Trump Suffers Yet Another Defeat in a Sanctuary Cities Case

The US Court of Appeals for the 7th Circuit affirms a district court ruling against the administration's efforts to deny federal grants to sanctuary jurisdictions.


As co-blogger Jonathan Adler notes, the US Court of Appeals for the Seventh Circuit just issued a ruling in City of Chicago v. Sessions upholding a lower court decision against the Trump administration's plan to cut federal funds from "sanctuary cities" - jurisdictions that refuse to assist federal government efforts to deport undocumented immigrants. Attorney General Jeff Sessions had sought to cut Byrne Memorial Justice Assistance Grant funds to jurisdictions that refuse to meet three conditions:

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.

In September, a federal trial court issued an injunction barring enforcement of the second and third conditions, because they were never authorized by Congress, which has exclusive authority to control federal spending and attach conditions to federal grants to state governments. Yesterday, the Seventh Circuit upheld that ruling on much the same basis:

Our role in this case is not to assess the optimal immigration policies for our country; that is not before us today. Rather,the issue before us strikes at one of the bedrock principles 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 separation 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 authorization 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 enforcement. 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 immigration policies. Nor…. 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.

In addition to undermining separation of powers, executive attempts to add new conditions to federal grants without congressional authorization, also threaten federalism. If the president is able to usurp such authority, he could use it to coerce state and local governments on a wide range of issues. Conservatives who may be happy to see Trump and Jeff Sessions use it to punish sanctuary cities may be less thrilled when a liberal Democratic president uses the same power to coerce states to adopt left-wing policies on education, gun control or transgender bathroom access.

Yesteday's ruling is just the latest in a long string of defeats for Trump in cases challenging his efforts to cut federal grants to sanctuary cities. Courts have repeatedly invalidated both the Sessions policy at issue in the Seventh Circuit ruling, and Trump's January 2017 executive order mandating a much broader cutoff of federal funds from sanctuary jurisdictions. Significantly, these losses have come at the hands of both Democratic and Republican-appointed judges. Judge Ilana Rovner, author of yesterday's Seventh Circuit opinion, was appointed by President George H.W. Bush (and previously appointed as a district court judge by Ronald Reagan). Judge Daniel Manion, who agreed with the majority's analysis of the conditional spending issue, is generally considered one of the most conservative appellate judges in the country.

The Seventh Circuit did not review the trial court's upholding of the requirement that jurisdictions receiving Byrne grants must 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." This is Trump's sole win in any of the sanctuary city cases so far. In my view, the trial judge got this issue wrong, for reasons I summarize here. The statute authorizing the Byrne program nowhere requires recipients to comply with Section 1373. In addition, Section 1373 is unconstitutional because it violates the Tenth Amendment. The Seventh Circuit is likely to review that ruling in the future, and hopefully they will reverse it. In Philadelphia v. Sessions, another case challenging the Sessions policy, a federal trial judge ruled against the administration on the Section 1373 issue, and his ruling is better-reasoned than the one in Chicago v. Sessions.

As Jonathan Adler points out, all three judges on the Seventh Circuit panel agreed that the Sessions' conditions are unconstitutional, but Judge Manion dissented on the issue of whether a nationwide injunction is appropriate. In my view, contrary to that of some of my co-bloggers, nationwide injunctions are an appropriate and necessary tool in cases where the government violates the Constitution nationwide in ways that do not depend on variations in local conditions or the details of individual cases. Judge Ilana Rovner's majority opinion in yesterday's decision offers a good summary of the reasons why. As she puts it, "for issues of widespread national impact, a nationwide injunction can be beneficial in terms of efficiency and certainty in the law, and more importantly, in the avoidance of irreparable harm and in furtherance of the public interest." This is particularly true in a case, like the present one, which "a narrow issue of law [that] it is not fact?dependent and will not vary from one locality to another." Ultimately, a nationwide violation of the Constitution requires a nationwide remedy.

The Seventh circuit ruling and other conditional grant decisions should not be confused with Sessions' recent lawsuit against California's sanctuary policies. While I believe California deserves to prevail on all three issues raised in the latter litigation, the questions involved are different from and more difficult than those at stake in the spending cases.

UPDATE: I have made a few minor additions to this post.

NEXT: Caniformia

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  1. Sanctuary policies protect murderous illegal alien criminals and put their interests before the safety of citizens. The left has never been so deranged. Incidentally, a new poll shows 59% of Californians want increased deportations.

    Anyway, since Ilya continues to personalize this to Trump, is Trump winning BIGLY on the first condition now? That was the big issue in the beginning, which prompted all kinds of deranged and delusional commentary even by Conspirators, and some farcical judicial opinions. I haven’t been following everything — is Trump winning that one over Somin’s and Post’s protestations?

    1. Sanctuary policies protect murderous illegal alien criminals and put their interests before the safety of citizens. The left has never been so deranged. Incidentally, a new poll shows 59% of Californians want increased deportations.

