The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the US Court of Appeals for the First Circuit issued a ruling in City of Providence v. Barr, striking down a Trump administration policy that seeks to use federal law-enforcement grants as leverage to force "sanctuary cities" and states to assist in deporting undocumented immigrants.
The ruling is in with numerous previous federal court decisions striking down the same policy, including those issued by the Third, Seventh, and Ninth Circuits. It further isolates last month's anomalous Second Circuit decision that upheld the administration's policy.
These cases all 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.
With the exception of the Second Circuit, every federal court to have ruled on this issue has concluded that the imposition of these conditions is illegal because they were never authorized by Congress. Some have also struck them down based on other constitutional considerations. The First Circuit ruling is in much the same vein. Here is a brief excerpt:
We have carefully considered the district court's useful rescript, the comprehensive briefs of the parties and the amici, the DOJ's kitchen-sink-full of clever legal arguments, and the thoughtful but conflicting views of sister circuits. At the end of the day, we conclude that the DOJ's reach exceeds its grasp; it lacked authority to impose the challenged conditions….
We need go no further. When the federal government deals with state and local governments, it must turn square corners. Here, the DOJ took an impermissible shortcut when it attempted to impose the challenged conditions on the Cities' FY2017 Byrne JAG grants — conditions that Congress had not vested the DOJ with authority to impose.
In many ways, the First Circuit decision follows in the footsteps of previous rulings by other courts. But it is distinctive in two ways. First, it focuses almost exclusively on the details of the statutory language that the Justice Department claims gives it authority to impose the three conditions, and largely ignores the broader constitutional issues at stake. Strikingly, the ruling does not even cite the Supreme Court's precedents setting out constitutional standards for the imposition of conditions on grants to state governments; nor does the word "commandeering" occur even once. Commandeering is in fact an important issue in these cases, for reasons I summarized here, here, and here.
In my view (and that of many of the judges who previously ruled on these issues), the constiutional considerations provide a strong boost to the plaintiffs' case, and severely undermine the logic of the anomalous Second Circuit decision. The First Circuit judges, however, seemingly made the decision that it was better to focus on specific statutory details. And the ruling is indeed notable for its detailed and effective responses to the Justice Department's expanding list of creative statutory arguments. In addition to being stretches, for the reasons the First Circuit explains, they also would set dangerous precedents enabling the executive to use vague statutory language to make up its own conditions for a wide variety of grants to state and and local governments, thereby undermining both federalism and separation of powers.
I cannot go over the specifics statutory arguments in this post. They are sufficiently detailed that interested readers will need to check out the ruling for themselves.
The other notable feature of the First Circuit ruling is the composition of the panel. The decision was written by senior Judge Bruce Selya, a prominent conservative Reagan appointee. One of the other members of the panel is retired Supreme Court Justice David Souter (sitting by designation on the same circuit he served on before being nominated to the Supreme Court in 1990). The third judge on the panel is David Barron, a prominent Obama appointee and former Harvard Law School professor. The fact that these three disparate jurists agree that the DOJ conditions are illegal is a further indication of the broad judicial consensus against them, which has been joined by a variety of both liberal and conservative judges—with, again, the notable exception of last month's Second Circuit ruling.
While this issue (rightly) played no role in the First Circuit decision, it's worth noting that keeping local law enforcement separate from immigration enforcement is more important than ever in the coronavirus era. If undocumented immigrants believe that local authorities are likely to turn them over to the federal government for deportation, they will be less likely to cooperate with police, and to seek out coronavirus testing that could bring them to the attention of local authorities. As a result, the virus could spread further—not only among undocumented immigrants themselves, but also among those who may come in contact with them. That's why public health experts urge that health care facilities should be "immigration enforcement-free zones." Sanctuary city policies can help ensure that will indeed be the case.
The litigation over the Byrne Grant conditions is just one part of a broader legal battle over sanctuary jurisdictions, which also includes a number of other issues. I reviewed them in this Texas Law Review article.