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Chicago Launches Legal Fight with Justice Department over Sanctuary City Threats

Again left urban leadership embraces federalism, but for the purpose of protecting funds for police militarization.

Rahm EmanuelJose M. Osorio/TNS/NewscomMayor Rahm Emanuel says Chicago will sue the Department of Justice over Attorney General Jeff Sessions' latest attempt to punish so-called sanctuary cities—jurisdictions that typically do not ask people in their custody or who use government services their citizenship status.

At stake are $2.3 million in grants used by Chicago police to purchase equipment—including tools and weapons used to militarize the force.

Last month the Department of Justice announced a new guidance requiring cities to comply with a federal law forbidding local rules that block communication with law enforcement or city officials about a person's immigration status. This isn't a new fight—the Department of Justice has been pushing cities to follow this regulation since Donald Trump took office. But the July guidance added two new rules, and it clearly described the carrot and stick the Justice Department wants to wield against cities.

First, it tells states, cities, and counties that they must allow immigration officials into their detention facilities if they're looking to determine the immigration status of anybody being held there. Second, it says jails and prisons must inform the Department of Homeland Security (DHS) 48 hours before releasing somebody if the DHS or Immigration and Customs Enforcement (ICE) has sent over a detainer order—a request that a local jail hold a deportable immigrant so that the feds can come take that person into custody.

Cities and states have been told they must comply with these regulations to maintain their funds from the Edward Byrne Memorial Justice Assistance Grants program. Chicago is suing to try to stop these new requirements. "The federal government should be working with cities to provide necessary resources to improve public safety, not concocting new schemes to reduce our crime fighting resources," Emanuel said in a statement.

Chicago's conflict with the feds is particularly notable because Chicago is one of the few places whose policies do in fact defy federal law on communication. (So is the surrounding Cook County.) When the Department of Justice began its crackdown under Trump, an awkward truth quickly became apparent: A "sanctuary city" is not inherently operating in violation of federal immigration law or defying the government. The Justice Department could identify fewer than 10 local governments that were actually defying the feds in any notable way.

But Chicago genuinely is one of those cities, so a challenge between them and the Department of Justice has broader implications. What are the limits of the federal government's ability to control what information states and cities provide to them?

President Trump's first attempt to use an executive order to force compliance from sanctuary cities ran aground in federal courts as an unconstitutional breach of separation of powers and the authorities of the states. Analyzing the new guidance over at the Washington Post, law professor and constitutional expert Ilya Somin says these new rules have the same problems:

Longstanding Supreme Court precedent indicates that only Congress can impose conditions on grants given to states and localities, and that those conditions must be "unambiguously" stated in the text of the law "so that the States can knowingly decide whether or not to accept those funds." Neither compliance with Section 1373 nor the other two conditions the DOJ seeks to impose are included in the authorizing legislation for the Byrne grants. Sessions and Trump may be at odds on other issues right now. But they are united in their desire to make up new grant conditions and impose them on states and localities after the fact.

Should the administration manage to get away with this, it will set a dangerous precedent that goes far beyond the relatively small Byrne program and the specific issue of sanctuary cities. If the president can unilaterally add new conditions to one federal grant program, he can do the same thing with others. This would give presidents a massive club to coerce state and local governments on a wide range of issues.That power might still be limited by the requirement that conditions be related to the purpose of the grant. But, given the existence of a vast array of federal grants for many different purposes, this would be only a modest constraint.

Some conservatives may cheer when the current administration uses this tool against sanctuary cities. But they are likely to regret their enthusiasm if a liberal Democratic president uses the same tactic to force states to increase gun control, adopt a "common core" curriculum, or pursue liberal policies on transgender bathroom accommodations.

Somin's example at the end isn't theoretical. Under President Barack Obama's administration, the Department of Justice and Department of Education attempted to block North Carolina from enacting a controversial law dictating which restrooms people used in government buildings. And the feds warned that grants could be withheld (but declined to do so while the courts were still tackling the matter) on the basis that the state was defying the administration's guidance that transgender students and employees must be accommodated.

It's worth wondering whether this push against sanctuary cities is mostly for show, given the limits of government power. Last week the Justice Department threatened four cities that they wouldn't be allowed to have access to a new grant program unless they proved they would comply with the guidance above. As the Los Angeles Times noted, none of the four cities who received the threatening letters even operate their own jails. They don't even have any control over whether local county-run detention facilities cooperate with ICE.

Also worth remembering: The Justice Department's methods of controlling city behavior might be unconstitutional, but you shouldn't confuse concern about that with support for the underlying grants themselves. The Intercept has a new report on Chicago's tendency to send SWAT teams to 911 calls for mental health–related matters. The funding that Emanuel is trying to protect gets used for some truly terrible practices that need to be reformed. But the Justice Department isn't interested in those problems.

UPDATE: Read the actual lawsuit here.

Photo Credit: Jose M. Osorio/TNS/Newscom

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  • colorblindkid||

    Which asshole to root for?

  • AlmightyJB||

    Shooting war is best case scenario

  • Finrod||

    Popping popcorn and rooting for injuries.

