case. The grounds for denial were: (1) statutory based on the AG’s interpretation of Section 10102(a)(6). It’s just a normal statutory interpretation argument based on the same canons relied on by SCOTUS Justices. (2) statutory based on the AG’s interpretation of Section 10153(a)(4). Neither argument has anything to do with federalism. You can control + f “federalism” from the opinion and you’ll find nothing.

  2. It is really important that Prof. Somin publiclize cases like this. It has become a cottage industry among especially non-lawyers and non-law professors on the left to pretend conservative judges don’t care at all about their principles and only want to screw over the left.

    It isn’t true of a lot of them. This is a nice illustration.

    1. “It has become a cottage industry among especially non-lawyers and non-law professors on the left to pretend conservative judges don’t care at all about their principles and only want to screw over the left.

      It isn’t true of a lot of them”

      I concur. It is true of some of them, and for the ones it is true, well, they deserve to be excoriated for it. But it is not true of all of them, and for the ones it isn’t true of, they do not deserve to be painted with the same brush.

      This is one of the key elements of respecting people, on both sides. You can pretty much always discard any opinion that collects everyone on one side of the political spectrum as the same.

  3. “Undocumented immigrants.”

    It is deeply regrettable Ilya seems hell-bent on turning the country that saved his family into that which his family fled. Not unlike the liberals pushing for insane policies in their new red state homes after scurrying from the self-inflicted filth and decadency of their west coast origins. Progressivism is a cancer on society and the world.

    1. Yes, the USSR was known for it’s open borders.

      On the other hand, it was known for it’s elimination of people for wrongthink, kinda like what your eliminationist rhetoric advocates for.

      1. Sarcastro, “undocumented immigrant” is a deliberate obfuscation. We’re not talking about green card holders whose pockets have been picked, we’re talking about people who lack documents because they’re not legally entitled to them.

        Except that they usually do have documents, they’re just fraudulent.

        J.L. is right: Ilya claims to be a libertarian, but he advocates steps which inevitably shift America’s population away from being libertarian, and guarantee that libertarianism will never prevail in this country.

        He isn’t the first person to escape a bad situation, and through a failure to comprehend the roots of why it was bad, labor to recreate it in his refuge. And he won’t be the last. It’s a common problem.

        It’s like saying a bank robber made an “undocumented withdrawal” because he didn’t have a debit card for the bank.

        1. No, it is not. Everyone knows what it means, don’t pretend anyone is confused or led astray. You just want the negative connotation of illegal, because you really hate that population for…reasons.

          As to your dance about what libertarian can truly mean, you’re one of the most enthusiastic here about using the instrumentation of the state to enforce your ideology. That you think it’s rebalancing versus a vast and entrenched conspiracy doesn’t make your policies any more libertarian.

          1. Libertarianism and small government does not exist in a vacuum. Fill a libertarian society with illiterate third worlders with high illegitimacy rates who are genetically mentally inferior and thus susceptible to false promises and arguments, and in a generation or two, you no longer have a libertarian society.

            1. Yes, your 1900s-style racism does imply some institutional ethnic cleansing might be good for American liberty

              Which is why you’re so toxic on these forums (and likely elsewhere) that your own side thinks you’re secretly against them and lying about it.

              1. I don’t support ethnic cleansing, but I do support compulsory sterilization of low-IQ and severely mentally ill people.

                1. And since you also hold that certain races are low-IQ definitionally…guess what you end up supporting?

                  1. Nope. You’d still have all races represented, just over time only higher IQ ones. But yes, I acknowledge that there would be a “disparate impact,” to use a favorite term of you people.

                    1. Your usual blanket condemnation of nonwhites is inconsistent with your thinking here.

                      I’m also not sure why you’re putting in so much work to move away from ethnic cleansing to mere eugenics. Congrats, you’re still a Nazi.

                    2. So you are on record acknowledging that if the choices are to practice eugenics or allow a dysgenic destruction of western civilization, you’d pick the latter?

