Seventh Circuit Upholds Injunction in Sanctuary City Case

The Trump Administration loses its appeal in Chicago v. Sessions, but one judge dissents on the appropriateness of a nationwide injunction


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.

NEXT: "D.C. lawmaker who said Jews control the weather visits Holocaust Museum but leaves early"

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  1. The only possible comment: How does a DISTRICT court legally issue a nationwide injunction? What is the legal basis for this vast overreach? Can that same district court rule a Florida law invalid?

    1. IANAL so can’t speak authoritatively on the subject but this is what Michael Morley wrote concerning federal court decisions:

      A judgment is generally binding and enforceable anywhere; its effects are national, and potentially even global, in scope. A monetary judgment can typically be domesticated in any state and executed through levies and garnishment, as permitted by state law. Similarly, a defendant may be enjoined from violating a law anywhere in the state or nation. The res judicata and collateral estoppel effects of a valid judgment also generally apply in all state and federal courts throughout the nation. Thus, in a variety of ways, the adjudicative effects of a court’s ruling?in other words, the effects of the judgment itself?can reverberate far beyond the county or judicial district in which the court exercises territorial jurisdiction.

    2. I share your concern about these injunctions, but I have a different take on it. I think calling them nation wide is incorrect and deceptive as to why they are problematic.

      In this case, the prevailing party is in a fixed location.

      But in a case where a private individual sues the federal government and wins injunctive relief, should that party be forced to re-litigate the same issue just because they move to a different circuit? I say no. Which means even an injunction limited to the parties can fairly be described as nation wide.

      The problem is not geographic scope, but that the injunction is binding as to entities that were not parities to the case.

    3. It’s clear that congress must begin the mass impeachment of progressive judges.

      1. I’m fine with most of the reasoning. In several cases, though, one of the things the judge says is, “…and to top it off, the President’s argument on the surface, all other issues aside, is one I judge a poor one and reject for that reason, too!”

        That kind of stuff really shouldn’t be in there. The Constitution grants the elected legislative branch the power to make these value judgements on this issue, and for better or worse, Congress devolved it onto the President. The solution to poor exercise of an elected official’s job is to unelect them next go-around, and not for the judicial branch to willy-nilly ride shotgun on the wisdom of such direct exercise of a power.

    4. An injunction is directed at a person, not a law. The injunction is ordering the Attorney General not to act illegally anywhere. The person was subject to personal jurisdiction in the Court that issued the injunction and is subject to his order anywhere.

  2. Seems like an easy fix for Congress to unambiguously declare which grants and what conditions it authorizes. At least that would silence 80% of the bickering . . .

    Awe, who am I kidding. But it is fun to imagine a legal system where the legislature took note of decisions that rest on statutory construction and then promptly ratified/clarified the law in question.

    You could even imagine (I know, it’s fanciful) an informal mechanism by which judges could explicitly flag those decisions into a “docket” for the committee to review and give recommendations. Or at least get on the floor and say “Hey, the courts found that X law means Y thing, did y’all want Z instead?”.

    1. Being that the Democrat Party relies on these third worlders becoming “citizens” for the votes, why would they cooperate.

      1. Being that the Democrat Party relies on these third worlders becoming “citizens” for the votes, why would they cooperate.

        Ignoring the lack of evidence to actually support your statement – if Republicans could get past their hatred of brown people they would find out that these family oriented hard working individuals with no real debt would vote for Republicans in droves.

        1. “Republican hatred of brown people” – citation needed
          “family oriented (sic)” – citation needed
          “hard working” – citation needed
          “no real debt” – citation needed

          “would vote for Republicans in droves” – Sure, sure. Lots of evidence for that in California. And Reagan got 37% of the Hispanic vote before amnesty, and afterward, G.H.W. Bush got 30%. History belies your claims.

          1. ‘Hey, we don’t hate brown people, why be so reductive? BTW, it’s safe to assume they are by default the GOP’s political opposition.’

            1. Maybe I’m being dense, but I’m not fully understanding your comment. Let me spin it around 180 degrees and ask to clarify, if it’s safe to assume (by comparison) that we should assume the default position of liberal are persons of color that they hate white people?

              1. My point is that you say regexp is being reductive about Republicans and brown people (YMMV based on some of the immigration threads and your buddy RightWingWhatever).

                But then you go and make massive generalizations Hispanic voting patterns, and presume this trend will continue.

                That’s hard to square. Also hard to square is your thesis – are you saying Hispanics aren’t worth GOP outreach efforts?

                1. If you assume that “Republicans hate blacks/browns/reds/yellows etc.” then I’m asking if it is likewise acceptable to assume that they also hate white Republicans? There is ample evidence to indicate that there is an active dislike at the very least.

                  GOP efforts to reach out to Hispanics that include amnesty are operating under a mistaken assumption, in that they are not as a block vote, going to switch their party leanings to Republican due to amnesty as a way of saying thanks. It’s been tried once before, and it failed. I tend to side with empirical evidence, where it exists, rather than the conjecture of 12 million brown-skinned souls crying out “hallelujah, free at last” and thanking Republicans for amnesty, especially when every Democrat camera hog would be in front of a willing press saying they themselves made it possible.

