A picture of the opening text of the 7th Circuit's ruling in "City of Chicago v Barr"

Written by Meryl Chertoff, Executive Director, SALPAL 

In a decision last week, the US Court of Appeals for the Seventh Circuit dealt a blow to the Trump Administration’s battle against sanctuary cities, vindicating key federalism principles. It is a victory for 21st Century Federalism, and for cities and states locked in conflict with an overreaching federal executive branch seeking to abrogate the rights of individuals and marginalized groups, particularly in urban areas of the US.

The Case: City of Chicago v. Barr (“Barr”) represents the second time that the Seventh Circuit has looked at efforts by the US Justice Department (DOJ) to force compliance with Trump Administration immigration policy by rendering the City of Chicago, which has a “Welcoming City” law– e.g., it is a sanctuary city– ineligible to receive federal Edward Byrne Memorial Justice Assistance Grants, (Byrne JAG). Byrne JAG were designed to build the crime-fighting capacity of state and local governments. They are “formula” grants, meaning that all jurisdictions are eligible for funding. In 2017 and 2018, DOJ attached conditions to Byrne JAG that disqualify sanctuary cities and states, and litigation has followed. Similar cases to the one in Chicago have been filed in federal courts around the nation; in all but one, in the Second Circuit, the Justice Department has lost. The Seventh Circuit stopped just short of granting a formal nationwide injunction against the Justice Department in Barr, but did so in substance, by requiring a recalculation of all Byrne JAG funding nationwide in conformance to its finding that the Administration policy failed as a matter of law. Because the effect of the ruling is nationwide, and there is a conflict with the Second Circuit holding, the case will almost certainly wind up before the US Supreme Court, unless the Justice Department drops the offending grant conditions and recalculates funding for Chicago and all other otherwise eligible government entities that did not receive 2017 or 2018 grants. One member of the three-judge panel dissented solely on the issue of nationwide relief, but concurred in the rest of the opinion.

The Facts: Chicago, like many local governments, has determined that: (1) effective law enforcement requires the cooperation of its undocumented residents; (2) such cooperation cannot be accomplished if those residents fear immigration consequences should they communicate with the police; and, therefore, (3) local law enforcement must remain independent from federal immigration enforcement. It enacted a “Welcoming Cities” law, which treats immigration status in a neutral way in law enforcement, and it does not collect immigration status information or under some conditions, declines to share information it does have with federal government officials, notably ICE. In the 2017 Byrne JAG announcement, DOJ announced three new conditions on awards, known as the notice, access and compliance provisions. These respectively require all recipients of Byrne JAG funding to enact laws or regulations, or otherwise notify federal agents of the release date of aliens held in a correctional facility; and to provide access for federal agents to the person prior to that release. It also requires the state or local governments to certify compliance with 8 U.S.C. § 1373 (“§1373”),

a federal law that prohibits state and local governments from restricting their own officials from communicating information regarding the citizenship or immigration status of any individual to the Immigration and Naturalization Service. The 2018 Byrne JAG announcement added three new conditions, one substantially similar to the 2017 compliance requirement and the other two on “harboring” and addition certifications. All these conditions are at odds with the way Chicago interprets its Welcoming Cities law.

The Holding: The Seventh Circuit relied on two major constitutional doctrines, separation of powers, and Tenth Amendment federalism principles, rejecting each argument made by DOJ. In general terms, it found that DOJ claimed powers that Congress had not delegated, and interpreted statutory language meant to provide very specific, ministerial or administrative constraints in an impermissibly capacious way.

On the separation of powers question the Court said DOJ did not have power to punish Chicago by withholding the formula grant:

The Attorney General’s use of extra-statutory conditions on federal grant awards as a tool to obtain compliance with his policy objectives strikes at the heart of [a] core value, which is the separation of powers among the branches of the federal government. The authority to pass laws and the power of the purse rest in the legislative not the executive branch. (slip op at 14)

It explained that Byrne JAG are set up as a formula grant, meaning that all states are entitled to some funding, with the amount states and cities receive tied to the size of the jurisdiction and its crime statistics. The enabling legislation contains very detailed and specific guidance to the Justice Department on the awarding of these grants, when they could be withheld in part and how much could be withheld. It does not contain punitive language regarding eligible jurisdictions.

First, the court reaffirmed what it had held in the earlier case, that the notice and access conditions in that DOJ attached to the Byrne JAG in 2017 and 2018 were not “special conditions” that the Attorney General was authorized by Congress to add. Next, it rejected the DOJ claim that its 2018 “harboring” condition was implied in the Congressional direction for the Justice Department to “maintain liaisons” with local agencies—this was a ministerial matter, said the Court, relating only to criminal justice matters, while the DOJ claim of authority related to both civil and criminal immigration matters. Third, the Byrne JAG enabling legislation did not reference immigration enforcement as a priority matter or matter of special concern to Congress. Indeed, a number of subsequently introduced bills designed to prohibit sanctuary jurisdiction status failed in Congress, indicating that there was no will to deprive states and cities of the sanctuary status tool—while other later-enacted laws, on topics like prison rape and human trafficking, did refer to withholding some percentage of Byrne JAG funding as a sanction for non-compliance by states with their provisions (and even there, the sanction was a small percentage of the Byrne JAG, not the entire grant). Fourth, DOJ based its broad claim of discretion to withhold Byrne JAG to a reference, at the end of the authorizing legislation, that requires states receiving the grants to comply with “applicable law.” DOJ’s view was that this could include any provision of the Federal Code it chose to deem applicable. The Seventh Circuit declined to give that the capacious reading DOJ sought, using general rules of statutory construction. Finally, the Court rejected DOJ’s claim that through Sec. §1373 it could bypass state and local policy, to communicate directly with state subdivision and agency employees. This deprived the state of the authority to direct its law enforcement and administrative personnel and set its own priorities for the workload of that personnel the panel said. Thus, it was a violation of the anti-commandeering rule announced by the US Supreme Court in New York v. US, and further explicated recently, in its 2018 decision Murphy v. NCAA. The Seventh Circuit departed from the reasoning of the trial court below that Section §1373 was facially unconstitutional as a violation of the Tenth Amendment on anti-commandeering grounds, saying more narrowly that the selection of a single Congressional enactment, which had no direct bearing on Byrne JAG was arbitrary, and on such reasoning could justify the selection of any statute, almost at random, as a basis to deny grants. Yet states and the federal governments engage in disputes over state compliance with other federal laws all the time, and it is not the grounds to deprives states of federal grants. Moreover, such an approach is all the more unacceptable in a formula grant, as opposed to a discretionary grant. The Court noted that such an interpretation

