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VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Yet Another Federal Court Rules Against Trump and Jeff Sessions in a Sanctuary Cities Case

The decision is the latest in a long line of legal setbacks for the administration's efforts to force sanctuary cities to help deport undocumented immigrants.

Lost in the shuffle of other news is yet another defeat for the Trump Administration in a sanctuary cities case. Yesterday, federal district Judge William Orrick of the Northern District of California became the latest federal judge to rule against Attorney General Jeff Sessions' policy of trying to deny federal law enforcement grants to sanctuary cities.

Last year, Attorney General Jeff Sessions sought to cut Byrne Memorial Justice Assistance Grant funds to state and local governments that fail to meet three conditions:

1. Prove compliance with 8 USC Section 1373, a federal law that bars cities or states from restricting communications between the Department of Homeland Security and Immigration and Customs Enforcement (ICE) about the immigration or citizenship status of individuals targeted by these federal agencies.

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 a ruling on a lawsuit filed by the city of San Francisco and the state of California, Judge Orrick's opinion concludes that all three of these conditions are unconstitutional because only Congress, not the executive, has the power to impose conditions on federal grants to state governments. The executive cannot make up its own grant conditions after the fact, which is exactly what happened here. In addition, Orrick concludes that Section 1373 is in itself unconstitutional, because it violates the "anti-commandeering" requirements of the Tenth Amendment, which bar the federal government from conscripting state and local officials in efforts to enforce federal law.

As Judge Orrick explains, his conclusions are very similar to those of other federal judges who have rule on the same policy, in cases filed by the cities of Chicago and Philadelphia. Judge Orrick also follows these and other federal court decisions in ruling that Section 1373 is unconstitutional under the Supreme Court's recent decision in Murphy v. NCAA, which invalidated a federal law barring states from "authorizing" sports gambling under state law. I explained in greater detail how the Murphy decision undermines Section 1373 and otherwise helps sanctuary cities here, here, and here.

Importantly, the Sessions policy and Section 1373 been repeatedly struck down by both Republican and Democratic-appointed federal judges. That is a sign of a growing bipartisan judicial consensus.

Judge Orrick previously issued a ruling striking down President Trump's January 2017 executive order, which seeks to deny a much wider range of federal grants to sanctuary cities that fail to comply with Section 1373. His decision was recently largely upheld by the US Court of Appeals for the Ninth Circuit.

The administration did win a partial victory on one issue: Judge Orrick has suspended his order for a nationwide injunction against the Sessions grant policy (as opposed to an injunction limited to the parties to the case), until the Ninth Circuit has had a chance to consider the nationwide injunction question further. The appropriateness of nationwide injunctions has become a highly contentious issue for reasons that transcend the specific context of federalism and immigration. In my view, nationwide injunctions are an appropriate remedy in cases addressing the constitutionality of a uniform nationwide federal policy, whose legality is unlikely to vary based on differences in local conditions. But I admit that the issue is a difficult one. It is also a question on which I have far less expertise than the spending and commandeering questions at the heart of the legal battle over Trump's assault on sanctuary cities.

The sanctuary cases have important implications for federalism that go far beyond the specific context of immigration policy. If the administration were to prevail, the executive would have the power to circumvent congressional control over federal funds, and use grant conditions to pressure state and local on a wide range of issues. Fortunately, it increasingly looks like that it is very unlikely to happen.

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  • Stumble||

    One issue overlooked by the ruling, is if the executive can add conditions there is every reason to think they could eliminate them. Absent a restricting principle this effectively eliminates the meaning of all legislative grant legislation other than the total amount available to spend. It would be chaos.

  • JesseAz||

    As we've learned from leftist courts, namely daca, future presidents can't undo executive orders.

    Of course nobody sane believes this, but Ilya does.

  • Brett Bellmore||

    Eh, the only loss that counts in the end is at the Supreme court.

  • Brett Bellmore||

    I mean, there's a lot of TrumpLaw being developed in the lower courts, but how much success is it going to have at the Supreme court?

  • santamonica811||

    I agree with you (I think). It's pretty clearly unconstitutional on its face, as the OP detailed. But once Justice K is on the bench, it's certainly possible that 5 people on the Sup. Ct will supports the president's/administration's side. I certainly would not bet against Trump eventually winning, as long as he can get one appellate court to agree with him, so that there is a circuit split. (SCOTUS still might agree to hear the case without a split, but it's always a bit embarrassing for the court's legitimacy when it overrules some issue where many many lower federal judges have already ruled in the opposite way.)

  • Rev. Arthur L. Kirkland||

    You figure Judge Bart O'Kavanaugh might side with the right-wing bigots?

    I expect a Justice O'Kavanaugh to be so overtly biased and enthusiastically intolerant that Chief Justice Roberts starts voting with the liberal-libertarian side to try to stave off enlargement of the Court.