                    3. You’re the one playing that extremely dumb game; Sorry, I’m not going to be dragged into it.

          2. Let’s be honest, Sarcastr0. “Undocumented immigrant” was introduced preciously both to create confusion as to the legal status of the aliens in question and to create sympathy to further certain immigration causes. Did advocates introduce this particular turn of phrase for no reason? I think they wanted to define the issue like all advocates. Has there ever been a poll as to how the general population understands the term? I bet quite a large number think that there is a legal difference between an “illegal alien” and an “undocumented immigrant.”

            1. Advocates introduced it because they think calling a person illegal is dehumanizing.

              And they’re right. I use it as a shorthand for this audience to avoid this dumb debate.

              The rest of your post is speculation based on nothing but your own views of your opposition.

              1. Not sure you realize it but you’re basically agreeing with me. On second thought, you probably don’t realize it.

                1. So you’re advocating dehumanizing illegals, and indeed condemning anyone who is against that as trying to influence policy with their filthy humanism.

                  That’s pretty awful, are you sure that’s where you want to go?

                  1. “Dehumanizing? Are you serious?

                    Bank robbers are human.
                    Mass murderers are human.
                    Embezzlers are human.

                    NOTHING about correctly identifying somebody as a criminal “dehumanizes” them. The only dehumanizing going on in American politics today is being done by the ‘pro-choice’ movement.

                    1. I still call them illegals on this blog, Brett. I’m pointing out why other people are doing it, and how it’s not some conspiracy to make people think they’re actually American citizens.

                      Your counterexamples are telling, though. Illegal immigration isn’t a malum in se like all your examples are. The work you put in to ensure you have no empathy with this group continues to be ridiculous and awful.

                      The businessmen who employ illegals hardly get a mention, and certainly don’t get long screeds about the proper semantic level of hate to have for them.

                    2. When bank robbers become a large, miserable population who our economy likely relies upon (for good or ill employment-wise), I’ll be a bit more sanguine about what to call them.

                  2. Hard to conceive that you can’t understand something so basic Sarcastr0. Let’s try again. Immigration advocates employ a biased turn of phrase to define the issue and control the argument. Not sure how to help you further. Maybe you should try reading more?

                    1. So is your side. Language works both ways.

                    2. Yet you’re the one who started the argument about vocabulary. Everyone here knows what the terms mean. Stop crying about it. “Pro-life” and “Pro-choice” are both loaded terms. Be an adult and move on. I don’t care if you call them “undocumented immigrants” or “illegals” or “freedom-finders” or “savages”. If we can agree that we’re talking about people who are not here with legal papers, what fucking difference does it make? I’m not going to waste time giving you trigger warnings.

              2. Sarcastr0….Correct me if I am wrong here. But isn’t the correct legal term ‘illegal alien’?

                To me, deliberately using the term undocumented immigrant is the worst form of sophistry.

                1. That’s in dispute. Who defines correct term? I call them illegal aliens, but reasonable minds differ.

                  Unreasonable minds insist that if you don’t use their terminology you’re part of the plot to undermine America.

                  Awful people say ‘yeah, it’s dehumanizing – that’s why I use the term!’

                  1. That’s in dispute. Who defines correct term?

                    You ask a fair question. I shall answer. The Congress, as stated in law. And secondarily, SCOTUS in using the the legal term in their decisions. You were saying something about a dispute…? 🙂

                    What is happening here is an attempt to change the language (use of undocumented versus illegal), so people change the way they think. It is a deliberate mis-statement, done purposefully. You fool no one.

                    1. I’m pretty sure Congress defines the act, not what you call the people who committed the act. I’m not an expert, so maybe there’s some language otherwise.
                      But in general, I don’t think we do or should look for Congress to define our vocabulary.

                      Language changes, sometimes intentionally sometimes not. It’s not some trickery to fool people – it’s right in the open. You keep on using your term (a term I use as well), but accusing those who don’t of bad faith is ridiculous.

                      It’s also very much not a misstatement – both terms describe what’s going on. Just because you want to focus on one aspect doesn’t mean we must privilege your terms.

                    2. “What is happening here is an attempt to change the language (use of undocumented versus illegal), so people change the way they think.”

