City of Phila. v. Attorney Gen. of the U.S., Case No. 18-2648

• Decision Date: 15 February 2019
• Docket Number: Case No. 18-2648
• Citation: 916 F.3d 276
• Parties: CITY OF PHILADELPHIA v. ATTORNEY GENERAL OF the UNITED STATES OF AMERICA, Appellant
• Court: U.S. Court of Appeals — Third Circuit

916 F.3d 276

CITY OF PHILADELPHIA

v.ATTORNEY GENERAL OF the UNITED STATES OF AMERICA, Appellant

Case No. 18-2648

United States Court of Appeals, Third Circuit.

Argued on November 7, 2018

Opinion filed: February 15, 2019

Jasmeet K. Ahuja, Alexander B. Bowerman, Virginia A. Gibson, Hogan Lovells US, 1735 Market Street, 23rd Floor, Philadelphia, PA 19103, Kirti Datla, Matthew J. Higgins, Neal K. Katyal (Argued), Hogan Lovells US, 555 Thirteenth Street, N.W., Columbia Square, Washington, DC 20004, Marcel S. Pratt, Lewis Rosman, Kelly S. Diffily, City of Philadelphia, Law Department, 1515 Arch Street, Philadelphia, PA 19102, Counsel for Appellee

Katherine T. Allen (Argued), United States Department of Justice, Civil Division, Appellate Staff, Room 7325, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Bradley Hinshelwood, United States Department of Justice, Room 7256, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Laura Myron, United States Department of Justice, Room 7222, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Chad A. Readler, United States Department of Justice, Appellate Section, Criminal Division, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Daniel Tenny, United States Department of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Avenue, N.W., Room 7130, Washington, DC 20530, Counsel for Appellant

Lawrence J. Joseph, Suite 700-1A, 1250 Connecticut Avenue, N.W., Washington, DC 20036, Counsel for Amicus Appellant Immigration Reform Law Institute

Adam S. Lurie, Linklaters, 601 Thirteenth Street, N.W., Suite 400 South, Washington, DC 20006, Counsel for Amicus American Jewish Committee

Benna R. Solomon, City of Chicago, Corporate Counsel's Office, 30 North LaSalle Street, Room 800, Chicago, IL 60602, Counsel for Amicus Appellee City of Chicago

Spencer E. W. Amdur, American Civil Liberties Union, Immigrants' Rights Project, 125 Broad Street, 18th Floor, New York, NY 10004, Counsel for Amicus Appellee American Civil Liberties Union Foundation

Ilana H. Eisenstein, DLA Piper, 1650 Market Street, One Liberty Place, 49th Floor, Philadelphia, PA 19103, Counsel for Amicus Appellee Philadelphia Social and Legal Services Organizations

Nicolas Y. Riley, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center, 600 New Jersey Avenue, N.W., Washington, DC 20001, Counsel for Amicus Appellee Current and Former Prosecutors and Law Enforcement Leaders

Linda Fang, Office of Attorney General of New York, 28 Liberty Street, 23rd Floor, New York, NY 10005, Counsel for Amicus Appellee State of New York

Robert Perrin, Latham & Watkins, 355 South Grand Avenue, Suite 100, Los Angeles, CA 90071, Counsel for Amicus Appellee Anti Defamation League

Before: AMBRO, SCIRICA and RENDELL, Circuit Judges

OPINION

RENDELL, Circuit Judge.

The City of Philadelphia has received funds under the federal Edward Byrne Memorial Justice Assistance Grant Program ("Byrne JAG") every year since the program’s inception in 2006. Last year, however, the Justice Department notified the City that it was withholding its FY2017 award because the City was not in compliance with three newly implemented conditions ("the Challenged Conditions"). These conditions required greater coordination with federal officials on matters of immigration enforcement. The City filed suit to enjoin the Attorney General from withholding its award, and after discovery and extensive hearings, the District Court granted summary judgment in its favor.

The City attacked the government’s ability to impose the Challenged Conditions on several statutory and constitutional fronts. But we need only reach the threshold statutory question. Where, as here, the Executive Branch claims authority not granted to it in the Constitution, it "literally has no power to act ... unless and until Congress confers power upon it." La. Pub. Serv. Comm’n v. FCC , 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). Therefore, our inquiry is straightforward: did Congress empower the Attorney General to impose the Challenged Conditions?

Underlying this question, and potentially complicating its resolution, is the stark contrast in the priorities of the City and those of the Executive Branch regarding immigration policy. In resolving the discrete legal question before us, however, we make no judgment as to the merits of this policy dispute. Rather, our role is more confined, and our focus is only on the legality of the particular action before us.