  • Elias Fakaname||

    Sessions won't be AG forever, and probably not even the potential maximum of eight years. Thugs like Emmanuel have been running a Chicago for decades. Let's break Rahm and his buddies.

    Plus, fuck this progtard sanctuary city garbage.

  • Ragoftag||

    If Pence is smart, he'll keep Sessions, that means 16 years. And Chicago will still be a festering boil.

  • Elias Fakaname||

    Sessions is too old to last that long. My guess is he stays 4-5 years. If Trumo doesn't fire him for some reason before that.

  • Carlos Inconvenience||

    It seems to me the libertarian position would be that Chicago refuses federal aid and cuts its budget accordingly.

  • sarcasmic||

    I think the libertarian position would be that the feds have no business in funding law enforcement.

  • AlmightyJB||

    Yeap, they have no business doing 99% of what they do.

  • OM Nullum gratuitum prandium||

    I would say the US is at the point where 100% of what the feds do is nothing they have a business doing, if one considers the Constitution as benchmark.

  • retiredfire||

    Maybe, but immigration/naturalization is one of the enumerated powers.
    "Federalism" is for those things not enumerated.

  • Mitsima||

    I'd like to point out that the Constitution doesn't actually give the feds the power to regulate immigration, only naturalization. Of course, if you want to get into implied powers, then fuck federalism; bow down before the one you serve, you're going to get what you deserve. ♪♫♪♫

  • The Last American Hero||

    90% of what they do is act as a well armed insurance company.

  • Elias Fakaname||

    Yet they do have authority in matters of immigration, and Chicago does not. So they should cut funding AND put Rahm and Co. in prison.

  • WakaWaka||

    Isn't it strange that federalism is embraced at this publication when it comes to states defying federal authority with regards to illegal immigration, but then quickly ignored when there is the latest pee pee scandal? Then it's federalize bathrooms all around.

    And even with regards to immigration policy, federalism is only embraced when the state in question is enacting the 'right' policies. For instance, there were never cries of 'federalism' when Arizona passed their own stiff laws with regards to illegal immigrants. Then it was "the federal government sets immigration policy".

    Is it too much to ask for 'principle' over 'principals'?

  • sarcasmic||

    Is it too much for you to read the last paragraph?

  • WakaWaka||

    The last paragraph concerns how the money is used. That doesn't relate to my point about the selective use of 'federalism' or my point.

  • OM Nullum gratuitum prandium||

    Please don't ask Trumpistas to read. It hurts their heads.

  • WakaWaka||

    You're an idiot

  • Charles Easterly||

    May I offer a suggestion?

  • pxm||

    The last paragraph is entirely unrelated to WakaWaka's point...

  • Presskh||

    WakaWaka, controlling legal and illegal immigration into our country is one of the Federal Government's primary responsibilities. Dictating whether or not men can pee in the same restroom with little girls is not.

  • damikesc||

    If the money is in regards to law enforcement, it would seem picking and choosing which laws you enforce would run afoul. Chicago isn't OWED a grant.

  • Citizen X - #6||

    Christ, it's assholes all the way down!

  • The Last American Hero||

    This is very similar to the discussion on DUI levels and speed limits.

  • BYODB||


    sanctuary cities—jurisdictions that typically do not ask people in their custody or who use government services their citizenship status.


    You don't need to ask if you arrest someone if they're a citizen, because you won't be able to find them in the database of people who are citizens. Not in the data base? You aren't a citizen. Thanks, FDR. They promised your Social Security number would never be used for these types of purposes, but it turns out it was a lie. Big surprise. That was always the goal. There is no such thing as an undocumented citizen, and ironically if you somehow slip through that system you have broken the law.


    Now, the people who have falsified documents such as a stolen or fraudulent social security number are people that won't show up in either scenario so I'm assuming that isn't what we're talking about even though they have broken a different and far more serious law, that being a stolen identity / identify fraud.


    And no, I don't think a city is going to be able to 'prove' that crime realistically nor would I expect them to 'catch it' at all except through random luck or a specific reported crime.

  • sarcasmic||

    I think the Amish would disagree.

  • BYODB||

    And yet even they end up with a social security number for the exemption.

  • BYODB||

    Or at least that's according to roughly 20 minutes of research, although I will fully admit I had no idea of that particular religious exemption beforehand. This type of thing is why I keep coming back, thanks!

  • sarcasmic||

    I learned from tv. Leaving Amish was the name of the show I think. They don't have birth certificates or social security numbers. Totally autonomous communities. I couldn't live without technology though. Nope. No technology and no deodorant. Fugedaboudit

  • Finrod||

    Federal dollars come with federal strings. This is why states shouldn't rely on federal dollars and the federal government should be letting states fund things themselves.

  • OM Nullum gratuitum prandium||

    The problem is that part of that money belongs to the taxpayers who live in Chicago. The federal government has NO resources of its own.

  • p3orion||

    But more of it does NOT belong to them. Especially when you consider that, because high local and state taxes are DEDUCTIBLE when you pay your Federal income taxes, citizens of more responsible jurisdictions are subsidizing Rahm and his cohorts.

