By Seth Davis, Annie Lai, and Christopher Lasch
Ending sanctuary cities has been one of President Trump’s priorities. Shortly after his inauguration, the President threatened to cut off all federal funding to sanctuary cities, a threat so empty of legal authority that the Department of Justice was forced to try to rewrite it in court. That failed and a federal district court preliminarily enjoined implementation of the President’s executive order nationwide. Despite the court’s determination that the executive branch may not unilaterally impose new grant conditions without congressional authorization, Attorney General Sessions on July 25th did just that, announcing new conditions on federal law enforcement funding in a renewed bid to co-opt states and cities into the President’s federal immigration enforcement plans.
Recently we joined an amicus brief of thirteen scholars of administrative law, constitutional law, and immigration law setting forth why the Trump Administration’s latest attack on sanctuary cities should fare no better than the first. (We pen this post only for ourselves, and do not speak for our co-signatories, whose names are available in the brief’s appendix.) Our amicus brief in City of Chicago v. Sessions explains that the Trump Administration has disregarded constitutional and statutory limits on executive authority in implementing the President’s immigration policies. It concludes: “Federal agencies play an important role in implementing spending programs, but not by creating new spending conditions whenever it suits the President’s policy preferences.”
President Trump and Attorney General Sessions insist that disentangling local police from federal immigration enforcement undermines public safety. Not so, sanctuary jurisdictions have concluded. Sanctuary policies are correlated with significantly lower crime rates. That makes the Administration’s latest move to try to persuade sanctuary cities to abandon their policies by threatening to take away federal law enforcement grants all the more perverse.
The funds at stake are from the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program, which aims to supplement state and local funding for criminal justice. The Attorney General’s conditions try to conflate the criminal justice mission of local law enforcement agencies with immigration enforcement. They do so by requiring recipients of Byrne JAG funding to allow local employees to share confidential immigration-status information, provide immigration agents with unlimited access to inmates in local jails, and provide advance notification to immigration authorities if they plan to release anyone that the federal government is interested in.
On August 7th, the City of Chicago sued to block implementation of the Attorney General’s newly-minted conditions on Byrne JAG funding. These new conditions, the City argues, not only will make Chicagoans less safe, but also are unauthorized and unconstitutional.
The City’s position is correct. The Attorney General does not have independent authority to impose conditions on Congress’s grant programs.
Article I of the Constitution grants the power of the purse to Congress, not to the President, much less to the Attorney General. And the Constitution limits Congress’s authority to impose conditions on federal grants. According to the Supreme Court, if Congress intends to authorize a spending condition, “it must do so unambiguously,” so that states and localities may “voluntarily and knowingly” agree to the conditions if they so choose.
Nowhere has Congress authorized the Attorney General to impose his new conditions on Byrne JAG funding. The purpose of the Byrne JAG program wasn’t to conscript state and local police into enforcing federal immigration law. It was to provide federal grants, mostly based upon set formulas, to support state and local decisions about policing and public safety. Whatever you think of the Byrne JAG program, and there are reasons to think that it “gets used for some truly terribly practices,” there is no clear authorization in the Byrne JAG statute for the Attorney’s General’s conditions.
In the Chicago litigation, the Attorney General has cited two stray provisions of the Byrne JAG statute as support for the new conditions, but neither provides the authority he claims. Section 3712(a)(6) assigns whatever “powers and functions [are] vested in [the AAG] pursuant to this chapter or by delegation of the Attorney General, including special conditions on all grants.” The Attorney General argues that this provision creates authority to impose spending conditions. But it plainly does something else: Section 3712(a)(6) assigns whatever authority exists under other statutes.
The Attorney General also has cited Section 3752(a)(5)(D), picking up on a 2016 Department of Justice document which concluded that Byrne JAG recipients would have to certify compliance with 8 U.S.C. § 1373. But Section 3752(a)(5)(D) does not mention 8 U.S.C. § 1373, which prohibits states and localities from restricting their officials from communicating with federal immigration authorities about an individual’s citizenship or immigration status. Instead, Section 3752(a)(5)(D) requires Byrne JAG recipients to certify compliance with the Byrne JAG statute and “all other applicable Federal laws.” That phrase—“all other applicable Federal laws”—refers to laws that apply to grantees as grantees, not to the many thousands of laws, such as 8 U.S.C. § 1373, that could apply to state and local governments generally.
Just after Labor Day, the Trump Administration announced its plans to end the Deferred Action for Childhood Arrivals (DACA) Program. With tragic irony, Attorney General Sessions trumpeted the importance of the rule of law and even assailed DACA as executive “overreach” that is “inconsistent with the Constitution’s separation of powers.”
The Attorney General’s professions of concern and his statutory citations cannot salvage the Trump Administration’s attack on sanctuary cities. In the end, the Attorney General has no more authority to create his own spending conditions on Byrne JAG funding than the President had to threaten sanctuary jurisdictions with a complete loss of federal funding.
And with the threatened rescission of DACA, it is all the more important that courts enforce statutory and constitutional limits on executive authority.
Seth Davis is Assistant Professor of Law at the University of California, Irvine School of Law. Annie Lai is Assistant Clinical Professor of Law at the University of California, Irvine School of Law. Christopher N. Lasch is Associate Professor at the University of Denver Sturm College of Law.