Federalism

Seventh Circuit Rules Against Trump Administration in Major Sanctuary City Decision

The latest in a long series of setbacks to the adminstration's efforts to pressure sanctuary jurisdictions by attaching conditions to federal grants.

|The Volokh Conspiracy |

Yesterday, the US Court of Appeals for the Seventh Circuit ruled against the Trump administration in an important sanctuary city case, City of Chicago v. Barr.

The ruling is in with numerous previous federal court decisions striking down the same policy, including those issued by the First, Third, and Ninth Circuits., and with an earlier Seventh Circuit.  It further isolates the anomalous February 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.

In 2018, the Justice Department added two more immigration-related conditions to this list. The current Seventh Circuit decision follows up its earlier 2018 ruling, which upheld a preliminary injunction against the original three conditions. Yesterday's decision upholds a district court ruling making the temporary injunction permanent and also striking down the two new conditions.

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 new Seventh Circuit decision reaches much the same conclusion:

The Attorney General repeatedly expresses frustration that Chicago, or any other jurisdiction, can "simultaneously accept federal law enforcement grants, yet maintain local policies that frustrate federal immigration enforcement…."

But states do not forfeit all autonomy over their own police power merely by accepting federal grants. And the Attorney General's perception of the urgency of immigration enforcement does not corral for the executive branch the powers entrusted to the legislative branch. The executive branch has significant powers over immigration matters; the power of the purse is not one of them. This tendency to overlook the formalities of the separation of powers to address the issue of-the-day has been seen many times by the courts, and it is no more persuasive now than it was in those cases….

We conclude again today, as we did when presented with the preliminary injunction, that the Attorney General cannot pursue the policy objectives of the executive branch through the power of the purse or the arm of local law enforcement; that is not within its delegation. It is the prerogative of the legislative branch and the local governments, and the Attorney General's assertion that Congress itself provided that authority in the language of the statutes cannot withstand scrutiny.

The decision, written by Judge Ilana Rovner, also emphasizes the broader stakes for constitutional federalism. If the executive can get away with using vaguely worded statutes (in this case, a requirement that grant recipients obey "applicable federal law") to impose its own new conditions on state and local governments, it would enable the president to bully them on a wide range of issues:

Interpreting that language as potentially incorporating any federal law would vest the Attorney General with the power to deprive state or local governments of a wide variety of grants, based on those entities' failure to comply with whatever federal law the Attorney General deems critical. Yet there is nothing in those statutes that even hints that Congress intended to make those grants dependent on the Attorney General's whim as to which laws to apply, cabined only by the requirement that the laws apply generally to states or localities.

Like nearly every other court that has addressed the issue, the Seventh Circuit avoided this constitutional morass by interpreting "applicable federal law" to cover only laws that specifically apply to grant recipients. Doing otherwise, as the Second Circuit did, goes against Supreme Court precedent and creates serious constitutional problems.

While all three judges on the Seventh Circuit panel agreed that the Byrne grant conditions imposed by the Justice Department are illegal, they differed over the issue of whether the injunction against the conditions should be universal or limited to plaintiff in the cases addressed by the Court (the City of Chicago). The majority defends the use of a universal injunction, while Judge Daniel Manion's dissent argues for a more limited one. My own view is that universal injunctions are appropriate in cases like this one where the government's actions are ruled to be illegal for reasons that do not depend on factual circumstances that vary from case.

But I defer this issue to people with greater relevant expertise. I recognize that there is an ongoing debate over the constitutionality and wisdom of universal injunctions more generally.

It is perhaps worth noting that all three judges on the Seventh Circuit panel were appointed by Republican presidents, and that Judge Manion is known for being particularly conservative. This reflects the near-consensus among federal judges who have ruled on the issue that the Byrne grant conditions and other similar moves by the administration are illegal breaches of federalism and separation of powers. The February Second Circuit decision is a notable, but highly anomalous, exception. I criticized it in detail here.

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. As I explained in that article and elsewhere, the legal struggle here has important implications for federalism that go far beyond the specific issue of sanctuary cities. If the executive can usurp the power of the purse in this way, it would have broad leverage over states and localities on a wide range of issues. Conservatives who might be happy to see Donald Trump use that power to target sanctuary cities might not be so happy to see what the next Democratic president does with it.

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NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. As I read it, the victory here was not for federalism per se, but for horizontal division of power. Congress gets to spend money, and put what conditions it wants (and leave off those it does not want). The Executive branch has no power to add conditions.

    This does not address the question of whether Congress could condition federal grants on cooperation with federal immigration enforcement.

    Seems correct as far as it goes.

    1. These grants are for law enforcement and enforcing the immigration laws are LAW ENFORCEMENT. Or is it that the states and cities gets to pick and choose what laws they cooperate on which ones they don’t?

      1. > Or is it that the states and cities gets to pick and choose what laws they cooperate on which ones they don’t?