                      You might have a point if “undocumented” and “illegal” meant the same thing. They don’t. A lot of undocumented are illegal, and a lot of illegal are undocumented. But they’re different terms that mean different things.

                      If using a more accurate term changes the way people think… well, that’s a good thing, right?

                    3. Good thing you have access to The Definitive Guide to Politically Corect Gibberish to set everybody straight, Pollock. Could you provide a link so we can all educate ourselves?

              3. Humans often do illegal things. Only idiots think the term is dehumanizing. You are an idiot.

                1. Calling humans who do illegal things illegal-type humans is where the dehumanizing comes in.

                  I disagree, but understand the reasoning.

                  1. Since the group itself is DEFINED by being illegal aliens, where “illegal” is a modifier to “aliens”, what else are you going to call them, and be accurate?

                    “Undocumented” is objectively inaccurate: It’s quite easy to be here illegally and be documented; A visa overstay will accomplish it, for instance. And many illegal aliens will documents, they’ll just be fraudulent. While it’s difficult for an alien to be here legally without documents, it can happen under some circumstances.

                    So “undoumented” is irrelevant to the category we’re trying to capture here. It’s used entirely to confuse matters, divert attention from the fact that we’re discussing people whose very presence in the country is an ongoing crime.

                    1. The point is that perhaps defining a large and diverse group as illegal is more prejudicial than probative.

                      Undocumented means they don’t have required documents. It’s not the first definition, but it’s not outside the dictionary for what documented means.

                      Anyhow, we all know what population both terms refer to. Fighting over the semantics is a secondary battle. I know you’re into such things; I’m a bit more lazy-functionalist. But I do get my back up when you try and get prescriptive about someone else’s language choices.
                      Because in the end, it always devolves into one side, the other, or both, very much wanting the other side to frame the question like they want it to. And then we’re just back to the debate, but with an artificial framing.

        2. I also note you didn’t really address the ‘progressivism is a cancer on society and the world’ rhetoric.

          You know what you do with cancer, right? Hint: It’s not beat it in a fair election.

          1. Sometimes I wonder if these virulent people who jump in to “help” one side aren’t plants designed to make that side look terrible.

            As if someone ran in to “help” the lberal side, screaming “Communism, yes! And we sorely need those re-education camps!”

          2. I wouldn’t call it a cancer Sarcastr0. I’d call it a mental illness.

            1. “I wouldn’t call it a cancer Sarcastr0. I’d call it a mental illness.”

              I would, too. But not the way you would. You’re delusional, and that’s mental illness, all right.

              1. I’d ask you to explain the incoherent insult, but I suspect you’re just not capable of explaining your own incoherence. If you could, you wouldn’t have been incoherent in the first place.

          3. Calling your political opposition mentally ill is not less of a Soviet move, MKE.

            1. How about unbalanced or deranged?

              1. When your name calling requires reaching for a thesaurus, maybe you’ve gotten a bit too committed to hating the other side.

                1. You do understand there’s a difference between rhetoric and the actual real abuses employed by Soviet communists against dissidents? Not sure anymore I should assume you understand anything.

                  1. Yeah, the ‘it was just rhetoric’ dodge is about as lame as ‘I was just joking’.

                    Your partisanship has you playing in authoritarian waters.
                    Find another way to criticize if you don’t like it.

        3. ““undocumented immigrant” is a deliberate obfuscation.”

          Except it isn’t. It’s a specific term for a specific group of people. It includes people who, for example, lack documents because of a natural catastrophe. It doesn’t include people who fled political repression in their original home country, applied for admission to the US as refugees, and were accepted.

          1. It wouldn’t be a deliberate obfuscation if it were being applied to such people.

            But as generally used, as a euphemism for illegal alien, it IS an obfuscation.

    2. Open wider, J.L. Kleppe.

      Your betters have more American progress to shove down your whimpering, bigoted right-wing throat. More education, tolerance, science, reason, liberty, and inclusivity, all of it achieved against your wishes and efforts.

