The Volokh Conspiracy
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Earlier today, a federal district court issued a ruling blocking part of Attorney General Jeff Sessions' new policy to withhold federal law enforcement grants from "sanctuary cities"—jurisdictions that in some ways refuse to assist federal efforts to deport undocumented immigrants. The case has important implications for federalism and separation of powers.
If Sessions prevails, the executive would have broad power to coerce states and localities and circumvent Congress by imposing its own new conditions on federal grant recipients, without congressional authorization. That prospect should concern even observers who do not care much about either sanctuary cities or the future of the relatively small grant program at issue in the case. What the Trump administration is trying to get away with here can be repeated with other federal grants. And, obviously, such abusive tactics can be used by the political left in future cases, no less than the right in this one.
The text of federal district Judge Harry D. Leinenweber's decision is available here. The ruling addresses a suit brought by the City of Chicago challenging Sessions' policy, which tries to impose three new conditions on cities receiving Edward Byrne Memorial Justice Assistance Grant funds:
1. Prove compliance with federal law that bars cities or states from restricting communications between the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) about the immigration or citizenship status of a person in custody.
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.
Judge Leinenweber concludes that the second and third requirements are illegal because they were never authorized by Congress. They are not included in the authorizing statute for the Byrne grants, and the Justice Department could not find any other laws that impose these conditions on Byrne recipients. As I explain in this post on Sessions' policy, the Supreme Court has repeatedly ruled that only Congress can impose conditions on federal grants to state and local governments, and those conditions must be clearly specified in advance, in the text of the relevant law.
This part of the decision reaffirms the important principle that the executive cannot impose new grant conditions that go beyond those authorized by Congress. In that respect, it follows in the footsteps of an earlier federal court decision against President Trump's executive order targeting sanctuary cities, which sought to attach new conditions to a much wider range of federal grants.
Unfortunately, Judge Leinenweber did choose to uphold the first condition. In doing so, he made a series of errors that I hope will be reversed on appeal.
The requirement in question forces grant recipients to comply with 8 U.S.C. Section 1373, which mandates that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual."
Judge Leinenweber recognizes that nothing in the statute authorizing the Byrne grants specifically mandates compliance with Section 1373. But he concludes that Section 1373 is nonetheless a condition of the grant, because the authorizing statute states that recipients must "comply with all provisions of this part and all other applicable Federal laws" (emphasis added). The Justice Department claims that "all other applicable Federal laws" includes all laws that regulate the recipient jurisdictions in any way, while Chicago argued that "applicable" laws include only those that specifically regulate recipients of federal grants. Leinenweber correctly notes that both interpretations are "plausible." He could have saved a lot of trouble if he had just stopped right there.
Longstanding Supreme Court precedent mandates that the federal government may not impose conditions on grants to states and localities unless the conditions are "unambiguously" stated in the text of the law "so that the States can knowingly decide whether or not to accept those funds." If it it is plausible to interpret the relevant law in a way that excludes the condition, that makes it pretty obvious that the condition is not unambiguously stated in the text of the law.
The Supreme Court has also ruled that the Spending Clause of the Constitution requires grant conditions to be "related" to the federal purposes that the grant program was established to pursue. Figuring out what counts as a "related" purpose is far from an exact science. But it's pretty obvious that, if the Byrne grants are conditioned on compliance with every federal law that regulates cities in any way, at least some of those requirements are going to be unrelated to the law enforcement purposes that the Byrne program was established to promote. If Judge Leinenweber's and Jeff Sessions' interpretation of "applicable" is correct, that would mean that this part of the statute is unconstitutional.
Interpreting the statute in this way violates the well-established rule that federal courts should, if possible, avoid interpreting laws in a way that renders them unconstitutional. In his famous opinion in NFIB v. Sebelius (2012), Chief Justice John Roberts bent over backwards to reinterpret the Obamacare individual health insurance mandate as a "tax," in order to prevent it from being unconstitutional. He emphasized that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality," and that the resulting interpretation of the law need not be the best available, just "fairly possible." By this standard, it's pretty obvious that Chicago's interpretation of "applicable" is at least "fairly possible," and the court should have adopted it in order to avoid having to interpret the law in a way that makes it unconstitutional.
