by Mark Wilson

The United States Court of Appeals for the Seventh Circuit upheld a nationwide injunction, enjoining the Trump Administration from denying law enforcement grant funding to “sanctuary cities.”

Finding that one in five of its residents are immigrants, the City of Chicago adopted its “Welcoming City ordinance” in 2006. The policy recognizes that “cooperation of all persons, both documented citizens and those without documentation status, is essential to achieve the City’s goals of protecting life and property, preventing crime and resolving problems.” To that end, the policy prohibits requesting or disclosing detainee immigration status based on a belief as to that status or based on immigration detainers for violation of civil immigration law. The policy also prohibits city agencies and agents from permitting Immigration and Customs Enforcement (ICE) agents to access and interview detainees about their immigration status.

Congress also enacted the Edward Byrne Memorial Justice Assistance Grant Program (The Byrne JAG) in 2006. Named after a fallen New York police officer, the Byrne JAG program is the primary federal criminal justice funding to state and local governments. The substantial annual funding for personnel, equipment, training and other services is used to meet a wide range of law-enforcement agency needs, including purchasing body cameras and police vehicles and supporting community programs designed to reduce violence.

The Byrne JAG program and Chicago’s Welcoming City ordinance coexisted without conflict for several years. Recently, however, members of the House and Senate have repeatedly introduced legislation seeking to deprive “sanctuary cities” of Byrne JAG and other federal funding. To date, all of those Congressional efforts have failed.

This prompted President Donald Trump to issue a January 25, 2017, Executive Order directing the Attorney General and the Department of Homeland Security (DHS) Secretary to ensure that sanctuary jurisdictions are ineligible to receive federal grants. That executive order was successfully challenged and permanently enjoined. See: County of Santa Clara v. Trump, 250 F.Supp.3d 497 (ND Cal 2017); and County of Santa Clara v. Trump, 275 F.Supp.3d 1196 (ND Cal 017).

On July 25, 2017, then-U.S. Attorney General Jeff Sessions imposed conditions on Byrne JAG recipients designed to bar sanctuary jurisdiction eligibility. Specifically, Sessions imposed “notice” and “access” conditions on state and local Byrne JAG grant recipients. Throughout the duration of the award, they are required to allow federal agents to access detention facilities to meet and interview individuals who are, or are believed to be, in the country illegally. The recipients also were required to provide formal written notice of the scheduled release date and time for any immigrant confined in its facilities.

Given that it could not comply with the new Byrne JAG conditions without violating its own Welcoming City ordinance, Chicago officials brought federal suit, alleging that the conditions were unconstitutional and not authorized by the Byrne JAG authorizing legislation.

The district court granted the City’s motion for preliminary injunction, holding that Sessions lacked statutory authority to impose the notice and access conditions and that those conditions violated the separation of powers doctrine and were ultra vires. The district court imposed a nationwide injunction.

The Seventh Circuit affirmed, noting first that the Attorney General’s repeated mischaracterization of the issue as whether localities may thwart federal law enforcement was a red herring. “Nothing in this case involves any affirmative interference with federal law enforcement at all, nor is there any interference whatsoever with federal immigration authorities,” the Court found.

Focusing on the narrow question of whether Sessions possessed the authority to impose the conditions, the Court observed that the power of the purse lies with Congress, not the Executive Branch, and Congress did not expressly authorize the Attorney General to impose his own conditions of the release of Byrne JAG funds. As such, the Court ultimately held that “the district court did not err in determining that the City established a likelihood of success on the merits of its contention that the Attorney General lacked the authority to impose the notice and access conditions on receipt of the Byrne JAG grants.”

While “cognizant of the possible hazards of the use of nationwide injunctions,” the Court ultimately concluded that the district court did not abuse its discretion in granting a nationwide preliminary injunction. See: City of Chicago v. Sessions,_ F3d _ (7th Cir. 2018).

Subscribe today

Already a subscriber? Login

Related legal case