The Volokh Conspiracy
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Last night, the U.S. Court of Appeals for the Seventh Circuit upheld the district court injunction against the Department of Justice's effort to deny federal funding to so-called "sanctuary cities"—those local jurisdictions that refuse to cooperate in federal immigration enforcement. In Chicago v. Sessions, a three-judge panel concluded the Justice Department lacked the authority to require such cooperation as a condition of receiving funds from a federal grant program. While all three judges on the panel agreed that DOJ had over-reached, one judge dissented on whether it was appropriate to enter a nationwide injunction against the federal government.
Judge Ilana Rovner wrote the opinion for the court, joined by Senior Circuit Judge William Bauer. Senior Circuit Judge Daniel Manion wrote a separate opinion concurring-in-part and dissenting-in-part.
Judge Rovner summarized her opinion as follows:
This appeal is from the grant of a preliminary injunction in favor of the City of Chicago (the "City") and against Jefferson Beauregard Sessions III, the Attorney General of the United States, enjoining the enforce? ment of two conditions imposed upon recipients of the Edward Byrne Memorial Justice Assistance Grant Program (the "Byrne JAG program"). See 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750). The Byrne JAG grant, named after a fallen New York City police officer, allocates substantial funds an? nually to provide for the needs of state and local law en? forcement, including personnel, equipment, training, and other uses identified by those entities. The Attorney General tied receipt of the funds to the grant recipient's compliance with three conditions which the City argued were unlawful and unconstitutional. The district court agreed with the City as to two of the three conditions—the "notice" condition mandating advance notice to federal authorities of the release date of persons in state or local custody who are be? lieved to be aliens, and the "access" condition which required the local correctional facility to ensure agents access to such facilities and meet with those persons. Compliance with those conditions in order to receive the funding award? ed under the Byrne JAG grant would require the allocation of state and local resources, including personnel. The district court granted the preliminary injunction as to those two conditions, applying it nationwide. The court subsequently denied the Attorney General's motion to stay the nationwide scope of the injunction, and this court denied the stay on appeal. The Attorney General now appeals that preliminary injunction.
Our role in this case is not to assess the optimal immigra? tion policies for our country; that is not before us today. Rather, the issue before us strikes at one of the bedrock princi? ples of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government—the separation of powers.
The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a sepa? ration of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authori? zation or even acquiescence of elected legislators, that check against tyranny is forsaken. The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforce? ment. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigra? tion policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever?vigilant in that endeavor.
Judge Manion agreed with the majority that the Department of Justice lacked proper authority to require recipients of Byrne JAG grants to cooperate with federal immigration enforcement efforts. Yet Judge Manion disagreed with the majority that it was proper for the district court to enter a nationwide injunction against the Justice Department. Rather, Judge Manion argued, the scope of injunctive relief should have limited to the parties.
Judge Manion writes:
because I agree that the Attorney General does not have the authority to impose the Notice and Access conditions, and because that is all the Attorney General challenges concerning the propriety of an injunction, I concur in the judgment of the court affirming the entry of a preliminary injunction prohibiting the Attorney General from im? posing those conditions on Chicago.
But a simple preliminary injunction protecting Chicago (the only plaintiff in this suit) is not all the district court en? tered. Instead, the district court announced as follows: "This injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction." City of Chicago, 264 F. Supp. 3d at 951.
This was a gratuitous application of an extreme remedy. This court now upholds the district court's overreach because "[t]he case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief." Maj. Op. at 30. In doing so, the court bypasses Supreme Court precedent, disregards what the district court actually concluded concerning the equities in this case, and misreads the effect of providing relief to Chicago only.
In response, Judge Rovner acknowledges "the possible hazards of the use of nationwide injunctions" (citing the work of Conspirator Samuel Bray), but argues that such an injunction is appropriate in this case.
As the Seventh Circuit's opinion indicates, the Justice Department's substantive legal position is rather weak. However reasonable it may be to withhold specific Justice Department grants from cities that refuse to cooperate with federal immigration enforcement, Congress has not authorized the imposition of such a condition on federal funding, nor does the Justice Department have the inherent authority to impose such conditions on the receipt of such grants. As a consequence, I am not sure there will ever be a circuit split on this question that would justify Supreme Court review.
Whether nationwide injunctions are appropriate in cases such as this are another matter. As my co-blogger Samuel Bray has noted, there are good reasons to believe that nationwide injunctions are over-used and have been issued too frequently by district courts over the past ten years. Once extremely rare, nationwide injunctions have become rather common. During both the Obama and Trump Administrations, politically motivated litigants have filed cases in friendly jurisdictions and then sought nationwide relief. As Assistant Attorney General Beth Williams noted in a recent speech:
Before 1963, no court in this country had issued such a broad injunction, and they were exceedingly rare until President Reagan took office. Even after that, by Justice Department estimates, courts issued an average of only 1.5 nationwide injunctions per year against the Reagan, Clinton, and George W. Bush administrations, and 2.5 per year against the Obama administration. In President Trump's first year in office, however, judges issued a whopping 20 nationwide injunctions—an eightfold increase. This matches the entire eight-year total of such injunctions issued against President Obama during his two terms. This enormous increase should draw alarm.
While the underlying merits question in Chicago v. Sessions may not justify certiorari, the divide over the propriety of a nationwide would. If the Court is looking for a vehicle to explore this question, this case could fit the bill.