Case: 1:18-cv-4853 As of: 07/14/2020 07:10 PM CDT 1 of 12
APPEAL,MASON,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.3.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:18−cv−04853

City of Evanston et al v. William P. Barr Assigned to: Honorable Harry D. Leinenweber Case in other court: 18−02734
19−03358 20−02150 Cause: 05:702 Administrative Procedure Act
Plaintiff
City of Evanston

Date Filed: 07/16/2018 Date Terminated: 05/12/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant
represented by Michelle Lee Masoncup Assistant City Attorney City of Evanston 2100 Ridge Avenue Suite 4400 Evanston, IL 60201 (847) 866−2937 Email: mmasoncup@cityofevanston.org TERMINATED: 03/31/2020

Brian C Haussmann Tabet DiVito Rothstein 209 South LaSalle Street 7th Floor Chicago, IL 60604 (312)762 9450 Email: bhaussmann@tdrlawfirm.com ATTORNEY TO BE NOTICED

Plaintiff
The United States Conference of Mayors

represented by Brian C Haussmann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amie Marie Bauer Tabet DiVito & Rothstein 209 S LaSalle Street Floor 7 Chicago, IL 60604 312−762−9497 Email: abauer@tdrlawfirm.com ATTORNEY TO BE NOTICED

John Matthew Fitzgerald Tabet DiVito Rothstein 209 South LaSalle Street 7th Floor Chicago, IL 60604 (312) 762−9450 Email: jfitzgerald@tdrlawfirm.com ATTORNEY TO BE NOTICED

Katherine M. O'Brien Tabet Divito & Rothstein Llc 209 S. Lasalle Street 7th Floor Chicago, IL 60604 (312) 762−9450

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Email: kobrien@tdrlawfirm.com ATTORNEY TO BE NOTICED
Kyle Alexander Cooper Tabet DiVito & Rothstein LLC The Rookery Building 209 S. LaSalle St. 7th Floor Chicago, IL 60604 (312) 762−9450 Email: kcooper@TDRLAWFIRM.com ATTORNEY TO BE NOTICED
Melody L Gaal Tabet Divito & Rothstein 209 South LaSalle Street 7th Floor Chicago, IL 60604 (312) 762−9451 Email: mgaal@tdrlawfirm.com TERMINATED: 04/10/2019

V. Defendant Jefferson Beauregard Sessions III in his official capacity as Attorney General of the United States
Defendant Matthew G Whitaker as Acting Attorney General of the United

represented by Brad P. Rosenberg U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Washington, DC 20005 (202) 514−3374 Email: brad.rosenberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA − Chicago United States Attorney's Office (NDIL − Chicago) 219 South Dearborn Street Chicago, IL 60604 Email: USAILN.ECFAUSA@usdoj.gov ATTORNEY TO BE NOTICED
Charles E.T. Roberts U.S. Department of Justice, Civil Division, Federal Programs 1100 L Street NW Washington, DC 20005 (202) 305−8628 Email: charles.e.roberts@usdoj.gov ATTORNEY TO BE NOTICED
Daniel Duane Mauler U.S. Department of Justice 1100 L Street, NW Washington, DC 20005 (202) 616−0773 Email: dan.mauler@usdoj.gov ATTORNEY TO BE NOTICED
represented by Charles E.T. Roberts (See above for address)

Case: 1:18-cv-4853 As of: 07/14/2020 07:10 PM CDT 3 of 12

States
Amicus Mayors of the Cities of Allen, Celina, College Station, Farmers Branch, Mason, and Midland, Texas; Pensacola, Florida, and the Former Mayor of Little Elm, Texas
Amicus State of Texas

ATTORNEY TO BE NOTICED
Daniel Duane Mauler (See above for address) ATTORNEY TO BE NOTICED
represented by Craig T. Enoch Enoch Kever PLLC 5918 W. Courtyard Drive Suite 500 Austin, TX 78730 (512) 615−1200 Email: cenoch@enochkever.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by David Jonathan Hacker Office of the Attorney General 209 W. 14th Street, MC 001 Austin, TX 78701 512−936−2330 Email: david.hacker@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/16/2018
07/16/2018 07/16/2018 07/16/2018 07/16/2018 07/16/2018 07/17/2018 07/17/2018 07/17/2018 07/18/2018 07/19/2018