      Every day 43 people are murdered in the United States (source FBI). In almost all cases they will be murdered by other Americans. But “conservatives” can care less about them. Only about the one white girl murdered by accident in 2015 by one illegal immigrant.

      Mass deportations solve no real problem and just increases risk for all. Immigrants come here for a reason and are less likely to commit a crime than your average native born American. And as a Californian I wish the federal government would implementing rational immigration reform instead of pushing for a silly wall that solves nothing.

      1. Every hour someone dies from obesity related illness, in almost all cases they will be murdered by their own fatty habits. But “liberals” can care less about them.

        Stopping murders solves no real problem. [I’d add a note about increasing risk by not deporting, but that argument is idiotic on its face]. Thin people eat healthy. [Figured you were just going random now since we don’t deport legal immigrants, yet you switched to them for some odd reason]. I too use the word rational to mean whatever policy I support, rational rational rational!

        1. Philly tried to add a sugar tax to address this issue and I suspect you’d find liberal areas attempting to address these issues more than conservative areas.

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      2. “I wish the federal government would implementing rational immigration reform instead of pushing for a silly wall that solves nothing.”

        You don’t want reform.

        If you did, you realize that effective enforcement or at least the appearance of enforcement [the wall] is the only way to create the political will on the Right you need to get reform done.

        1. Look at this pathetic confession. We don’t need the wall to effect reform, we need the wall as pretext to gin up support for real reform.

          If you’re so confident about the rightness of reform, why not just advocate for the reform? Do you think your political allies are that fucking stupid?

          1. He [and you I suppose] wants reform only on his terms, no concession to the other side.

            You can’t get GOPers to agree to reforms unless you give them something their voters want so the heat is off them.

            1. ‘I refuse to think about compromise because I’ve already decided your only pretending to want to compromise!’

            2. ‘I refuse to think about compromise because I’ve already decided your only pretending to want to compromise!’

            3. The compromise I want is the status quo. I’m not open boarders. We have the most self-serving immigration policy in human history. Your view of the GOP is that it exists to manipulate its base by giving them something they want, so the GOP can enact whatever real reform you have in mind. It’s pathetic. If the GOP has real reform in mind, that’s worthwhile, it shouldn’t have to sell it to its own base with a theatrical wall. It just should just take its best case to its base, as well as its opponents.

              Your view of “their voters” is that they’re a bunch of dumb rubes who are only useful for lathering up with walls and culture wars so you can win primaries and push policies to the right. If pushing policies to the right is the right thing to do, you shouldn’t need to lather up your voters with games in the first place.

          2. Walls work. Ask Israel, among others.

            1. Without American military, political, and economic skirts to hide behind, all of the walls in the world would not work for Israel.

              1. Really? They sure beat the shit out of the murdering Muslims even before they ever had their support. But I’m sure you salivate at the thought of another Jewish holocaust. You leftists are always intensely anti Semitic and champion the bloodthirsty Muslim hordes.

                But murder and genocide are just part and parcel of a Marxist such as yourself, eh comrade?

                1. Please explain why Americans are forced to subsidize Israel — at great political, economic, moral, and military cost — if the Israelis do not require American skirts to hide behind.

                  Bonus clinger points if you tie in the Rapture.

                  1. Your premise is false. We are not ‘forced’ to do anything. We have the privilege of helping decent freedom loving people who are our friends in that part of the world. I assume you are incapable of grasping that concept, as you are a marxist slaver.

                    Basically its called doing the right thing. Something your kind are incapable of. Tell me, even considering your lack of empathy and decency, why are you so intent on murdering millions of Jews? Are you that much of an anti-semite, or do you just hate all non-muslim people of faith that much?

                    1. This guy is really triggered.

        2. The best way to stop illegal immigration is to remove all quotas or restrictions on the numbers of immigrants.

          1. No. Horrible idea.

            No open borders. No more illegals. Build the wall.

            1. Conservatives are free to try their approach when they control the levers of American power.

              After that, liberals and libertarians will resume the traditional course of American progress.

              Carry on, clingers. While you can, anyway.

              1. You aren’t a libertarian. And you will also be the clinger. Desperately clinging to life after one final progtarded overstep, and your eventual destruction.

                1. I’m as libertarian as you are. Where we differ involves your bigotry and backwardness.

      3. Get your narrative straight. Conservatives favor “mass incarceration” (unlike the soft on crime liberals who supported Prop. 47), which means that they do care about the murders committed by citizens as well as illegal aliens. Crimes committed by illegal aliens are worse precisely because they should never have had the opportunity to violate any laws (which they continually do in various ways by remaining in the U.S. illegally).

      4. Regexp, you can make all the Orkney disingenuous claims you want. The fact is illegals, especially criminal illegals, have got to go. Case closed.

