Sanctuary Cities

First Circuit Rules Against Trump Administration in Sanctuary Cities Case

The ruling is in line with numerous other court decisions on the same subject, but conflicts with an anomalous recent ruling by the Second Circuit.

|The Volokh Conspiracy |

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.

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  1. “more important than ever in the coronavirus era”

    Shameless.

    1. When, not if, the Wuhan Virus gets into the generally lawless immigrant camps in Mexico along the US border, we’re going to have uncontrollable spread. And the popular presumption that any immigrant (legal or illegal) is a vector.

      That, in a time of fear with reduced respect for individual rights, is exceedingly dangerous. I suggest that one need only look to the past history of this country to understand how quickly and how far this can go — both legally and extralegally.

      1. Your premise that this is “a time of fear with reduced respect for individual rights” is a false one, as best evidenced not by reference to inapposite past historical events, but by the ever expanding freedoms enjoyed – or suffered, as the case may be – by not just US citizens but by those who come here illegally without regard to ever becoming one. Consider also the increasingly permissive – or “therapeutic,” if you will – approach in criminal proceedings, from dispensing with bail, DAs’ refusal to prosecute what they, not the various criminal codes, define as “‘minor’ crimes,” to judges’ ready willingness to release criminals from imprisonment in the name of – what else? – “compassion.”

        No, “individual rights” are alive and well in the US, perhaps too well, like a burgeoning cluster of bacteria in a Petri dish. It’s personal responsibility that’s getting dissed these days.

        1. “Your premise that this is “a time of fear with reduced respect for individual rights” is a false one, as best evidenced not by reference to inapposite past historical events…”

          No. Police departments have had “death squads” — it wasn’t just a Dirty Harry movie, some departments, some in places you wouldn’t expect it (e.g. Portland, ME) had a small cadre of officers who responded to the Warren Court by ensuring that certain defendants wouldn’t make it to court alive.

          The Klan and other similar protective organizations have always arisen in troubled times, and people perceived to be a threat to the public have disappeared into the night.

          I’d be worried — really worried — and idiots like Rachael Rollins are serving only to exacerbate things.

      2. Yeah, this dirty filthy immigrants thing you got going on? It’s a racist trope. Not supported by anything other than your own narrativism.

        I don’t know if the ‘we gotta act kinda racist or else the racists will do bad things!’ argument is racist, but it’s certainly a recipe to shut down every right out there.

        1. I sense conservatives figure the “gays, guns, and God” messaging is no longer providing adequate mileage — just not enough anti-gay bigots left in modern America? — so clingers have added immigrants to the mix.

        2. One of the left’s greatest acts of intellectual dishonesty is conflating illegal immigrants with legal ones under the broad term “immigrants.” It might work in what passes for much of the press these days, and certainly in too many educational forums, but honest and reasonable minds see right through it, no matter how many times it’s parroted about, no matter where.

          1. It’s racist whichever he means. But I’ll note Dr Ed didn’t make the distinction himself.

            1. So, accusations of “racism” are appropriate wherever and whenever, regardless of truth, meaning, or context? Thanks for confirming!

  2. “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.”

    And why doesn’t this apply to Title IX? ED’s OCR mandates apply to both K-12 (almost all run by state/local governments) and higher ed (over half of which is run by state governments if you include Community Colleges).

    Remember Obama’s mandate of the “presumption” standard? That’s definitely the executive making its own conditions — and it wasn’t even properly posted in the Federal Register. So how is this different?

    Hence, I argue, the First Circuit isn’t even following its own precedent — if it’s willing to nonchalantly permit Obama to do what he did, then precedent mandates that Trump can do likewise.

  3. Your second paragraph reads:
    “The ruling is in with numerous previous federal court decisions …”
    Perhaps you meant “in line with ” or “in agreement with.”

    OK.

    Shoot me.

  4. 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.

    But in its lawsuit filed in response to the executive order, the city (San Francisco) argues that its policy doesn’t prohibit police from communicating directly with ICE about immigration and citizenship status—it just doesn’t allow them to use city resources to do so. In other words, for instance, the law doesn’t prohibit a police officer from calling ICE on his or her own phone.

    https://www.dailynews.com/2017/02/11/5-things-you-need-to-know-about-sanctuary-cities/

    Where is the line drawn? San Francisco explicitly states that it will not allow an officer to pick up his desk phone and communicate to ICE that he has an illegal alien in his custody. One could assume that such an activist work environment is hostile to communicating with ICE, even if an officer does use his or he own phone.

    Has 8 USC Section 1373 been declared unconstitutional by the courts? If not, what is the problem of asking sanctuary jurisdictions to prove that they are not actively violating it, splitting hairs to get around the letter but subverting it in spirit? We’ve already seen where this leads — Kate Steinle.

    California filed an amicus against Arizona’s SB 1070, that Arizona could not assist the federal government because it intruded on the federal government’s primacy in setting immigration policy. Now, hypocritically, California wants to set its own immigration policy in opposition to the federal government, engaging in a form of passive resistance. It stands with its arms folded, refusing to move out of the way, making ICE work around it, even when a law enforcement objective is achieved with minimal effort. Then they have the nerve to stick out their hands and say, “No, we’re not going to help you the least little bit. Now give us money.”

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