# Docket Text
1 COMPLAINT filed by City of Evanston, The United States Conference of Mayors; Filing fee $ 400, receipt number 0752−14704723. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G)(Haussmann, Brian) (Entered: 07/16/2018)
2 CIVIL Cover Sheet (Haussmann, Brian) (Entered: 07/16/2018)
3 ATTORNEY Appearance for Plaintiff The United States Conference of Mayors by Brian C Haussmann (Haussmann, Brian) (Entered: 07/16/2018)
4 ATTORNEY Appearance for Plaintiff The United States Conference of Mayors by Katherine M. O'Brien (O'Brien, Katherine) (Entered: 07/16/2018)
5 NOTICE by All Plaintiffs of Claims of Unconstitutionality (O'Brien, Katherine) (Entered: 07/16/2018)
6 ATTORNEY Appearance for Plaintiff The United States Conference of Mayors by John Matthew Fitzgerald (Fitzgerald, John) (Entered: 07/16/2018)
CASE ASSIGNED to the Honorable Charles R. Norgle, Sr. Designated as Magistrate Judge the Honorable Sidney I. Schenkier. (kb, ) (Entered: 07/17/2018)
7 ATTORNEY Appearance for Plaintiff City of Evanston by Michelle Lee Masoncup (Masoncup, Michelle) (Entered: 07/17/2018)
8 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by The United States Conference of Mayors (O'Brien, Katherine) (Entered: 07/17/2018)
SUMMONS Issued as to Defendant Jefferson Beauregard Sessions III (yt) (Entered: 07/18/2018)
9 SUMMONS Returned Executed by The United States Conference of Mayors as to Jefferson Beauregard Sessions III on 7/18/2018, answer due 8/8/2018. (Haussmann, Brian) Modified on 7/20/2018 (kp, ). (Docket Text Modified by Clerk's Office) (Entered: 07/19/2018)

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07/20/2018
07/23/2018 07/23/2018 07/24/2018
07/25/2018 08/03/2018
08/06/2018 08/06/2018 08/06/2018 08/06/2018
08/07/2018 08/07/2018 08/08/2018 08/09/2018 08/09/2018

