The Volokh Conspiracy
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Because of the press of other exciting legal news, the case has attracted relatively little attention. But, on Friday, the Trump administration suffered another in a long line of courtroom defeats in its war against sanctuary cities. In City of Philadephia v. Attorney General, the US Court of Appeals for the Third Circuit struck down a Justice Department policy imposing three conditions on states and localities that receive federal Edward Byrne Memorial Justice Assistance grants for law enforcement agencies. The conditions are intended to force "sanctuary cities" to assist the federal government's efforts to deport undocumented immigrants.
In 2017, then-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 by their employees with 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.
Writing for a unanimous three-judge panel, Judge Midge Rendell ruled that these conditions are unconstitutional, because they were never properly authorized by Congress. The executive is not permitted to add its own conditions to federal grants to state and local governments:
The City attacked the government's ability to impose the Challenged Conditions on several statutory and constitutional fronts. But we need only reach the threshold statutory question. Where, as here, the Executive Branch claims authority not granted to it in the Constitution, it "literally has no power to act … unless and until Congress confers power upon it." La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986). Therefore, our inquiry is straightforward: did Congress empower the Attorney General to impose the Challenged Conditions?….
Concluding that Congress did not grant the Attorney General this authority, we hold that the Challenged Conditions were unlawfully imposed. Therefore, we will affirm the District Court's order to the extent that it enjoins enforcement of the Challenged Conditions against the City of Philadelphia.
The decision largely mirrors a long line of other federal court rulings striking down the Trump administration's Byrne grant conditions on much the same basis. It upholds a very thorough decision in the same case by US District Judge Michael Baylson, which I analyzed here.
Unlike Judge Baylson, and a number of other decisions in recent sanctuary cities cases, the Third Circuit ruling did not address the question of whether Section 1373 is independently unconstitutional, because it violates the Tenth Amendment ban on federal "commandeering" of state and local governments. The Third Circuit panel concluded they need not reach this issue, because they ruled that compliance with Section 1373 cannot be required as a condition of receiving Byrne Grant funds, even if 1373 does not violate the anti-commandeering rule. Those federal courts that have addressed the issue have all ruled against Section 1373, at least since the Supreme Court's May 2018 ruling in Murphy v. NCAA undercut the standard defense of it. I explained how Murphy undermines Section 1373 and otherwise helps sanctuary cities here, here, and here.
While the Byrne Grant program is not all that significant in and of itself, the sanctuary cases have important broader implications for federalism and separation of powers. If Trump prevails, 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. Conservatives who may support the current administration's attacks on sanctuary cities are unlikely to be happy if a future Democratic administration use the same type of leverage to force red state and local governments to adopt liberal policies on issues such as education, gun control, health care, and transgender bathroom access.
So far, however, the courts have held firm against this particular executive power grab. Notably, both Democratic and Republican-appointed judges have almost uniformly ruled against the administration in the sanctuary cases. The Third Circuit ruling continues that trend. While Judge Rendell and one of the the other two members of the panel are Democratic Bill Clinton appointees, the third member—Judge Anthony Scirica—is a Republican appointed by Ronald Reagan.
The Byrne Grant cases are just one of three lines of sanctuary cases currently being litigated in the federal courts. All raise important federalism questions that have broader implications going beyond the specific area of immigration policy. I provided an overview of all three here. In this July 2018 post, I assessed the initial district court decision in the Trump administration's lawsuit against California's "sanctuary state" policies.