Written By Alex Grzebyk
Background
Pursuant to 34 U.S.C. 10151, the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”) supports state and local law enforcement, by providing federal funds for “personnel, equipment, training, and other criminal justice needs.” The City of Chicago has been receiving these funds since 2005, using them for things such as police vehicles and support for not-for-profits operating in high-crime areas.
In 2016, the Department of Justice notified all Byrne JAG applicants about a new condition on granting funds: all Byrne JAG applicants had to “certify compliance with all applicable federal laws[.]” One of the federal statutes in question – 8 U.S.C. § 1373 – prohibits local law enforcement and local government from “restricting the sharing of information with the Immigration and Naturalization Service (“INS”) regarding the citizenship status of any individual.” Upon a request for clarification, the Office of Justice Programs determined that 8 U.S.C. § 1373 was an “applicable federal law under the Byrne/JAG authorizing legislation.”
In July of 2017, Attorney General Jefferson Sessions placed two new conditions on grants provided by the program, often referred to as the “notice and access conditions.” The first condition involved the requirement that law enforcement provide federal immigration and customs enforcement (“ICE”) agents with “advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations.” The second condition involved the requirement that local authorities provide ICE agents with “access to City detention facilities and [the] individuals detained therein.”
On August 8, 2017, the City filed a complaint against Attorney General Sessions, seeking both injunctive and declaratory relief. Even though the City admits that it “acquiesced to the compliance condition when accepting the 2016 Byrne JAG funds,” it is still asserting that all three conditions are unconstitutional and unlawful. In the complaint, the City argued, “These conditions are inconsistent with the Byrne JAG statute itself, with the limitations imposed by the Constitution’s Spending Clause and the Fourth Amendment, and with basic separation of powers principles. Compliance with the conditions would require Chicago to violate Illinois law. And it would undermine public safety and effective policing in the City and upend Chicago’s Welcoming City policy.”
Court Case
To warrant the entry of a preliminary injunction, there are four things the City has to establish: “that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in its favor, and that an injunction is in the public interest.”
The Court granted the City’s injunction as to the two conditions imposed by Attorney General Sessions in 2017. However, the Court denied the City’s motion as to the third condition regarding compliance with federal laws.
With regard to the notice and access conditions, the Court identified three issues. “Did Congress authorize the Attorney General to impose substantive conditions on the Byrne JAG grant? If so, did Congress have the power to authorize those conditions under the Spending Clause? And finally, does Section 1373 violate the Tenth Amendment?”
The Court opined that “[t]he contours of the Executive Branch’s authority are circumscribed by statute[.]” In that vein, the City focused its argument on the statutory language of Byrne JAG to argue that “Congress did not authorize the Attorney General to place substantive conditions on the Byrne JAG grant.” Attorney General Sessions responded, using 34 U.S.C. § 10102(a)(6) to assert that Congress had granted him express authority to “‘place special conditions on all grants’ and to ‘determine priority purposes for formula grants.’”
Ultimately, the Court sided with the City’s argument, stating that “[t]he notice and access conditions…exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires.” The Court refused to determine whether the notice and access conditions violated the Spending Clause, since Congress never authorized Attorney General Sessions to impose them.
Moving on to the compliance condition, Attorney General Sessions argued that 34 U.S.C. § 10153 “furnishes [him with the] authority to require a Byrne JAG applicant’s compliance with federal law, including Section 1373.” In relevant part, that statute reads that “the applicant will comply with all provisions of this part and all other applicable Federal laws.” In response, the City argued that the word “applicable” therein should be read narrowly, only referring “to compliance with the narrow body of law governing federal grant-making.”
The Court opined that Congress intended for the grant to be included within the “applicable laws” referenced under Section 1373, refusing to apply the City’s argument that the word “applicable” should “have a narrowing effect.” Thus, any entity receiving funds is expected to certify compliance with federal law. Since the City failed to argue that it was unconstitutional under the Spending Clause, the Court did not address the issue. Instead, it turned to a Tenth Amendment analysis, finding that the condition was proper under the Tenth Amendment.
With regard to the notice and access conditions, the Court asserted that there was “no reason to think that the legal issues present in this case are restricted to Chicago.” The Department of Justice has the option to file an appeal to the 7th U.S. Circuit of Appeals with regard to this holding.
Societal Context
This case is just one spoke in the wheel of immigration policy and reform. In essence, the City of Chicago is taking a stance in the heated debate between the Trump Administration and the many sanctuary cities.
The term “sanctuary city” is used to describe cities or counties where local law enforcement agencies limit, in some fashion, their cooperation with federal immigration agencies. Generally, the purpose of these limits is to provide protection from deportation for illegal immigrants.
For example, Devin O’Malley, Media Affairs Coordinator for the Department of Justice, has stated, “By protecting criminals from immigration enforcement, cities and states with ‘so-called’ sanctuary policies make their communities less safe and undermine the rule of law.”
In contrast, the City of Chicago stated in their complaint that establishing themselves as a sanctuary city “promotes public safety by ensuring that no city resident or visitor, regardless of immigration status, is afraid to cooperate with law enforcement, report criminal activity to the police, testify as a witness in court, or seek help as a victim of crime[.]”
This is why the Byrne JAG grant has come into play. The Trump Administration has argued that the conditions imposed on the Byrne JAG grant “seek to protect communities and law enforcement[,]” thereby rebuking sanctuary cities. However, the district court’s ruling can be viewed as a stance against the Trump Administration’s attempts at undermining sanctuary cities. In the granting of the injunction, the court signaled to other sanctuary cities that its Chicago-based ruling should apply nationwide.
Nevertheless, the injunction is temporary, only blocking the Trump Administration from requiring notice and access to federal ICE agents for a short while. We have yet to see what immigration reform will come next from Congress and the Trump Administration. It is likely that this case will be appealed to the Circuit Court.
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Sources Cited
City of Chicago v. Sessions, No. 17-c-5729 (N.D. Ill. Sept. 15, 2017).
U.S. Const. art. I, § 8, cl. 1.
8 U.S.C. § 1373 (2012).
34 U.S.C. § 10151 (2012).
Edward Byrne Memorial Justice Assistance Grant Program, (last visited Sept. 25, 2017).
Matt Zapotosky, Judge Rules Justice Department Can’t Keep Grant Money From Uncooperative Sanctuary Cities, Wash. Post (Sept. 15, 2017).
Memorandum from Michael E. Horowitz, Inspector General, to Karol V. Mason, Assistant Att’y Gen. for the Office of Just. Programs (May 31, 2016).
Office of Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, (October 6, 2016).