  • Smooth Like a Rhapsody||

    Funny that the shill who has a tantrum everytime someone uses the term, "Democrat Party", would be the first to derogate the newest manifestation of America being made Great Again.
    A court with Roberts at the center, and Thomas as Sr. Associate, suits me right down to the ground.
    Plus, we're just one octogenarian undergoing a medical mishap from a complete conservative takeover.
    Keep hope alive, though.

  • Last of the Shitlords||

    Arty is subhuman garbage. I look forward to him being taken in for sedition in the near future.

  • Toranth||

    Self-advertisement again. Of 14 links, 11 are links to other Somin posts.

  • santamonica811||

    True enough. But to be fair to the OP; he is the only Conspirator that really spends much time writing on this issue, so it's not terribly surprising to me that he links back to his own earlier work. (And, for at least 3 of the links, he makes it absolutely clear in his post today that the link is to what he had written earlier.)

  • Dyspeptic Curmudgeon||

    "In a ruling on a lawsuit filed by the city of San Francisco and the state of California, Judge Orrick's opinion concludes that all three of these conditions are unconstitutional because only Congress, not the executive, has the power to impose conditions on federal grants to state governments. The executive cannot make up its own grant conditions after the fact, which is exactly what happened here."

    Innnnterrresting!

    So the non-delegation doctrine is NOT dead. Maybe there needs to be postscript added to the Amicus Brief recently filed in the Grundy case.

  • Dyspeptic Curmudgeon||

    Sorry, GUNDY case. See prior Volokh post

  • Curly4||

    It is difficult for me to understand how this ruling is sound. If it is then earlier when the federal government threatened to cut highway funding funding to states that did not institute a 55 mph speed limit was illegal also. This to me is the same.

  • Krayt||

    That law threatened to cut funds if states didn't implement 55 mph. Afaik this law doesn't do that and just mandates states don't forbid their localities from voluntarily cooperating.

    If Congress wanted to tie funding to it, that might be different. Some think Congress shouldn't be able to construct powers out of other powers, such as forcing a national speed limit by way of taxing then refusing to return funding, when they don't have the authority to set a speed limit directly, but that's a different discussion.

  • ReaderY||

    The 55 mph speed limit was enacted by Congress. Just about everything struck down would be upheld if Congress had enacted it. Even the requirement to share information would be upheld if Congress made it a condition for receiving federal funds rather than an absolute rule.

    The issue here is not that the Federal policies here are inherently unconstitutional, but structural issues involving its promulgation. Only Congress can impose conditions on federal spending, and Congress cannot commandeer state officials into doing Federal work.

  • VinniUSMC||

    But states can totally forbid individuals and businesses from voluntarily cooperating with federal agencies, because reasons...

  • Stumble||

    No, States can employment conditions to prevent their employees from behaving in ways the state doesn't want. If the state doesn't see contacting the Feds as a reasonable way to spend time on the clock, then they can prevent it. Just like your employer can decide that watching TV isn't a good use of your work time.

  • Rеv. Arthur I. Kirkland||

    Too bad for you Bull Cow. Justice Kavanaugh is coming for you and your open borders globalist comrades.

  • Last of the Shitlords||

    Yep. Global marxists are all guilty of treason and sedition.

  • Brett Bellmore||

    So, what happens if Congress sets criteria that qualify $10 billion worth of recipients, and then funds $5 billion worth of grants? Is the President required to pick names out of a hat?

  • JesseAz||

    For fuck sakes Ilya, it's California. You're cheering an anti trump ruling from California? Are your legal beliefs so weak you'll seek out any confirmation of them?

  • Last of the Shitlords||

    Trump should just put most of CA under martial law.

  • Rеv. Arthur I. Kirkland||

    This is a moron who can't tell a bull from a cow. He hates HIS PRESIDENT Trump with every fiber of his being, because nothing matters to him more than open borders. He's a communist, a globalist, and cannot stand the idea of any nation having sovereignty.

  • Flight-ER-Doc||

    One of these days Congress will remember their Article III, section 2 powers and stop this nonsense.

  • M.L.||

    "The executive cannot make up its own grant conditions after the fact, which is exactly what happened here. In addition, Orrick concludes that Section 1373 is in itself unconstitutional, because it violates the "anti-commandeering" requirements of the Tenth Amendment"

    The problem with this argument is that "anti-commandeering" is not relevant to the Constitutional analysis of a condition attached to spending legislation authorized by Congress. This seems true notwithstanding that Sec 1373 would violate anti-commandeering, if it were enforced as a naked command (as opposed being incorporated as a spending condition).

    Of course, even a spending condition must not be "coercive" and it must be reasonably related to the purpose of the spending. But that is a vastly different question than whether a naked command amounts to commandeering.