I am no great fan of either the "avoiding constitutional problems" canon generally or Roberts' specific use of it in NFIB. In my view, the courts should simply find the best available interpretation of the law and then strike it down if it turn out be unconstitutional. But NFIB is a binding Supreme Court precedent, and lower court judges are required to follow it.
Because Judge Leinenweber overlooked these two major flaws in Sessions' argument that the Byrne grants can be conditioned on compliance with Section 1373, he had to consider Chicago's claim that Section 1373 itself is unconstitutional because it violates Supreme Court precedent interpreting the Tenth Amendment as banning "commandeering" of state and local governments to help enforce federal law. He concludes that Section 1373 is not unconstitutional because it "does not require the forced participation of state officers to "administer or enforce a federal regulatory program," but "merely precludes a state or local government from 'prohibit[ing], or in any way restrict[ing], any . . . official'" from sharing information with federal officials. In my view, this is a distinction without a real difference, for reasons I explained here:
The Supreme Court has repeatedly ruled that the federal government may not "commandeer" state and local officials by compelling them to enforce federal law. Such policies violate the Tenth Amendment.
Section 1373 attempts to circumvent this prohibition by forbidding higher-level state and local officials from mandating that lower-level ones refuse to help in enforcing federal policy. But the same principle that forbids direct commandeering also counts against Section 1373. As… Justice Antonin Scalia explained in Printz v. United States, the purpose of the anti-commandeering doctrine is the "[p]reservation of the States as independent and autonomous political entities." That independence and autonomy is massively undermined if the federal government can take away the states' power to decide what state and local officials may do while on the job. As Scalia put it in the same opinion, federal law violates the Tenth Amendment if it "requires [state employees] to provide information that belongs to the State and is available to them only in their official capacity." The same is true if, as in the case of Section 1373, the federal government tries to prevent states from controlling their employees' use of information that "is available to them only in their official capacity."
Judge Leinenweber actually recognizes this point himself:
If a state or local government cannot control the scope of its officials' employment by limiting the extent of their paid time spent cooperating with the INS, then Section 1373 may practically limit the ability of state and local governments to decline to administer or enforce a federal regulatory program. In this way, Section 1373 may implicate the logic underlying the Printz decision….
Read literally, Section 1373 imposes no affirmative obligation on local governments. But, by leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers' ability to extricate their state or municipality from involvement in a federal program.
Amen! This is exactly why Section 1373 violates the anti-commandeering principle and should be ruled unconstitutional.
That said, Judge Leinenweber is right that the issue here is a difficult one that "poses a unique and novel constitutional question." I don't blame him for possibly getting it wrong. The really serious error in today's ruling is the judge's failure to consider the two more obvious flaws in Sessions' claim that compliance with Section 1373 can be imposed as a condition on Byrne grant recipients. If he had gotten either of those issues right, the judge would never even have had to consider the much harder commandeering question.
While it is unfortunate that the court got the Section 1373 issue wrong, overall today's decision negates most of the worst aspects of Sessions' policy. Most importantly, it reaffirms the principle that the executive cannot simply make up new grant conditions after the fact, but must instead impose only those authorized by Congress in advance.
Today's decision is not a final decision, but merely a ruling on Chicago's request for a preliminary injunction preventing Sessions from enforcing his policy until the court can make a final decision. The court did in fact issue an injunction against the two conditions it concluded were likely illegal. But Judge Leinenweber's opinion makes it fairly clear which way all three issues will go in any final ruling.
I expect that both sides will appeal those parts of today's decision that went against them. Hopefully, an appellate court will reverse Judge Leinenweber's mistaken ruling on Section 1373.