transforms every federal legal obligation into a potential basis to withhold funding that has been designated by Congress for disbursement to state and local governments for law enforcement. Yet that penalty for non-compliance is not a penalty set forth by Congress in those other statutes.

In a harsh rebuke of DOJ’s efforts to hijack Chicago’s public safety recordkeeping and databases the Court said:

Regulating immigration into this country is a legitimate federal interest, and the executive branch including the Attorney General has authority to enforce the nation’s immigration laws. But the methods the executive employs in pursuit of those legitimate ends must be lawful and, in this case, the means the Attorney General has chosen are not lawful. The federal government cannot merely conscript the police forces of the state or local governments to achieve its ends; that would eviscerate the principles of federalism that rest at the very foundation of our government. (slip. Op at 4)

In summary, the Court found that since no power was delegated by Congress, there was nothing for DOJ to enforce, and the AG acted ultra vires and in violation of the separation of when it withheld Byrne JAG from Chicago as a punishment for pursuing its “Welcoming City” policy .

The Court then went on to analyze whether the relief it was granted should apply nationwide, or only to the plaintiff . While it declined to characterize the relief it granted as a nationwide injunction it did require DOJ to recalculate Byrne JAG awards for 2017 and 2018 nationwide, since the use of wrongful criteria to withhold funding from Chicago, and other jurisdictions similarly situated, had an effect on the entire pot of grant money and its allocation nationwide.

As the opinion in the case pointed out, the question of nationwide injunctions has become highly controversial, because they permit a single district court judge to issue an order with nationwide effect. The time between such an order, and relief from the Circuit Court or US Supreme Court can be lengthy, and thwart legitimate policy goals of the Executive Branch. Nationwide injunctions issued by several district courts in favor of sanctuary jurisdictions challenging the withholding of Byrne JAG funds were limited to the plaintiff before the Court when the case came to Circuit Courts of Appeals in the Third and Ninth Circuits. The Seventh Circuit in this second round, ripped off the band-aid, and although it did not expressly order a nationwide injunction, by requiring DOJ to recalculate all Byrne Grants without regard to the Trump Administration regulations, effectively upended all awards nationwide.

Why is it a Victory for Twenty-First Century Federalism: The Seventh Circuit used central federalism case law including New York v. US and Murphy v. NCAA to find the actions of DOJ, particularly its reliance on §1373, commandeered the mechanism of state government, in violation of Tenth Amendment values. The Court recognized an autonomy interest for states to choose their own policy approach for regulating the conditions under which undocumented persons within their borders live, an interest contiguous with the federal interest in immigration enforcement. This suggests that immigration law is not fully pre-empted by federal law, and that there are gaps filled by state and local law and policy. And although the amounts of Byrne JAG funding do not constitute so great a portion of state law enforcement budgets that the states are financially unable to decline to cooperate with DOJ, the opinion evidences a notable distaste for the type of coercive approach the federal government has taken in this area.

What is Particularly Notable: The panel, all judges selected by past Republican presidents, soundly rejected DOJ’s reasoning, and was highly critical of its expansive view of the delegation of power under Congressional enactments. As important as it is to state and local governments with respect to their eligibility for federal public safety grants, the ruling is also important as a guidepost for other threatened action by the Administration. Just last week, President Trump threatened to withhold COVID-19 relief funding from sanctuary jurisdictions. On the reasoning of the Seventh Circuit, this is a clear violation of federalism protections. The CARES Act contains no reference to immigration enforcement as a goal. If the threat relates to other funding that has been deployed by the federal government in the battle against COVID-19: discretionary grants and supplies under the Stafford Act, Small Business Loan Act and Public Health Services Act, the ability to bully the states may be harder to challenge— federal agency discretion is broader in those programs, and can only be challenged for clear abuse or corruption. It is also notable that by withholding Byrne Grant funding for two years, the Administration has exacerbated the problem of gun violence and crime in Chicago, exactly the problem in that City that are the subject of frequent Trump tirades.

What Happens Next: DOJ will need to determine whether to recalculate 2017 and 2018 Byrne Grant allocations in compliance with the Seventh Circuit order, or seek review of its decision in the US Supreme Court. States in the Second Circuit may seek en banc review of the unfavorable decision by the panel there by the Second Circuit as a whole, in hopes of eliminating a Circuit split, and thus reducing the chance that the Supreme Court will take up this case, with the chance that the High Court could upset this favorable Seventh Circuit decision, with its nationwide effect.

Meryl Justin Chertoff is Executive Director of the Georgetown Project on State and Local Government Policy and Law. Contact information: mjc87@georgetown.edu; 202-662-4258

Disclaimer: The views expressed above are the author’s own and do not reflect those of SALPAL or Georgetown University.