  • ReaderY||

    Anti-commandeering and only Congress can impose conditions on spending are two separate doctrines. Section 1373 as enacted by Congress imposes an absolute rule, not a condition on spending. If Congress had formulated Section 1373 as a condition on spending, it would have been upheld. But it didn't. And the Administration can't save it by turning it into a condition on spending administratively.

  • M.L.||

    "the Administration can't save it by turning it into a condition on spending administratively."

    But the Administration did not do this. Congress did it legislatively. The legislation that created the Byrne Memorial Justice Assistance Grant Program requires that as a condition of receiving grants under this program, municipalities must comply with the Sec 1373 rules.

    A member of Congress noted that the Obama administration was not enforcing the condition. An IG report then followed which showed that hundreds of millions in grants were provided to cities not in compliance with those rules. And the Obama administration acknowledged that, yes, this condition should be observed. Then the Trump administration issued an EO directing the agencies to actually confirm and require compliance with the spending condition.

  • Onslow||

    Does the spending clause authorize conditions on political subdivisions of sovereign states? Seems like a bridge too far. Political subdivisions of the States should be subject to control by their respective state and voters, not the federal government.

  • M.L.||

    So long as the condition is not "coercive" and is related to the purpose of the spending, the Court has held that spending conditions are constitutional. One case to review would be South Dakota v. Dole.

  • M.L.||

    There are good things about this case too. An entirely separate issue is this: What types of procedural and substantive requirements can the executive branch dream up in connection with its "interpretation" of legislative grants of authority and the disbursement of federal funds?

    The standard being applied here seems rather strict and I believe, if followed, could lay waste to a significant chunk of the (uconstitutional) administrative state. Certainly you would not see prevail such logic as the Obama administration dreaming up a new and radically different meaning of the word "sex" in an effort to threaten universities with a funding condition of allowing any male who feels like strolling into the female locker room to do so.

  • ReaderY||

    I think you're right on this, and this doctrine may indeed be cited by a conservative Court to constrain future broad or creative interpretations of spending restrictions by liberal administrations, possibly including issues like the bathroom issue, sexual harassment law, etc.

  • M.L.||

    "Judge Orrick previously issued a ruling striking down President Trump's January 2017 executive order, which seeks to deny a much wider range of federal grants to sanctuary cities..."

    The bolded is false. Judge Orrick reasoned that the order applied to ALL federal grants, rather than a specific few, but the reasoning for this was clearly erroneous, as I've explained in detail previously. The DOJ never even took the position that the order applied to anything other than specific grants which were conditioned explicitly by Congress.

    Nonetheless, Judge Orrick, that happy warrior of the resistance, began obstructing the Trump administration's action for years, based on the notion that an executive order could not possibly direct a member of the executive branch to do something which they already had the authority to do (EVEN THOUGH regardless of authority, said member of the executive branch was NOT DOING THIS AT THE TIME, as set forth in detail by an IG report showing hundreds of millions were paid to sanctuary cities which had not complied with the spending condition!)

  • kramartini||

    The Administration may have over-reached with this order, perhaps deliberately so to test the bounds of its authority. But that doesn't give the District Court license to over-reach in the other direction.

    Perhaps there is a statutory argument against the funding cut, but to say that the US Constitution allows a state to forbid its citizen-employees from reporting known violations of Federal law is clearly wrong.

  • Onslow||

    A few things:
    1. Spending conditions intended to coerce (or coax) local gov'ts into compliance are likely unconstitutional under basic structural concepts.
    2. The federal government has the power to control immigration--probably the DUTY as well. Absent federal action, border states should be (and, in my view, "are") free to treat illegal immigrants as hostile foreign troops.
    3. Anti-commandeering doctrine, while consistent with State sovereignty, cannot be the extent of 10th Amendment protections. It's an insulting doctrine, standing alone.
    4. Though #3 is true, #2 means that state officials cannot undermine federal actors from carrying out federal immigration laws. If they do, they should be subject to federal criminal punishment. There are 50 sovereign members of the United States; federal law is not subject to California's extreme policy preferences. The CA official who obstructed ICE raids should be prosecuted. You don't have to carry out federal law, but don't undercut it either.

  • VinniUSMC||

    A California court ruled against Trump?! Say it ain't so.

    In other news, dog bites man.

  • zwurman||

    I wonder why judges were not as eager to rule against Arne Duncan's extra-legal condition for states to compete for the Race to the Top money, or found the NCLB flex waivers -- that effectively required states to adopt Common Core and other impositions on state accountability -- "commandeering." These were ad-hoc regs created by ED -- not by Congress -- out of whole cloth, yet in all challenges courts found them merit-less.

    Perhaps our justice isn't so blind, after all.

  • Ghost on the Highway||

    Sessions did pretty good on the Supreme Court in the last court session where various judges had declared what ever Trump wanted to do was illegal. And Orrick an Obama fund raiser.

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