        Yes exactly, that’s the federalist position. Keep in mind this doesn’t even preclude federal supremacy; federal laws still override state laws, but state officers just don’t have to enforce federal laws. But federalism at it’s core means that states don’t have to always obey orders from the feds.

        And this is a good thing because it means that laws are more responsive to local wishes.

  2. So tedious. We have a circuit split, let’s get the S/C to decide.

    Of course its moot unless Trump wins.

    1. Actually not — I don’t think the left understands that the precedents it is establishing WILL BE used against it. When the next Dem POTUS attempts something similar to what Obama *did* with education (including the preponderance rule), he/she/it will also be stopped.

      Trump’s not doing anything that Obama didn’t do, and a future GOP Congress will be no more civil to a future Den POTUS than Pelosi & Schumer are being now.

      Precedent is precedent….

      1. Yeah, but then what happens with the next Republican President after that?

        The situation is a one way ratchet. Neither side can afford to unilaterally attempt deescalation.

  3. Just like the liberal courts to rule that the grant that they receive form the federal government to aid in law enforcement they not only don’t use it for that these communities even go a step further and prevent their employees form cooperating with federal law enforcement agencies.

  4. Well, for sure if there are NO federal “grants”, there will be none to sanctuary cities.
    So how about we just stop all federal grants? For the children.

    1. Well, yeah. The feds should give back to the States the money they took from them in the first place.

  5. The first time I remember “strings” was the Reagan administration requiring 21 year old drinking laws in order to get highway funds. I seem to remember there being a similar push in the 70s for speed limits (55) but I wasn’t actually old enough to be paying attention. I didn’t like ti then, I don’t like it now, but interesting that it took “I hate the President” for the courts to decide that it wasn’t Constitutional. It will be interesting to watch, down the road, whether these same courts are consistent when it isn’t President Trump who is being sued. It might also be interesting to see if there were any judges who have consistently ruled for the federal governments power to set conditions who have suddenly had a come to Jesus moment about federalism and Congress’ authority over spending.

    1. I am thinking this ruling is based following Printz v US (1997)in the Brady Act, involving the feds compelling local law enforcement to enforce particular provisions of the law. Not sure what, if anything, that has to do with the “popularity,” or lack thereof, of Trump.

    2. Exactly — and the other thing about the 55 limit was that at least half the cars had to be observing it.

      And it will be interesting to see national injunctions coming out of the Bible Belt…

    3. The first time I remember “strings” was the Reagan administration requiring 21 year old drinking laws in order to get highway funds. I seem to remember there being a similar push in the 70s for speed limits (55) but I wasn’t actually old enough to be paying attention. I didn’t like ti then, I don’t like it now, but interesting that it took “I hate the President” for the courts to decide that it wasn’t Constitutional. It will be interesting to watch, down the road, whether these same courts are consistent when it isn’t President Trump who is being sued.

      You apparently weren’t old enough to be paying attention in 1987, either, as you completely failed to spot the correct legal issue.

      “The Reagan administration” didn’t require a raise of the drinking age; Congress did. This wasn’t a petulant executive officer deciding that he could do whatever he want because of his pet issue; there was an actual law, passed by Congress, expressly withholding 5% of federal highway funding for states that didn’t raise the age to 21.

      If Congress conditioned these funds on eliminating sanctuary laws, these cases would be different. But Trump and his AG can’t just unilaterally decide they want to do that.

      1. But, they didn’t. They enacted a law saying recipients had to comply with all applicable laws, and the Trump administration is merely ending the practice of not fully enforcing this requirement.

  6. Man, the legal analysis here is scintillating. The ‘you disagree with me only because you are liberal’ is truly an innovative, philosophically robust, and deeply constitutional argument.
    Really shows the level of engagement we’re dealing with for the pro-Trump crowd.

    1. Yeah. It seems a lot of people mistake their own lack of awareness of certain existing legal doctrines until such become obstacles for the current administration for those legal doctrines not having existed until, and only being devised because, they were needed as obstacles for the current administration.

      1. I think what’s worse is that they don’t realize that the precedents will remain after Orangeman is gone, and will be used as a cudgel against their people too.

        1. Ed, I believe you are misreading Tilted’s comment. Either that or I am.

    2. The ‘you disagree with me only because you are liberal’ is truly an innovative,

      Is it wrong, though? We all know it’s situational ethics, where a philosophical principle is valued highly because it buttresses a political argument, and will be abandoned, if not outright torn at, if it gets in the way of another position.

      Will Republicans continue to entertain massive, one size fits all mandates from the feds? They didn’t with Obamacare. Will the Democrats maintain their newfound states’ rights beliefs?

      [Insert every known laughing emoji here]

      1. No, we don’t all know that. You guys claim that, but you don’t even pretend to know the law, just assume bad faith post something pithy about TrumpLaw and then go about your day.

  7. This is embarrassing. Congress should be required to provide, in statute, a clear indication of the conditions for the Byrne (or other) grants, one way or the other.