10 MOTION by Plaintiffs City of Evanston, The United States Conference of Mayors for temporary restraining order , MOTION by Plaintiffs City of Evanston, The United States Conference of Mayors for preliminary injunction (Attachments: # 1 Declaration Declaration of Tom Cochran, # 2 Exhibit Exhibits 1−9 to Cochran Declaration, # 3 Declaration Declaration of Louis Gergits, # 4 Exhibit Exhibits 1−3 to Gergits Declaration)(Haussmann, Brian) (Entered: 07/20/2018)
11 ATTORNEY Appearance for Plaintiff The United States Conference of Mayors by Kyle Alexander Cooper (Cooper, Kyle) (Entered: 07/23/2018)
12 ATTORNEY Appearance for Defendant Jefferson Beauregard Sessions III by Brad P. Rosenberg (Rosenberg, Brad) (Entered: 07/23/2018)
14 MINUTE entry before the Honorable Harry D. Leinenweber: Motion hearing held on 7/24/2018. The Government shall file its response to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction on or before 8/3/2018. Plaintiffs shall file their reply on or before 8/6/2018. Oral argument on the motion set for 8/8/2018 at 9:00 a.m. Oral ruling set on 8/9/2018 at 9:00 a.m. Mailed notice (maf) (Entered: 07/26/2018)
13 EXECUTIVE COMMITTEE ORDER: Case reassigned to the Honorable Harry D. Leinenweber for all further proceedings. Honorable Charles R. Norgle, Sr no longer assigned to the case. Signed by Executive Committee on 7/25/18. (kp, ) (Entered: 07/26/2018)
15 MEMORANDUM by Jefferson Beauregard Sessions III in Opposition to motion for temporary restraining order,, motion for preliminary injunction, 10 (Attachments: # 1 Exhibit A: Declaration of Tracey Trautman & Exhibits 1 & 2 Attached Thereto, # 2 Exhibit B: San Francisco v. Sessions Decision)(Rosenberg, Brad) (Entered: 08/03/2018)
16 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−14785089. (Enoch, Craig) (Entered: 08/06/2018)
17 MOTION by Amicus Mayors of the Cities of Allen, Celina, College Station, Farmers Branch, Mason, and Midland, Texas; Pensacola, Florida, and the Former Mayor of Little Elm, Texas for leave to file Amici Brief (Attachments: # 1 Exhibit to Motion for Leave to File Amici Brief)(Enoch, Craig) (Entered: 08/06/2018)
18 Amici Brief by Mayors of the Cities of Allen, Celina, College Station, Farmers Branch, Mason, and Midland, Texas; Pensacola, Florida, and the Former Mayor of Little Elm, Texas (Enoch, Craig) (Entered: 08/06/2018)
19 REPLY by City of Evanston, The United States Conference of Mayors to memorandum in opposition to motion, 15 , MOTION by Plaintiffs City of Evanston, The United States Conference of Mayors for temporary restraining order MOTION by Plaintiffs City of Evanston, The United States Conference of Mayors for preliminary injunction 10 (Haussmann, Brian) (Entered: 08/06/2018)
20 ATTORNEY Appearance for Amicus State of Texas by David Jonathan Hacker (Hacker, David) (Entered: 08/07/2018)
21 MOTION by Amicus State of Texas for leave to file a Brief as Amicus Curiae (Attachments: # 1 Exhibit A (Proposed Brief of Amicus Curiae))(Hacker, David) (Entered: 08/07/2018)
22 MINUTE entry before the Honorable Harry D. Leinenweber: Oral argument held on 8/8/2018. Oral ruling set for 8/9/2018 is vacated. Ruling by mail by 8/9/2018. Mailed notice (maf) (Entered: 08/08/2018)
23 ORDER: See attached order re: plaintiffs' motion for a temporary restraining order and preliminary injunction 10 . Signed by the Honorable Harry D. Leinenweber on 8/9/2018:Mailed notice(maf) (Entered: 08/09/2018)
24 NOTICE of appeal by The United States Conference of Mayors regarding orders 23 Filing fee $ 505, receipt number 0752−14807075. Receipt number: n (Haussmann, Brian) (Entered: 08/09/2018)

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08/09/2018 08/10/2018 08/10/2018 08/10/2018 08/13/2018 08/24/2018 08/27/2018 08/28/2018
08/29/2018
09/17/2018 09/25/2018 09/25/2018
10/05/2018 10/11/2018 10/11/2018 10/11/2018 10/11/2018

