City of Chi. v. Sessions

• Decision Date: 19 April 2018
• Docket Number: No. 17-2991,17-2991
• Citation: 888 F.3d 272
• Parties: CITY OF CHICAGO, Plaintiff-Appellee, v. Jefferson B. SESSIONS III, Attorney General of the United States, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

888 F.3d 272

CITY OF CHICAGO, Plaintiff-Appellee,

v.Jefferson B. SESSIONS III, Attorney General of the United States, Defendant-Appellant.

No. 17-2991

United States Court of Appeals, Seventh Circuit.

Argued January 19, 2018

Decided April 19, 2018

Debo P. Adegbile, Ari Joseph Savitzky, Adriel I. Cepeda Derieux, Attorneys, WILMER HALE LLP, New York, NY, Tal C. Chaiken, Matthew Charles Crowl, Ronald S. Safer, Attorneys, RILEY SAFER HOLMES & CANCILA LLP, Laura Kleinman, Attorney, ROBINSON, CURLEY & CLAYTON, P.C., Edward N. Siskel, Attorney, CITY OF CHICAGO LAW DEPARTMENT, Benna Ruth Solomon, Justin A. Houppert, Attorneys, CITY OF CHICAGO LAW DEPARTMENT, Chicago, IL, Bridget Fahey, Ari Holtzblatt, David W. Ogden, Jamie Gorelick, Molly Maureen Jennings, Tiffany Wright, Attorneys, WILMER CUTLER HALE & DORR LLP, Washington, DC, Ari Joseph Savitzky, Adriel I. Cepeda Derieux, Attorneys, WILMER HALE LLP, Seven World Trade Center, New York, NY, for Plaintiff-Appellee.

Katherine Twomey Allen, Mark B. Stern, Daniel Tenny, Bradley Hinshelwood, Chad A. Readler, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Appellate Staff, Washington, DC, for Defendant-Appellant.

Lisa Ehrlich, Attorney, OFFICE OF THE ATTORNEY GENERAL, Oakland, CA, Amicus Curiae for STATE OF CALIFORNIA.

Christopher J. Hajec, Mark Steven Venezia, Attorney, IMMIGRATION REFORM LAW INSTITUTE, Washington, DC, Amicus Curiae for IMMIGRATION REFORM LAW INSTITUTE.

Brian C. Haussmann, Attorney, TABET, DIVITO & ROTHSTEIN LLC, Chicago, IL, Amicus Curiae for NATIONAL LEAGUE OF CITIES.

Anisha Dasgupta, Attorney, OFFICE OF THE ATTORNEY GENERAL, Executive Office, New York, NY, Amicus Curiae for STATE OF NEW YORK.

Chirag Gopal Badlani, Attorney, HUGHES SOCOL PIERS RESNICK & DYM, LTD., Chicago, IL, Amicus Curiae for CURRENT AND FORMER LAW ENFORCEMENT LEADERS.

Harry Sandick, Attorney, PATTERSON, BELKNAP, WEBB & TYLER LLP, New York, NY, Amicus Curiae for ADMINISTRATIVE LAW SCHOLARS, CONSTITUTIONAL LAW SCHOLARS, IMMIGRATION LAW SCHOLARS.

Sheila Maureen Prendergast, Attorney, MCDERMOTT, WILL & EMERY LLP, Amicus Curiae for ASIAN AMERICAN.

Eric H. Holder, Jr., Ivano M. Ventresca, David Meir Zionts, Attorneys, COVINGTON & BURLING LLP, Washington, DC, Monica Ramirez Almadani, Daniel N. Shallman, Attorneys, COVINGTON & BURLING, LLP, Los Angeles, CA, Amicus Curiae for THE CALIFORNIA STATE LEGISLATURE.

David Brian Sudzus, Attorney, DRINKER BIDDLE & REATH, LLP, Amicus Curiae for ERIE NEIGHBORHOOD HOUSE.

John J. Hamill, Attorney, DLA PIPER US LLP, Amicus Curiae for ILLINOIS BUSINESS IMMIGRATION COALITION.

Paul A. Castiglione, Attorney, OFFICE OF THE COOK COUNTY STATE'S ATTORNEY, Chicago, IL, Amicus Curiae for COOK COUNTY, ILLINOIS.

Mark M. Fleming, Attorney, NATIONAL IMMIGRANT JUSTICE CENTER, Chicago, IL, Amicus Curiae for NATIONAL IMMIGRANT JUSTICE CENTER.