      And be nicer, lest your betters decide to start positioning all of this damned progress sideways before you are forced to swallow it obsequiously.

      Unless, of course, the Conspirators succeed in their quest to reverse the tide of the American culture war and turn clingers from casualties into victors.

      1. How is it people around these parts like to rail about “bigotry” and “right wingers” but seem to gloss over Cuckland’s foaming hate filled bigoted posts?

        1. Because I’m a partisan, just like you, and so poking the shallow knee-jerk thinkers on the other side is more fun than policing my own side.

          I come here for fun, not consistency.

        2. Actually, most of us ignore him. He is not worth my time. Or yours

          1. Yeah, I usually ignore him. But I’m in a mood today.

            1. I think the Rev proves my point above about mental illness.

              1. Losing the culture war to better Americans seems to have made you cranky, MKE.

                1. If only you could moderate the next dem primary debate. That would be darn good tv. See if you can get a day pass from your doctors for that.

              2. Changing the subject from this guy to Rev is a telling move.

                Deal with your own issues, don’t spend all your time pointing elsewhere.

                1. Is the left completely devoid of a sense of humor?

                  1. Yeah, why in the world might I have some trouble realizing when you’re joking about the other side being mentally ill. Must be because I take everything so seriously. Has nothing to do with your side’s constant soaking in hyperbole even when serious.

                    1. I guess the answer to my question above is yes.

              3. Yes, of course. We can see that. In the entire history of you posting on this website, you’ve never changed your mind, nor read anything that proved someone’s point other than your own. You’ve decided to wear this as a badge of honor, for some reason.

        3. Because he’s just a troll and it’s not real? I would suggest to stop being a snowflake since it just encourages him.

        4. “How is it people around these parts like to rail about “bigotry” and “right wingers” but seem to gloss over Cuckland’s foaming hate filled bigoted posts?”

          They see his name at the top of it, and then just skip right over it.
          I recommend this approach highly, for both his AND your postings.

    3. Wtf? Leaving beside everything else, one of the most notable elements in USSR policy was in the complete calcification of where people could live. Only the very best could move to the USSR, and once inside nobody could move, even to another part of the country they lived in, without the government exiling them, i.e. not by choice. Nobody could leave without extreme (and illegal) effort. Saying that Somin supports similar policies is just fucking retarded.

  4. But Nancy Pelosi just gave a big speech about how “no one is above the law” and “our democracy is at stake” (presumably because some people are operating outside of the bounds of the law). Or does the law only apply to “orange man bad” but local and state governments that actively and openly assist in aiding those who flaunt immigration law, well that is OK.

    1. You do realize the whole question here is what the law is, right?

      Just because you really really, wish the law owned the libs doesn’t mean that it does.

      I don’t know which direction the Supreme Court will come down on, but at this point you’ve started your Internet tantrum here on a faulty premise.

      1. Yes, but liberals like yourself consider “whatever liberal judges decide it is” to be “what the law is.”

        1. Wrong axis. Institutionalists of all political stripes follow the Supreme Court, since it’s the institution that is Constitutionally charged with judicial, constitutional review.

          You’re a reactionary. And that’s why you suck.

          1. Right, so that means that when two ugly Jewish women, one ugly Puerto Rican woman, a drunken Irish Catholic, and a senile old Jewish man find a “right” to kill babies and sodomize other men, that’s “what the law is,” in your eyes.

            1. As if you care what the law is. You advocate for the killing of judges you don’t like.

              1. When your civilization is in danger, the ends always justify the means.

                1. And that’s why your protestations about the law are laughable.

                  1. Both he and Kirkland are long term trolls. It doesn’t make sense to talk to them, since it uglifies the indentation on the page.

                    1. Trolls are insincere. I think both of them are true believers, and thus not trolls.

                    2. Whether engaging with them is a good idea, I tend to agree with you.

                2. After killing all the libs, do you really think your allies will just ignore that you’re Jewish?

                  1. No one will know. I haven’t been inside of a synagogue in twenty years, I married a gentile, I don’t have a Jewish name, I don’t identify as Jewish, and I don’t have particularly Jewish looks.