    Wasn't it just a couple years ago when the Federal government was suing Arizona for ENFORCING immigration laws, the Left was screaming that "it's a Federal issue, states and cities shouldn't be making their own policy"?

  • OM Nullum gratuitum prandium||

    Re: p3orion,

    Indeed but city-dwellers still pay almost all taxes. At least a proportion of those funds belong rightly to Chicagoans.

  • Michael Ejercito||

    Longstanding Supreme Court precedent indicates that only Congress can impose conditions on grants given to states and localities, and that those conditions must be "unambiguously" stated in the text of the law "so that the States can knowingly decide whether or not to accept those funds."


    If so, then the Obama administration telling schools that they have to investigate rape cases, try them, and use only a "preponderance of evidence" standard, violates separation of powers.

  • Citizen X - #6||

    Well, sometimes you have to torture a little rule of law in order to get your political opponents labeled as rape apologists.

  • Charles Easterly||

    Some conservatives may cheer when the current administration uses this tool against sanctuary cities. But they are likely to regret their enthusiasm if a liberal Democratic president uses the same tactic to force states to increase gun control, adopt a "common core" curriculum, or pursue liberal policies on transgender bathroom accommodations.

    I have been reading the comments (and yes, the articles related to them - in whole or in part) for a few years now, and I can write without exaggeration that this sentiment which has been expressed so well by Scott has been stated with varying degrees of clarity by several commentators across the years.

    Usually the commentators whose sentiments I had occasion to read were anti-Democrat/anti-progressive/anti-liberal (et cetera). The main points remain the same. Principles, et cetera.

    On a completely different matter: Did any of you read Agile Cyborg's posts over the weekend?

  • Fuck You - Cut Spending||

    Some conservatives may cheer when the current administration uses this tool against sanctuary cities. But they are likely to regret their enthusiasm if a liberal Democratic president uses the same tactic to force states to increase gun control, adopt a "common core" curriculum, or pursue liberal policies on transgender bathroom accommodations.

    Not being a conservative, but rather a libertarian, I am fine with cities and states not getting federal handouts. I know the scum of the earth of either party that runs cities and states will bend over backwards to lick the balls and asshole of socialism before they make more than a half-hearted attempt to uphold the Constitution they swore to.

  • DenverJ||

    What Chicago needs to do is to deputise the illegals.

  • Elias Fakaname||

    Good. Then they will have run afoul of various laws regarding the illegal employment of illegal aliens. Then we can out all the assholes like Rahm in prison for that too.

  • Uncle Jay||

    RE: Chicago Launches Legal Fight with Justice Department over Sanctuary City Threats
    Again left urban leadership embraces federalism, but for the purpose of protecting funds for police militarization.

    Don't forget that Chicago will also take said funds for their politician's (and crony's) "retirement funds," for the citizens of Chicago's own good, of course.

  • Fuck You - Cut Spending||

    Some conservatives may cheer when the current administration uses this tool against sanctuary cities. But they are likely to regret their enthusiasm if a liberal Democratic president uses the same tactic to force states to increase gun control, adopt a "common core" curriculum, or pursue liberal policies on transgender bathroom accommodations.

    Forcing compliance from the cities/states is one thing, but not giving them federal money is another.

    Trump isn't the first to try this. Bill Clinton withheld highway funds from every state that didn't lower it's BAC to the level he wanted.

  • Elias Fakaname||

    I would rather he arrested all of them for sedition.

  • Bruce 6225||

    Sorry F-cut, but what's a BAC level?

  • Lord_at_War||

    "Blood Alcohol Content" for DUI charges...

  • SoberPhobic||

    Ca vs. Yuba county

    SB 630, introduced by state Sen. Nancy Skinner (D-Berkeley), would withhold state funds for jail construction from counties, including Yuba, Orange and Contra Costa, that hold people for ICE.

  • Bruce 6225||

    It's really basic. The Mayors and Chiefs of Police that enjoy sanctuary status do so for kickbacks from Drug Lords and human traffickers. It in the billions for a city like Chicago or Frisco.

  • Elias Fakaname||

    I have no idea of that's true.. if it is, all we have to do is catch just one Mayor with his hands in the cookie jar, and the rest will be guilty by association. Given the huge amount of communist activity from the dems anymore, it will be a short trip to selling the public on a communist conspiracy. Then we can finally have the new red scare we need to destroy the democrat party, Or at least damage it beyond all repair.

  • pxm||

    Isn't there a long standing precedent that controlling immigration and its rules falls under the federal purview? As compared to bathrooms, education, college harassment management and anything else we saw in the last 8 years.

  • TW||

    I agree that it does, the problem is that any conditions for receiving federal funding (e.g. can't prevent your LEO's from communicating with ICE) have to be made when the States or municipalities receive funding. They can't be imposed after the fact which is what the administration is trying to do. If President Trump wants to withhold funds from sanctuary cities (and I support doing that), he'll need to have Congress add those restrictions to the bill appropriating the money before he signs it.

  • Mitsima||

    I guess "State's Rights" is a sometimes thing.

  • rageon||

    Or, just stop accepting federal funds for local policing. Except no career-minded politician would dare threaten police with the loss of their war toys, would he?

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