Concluding that Congress did not grant the Attorney General this authority, we hold that the Challenged Conditions were unlawfully imposed. Therefore, we will affirm the District Court’s order to the extent that it enjoins enforcement of the Challenged Conditions against the City of Philadelphia. We will vacate part of the order, however, to the extent that it exceeds the bounds of this controversy. See infra III. B.

I. BACKGROUND

A. Byrne JAG and the Challenged Conditions

Federal grants to state and local governments play a large role in facilitating national, state, and local policy. In FY2018 alone, the federal government was expected to give approximately $728 billion to state and local governments through 1,319 federal grant programs. Robert Jay Dilger, Cong. Research Serv., R40638, Federal Grants to State and Local Governments: A Historical Perspective on Contemporary Issues 1 (2018). These programs encompass a wide range of policy areas, from health care to special education to infrastructure projects. Our immediate concern, however, is one particular grant program for state and local law enforcement: the Edward Byrne Memorial Justice Assistance Grant Program.

Byrne JAG, named for a fallen New York City police officer, was established in 2006 through the merger of two law enforcement grant programs. See Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006). The Department of Justice administers the program through the Office of Justice Programs ("OJP"), which is headed by an Assistant Attorney General ("AAG"). Byrne JAG is the "primary provider of federal criminal justice funding to States and units of local government" and distributes over $80 million in awards each year. Edward Byrne Memorial Justice Assistance Grant Program FY 2017 Local Solicitation, Dep’t of Justice (Aug. 3, 2017); App. 332. It is a "formula grant," meaning that funds are distributed among all grantees based on a statutorily fixed formula. In the case of Byrne JAG, the formula considers two factors: population and violent crime statistics. See 34 U.S.C. § 10156. Once approved, grantees may spend those funds within any of the eight statutorily enumerated areas.¹

Any "State or unit of local government" may submit an application to the Attorney General for this grant. Id. § 10153(a). Historically, the OJP has included a number of conditions on the application (over 50 for FY2017), most of which relate to program integrity or impose requirements for the handling of federal funds. Applicants must also certify that they "will comply with all provisions of this part and all other applicable Federal laws." Id. § 10153(a)(5)(D). Philadelphia has received an award under Byrne JAG every year since the program’s inception in 2006. Its average annual award from the program is $2.5 million, which it has used to modernize courtroom technology, fund reentry programs for persons on release from prison, and operate substance abuse programs, among other programs.

In the FY2017 applications that are the subject of this case, the Department included three new conditions. These Challenged Conditions are:

• The Certification Condition . Grantees must "certify compliance with [ 8 U.S.C. § 1373 (" Section 1373") ]." Backgrounder on Grant Requirements, Dep’t of Justice (July 25, 2017); App. 246. Section 1373 prohibits state and local governments from restricting the sharing of information relating to an individual’s immigration status—lawful or unlawful—with federal immigration officials.

• The Access Condition . Grantees must "permit personnel of the U.S. Department of Homeland Security ("DHS") to access any detention facility in order to meet with an alien and inquire as to his or her right to be or remain in the United States." Id .

• The Notice Condition . Grantees must "provide at least 48 hours advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien." Id.

The Attorney General maintains that these conditions are "designed to ensure that the activities of federal law-enforcement grant recipients do not impair the federal government’s ability to ensure public safety and the rule of law by detaining and removing aliens upon their release from local criminal custody." Att’y Gen. Br. 12.

Although the Certification Condition did not apply to FY2016 applications, DOJ asked ten jurisdictions, including Philadelphia, to submit legal opinions certifying their compliance with Section 1373. Philadelphia submitted its letter in April 2017. Upon receiving letters from all ten jurisdictions, DOJ issued a press release on July 6, 2017. It stated that the Department was "in the process of reviewing" the letters, but also stated that "[i]t is not enough to assert compliance, the jurisdictions must actually be in compliance." Press Release, Dep’t of Justice (July 6, 2017); App. 248.

B. Immigration Enforcement and Local Law Enforcement

Under our federal system, "both the National and State Governments have elements of sovereignty the other is bound to respect." Arizona v. United States , 567 U.S. 387, 398, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). While the federal government has "broad, undoubted power over the subject of immigration and the status of aliens,"² id. at 394, 132 S.Ct. 2492, the "States possess primary authority for defining and enforcing the criminal law," United States v. Lopez , 514 U.S. 549, 561 n.3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) ...