DOJ Grant Conditions Targeting Sanctuary Jurisdictions: Litigation Update

DOJ Grant Conditions Targeting Sanctuary Jurisdictions: Litigation Update

Legal Sidebari

DOJ Grant Conditions Targeting Sanctuary
Jurisdictions: Litigation Update
May 4, 2018
On April 19, 2018, the U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit) upheld a
nationwide preliminary injunction blocking the Department of Justice (DOJ) from implementing two new
conditions that the agency imposed on the receipt of federal funds from the Edward Byrne Memorial
Justice Assistance Grant (Byrne JAG) Program. This litigation is one of several lawsuits stemming from
Section 9 of President Trump’s January 30, 2017 Executive Order targeting “sanctuary jurisdictions” and
executive implementation of that order. One group of lawsuits has sought to enjoin the executive order’s
enforcement. Another group of lawsuits, including one filed by the City of Chicago, Illinois, were brought
after the DOJ announced new conditions for certain federal grant programs that made the receipt of funds
contingent on grant recipients’ compliance with particular federal immigration policies. The focus of this
Sidebar discusses the Chicago litigation, including potential legislative responses to the injunction. More
in-depth information on the nature of sanctuary jurisdictions, the executive order, its implementation, and
the related litigation can be found in a general distribution memorandum, Sanctuary Jurisdictions and
Related Litigation, which is available from the author.
Byrne JAG Conditions: The Byrne JAG program provides federal funds to the states, District of
Columbia, Puerto Rico, and other territories for various non-federal criminal justice initiatives. On July
25, 2017, the DOJ issued a press release and accompanying background document announcing new
conditions for recipients of the Byrne JAG program:
1. Compliance Condition – Byrne JAG program recipients must certify compliance with 8
U.S.C. § 1373 (Section 1373), meaning that the jurisdiction declares it does not restrict its
offices and personnel from sending or receiving citizenship or immigration status to or
from federal immigration authorities.
2. Access Condition – Grant recipients that have detention facilities housing aliens
(e.g., local jails or state prisons where aliens may be confined) must permit immigration
enforcement officers to access those facilities to meet with housed aliens and inquire into
their eligibility to remain in the country.
3. Notice Condition – When the Department of Homeland Security (DHS) believes that an
alien in state or local custody is removable from the United States for a violation of
federal immigration law, officers with DHS’s U.S. Immigration and Customs
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Enforcement (ICE) may issue a “detainer” requesting that the state or local entity give
notice of the alien’s pending release from custody so that ICE may take control of the
alien for possible removal proceedings. To be eligible for grants under the Byrne JAG
program, DOJ announced that recipients generally must give DHS 48 hours’ advance
notice before releasing from custody an alien wanted for removal.
These requirements were made applicable to Byrne JAG applications that were due six weeks later, on
September 5, 2017, meaning that applying jurisdictions would need to be in compliance with all three
conditions within six weeks.
Chicago Litigation: After the DOJ announced the new Byrne JAG conditions, the City of Chicago sued,
asking the U.S. District Court for the Northern District of Illinois to enjoin the Attorney General from
implementing the Byrne JAG conditions. Chicago’s suit challenged each of the conditions described
above. In particular, Chicago argued that the conditions are unlawful for three reasons: (1) The statute
creating the Byrne JAG program does not confer agency discretion to add substantive conditions to the
receipt of federal funds; (2) the conditions were imposed in violation of the Constitution’s principles of
separation of powers because the DOJ—an executive branch agency—unlawfully exercised the spending
authority exclusively granted to the legislative branch; and (3) even if the DOJ had been delegated the
discretion to impose conditions on Byrne JAG eligibility, the notice and access conditions exceed the
spending power granted in the Constitution.
The district judge preliminarily enjoined the notice and access conditions on a nationwide basis, but
allowed the compliance condition to remain in force. The court agreed with Chicago that, in imposing the
notice and access conditions, the DOJ likely exceeded the statutory authority Congress granted to it in the
Byrne JAG statute. But the court concluded that the compliance condition was lawfully imposed based on
language in the Byrne JAG statute that requires recipients to certify compliance with “all other applicable
Federal laws.” The court opined that “[t]he most natural reading of the statute authorizes the Attorney
General to require a certification of compliance with all other applicable federal laws, which by the
plainest definition includes Section 1373.”
On appeal, the Seventh Circuit agreed with the district court’s assessment that Chicago was likely to
succeed on the merits of its claim that the Attorney General lacked statutory authority to impose the
notice and access conditions and thus, by doing so, violated the separation of powers. The compliance
condition was not at issue in the appeal, and the Seventh Circuit expressed no opinion on its lawfulness.
In defending the lawfulness of the notice and access conditions, the government had principally argued
that 34 U.S.C. § 10102(a)(6)—which sets forth the duties and functions of the Assistant Attorney General
pertaining to the Office of Justice Programs, which administers the Byrne JAG program—gives the
Assistant Attorney General (AAG) the authority to impose the two conditions. The government pointed to
the statutory text granting the AAG the authority to exercise “powers and functions as may be vested in
the [AAG] pursuant to this chapter or by delegation of the Attorney General, including placing special
conditions on all grants, and determining priority purposes for formula grants.” This italicized text in
particular, the government contended, allows the AAG to impose any conditions on all grants in that
chapter of the U.S. code.
The Seventh Circuit rejected the government’s contention. The Seventh Circuit noted that the placement
of the word “including” in Section 10102(a)(6) narrows the scope of the AAG’s power to impose grant
conditions to instances when he is so authorized by the chapter of the U.S. Code that houses Section
10102(a)(6) or if the Attorney General delegates to the AAG his own authority to impose grant
conditions. But here, the court concluded, the chapter does not authorize the AAG to impose conditions
on the Byrne JAG program. Moreover, the court held that the Attorney General lacks independent
authority to condition Byrne JAG program grants, and so he had no power to delegate conditioning
authority to the AAG.

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Judge Manion dissented in part from the Seventh Circuit panel decision, disagreeing with the nationwide
scope of the injunction. “We are not the Supreme Court,” Judge Manion declared, “and we should not
presume to decide legal issues for the whole country, even if they are purely facial challenges involving
statutory interpretation.” Further, he added that notwithstanding whether the Seventh Circuit “may be
convinced that the statute says one thing, we should not discount the fact that our honorable colleagues in
other districts and other circuits may view things differently.”
Considerations for Congress: So far, no other court that has considered a challenge to the DOJ’s newly
imposed Byrne JAG conditions has found statutory authority for the notice and access conditions. But
Congress could amend the Byrne JAG statute to confer the Attorney General with the discretion to impose
new conditions, or, perhaps, to codify the notice and access conditions. Indeed, several bills were
introduced during the 114th Congress seeking to condition the receipt of certain federal funds on state and
local compliance with federal immigration policies like the information-sharing provisions of Section
1373 and honoring ICE detainers, but none were enacted. Similar measures have been introduced during
the current Congress, including the No Sanctuary for Criminals Act, which the House of Representatives
passed last summer. Still, any grant limitation must adhere to constitutional requirements, including
limitations related to state sovereignty and the Tenth Amendment. In particular, the Supreme Court has
interpreted the Tenth Amendment and background principles of federalism to require that conditions
imposed on the receipt of federal funds (1) be unambiguously stated, (2) be germane to the federal interest
in the particular program to which the money is directed, (3) not violate other constitutional provisions,
and (4) not be unduly coercive so that states have no real choice but to enact or administer a federal
regulatory program or risk losing the funds.

Author Information

Sarah Herman Peck

Legislative Attorney

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