The Volokh Conspiracy
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In a surprising decision issued earlier today, the US Court of Appeals for the Second Circuit ruled for the Trump administration in a case challenging one of its policies attempting to pressure sanctuary jurisdictions into cooperating with federal immigration enforcement policies. The ruling goes against previous decisions by the Third, Seventh, and Ninth Circuits, all striking down this very same policy as unconstitutional, in rulings issued by both liberal and conservative judges. Ditto for all the numerous federal trial judges who have considered the issue up to this point. If this decision stands, it would set a dangerous precedent allowing the executive to usurp Congress' power over federal spending, and impose its own conditions on federal grants in order to bully state and local governments into submission on a wide range of issues.
The case, brought by the City of New York and seven state governments, involves the Trump Justice Department's attempts to impose immigration-related conditions on state and local governments that receive Byrne Memorial Justice Assistance Grants intended to aid law enforcement operations.
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.
All three conditions have been struck down by every other federal court that considered them because they were never properly authorized by Congress, which has exclusive authority over federal spending. In addition, every court to have considered the matter since the Supreme Court's May 2018 ruling in Murphy v. NCAA have ruled that Section 1373 is itself unconstitutional, because it violates Supreme Court precedent barring federal commandeering of state and local governments. I explained how Murphy undermines Section 1373 and otherwise helps sanctuary cities here, here, here. and most fully in a recent Texas Law Review article, which provides a comprehensive overview of all Trump-era sanctuary city litigation up through mid-2019.
The Second Circuit ruling in New York v. Department of Justice goes against this broad judicial consensus. That doesn't necessarily mean it is wrong. But, in fact, it is badly wrong for a whole host of reasons.
Judge Reena Raggi's opinion for a unanimous panel concludes that the condition of obeying Section 1373 is authorized by a law requiring Byrne grant recipients to obey "all applicable federal laws." Other courts that have considered the issue have ruled that "applicable federal laws" includes only those that specifically apply to recipients of federal grants, not all federal laws that regulate state and local governments in some way. But Judge Raggi adopts the much broader interpretation:
Congress specifically requires a Byrne grant applicant to include in its application "[a] certification, made in a form acceptable to the Attorney General" stating that "the applicant will comply with all provisions of this part and all other applicable Federal laws." 34 U.S.C. § 10153(a)(5)(D) (emphasis added)…. A Byrne applicant is not required to certify its willingness to comply with the United States Code in its entirety as well as all accompanying regulations. Rather, an applicant must certify its willingness to comply with those laws… that can reasonably be deemed "applicable." This raises two questions: What is an "applicable" law? And who identifies it?…
The statutory text signals that the Attorney General identifies the laws requiring § 10153(a)(5)(D) compliance certification. This is evident in the requirement that Byrne grant applicants provide certification in a "form acceptable to the Attorney General…"
That Congress would vest such authority in the Attorney General makes sense for several reasons. First, while Congress itself requires compliance certification as to "all other applicable Federal laws," the number of laws that could apply to States and localities seeking Byrne funding is large, variable, and not easily identified in a single statutory provision. Second, the Attorney General, as the nation's chief federal law enforcement official, is particularly suited to identify the federal laws applicable to persons and circumstances. Third, having the Attorney General identify specific laws requiring10153(a)(5)(D) certification serves the salutary purpose of affording applicants clear notice of what is expected of them as Byrne grant
10153(a)(5)(D) authorizes the Attorney General to condition the locality's receipt of a Byrne grant on its certified willingness to comply with all federal laws applicable to that locality.
This is wrong on several levels. First, by ruling that the law gives the Attorney General unlimited discretion to condition Byrne grants on compliance with any federal laws that regulate cities and states in any way, the Second Circuit has interpreted the grant in a way that clearly violates the constitutional requirement (spelled out in longstanding Supreme Court precedent) that conditions imposed on state and local government recipients of federal grants must be "unambigously" spelled out by Congress. The matter can't simply be left to the discretion of the executive. Judge Raggi argues this isn't a problem because grant applicants get clear notice of what is expected from them from the Department of Justice. But the requirements here are supposed to be set by Congress, not the president. As several previous lower court rulings in sanctuary city cases explain, this is a matter of separation of powers, as well as federalism. If executive has the power to use vague phrases like "applicable federal laws" to pick and choose whichever conditions he wants from among the list of federal laws regulating states and localities, this makes a hash of congressional power over the purse.
This approach also renders the the Byrne program unconstitutional for another reason: the Supreme Court also requires grant conditions to be "related" to the purposes for which the grant was given in the first place. By allowing the executive to impose conditions based on every conceivable type of federal law "applicable" to recipient government, the Second Circuit allows the imposition of conditions that have little or no connection to law enforcement.
The Supreme Court has ruled that federal courts must, where at all possible, avoid interpreting federal law in a way that makes it unconstitutional. The Second Circuit's absurdly expansive definition of "applicable federal laws" clearly violates that stricture, especially since there are at least equally plausible narrower interpretations available, and indeed endorsed by numerous other federal courts.
The Second Circuit's reasons for upholding the other two conditions are equally problematic. It relies on the theory that these conditions are authorized by Section 10153(a)(5)(C), which requires grant recipients to certify "in a form acceptable to the
Attorney General" that "there has been appropriate coordination with affected [federal] agencies."
Out of this seeming molehill, the Second Circuit builds a massive mountain, concluding that "when a State seeks Byrne funding for programs that related to the prosecution, incarceration, or release of persons, some of whom will be removable aliens, there must be coordination with the affected federal agency, the Department of Homeland Security
("DHS"), before a formal application is filed…" From this, it concludes that recipients must comply with any conditions that the Justice Department wants to impose, with respect to detaining aliens and giving the federal information about them. By extension the same logic would apply to any other conditions that DOJ might impose on recipient law enforcement operations that might "affect" federal agencies in any way whatsoever.