25 DOCKETING Statement by The United States Conference of Mayors regarding notice of appeal 24 (Haussmann, Brian) (Entered: 08/09/2018)
26 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 24 (ek, ) (Entered: 08/10/2018)
27 TRANSMITTED to the 7th Circuit the short record on notice of appeal 24 . Notified counsel (ek, ) (Entered: 08/10/2018)
28 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 24 ; USCA Case No. 18−2734 (ek, ) (Entered: 08/10/2018)
29 ORDER: Pro hac vice motion is granted 16 . Motions for leave to file amicus briefs are denied [ 17 , 21 ]. Signed by the Honorable Harry D. Leinenweber on 8/13/2018. Mailed notice. (kp, ) (Entered: 08/13/2018)
30 SEVENTH CIRCUIT transcript information sheet by The United States Conference of Mayors (Cooper, Kyle) (Entered: 08/24/2018)
31 SEVENTH CIRCUIT transcript information sheet by The United States Conference of Mayors (Cooper, Kyle) (Entered: 08/27/2018)
32 TRANSCRIPT OF PROCEEDINGS held on 08/08/2018 before the Honorable Harry D. Leinenweber. Order Number: 31957. Court Reporter Contact Information: Judith A. Walsh, CSR, RDR, F/CRR. Official Court Reporter. judith_walsh@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 9/18/2018. Redacted Transcript Deadline set for 9/28/2018. Release of Transcript Restriction set for 11/26/2018. (Walsh, Judy) (Entered: 08/28/2018)
33 CERTIFIED copy of order dated 8/29/2018 from the 7th Circuit regarding notice of appeal 24 ; Appellate case no. : 18−2734; IT IS ORDERED that the emergency motion to lift the stay of preliminary injunction is GRANTED. The district court's stay is LIFTED, and the preliminary injunction shall be in effect as originally ordered by the district court. The State of Texas has submitted a brief as amicus curiae in support of the appellee, which we CONSTRUE as containing an implied request for leave to file the brief. IT IS FURTHER ORDERED that leave to file the brief in support of the motions matter is DENIED. (jh, ) (Entered: 08/29/2018)
34 ANSWER to Complaint by Jefferson Beauregard Sessions III(Rosenberg, Brad) (Entered: 09/17/2018)
35 MANDATE of USCA dated 9/25/2018 regarding notice of appeal 24 ; USCA No.18−2734; No record to be returned. (jh, ) (Entered: 09/25/2018)
36 CERTIFIED copy of order dated 9/25/2018 from the 7th Circuit regarding notice of appeal 24 ; Appellate case no. : 18−2734; Because the issues in this appeal have been resolved, the appellant moves to voluntarily dismiss its appeal. This appeal is DISMISSED pursuant to Federal Rule of Appellate Procedure 42(b). This court's order dated August 29, 2018, remains in effect, and each party shall bear its own costs. (jh, ) (Entered: 09/25/2018)
37 NOTICE of appeal by Jefferson Beauregard Sessions III regarding orders 23 Receipt number: y (Rosenberg, Brad) (Entered: 10/05/2018)
38 ENTERED IN ERROR (gcy, ) Modified on 10/11/2018 (gcy, ). (Entered: 10/11/2018)
39 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 37 (gcy, ) (Entered: 10/11/2018)
40 NOTICE of Correction 38 . (gcy, ) (Entered: 10/11/2018)
41 TRANSMITTED to the 7th Circuit the short record on notice of appeal 37 . Notified counsel (gcy, ) (Entered: 10/11/2018)

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10/15/2018 12/06/2018 12/06/2018 12/10/2018 12/10/2018 12/13/2018 12/26/2018
01/08/2019 01/28/2019
02/07/2019 02/11/2019 02/11/2019 02/11/2019