                    1. Ffs have you studied no history of the Nazis?

                    2. How do you plan on testing me?

                    3. I don’t plan to test you at all. In your world I’ll be dead.

                      But your current allies? Yeah, I’m sure people willing to eradicate entire political and ethnic classes would draw the line at mandatory cheek swabs.

                    4. My allies are not willing to eradicate anyone. That would be you liberals who want to fill America with third worlders.

      2. So we have lawfully enacted immigration law. Federal, state, and local politicians openly flaunt that law and encourage/provide legal protections for illegals who are breaking that law. Fail to see the false premise here. There is no other question here. Stop trying to make excuses for people who are trying to operate outside of the law just because you like their version of being above the law.

        1. Read the case. Or any of the many other cases that contradict you.

          Or go on being so prideful that you believe your shitposting on the Internet gives you an understanding trumps a growing legion of professionals charged with statutory interpretation as one of their their main duty.

          To help you out, here’s the summary from Prof. Somin: 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.

          You can wish the current state of Constitutional law were different, but you cannot declare it so.

          1. That is just a lot of words to justify your double standard.

            1. Don’t like reading, huh?

            2. That’s what arguments are, Jimmy, a lot of words to justify a position.

          2. Well, Sarcastr0, didn’t the statute (you know the thing passed by Congress) give the AAG discretion to impose conditions? Where exactly did Congress specifically limit that discretion? Where exactly is the statutorily mandated list of the special conditions from which the AAG cannot deviate?

            1. only Congress can authorize conditions on federal grants to state and local governments.

              What is required is a positive authorization. Your question about a specific limit is appears to be your own personal made up standard.

              1. Why is that required? There is no statutory definition of “special conditions.” There are no Congressionally mandated conditions that the AAG must adhere to. So, in sum, the AAG is acting pursuant to a Congressional authorization that authorizes the imposition of special conditions. And compliance with 8 USC Section 1373 (yes, that also was passed by Congress) seems pretty reasonable.

                1. Because that’s the Supreme Court precedent – to maintain maximal state independence, it didn’t allow Congress to stumble it’s way into stepping on state policies.

                  Seems pretty reasonable to you, but not the court. Or a bunch of other courts. Maybe you’re reasonability meter is a bit outcome-oriented, eh?

                  1. That makes no sense Sarcastr0. What S.Ct. case? The issues in this involve statutory construction. You really have no understanding of the legal issues involved here, do you? Maybe you’re commenting in the wrong blog?

                    1. Do your own homework. Or read the OP.

                    2. I’d warn you to stop before you embarrass yourself, but we’re well past that point.

                    3. You are the one thinking maybe this court didn’t cite Supreme Court precedent. Don’t backpedal now!

                    4. I honestly have no idea what you’re trying to say. That somewhere in this case concerning the interpretation of the AAGs statutory discretion there is a controlling S.Ct. opinion on the meaning of the statutory language at issue? Just cite the opinion. Of course, you could just admit you have no idea what your talking about, but that would require some intellectual integrity.

                    5. Do you think the standard this court uses is based on Supreme Court precedent.

                    6. This is really pointless. Those are just citations to generic standards not references to controlling precedent as to the meaning of the language it issue. It’s my own fault really, never argue law with a layman, or with a Sarcastr0.

            2. “…didn’t the statute (you know the thing passed by Congress) give the AAG discretion to impose conditions?”

              Of course, nobody disputes that. The issue is the extent of the discretion. The DOJ wants to pretend that “placing special conditions” is not limited to “exercis[ing] 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”. The words after “including” are not a “stand-alone grant of authority to the Assistant Attorney General to attach any conditions to any grants”. 888 F.3d at 287.

              The DOJ also wants to ignore relevant other materials that give life to “special conditions”, like 28 CFR 66.12 and 34 USC 10109 (using identical language). That is, the “specialized conditions” referenced in 34 USC 10102 were individualized requirements in specific grants.

              “Where exactly is the statutorily mandated list of the special conditions from which the AAG cannot deviate?”