                  By comparison, the switch of the black vote from reliably Republican to reliably Dem didn’t happen in 1964, it started with the New Deal and took a three decades of work by Democrats for it to happen. Demographically, if full amnesty were granted, the GOP would be a minority party for a looong time.

                  1. I never assumed that Republicans hate anyone. There’s a nativist faction, and a white supremacist faction, but that doesn’t tell you much about some random Republican.

                    You, on the other hand, seem into such generalizations. Which save time, but at the sacrifice of treating people like individuals.

                    Your sweeping logic would seem to apply with slight tweaking to almost every minority (including women) except maybe Asians. Doesn’t that prove too much?

        2. Sure, let’s just ignore all of the gleeful proclamations by Democrats that Republicans are doomed, because of the catastrophic demographic makeover and illegal invasions and “fundamental transformation” that Democrats have planned for this country.

          1. Demographic change doesn’t mean a sinister plan.

            And sweeping rhetoric about fundamental transformation, a great awakening, a broom sweeping clean, or making America Great Again is common across all parties.
            Reading into that a secret agenda to get rid of white people is crazy, dude! You’re in alignment with ActualRightWingPatriot, pull up, pull up!!

            1. Sinister as in Dr. No snickering in his chair? No. But a deliberate attempt at stocking the pond with friendly voters, yes it is. Bet your bottom dollar that if Hispanics voted Republican the Democrats wouldn’t want amnesty. Tony Blair and the Labor party did this in England, and I’m sure that Democrats who passed the 1965 Immigration Act knew they were importing friendly voters. In a country where Obama beat Romney by only 5 million votes, it doesn’t take much to put a finger on the scale where it makes a difference.

              It’s not an Alex Jones fever dream.

              1. Being part of the Democratic coalition means you can hold Democrats to some policy requirements. But that’s not at all the same as planning a catastrophic demographic makeover.
                England: still quite white.

                Arguments based on speculative telepathy of the opposition are usually more about you than they are about the opposition.

        3. “Ignoring the lack of evidence to actually support your statement”

          It’s common knowledge. No proof is needed. Are you really this obtuse? Or do you just argue disingenuously?

          1. It’s common knowledge on the paranoid right, along with Obama being a secret Muslim.

      2. Being that Congress has the authority to dictate the terms of Federal grants, you’ll have to live with the folks currently elected to it or else work towards electing others.

    2. “Seems like an easy fix for Congress to unambiguously declare which grants and what conditions it authorizes. At least that would silence 80% of the bickering . . .”

      Except Congress has already done exactly that. All the grants at issue come with conditions specified by Congress. The problem is not that Congress left ambiguity about what conditions apply to what grants, the problem is that the current administration wants to add a condition that congress unambiguously left off without going back to Congress and asking them to add the condition.

      1. MS: “The problem is not that Congress left ambiguity about what conditions apply to what grants…”

        Which takes us to the very recent “void-for-vagueness” decision.

        1. Different law, different situation, different level of ambiguity. Congress is quite capable of being unambiguous when they want to be, they just don’t want to very often.

      2. Wouldn’t it be grand if they had a chance to respond to the ruling and said “yup that’s what we intended, stuff it.”

        1. They do have that chance. Any member of Congress can introduce a bill whenever they want to add whatever additional conditions they want to whatever existing grant programs they want.

          This issue is still not about the court ether reading ambiguity into a statute or interpreting that ambiguity differently than what Congress might or might not have intended.

          There simply isn’t any ambiguity in the relevant provisions of the relevant statutes.

          1. I never disagreed with that proposition.

  3. I guess it concerns no one that the federal judiciary is participating in attemting to thwart the will of the people, expressed in an election, to pick DJT as President?

    As with Andrew McCabe, one does not always know where these things lead.

    Lawfare is tyranny.

    1. 1. Presumably the three branches of government exist in part to “thwart” the will of the people as expressed in electing the head of one branch.

      2. “The will of the people” is also problematic for a president who lost the popular vote. Why not suggest that the “will of the people” in the states that went for Trump can guide their states’ decisions about the possibility of the federal government conscripting local and state law enforcement? While they’re at it, those states might enact Trump’s harsh views of libel laws as well, and muzzle the press in those states.

    2. attemting to thwart the will of the people

      Donald J Trump: 62,984,828
      Hillary Clinton: 65,853,514

      Total voting population of the US: 250,056,000

      55% of the voting population clearly chose one individual over another. And it looks like in this years elections the “will” of the people will be stronger.

      1. 55% of the voting population

        I am trying to figure out where you got this number from, but I can’t.

      2. “55% of the voting population clearly chose one individual over another.”

        Actually, this is not true, at least not the way you are implying.

        2016 presidential election

        Trump / Pence Republican 62,984,828 46.09%
        Clinton / Kaine Democratic 65,853,514 48.18%
        Johnson / Weld Libertarian 4,489,235 3.27%
        Stein / Baraka Green 1,457,226 1.06%
        McMullin / Finn Independent 732,273 0.53%
        Castle / Bradley Constitution 203,091 0.15%

        So 54% voted for anyone but Trump and 52% voted for anyone but Hillary.