42 ORDER dated 10/15/2018 from the 7th Circuit regarding notice of appeal 37 ; Appellate case no. : 18−3178; IT IS ORDERED that the joint motion to hold appeal in abeyance is GRANTED. The parties shall file status reports regarding the proceedings in the district court by January 14, 2019. (ew, ) (Entered: 10/16/2018)
43 MOTION by Plaintiff The United States Conference of Mayors for leave to file Amended Complaint (Attachments: # 1 Exhibit Exhibit 1)(Haussmann, Brian) (Entered: 12/06/2018)
44 NOTICE of Motion by Brian C Haussmann for presentment of motion for leave to file 43 before Honorable Harry D. Leinenweber on 12/11/2018 at 09:30 AM. (Haussmann, Brian) (Entered: 12/06/2018)
45 MINUTE entry before the Honorable Harry D. Leinenweber: Unopposed motion for leave to file an amended complaint 43 is granted. Mailed notice(maf) (Entered: 12/10/2018)
46 AMENDED complaint by City of Evanston, The United States Conference of Mayors against Jefferson Beauregard Sessions III (Attachments: # 1 Exhibit)(Haussmann, Brian) (Entered: 12/10/2018)
47 MINUTE entry before the Honorable Harry D. Leinenweber: The Court will stay the deadline for the defendant to answer or otherwise plead to the amended complaint until further order of the Court. Mailed notice(maf) (Entered: 12/13/2018)
48 GENERAL ORDER 18−0028 dated 12/26/18: IT IS HEREBY ORDERED, effective December 26, 2018, that all civil litigation involving as a party the United States of America, is immediately suspended, postponed and held in abeyance continuing for a period of fourteen (14) days from the date of entry of this General Order (For Further Details See Attached Order). Signed by the Honorable Ruben Castillo on 12/26/2018: Mailed notice. (sm, ) (Entered: 12/30/2018)
49 AMENDED GENERAL ORDER 18−0028 dated 01/08/2019: On December 26, 2018, General Order 18−0028 was entered. It appearing that the lapse of congressional appropriations funding the federal government continues, therefore General Order 18−0028 is now amended. (For Further Details See Attached Order). Signed by the Honorable Ruben Castillo on 1/8/2019: Mailed notice. (sm, ) (Entered: 01/08/2019)
50 GENERAL ORDER 19−0004: RESETTING OF DEADLINES IN CIVIL MATTERS INVOLVING THE UNITED STATES AS A PARTY. IT APPEARING THAT as a result of the partial federal government shutdown, this Court amended General Order 18−0028 suspending as of December 21, 2018, all civil litigation in which the United States of America, its agencies, its officers, or employees were parties, with the stated intention of clarifying schedules in such cases upon the expiration of the lapse in appropriations; and IT FURTHER APPEARING THAT appropriations having been restored to fund the Department of Justice and other Executive Branch agencies, with employees beginning to report for work beginning on January 28, 2019; accordingly IT IS THEREFORE ORDERED that the stay entered by General Order 18−0028 is hereby lifted, and any and all deadlines in the affected civil litigation (whether established by order, rule, or agreement.), including but not limited to any scheduled discovery and pleading dates, are extended by 42 days. (For Further Details See Attached Order). Signed by the Honorable Ruben Castillo on 1/28/2019: Mailed notice. (mgw, ) (Entered: 01/28/2019)
51 ATTORNEY Appearance for Plaintiff The United States Conference of Mayors by Melody L Gaal (Gaal, Melody) (Entered: 02/07/2019)
52 MOTION by Plaintiffs The United States Conference of Mayors, City of Evanston for partial summary judgment (Haussmann, Brian) (Entered: 02/11/2019)
53 NOTICE of Motion by Brian C Haussmann for presentment of motion for partial summary judgment 52 before Honorable Harry D. Leinenweber on 2/14/2019 at 09:30 AM. (Haussmann, Brian) (Entered: 02/11/2019)
54 MOTION by Plaintiffs City of Evanston, The United States Conference of Mayors for leave to file excess pages in support of motion for partial summary judgment instanter (Unopposed) (Haussmann, Brian) (Entered: 02/11/2019)

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02/11/2019 02/11/2019 02/11/2019 02/11/2019 02/11/2019 02/11/2019 02/11/2019 02/11/2019 02/14/2019 02/26/2019 03/14/2019 03/17/2019
03/19/2019 03/29/2019 03/29/2019 04/02/2019