              From the opinion, it’s at section 10152(a)(1). That has a list of things that the AG may use to prioritize who to grant funds to. The list includes providing “additional personnel, equipment supplies, contractual support, training, technical assistance, and information systems for criminal justice”.

        2. politicians openly flaunt that law

          It’s terrible when politicians wave laws around.

          1. Hey, you get to choose between that and them playing the flute at you, in an interpretative jazz rendition of breaking the law.

        3. “Federal, state, and local politicians openly flaunt that law and encourage/provide legal protections for illegals who are breaking that law”

          Here’s the deal. The Constitution allows the federal government… and ONLY the federal government… to set naturalization policy. The job of enforcing federal law is (surprise!) the federal government’s. The local Sheriff doesn’t check for violations of SEC rules when he pulls over a car, either. He also doesn’t register copyrights.
          If the federal government finds that the way they conduct their responsibilities isn’t working, maybe fox the federal law so that it does. Hint: Why is there a population of people who entered this country illegally? Is it because the number of people who can be removed is limited by federal law, at a value far below the point at which removals would equal arrivals? Why, yes it is. So if I were running a local government, and the feds turned up asking me to help them with their enforcement plan, the first thing I’d do is point out that they need WAY more people authorized to hear deportation cases, and until they get that straightened out, everything else is pretty much just playacting, and I’ve got more important things to attend to. I’m NOT running a local government, but I respect the people who are who are following my blueprint (so to speak).

          1. “Why is there a population of people who entered this country illegally? Is it because the number of people who can be removed is limited by federal law, at a value far below the point at which removals would equal arrivals? Why, yes it is. ”

            And, why is it done this way, instead of by changing the immigration laws?

            For both Republicans and Democrats, this is due to business interests wanting cheap labor. Illegal immigrants represent a pool of cheap labor, who can be intimidated by threats of exposure. From business’ perspective, keeping the laws, and only enforcing them if an employee gets uppity, is ideal.

            For the Democrats, an additional motive is forced demographic change, “electing a new people”. It has been a scarcely concealed goal of the Democratic party for at least a generation.

            Of course, the existing people don’t want to be replaced, and the flip side of cheap labor is low wages and high unemployment, which the native population hardly appreciate, so while this policy is popular with politicians, it’s NOT popular with the general population.

            The biggest fight between Congress and Trump, and likely a major reason Democrats are pushing impeachment, is that Trump is actually trying to enforce immigration laws. Congress can’t openly oppose this, so they make a point of systematically hobbling enforcement by underfunding and staff caps.

            But the fact that they can’t openly pursue this aim results in them always leaving loopholes that Trump can exploit.

            In the judiciary, the lower courts are on board with the agenda of unlimited illegal immigration. The Supreme court isn’t. So Trump keeps losing in the lower courts, and then winning at the Supreme court. Eventually, I suspect, the Supreme court is going to get annoyed, and rein in the lower courts.

            1. “For both Republicans and Democrats, this is due to business interests wanting cheap labor.”

              Right, only “business interests” seek cheap labor. The rest of us non-businesses hate cheap stuff. We like paying a lot for everything.

              “…which the native population hardly appreciate, so while this policy is popular with politicians, it’s NOT popular with the general population.”

              The native population is the one consuming the goods produced by low wage foreigners. As a point of fact, native populations love goods and services produced by foreign labor. You can tell based on how much we eagerly consume those things.

              “…is that Trump is actually trying to enforce immigration laws.”

              Everyone in your narrative has some ulterior motive except for the man who has benefited from cheap foreign labor, and who is using it only as the quintessential piece of shit demagogue anticipated by Mencken.

            2. “In the judiciary, the lower courts are on board with the agenda of unlimited illegal immigration.”