    Meanwhile every circuit has to look at the ambiguous garbage they produce and divine an answer.

    1. I can’t seem to find the clause in the Constitution that requires Congress “to provide, in statute, a clear indication of the conditions for the Byrne (or other) grants, one way or the other”. Perhaps you’re a better Con Law scholar than I, so please let us know how that “should” happen.

      1. Nonzenze said Congress SHOULD BE required to do X. You vehemently argue that Congress IS NOT so required. On the face of the statements, you have no disagreement.

        1. I think Zarniwoop’s point is that it’s hard to figure out how to force Congress to write unambiguous laws, except admonishing them for writing ambiguous laws. I mean a clause in the Constitution say “Congress must write clear laws” would do nothing since laws are already struct down for being “unconstitutionally vague”.

    2. “Congress should be required to provide, in statute, a clear indication of the conditions for the Byrne (or other) grants, one way or the other.”

      Seems to me they did. The recipients have to obey “all applicable laws”; This may be an expansive requirement, but it’s fairly clear.

      The problem is, as with some other Trump cases, that this clause of the law was being routinely violated, and Trump wants to actually start enforcing it.

  8. Congress expressly conditioned the grant on compliance with “applicable federal law” and certification of the same to the satisfaction of the executive/administrative. The grant is specifically for law enforcement, and Section 1373 is specifically a very basic law enforcement provision.

    This is not a victory for federalism, nor for separation of powers, because it will never venture outside the narrow circumstances and the particular text of this legislation. It ends in the cul de sac of “because Trump” and “muh open borders” while much greater degrees of administrative state lawmaking, and infinitely greater degrees of subjugation of the states, continue apace.

    A victory for federalism would be one way or another ending the practice of Congress funding state governments altogether–with or without conditions. A mildly good SCOTUS case would be more along the lines of Murphy.

  9. I think it is time for Trump to start throwing Federal Judges in jail.

    He will not be the first POTUS to do this, and it’s what it’s gonna take…

    And that’s better than the inevitable civil war we are gonna otherwise wind up with…

    1. The time has come, the walrus said, to
      But what you said is not among them.

      1. What do you think Obama would have been doing by now?

        1. Men and coke, most likely.

          1. Oh, that’s a conspiracy theory I haven’t heard in a while.

            1. Oh, come on now. You might not like it, but that Obama used illegal drugs is somewhat beyond “theory”. He’s publicly admitted it.

              Now, maybe he stopped. Maybe. Or maybe he didn’t. But the idea that he was using them while President didn’t come out of the blue.

              And, like the Birther thing, this originated with the Clinton campaign. But only became a conspiracy theory once it was picked up by some Republicans.

              1. Brett, it’s about what Obama’s doing now. Plus you completely elided the gay thing.

                Jesus, Brett, you don’t need to jump on every grenade of dumb some yahoo ostensibly on your side throws.

                1. For what it’s worth, I *think* it has to do with the delusion that Michelle Obama is actually male. Something about seeing the bulge of male genitalia in a dress she was wearing or something.

                  IMHO, about as likely as Trump colluding with the Russians.

    2. I think it is time for Trump to start throwing Federal Judges in jail.

      He will not be the first POTUS to do this, and it’s what it’s gonna take…

      And that’s better than the inevitable civil war we are gonna otherwise wind up with…

      Yawn. Your treason porn is getting less and less interesting. Keep it up and you’re going to make me start sounding like Kirkland.

  10. Interesting that when it comes to dealing with illegal immigrants Democrats will sue to guarantee the power of states and local governments to make their own rules, but if State and local governments don’t deal with the Covid-19 pandemic the way Democrats want, it’s all Trump’s fault for forcing them to do stuff.

    1. That should be “… for NOT forcing them to do stuff.”

      Let me be the gazillionth person to wonder why Reason doesn’t have an edit function on their comments.

    2. 1) right back at your side.
      2) As can be seen by our reaction to the ‘total authority’ comment, what the left wants Trump to do about the pandemic isn’t to control the governors, it’s to coordinate the response.

    3. The Dems do not want Trump to force the states to do stuff to help with the pandemic. They wanted leaderships, clear guidance, a strong federal response, consistent messaging, clear facts, and an overall coordinated response. All of which could have been achieved without forcing the states to do anything. If done properly, the states will go along with it willingly and eagerly.

  11. I think it’s pretty well established that Congress COULD pass a statute conditioning receipt of federal grants on immigration cooperation, and as long as it did so in clear terms, and the grants had some reasonable connection to the required cooperation and weren’t so great a part of a state’s budget as to be completely coercive, courts would uphold it.

    So it’s only a Spending Clause And separation-of-powers issue, not a federalism issue.

  12. Congress expressly conditioned the grant on compliance with “applicable federal law” and certification of the same to the Drone Photography satisfaction of the executive/administrative. The grant is specifically for law enforcement, and Section 1373 is specifically a very basic law enforcement provision.

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