55 NOTICE of Motion by Brian C Haussmann for presentment of motion for leave to file excess pages 54 before Honorable Harry D. Leinenweber on 2/14/2019 at 09:30 AM. (Haussmann, Brian) (Entered: 02/11/2019)
56 MEMORANDUM by City of Evanston, The United States Conference of Mayors in support of motion for partial summary judgment 52 (Haussmann, Brian) (Entered: 02/11/2019)
57 RULE 56 (c)(1) Statement by City of Evanston, The United States Conference of Mayors regarding motion for partial summary judgment 52 (Haussmann, Brian) (Entered: 02/11/2019)
58 DECLARATION of Tom Cochran regarding motion for partial summary judgment 52 (Attachments: # 1 Exhibit 1 − Exhibit 9)(Haussmann, Brian) (Entered: 02/11/2019)
59 DECLARATION of Louis Gergits regarding motion for partial summary judgment 52 (Attachments: # 1 Exhibit 1 − Exhibit 4)(Haussmann, Brian) (Entered: 02/11/2019)
60 DECLARATION of Sarita Nair regarding motion for partial summary judgment 52 (Attachments: # 1 Exhibit 1 − Exhibit 4, # 2 Exhibit 5 − Exhibit 7)(Haussmann, Brian) (Entered: 02/11/2019)
61 DECLARATION of Jeannie K. Springer regarding motion for partial summary judgment 52 (Attachments: # 1 Exhibit 1)(Haussmann, Brian) (Entered: 02/11/2019)
62 Plaintiffs' Request for Judicial Notice In Support of Motion for Partial Summary Judgment by City of Evanston, The United States Conference of Mayors (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Haussmann, Brian) (Entered: 02/11/2019)
63 MINUTE entry before the Honorable Harry D. Leinenweber: In court hearing and ruling on motion hearing held. Motion for leave to file excess pages 54 is granted. MOTION for partial summary judgment 52 is entered and continued to 3/6/19 at 9:00 a.m. Mailed notice(maf) (Entered: 02/14/2019)
64 MINUTE entry before the Honorable Harry D. Leinenweber: MOTION for partial summary judgment #52 set for 3/6/19 is re−set to 3/21/19 at 9:00 a.m. Mailed notice(maf) (Entered: 02/26/2019)
65 ATTORNEY Appearance for Defendants Jefferson Beauregard Sessions III, Matthew G Whitaker by Daniel Duane Mauler (Mauler, Daniel) (Entered: 03/14/2019)
66 TRANSCRIPT OF PROCEEDINGS held on 02/14/2019 before the Honorable Harry D. Leinenweber. Order Number: 34045. Court Reporter Contact Information: Judith A. Walsh, CSR, RDR, F/CRR. Official Court Reporter. judith_walsh@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 4/8/2019. Redacted Transcript Deadline set for 4/17/2019. Release of Transcript Restriction set for 6/17/2019. (Walsh, Judy) (Entered: 03/17/2019)
67 MINUTE entry before the Honorable Harry D. Leinenweber: By agreement, status hearing and motion for partial summary judgment #52 set for 3/21/19 is re−set to 4/9/19 at 9:00 a.m. Mailed notice(maf) (Entered: 03/19/2019)
68 MOTION by Plaintiffs City of Evanston, The United States Conference of Mayors for leave to file Supplemental Authority (Attachments: # 1 Exhibit)(Haussmann, Brian) (Entered: 03/29/2019)
69 NOTICE of Motion by Brian C Haussmann for presentment of motion for leave to file 68 before Honorable Harry D. Leinenweber on 4/9/2019 at 09:00 AM. (Haussmann, Brian) (Entered: 03/29/2019)
70 MINUTE entry before the Honorable Harry D. Leinenweber: Plaintiffs' motion 68 is granted. Plaintiffs may file the supplemental authority discussed in motion 68 . Status

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04/02/2019 04/03/2019 04/03/2019 04/05/2019 04/09/2019
05/09/2019
05/09/2019 05/09/2019
05/09/2019 05/09/2019 05/31/2019
05/31/2019 06/13/2019