              Congress passed a law that says people can’t come in just because they want to, and the President can remove people who do. But they also passed a law that says “but only this many people can be hired to hear deportation cases” and the USSC chipped in that you can’t remove people without a hearing , either. So, if the number of illegals is less than the number of people who can get a deportation hearing, everything’s good… all the illegals get deported. But if the number of people who are either in or can get in is higher than the number of people who can get deportation hearings, then some of them can stay, and the President picks who by removing all the people he can, and everybody left over can stay.
              Congress could fix this, by passing a law that allowed for more deportation hearings. (They could, of course, also fix this by saying “hey, c’mon in, the water’s fine” but I’m assuming you both already know this and are highly opposed to this resolution. But so long as Congress refuses (or is unable) to take either path, the current status quo survives… Congress is allowing some illegals to stay in the country, because the only punishment for the offense is removal, and if that penalty is barred by law, there isn’t any other.
              In short, call your Congressman.

  5. Now that Los Angeles has vindicated its right to welcome undocumented immigrants, maybe it will finally get around to finding places for them to live other than the streets.

    1. Los Angeles lacks the right to remove illegals. That job is federal. Maybe THIS is the year the federal government starts to take the job seriously, and puts enough resources into it to actually make a difference. Nah, I don’t think so, either.

  6. So a panel of the Ninth circuit gave zero deference to the Gov’t’s reasonable construction/application of a statute that plainly gives the AAG authority to impose the challenged special conditions? It would have been shocking if they agreed with the administration. One could make arguments on both sides, but one assertion lacking all merit is to attribute special authority to the opinion based on the president who happened to nominate the judges. Souter, O’Connor, and Kennedy were all Reagan/Bush appointees. Does that make the garbage reasoning of Planned Parenthood v Casey somehow legitimate? We could also add Roberts to the mix.

  7. 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.

    You mean like the 2011 Dear Colleague Letter?

    1. I’ve seen this stuff roll back and forth for decades now. As soon as Trump is out, all these highly-valued principles will be hurled right back into the trash can, and vice versa.

      Republicans love “50 states experimenting”, except when it’s net neutrality.

      Democrats love one consistent rule for all states…except when it’s net neutrality. And specifically, no net neutrality. Once they get power again and can push it on a federal level, they will no longer love 50 states experimenting.

      Frauds and liars all.

      1. “Republicans love “50 states experimenting”, except when it’s net neutrality.”

        The W administration shit kittens when Oregon passed an assisted suicide law (by popular vote). W’s team also kept trying to close down medical marijuana operations that were compliant with state laws. (Wouldn’t want those dying cancer patients to move on to harder drugs, you know.)

        R’s talk a big game about letting states decide about things, until a state does something they don’t like, in which case they’ll try to use federal power to stop it.

        “Democrats love one consistent rule for all states…except when it’s net neutrality.”
        Well, they liked, and fought for, net neutrality. I think you have this one backwards… they didn’t like the repeal of net neutrality.

        “Frauds and liars all.”

        Meh. Most, I’d concede. Not quite sure I’m ready to write them all off yet.

    2. I don’t think Somin liked Obama’s extralegal pursuits of policy-making. He’s been critical of it in the past.

  8. Perhaps, DJT45 should be applying pressure to the States that contain “sanctuary cities”? And any bill that doesn’t include “cooperation” language should be vetoed. Time to draw a big “red veto” line?

    1. Sure. Veto ALL federal funds that go to local police agencies. That fits the Republican agenda.

  9. “The Los Angeles case addresses only the second and third conditions.”

    The first condition WAS authorized by Congress!!

    1. It was. But was receipt of the grants conditioned upon adherence to it?

      1. As I recall, there is some sort of catch-all provision about cooperation with federal law enforcement.

        As well, there’s 8 U.S.C. §1644, and 8 U.S.C. §1373, which would seem to be utterly on point in regards to California’s laws.

        8 U.S.C. §1644
        “Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.”

        8 U.S.C. §1373 adds,
        “(b)Additional authority of government entitiesNotwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
        (1)Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
        (2)Maintaining such information.
        (3)Exchanging such information with any other Federal, State, or local government entity.”

        They could have been written with California’s new laws in mind. One of the glaring weaknesses of Ilya’s writing here on this topic, is that he never seems to actually engage the opposing legal arguments. Generally Trump actually does have some statutory basis for these actions, and Ilya just blows it off, not deeming it even worthy of acknowledging.