Robert W. Perrin, Attorney, LATHAM & WATKINS LLP, Los Angeles, CA, Amicus Curiae for ANTI-DEFAMATION LEAGUE.

Lee Gelernt, Attorney, AMERICAN CIVIL LIBERTIES UNION, New York, NY, Amicus Curiae for AMERICAN CIVIL LIBERTIES UNION FOUNDATION.

Before Bauer, Manion, and Rovner, Circuit Judges.

Rovner, Circuit Judge.

This appeal is from the grant of a preliminary injunction in favor of the City of Chicago (the "City") and against Jefferson Beauregard Sessions III, the Attorney General of the United States, enjoining the enforcement of two conditions imposed upon recipients of the Edward Byrne Memorial Justice Assistance Grant Program (the "Byrne JAG program"). See 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750 ). The Byrne JAG grant, named after a fallen New York City police officer, allocates substantial funds annually to provide for the needs of state and local law enforcement, including personnel, equipment, training, and other uses identified by those entities. The Attorney General tied receipt of the funds to the grant recipient's compliance with three conditions which the City argued were unlawful and unconstitutional. The district court agreed with the City as to two of the three conditions—the "notice" condition mandating advance notice to federal authorities of the release date of persons in state or local custody who are believed to be aliens, and the "access" condition which required the local correctional facility to ensure agents access to such facilities and meet with those persons. Compliance with those conditions in order to receive the funding awarded under the Byrne JAG grant would require the allocation of state and local resources, including personnel. The district court granted the preliminary injunction as to those two conditions, applying it nationwide. The court subsequently denied the Attorney General's motion to stay the nationwide scope of the injunction, and this court denied the stay on appeal. The Attorney General now appeals that preliminary injunction.

Our role in this case is not to assess the optimal immigration policies for our country; that is not before us today. Rather, the issue before us strikes at one of the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government—the separation of powers.

The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken. The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever-vigilant in that endeavor.

I.

The path to this case began in 2006, which was both the year that the City enacted its Welcoming City ordinance, and the year that the federal government first established the Byrne JAG program. For many years, the two coexisted without conflict. In the past few years, numerous pieces of legislation were introduced in the House and Senate seeking to condition federal funding on compliance with 8 U.S.C. § 1373 —which was intended to address "sanctuary cities" and prohibit federal, state or local government officials or entities from restricting the exchange of information with the immigration authorities regarding citizenship or immigration status. None of those efforts were passed by Congress. See, e.g., Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. § 4 (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. § 4 (2016); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. § 3 (2015); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2 (2015); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. § 3(a) (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 2 (2015) (all available at https://www.congress.gov). see also Annie Lai & Christopher N. Lasch, Crimmigration Resistance and the Case of Sanctuary City Defunding , 57 Santa Clara L. Rev. 539, 553 n. 87 (2017) (listing eight pieces of legislation introduced during that time, all of which were unsuccessful).

Determined to forge a different path in immigration enforcement, the President on January 25, 2017 issued an Executive Order directing the Attorney General and the Department of Homeland Security (DHS) Secretary, in their discretion and to the extent consistent with law, to ensure that sanctuary jurisdictions are not eligible to receive Federal grants except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. Exec. Order No. 13,768, 82 Fed. Reg. 8799 at § 9(a) (Jan. 25, 2017). That Executive Order was challenged in court and preliminarily enjoined by a district court on April 25, 2017—and subsequently permanently enjoined. County of Santa Clara v. Trump , 250 F.Supp.3d 497 (N.D. Cal. 2017) ; County of Santa Clara v. Trump , 275 F.Supp.3d 1196 (N.D. Cal. 2017). Shortly thereafter—in the face of the failure of Congress to pass such restrictions and the issues with the legality of the Executive Order—on July 25, 2017, the Attorney General pursued yet another path to that goal and issued the conditions for recipients of the Byrne JAG funds that are challenged here.

The Byrne JAG program is the primary provider of federal criminal justice funding to state and local governments. The funds have been used to meet a wide range of needs for those law enforcement entities, including funding the acquisition of body cameras and police cruisers, and support for community programs aimed at reducing violence. The City, which challenges the new conditions imposed, had targeted the fiscal year 2017 funds for several purposes including expansion of the use of ShotSpotter technology to allow officers to quickly identify the location of shooting incidents and deploy a more precise response. Under the new provisions imposed by the Attorney General, state and local governing authorities who were awarded grants under the Byrne JAG program could not receive any of the funds unless they complied with the new conditions.

Specifically, the Attorney General imposed "notice," "access," and "compliance" conditions, on Byrne JAG grant recipients, only the...