Like the court's defense of the Section 1373 condition, this theory makes a hash of the requirement that Congress must unambiguously state conditions imposed on grant recipients. Judge Raggi's interpretation of "coordination" with "affected" agencies is yet another blank check to impose whatever conditions the executive wants. Virtually anything a state or local government agency does could potentially affect the activities of one of the federal government's many agencies in some way.
In addition, like the court's analysis of "applicable federal laws," this interpretation of "coordination" opens the door to conditions having little or no connection to the purposes for which the fund were granted. For example, a local government's detention of a criminal suspect might "affect" the activities of the federal National Endowment for the Arts, if the incarcerated individuals are now less able to produce art work that could qualify for NEA funding. Yet surely it would be silly to interpret the law to enable DOJ to force Byrne Grant recipients to accept funding conditions requiring them to maximize criminal suspects' opportunities to produce art work.
The most obvious alternative to this expansive interpretation of "coordination" with "affected" agencies is to recognize that the relevant coordination only applies to expenditure of the federal funds to make sure they are not expended in ways that impede federal law enforcement operations related to the purposes of the grant. By contrast, mere refusal to assist the federal government does not require expenditure of resources granted by the feds, and therefore is not an "effect" of the grant on federal agencies. This approach has the virtue of being both clear and unlikely to allow imposition of conditions unrelated to the purpose of the grant.
In addition, the Second Circuit goes against previous court decisions in rejecting the argument that Section 1373 is independently unconstitutional because it qualifies as commandeering of state and local officials by the federal government.
Here is the Second Circuit's reasoning on that point:
The district court acknowledged [Second Circuit] precedent [upholding Sectin 1373], but concluded that it does not survive Murphy v. National Collegiate Athletic Association, 138 S. Ct. 1461 (2018). The Supreme Court there held that federal legislation prohibiting States from authorizing sports gambling violates the Tenth Amendment's anticommandeering rule because it "unequivocally dictates what a state legislature may and may not do." The Court explained that it did not matter whether Congress issued such a dictate by commanding affirmative action or imposing a prohibition: "The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event." Id. The district court concluded that Murphy's reasoning required it to hold § 1373 facially violative of the Tenth Amendment…
Murphy may well have clarified that prohibitions as well as mandates can manifest impermissible commandeering. But the conclusion that § 1373, on its face, violates the Tenth Amendment does not follow.
A commandeering challenge to a federal statute depends on there being pertinent authority "reserved to the States." In Murphy, there was no question that, but for the challenged federal law, the States' police power allowed them to decide whether to permit sports gambling within their borders. That conclusion is not so obvious in the immigration context where it is the federal government that holds "broad," Arizona v. United States, 567 U.S. at 394, and "preeminent"power, Toll v. Moreno, 458 U.S. at 10….
Here too, the Second Circuit makes some serious errors. The authority "reserved to the states" here is the power to refuse to have their agents help enforce federal law. No one doubts that "but for the challenged federal law" (in this case, Section 1373), the states would have the power to instruct their agents to refuse to help the feds by turning over information about aliens in their custody. Indeed, the whole point of the anti-commandeering doctrine is to prevent the federal government from compelling state officials to help enforce federal law. And the doctrine is only relevant in those areas where the federal government would otherwise be "preeminent." If not, Congress would lack the power to regulate in that field in the first place, and there would be no need for anti-commandeering rules to protect state autonomy on the issue in question.
The Second Circuit also argues that, for present purposes, it doesn't matter if Section 1373 is generally unconstitutional, because all that matters is whether it can be properly applied as a condition applied to a federal grant. The problem, however, is that it can only be a condition relevant to the Byrne Grant if it is an "applicable federal law" that grant recipients are required to obey even independently of the grant itself. And it cannot qualify as such if it is unconstitutional.
The above is far from an exhaustive list of all the flaws in the Second Circuit ruling. There are plenty of others that I have omitted because I did not want to make this post even longer.
But despite its many weaknesses, this is still a potentially important ruling. It creates a circuit split, thereby making it much more likely than before that the Byrne Grant issue will get to the Supreme Court. The decision breaks the judicial consensus under which the Trump administration lost every previous Byrne grant case, and nearly all other sanctuary jurisdiction cases, as well. At least two of the judges on the panel—Jose Cabranes and Ralph Winter—are prominent figures, and they were appointed by presidents from different parties (Clinton and Reagan, respectively). Judge Raggi (a George W. Bush appointee) is also well-known, though arguably not quite to the same extent. Their involvement in this ruling is, to my mind, an example of how even topnotch judges can sometimes make unfortunate mistakes. Nonetheless, the composition of the panel further increases the significance of the decision.
There is a chance that this decision will be reversed by the en banc Second Circuit, though this may not be likely given that all three judges on the panel would get to participate in the en banc proceeding. Regardless, this ruling ensures that the legal battle over the Byrne grant conditions is no longer completely one-sided.
For reasons noted above, this litigation has important implications for federalism that go far beyond the specific context of Byrne grants and sanctuary cities. I discuss those implications in much greater detail here and here.
UPDATE: In the original version of this post, I made a mistake when I said that senior judges cannot participate in en banc proceedings in the Second Circuit. It turns out that senior judges cannot participate in en banc cases as a general rule, but may do so if they were on the panel that decided the case. Thus, all three judges on the panel would get to participate in an en banc review here. I apologize for the mistake, which has now been corrected.
UPDATE #2: It is important to recognize that this case raises different issues from United States v. California, a sanctuary jurisdiction case that the Trump administration has asked the Supreme Court to hear. Among other key differences, the California case does not address the spending power issues that are at the heart of the Byrne Grant cases.