        1. As quoted, then, taking the office Internet router offline for maintenance could be a violation of federal law. I’ll keep that in mind the next time I’m working in a federal office. Looks to me like 8 U.S.C. §1644 fails for overbreadth. Seems to me the power company doing blackouts because of the wildfires are in violation, as well, if anyone would have been contacting the feds about an alien, legal or otherwise. Hell, sounds like you can’t even give a state officer the day off, if they might have wanted to contact the feds about an alien during the time they would have been working. The only way the state can comply is to either never contact the feds about any aliens.

          1. Or never give anyone who MIGHT contact the feds about any aliens any time off, in offices that never lack power, never lack Internet, and never get a busy signal on their telephones.

      2. The “conditions” we are talking about here are conditions on grants, yes. Not sure what you thought this was about.

        1. Gosh, thanks a lot for your condescending non-answer to the question I asked.

    2. It doesn’t address the first condition because LA didn’t move to enjoin enforcement of the first condition. From the opinion, they challenged only the “notice and access” provisions.

      1. It’s not obvious that the DOJ even included the first condition in the grant award documents.

      2. There seems to be a good reason LA didn’t do so. Not sure where the DOJ is at with this thing now but the first condition was the major issue of the first EO on sanctuary cities.

  10. “Yet again” is appropriate.

  11. It is being reported that clingers conducted a Halloween party in the Eisenhower Executive Office Building at which children were encouraged to ‘build the wall’ by designing a personalized paper brick and adding it to a wall mural depicting a bigoted, authoritarian, cruel wall evoking the wall pushed by Pres. Trump and cheered by the half-educated bigots, superstitious slack-jaws, and disaffected clingers who populate today’s Republican Party. Vice Pres. Pence reportedly attended this event.

    The ostensible adults who designed this grotesque event embody the reasons clingers can’t win the culture war in America, following the failed footsteps of bigots who targeted the Irish, Jews, blacks, Italians, Catholics, Asians, gays, eastern Europeans, agnostics, women, Hispanics, and others over the decades of American history.

    This is why most American law schools decline the Conspirators’ invitation to hire more movement conservatives for their faculties (and why the colleges and universities dominated by right-wingers tend to be fourth-tier yahoo farms).

    This is why America progresses against the wishes and works of Republicans.

    The backlash against bigots, gun nuts, anti-abortion absolutists, and religious zealots is likely to be severe. And, for conservatives, self-inflicted. Soon enough, not even voter suppression, gerrymandering, census manipulation, and our system’s structural amplification of yahoo voices will be enough to keep Republicans competitive in national elections.

    I attended a similarly bigoted event when I was eight or nine. I’d like to think that experience is part of the reason I despise bigots and slack-jaws today. I expect many of the children who ‘built that wall’ will learn to disrespect the adults who took them to this week’s repulsive Republican-conservative event.

    1. Yeah, your country full of worthless third worlders will be bankrupt within five years.

  12. I still think both sides in this are idiotic.

  13. The Senate should impeach federal judges for their decisions. They should fast track such impeachments. These judges are lazy, obstructionist, and tyrannical. They need to be removed quickly.

    1. Never thought I’d join the ‘this blog has changed’ crew but I remember when such authoritarian populism was rare and shouted down around here.

      Now everyone either greets or averts their eyes.

      Less this blog, I worry about what this says for one of the two major parties in America.

      1. Why should we “shout it down”, after all a wise man once said:

        “Because I’m a partisan, just like you, and so poking the shallow knee-jerk thinkers on the other side is more fun than policing my own side.

        I come here for fun, not consistency.”

        1. Maybe the blog has changed so more people are like me.

          Dunno if I think that’s a good thing. Certain I’m glad the intellectuals on the left aren’t like me.

  14. Bybee would be smack in the center of the 5th Circuit. Just sayin’.

  15. On October 23, El Coronado, CA Deputy Brian Ishmael was murdered by two men in the country illegally.

    Ha! Take that, Drumpf! You’ll accept open borders and like it!

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