  2. Professor Somin, what are your thoughts on Footnote 2 of the dissent, where Judge Manion says that the injunction should not have been entered because the district court misapplied Winter, but because the Attorney General failed to raise that argument on appeal it was waived.

    1. I think you’re misreading footnote 2…

      1. Maybe I’m misreading your comment.

  3. These decisions stretch my capacity for doublethink…I like them but at the same time I hate them.

  4. Congress is also vested with the exclusive authority to determine immigration law, but open borders advocates like Prof. Somin find convenient ways to justify imperial executive actions like DACA/DAPA that blatantly usurp congressional powers (link).

    1. This. We need a Mark Perry style Venn diagram for his intellectual inconsistency.

  5. As I said on the other thread, close down the FBI, Secret Service and other federal law enforcement offices in the city and conduct no law enforcement activities. If they want lawlessness, let’s do it.

    Except for ICE of course, they should operate.

    1. Implicit here is Bob’s unwavering faith in federal law enforcement’s effectiveness. More Big Government Bob from Ohio.

    2. It’s funny how often conservative plans align directly with being spiteful to groups with lots of liberals in them.

  6. The separation of powers part (Congress v. The Executive branch) is sound.

    The federalism part is not. If Congress placed conditions on federal money, that, IMO, is fine. States or municipalities are free to comply or forego the money.

    1. I’m not in favor of the federal government placing conditions on States in exchange for receiving federal money. It essentially allows the federal government to completely bypass States’ rights and indirectly accomplish what the federal government would not be permitted to otherwise directly accomplish. The federal government can’t directly order States to set certain speed limits on roads, but it can withhold money from States that don’t do so, indirectly strong-arming these States to do it.

      At the extreme, the federal government could simply tax all citizens at 100% and then redistribute that money back to the States with all of the conditions that the federal government wants to impose on the States.

    2. What if that condition is coercive? I’m referring to the medicaid expansion in the Affordable Care Act where the Supreme Court found it coercive.

  7. “Ultimately, a nationwide violation of the Constitution requires a nationwide remedy.”

    If the conduct of the states is in question, then why not go straight to the US Supreme Court, which has original jurisdiction in cases to which states are parties?

    I know the lower federal courts have concurrent jurisdiction, though I don’t know all the details of how this works.

    Or is this about municipalities, and the states want to sit this one out?

    1. why not go straight to the US Supreme Court, which has original jurisdiction in cases to which states are parties?

      Because the Supreme Court has discretion to refuse to hear the case and order it sent to a lower federal court instead. (Which it almost certainly would; about the only thing that’s on the original docket these days is water rights cases.)

      1. That’s the problem with the “living constitution” – applying the constitutional text is strictly optional. The Supreme Court gets to shirk its duty if inconvenient.

        1. Em, nothing in the Constitution’s text says the Supreme Court is forced to hear every case appealed to it…

          1. “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”

            1. “The Supreme Court is to be invested with original jurisdiction, only ‘in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.” In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.”

              Federalist Papers 81

              1. There should be an ellipsis between the first and second sentences, omitting a discussion of diplomatic personnel.

                1. Yes, federal courts is a rad subject.
                  But how does ‘original jurisdiction’ mean they must hear every appeal?

                  1. Not sure if appeal is the right verb, but you get the idea.

                    1. No, I think you’re right as far as appeals are concerned, because Congress gets to make “exceptions” and “regulations” for the Supreme Court’s appellate jurisdiction.

                      Since there is no equivalent language for the Supreme Court’s original jurisdiction, then the burden would be on whoever asserts that the Supreme Court’s original jurisdiction is limited by “exceptions” and “regulations.”

                    2. See, I knew that was the wrong word to use. I still don’t know the verb for getting something to the Court via original jurisdiction.

                      Anyhow, unlimited does not require nondiscretionary. To nail that down you either need to allow that the text along is insufficiently directive.
                      It becomes a jurisprudential question whether to fill that gap via prudential concerns, or originalist history, intent, or purpose, look to the modern role of courts, or leave it to Congress.

  8. That’s great, but sanctuary cities are still unconstitutional. States can’t be forced to assist the feds in deportation, but they shouldn’t be able to stop local police officers from voluntarily sharing some information with ICE. It’s a potential 1A violation.

  9. So “Reason” is now defending federal money going to states and cities? Seriously? Because of immigration? Sorry but i don’t believe any state or city should get one penny from the feds for anything. There used to be balance of power, independent states and cities that took care of themselves and could keep the federal government in check, now that their in bed with the draconian federal government that isn’t the case. Just a FYI their here ILLEGALLY, their breaking the law, depart their fucking asses out of the country, they have no interest in voting for libertarians or people who are wanting smaller government, these people always vote for big government, “Reason” always fools itself that if their nice to immigrants they’ll vote for libertarians. Never going to happen, these people like handouts.

    1. You’re right. We are far more likely to get immigrants favoring smaller government from those willing to go through the process legally.

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