        So much for the “will of the people”.

        1. And most of those third party voters would break for Trump if forced to vote in a binary contest. So it’s entirely possible that Trump would still have the majority of the popular vote. This also doesn’t even get into all the illegal votes for Hillary.

          1. And most of those third party voters would break for Trump if forced to vote in a binary contest.

            [Citation needed.]

          2. Illegal votes. Millions of ’em.

            Right. Just ask Kris Kobach.

          3. “And most of those third party voters would break for Trump if forced to vote in a binary contest.”

            Most of the third party voters, voted Libertarian. Forced into a binary contest between Trump and Hillary, I would expect most of those voters to not vote at all. I am one of those voters, and my next choice would have been to stay home.

    3. Donald Trump was not elected sun-king. He was elected President of the United States. With the powers and limitations enumerated in the Constitution.

      The Constitution spells out pretty clearly how this works — Congress decides how to spend the money, for what purposes and with what conditions. The Executive branch implements that.

  4. Just as separation of powers means the Executive Branch is limited in its power to do what it thinks is right, so the Judicial Branch is also limited. And for the same reasons.

  5. Side comment. It is a long-established principle that to be granted an injunction, you must show not only that you are right on the merits (or, for a preliminary injunction, that you are likely to succeed on the merits), but also “irreparable harm,” which generally mean, harm that cannot be remedied by money. Supreme Court has affirmed this numerous times.

    These cases are all about money — the DOJ is withholding money that Chicago (and other state and local govts). believe they are entitled to.

    So where is the irreparable harm? The whole complaint is, we are not getting money we are entitled to. So win the case, and then get the money. Where is there room for an injunction?

    1. “Where is there room for an injunction?”

      These grants are awarded annually. Should every affected city have to re-litigate this issue all over again every year? I can see making each city litigate individually, making cities that have already prevailed on the issue relitigate it every year seems excessive.

      1. Who said anything about every year? You litigate once. In fact, given the legal ruling, I don’t see why there is even a need for discovery. You can get a judgment for this year, and then a declaratory judgment for future years.

        And besides, once you prevail, that is now res judicata. You can get summary judgment on that very quickly.

        (Of course, all that assumes Congress does not change the law. Then it is a whole new ball game — which is the case under this judgment. If Congress changed the law, then the current injunction would have to be dissolved.)

  6. Agree with 7th Circuit that executive branch cannot create conditions on grant money to states that were not imposed, clearly, by Congress. (Pennhurst).

    Also agree Congress could create these conditions if it wanted to. But it hasn’t. And immigration policy is controversial enough, and navigating even less-controversial bills through Congress difficult enough, that it may never.

    This type of issue makes it crystal clear why courts should regard lack of Congressional action as a policy decision, not an oversight. Congress’ silence speaks.

  7. The City of Chicago lacks even the morals of a prostitute.

    The money is fine but they give nothing in return.

    Remedy is to withdraw federal law enforcement [other than ICE of course] from Chicago. If they want a lawless city, give it to them.

    1. “If they want a lawless city, give it to them.”

      Depending on which neighborhood you’re in, what’s the difference between that scenario and how it is now?

    2. Collective punishment, from the party of personal responsibility!

      1. Good one. But if the best way to get a bad law off the books is to enforce it strictly, then by analogy, is the best way to get Chicago to change it’s policy is let them deal with the full consequences of the policy?

        1. What do you think the “full consequences of the policy” is?

          1. Not 100% sure. I’ve seen (at the local level) when a jail was closed due to a county government not wanting to fund two full jails and a big fat nothing occurred. Meaning judges and prosecutors were filling it up with people who shouldn’t have been there. On the other hand, the consequences of “de-policing” have been adequately documented as bad on this very blog. The post was by Heather MacDonald, titled: An Urgent Desire for More Policing

            My guess is that Chicago’s murder rate would go up, but really if nobody gives a crap enough to really do something about it now (aside from endless calls for more gun control) what does it matter? I say that last bit half seriously.

            1. Heather MacDonald analyzes de-policing by the local police who have a heavy, constant police presence. Chicago has ~12,000 officers, which is about 1/3rd of the number of FBI agents in the entire country. How many do you think there are in Chicago? How many homicides do you think the FBI prevented in Chicago last year?

              I don’t know why you think nobody gives a crap about Chicago’s homicide rate. It’s generally trending down since a high-point in the 90s, even with the 2016 spike. What do you think people have been doing for 20 years?

          2. There were two other posts were by Paul Cassel and were The 2016 Chicago Homicide Spike, and The 2016 Chicago Homicide Spike – Further Explained

            1. The Cassel post had to do with ceases in the stop-and-frisks in Chicago. The result was, at most, a completely infinitesimal increase of several hundred homicide victims (that appears to be trending down since then, anyway–and it’s far more likely that the actual number attributable to the stop-and-frisk reduction is smaller). That had absolutely nothing to do with federal policing in Chicago. And how many FBI violent crime arrests are there in Chicago on any given year? Dozens? Who cares if they leave?

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