The Volokh Conspiracy
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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 their employees and 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 ruled 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 governments on a wide range of issues. Fortunately, it increasingly looks like that it is very unlikely to happen.