The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.