hearing on 4/9/19 at 9:00 a.m. shall stand. Mailed notice(maf) (Entered: 04/02/2019)
71 Plaintiffs Supplemental Authority In Support of Their Motion For Partial Summary Judgment by City of Evanston, The United States Conference of Mayors (Haussmann, Brian) (Entered: 04/02/2019)
72 MOTION by Attorney Melody L. Gaal to withdraw as attorney for City of Evanston, The United States Conference of Mayors. No party information provided (Gaal, Melody) (Entered: 04/03/2019)
73 NOTICE of Motion by Melody L Gaal for presentment of motion to withdraw as attorney 72 before Honorable Harry D. Leinenweber on 4/9/2019 at 09:00 AM. (Gaal, Melody) (Entered: 04/03/2019)
74 STATUS Report Joint by The United States Conference of Mayors (Attachments: # 1 Exhibit)(Haussmann, Brian) (Entered: 04/05/2019)
75 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing and ruling on motion hearing held. Motion to withdraw as attorney 72 is granted. Defendant shall respond to Plaintiff's motion for summary judgment 52 and file any cross−motion on or before 5/9/19. Plaintiffs shall file a combined reply in support of their motion for partial summary judgment and response to any cross−motion by 6/6/19. Defendant shall file any reply by 6/20/19. The parties may file oversized briefs in the page limits described in the joint status report 74 . Status hearing/ruling date set for 8/1/19 at 9:00 a.m. Mailed notice(maf) (Entered: 04/10/2019)
76 CERTIFIED COPY OF ADMINISTRATIVE RECORD by Defendants Jefferson Beauregard Sessions III, Matthew G Whitaker (Attachments: # 1 Administrative Record, Part 1, # 2 Administrative Record, Part 2, # 3 Administrative Record, Part 3, # 4 Administrative Record, Part 4, # 5 Administrative Record, Part 5, # 6 Administrative Record, Part 6)(Mauler, Daniel) (Entered: 05/09/2019)
77 MOTION by Defendants Jefferson Beauregard Sessions III, Matthew G Whitaker to dismiss for failure to state a claim and for lack of jurisdiction, or in the alternative, motion for summary judgment (Mauler, Daniel) (Entered: 05/09/2019)
78 MEMORANDUM by Jefferson Beauregard Sessions III, Matthew G Whitaker in support of motion to dismiss 77 or in the alternative, motion for summary judgment, and Opposition to Plaintiffs' Motion for Partial Summary Judgment (ECF No. 52) (Attachments: # 1 Defendant's Request for Judicial Notice)(Mauler, Daniel) (Entered: 05/09/2019)
79 RULE 56 Statement by Jefferson Beauregard Sessions III, Matthew G Whitaker regarding motion to dismiss 77 or in the alternative, motion for summary judgment (Mauler, Daniel) (Entered: 05/09/2019)
80 RULE 56 Response to Plaintiff's LR 56.1 Statement Statement by Jefferson Beauregard Sessions III, Matthew G Whitaker regarding motion for partial summary judgment 52 (Mauler, Daniel) (Entered: 05/09/2019)
81 MINUTE entry before the Honorable Harry D. Leinenweber: Agreed oral motion by the parties to extend the briefing schedule is granted as follows: June 6, 2019: Plaintiffs shall file a combined reply in support of their motion for partial summary judgment and response to Defendant's cross−motion;June 20, 2019: Defendant shall file any reply; Status hearing/ruling date set for August 1, 2019, is re−set to August 22, 2019 at 9:00 a.m. Mailed notice(maf ) (Entered: 05/31/2019)
82 MINUTE entry before the Honorable Harry D. Leinenweber: Docket entry #81 is amended as follows: response by 6/14/19, reply by 6/28/19. Status hearing/ruling set for 8/22/19 at 9:00 a.m. Mailed notice(maf) (Entered: 05/31/2019)
83 MINUTE entry before the Honorable Harry D. Leinenweber: Parties have agreed orally to amend the current briefing schedule regarding the pending matters as follows: On 6/21/19, Plaintiffs shall file a combined reply in support of their motion for partial summary judgment and response to Defendant's cross−motion. On 7/12/19, Defendant shall file any reply. Status hearing/ruling set for 8/22/19 at 9:00 a.m. to stand. Mailed notice(maf) (Entered: 06/13/2019)

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06/21/2019 06/21/2019 06/26/2019 07/12/2019 08/12/2019 08/14/2019 08/14/2019 08/19/2019 08/19/2019 09/26/2019
09/26/2019
09/26/2019 10/01/2019 10/23/2019 10/23/2019

84 REPLY by Plaintiffs City of Evanston, The United States Conference of Mayors to motion for partial summary judgment 52 (Haussmann, Brian) (Entered: 06/21/2019)
85 RESPONSE by Plaintiffs City of Evanston, The United States Conference of Mayors to Rule 56 statement 79 (Haussmann, Brian) (Entered: 06/21/2019)
86 ATTORNEY Appearance for Plaintiff The United States Conference of Mayors by Amie Marie Bauer (Bauer, Amie) (Entered: 06/26/2019)
87 REPLY by Defendants Jefferson Beauregard Sessions III, Matthew G Whitaker to reply 84 (Reply in Support of Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (ECF No. 77)) (Mauler, Daniel) (Entered: 07/12/2019)
88 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing/ruling set for 8/22/19 is vacated and no appearance is needed. The Court will rule by mail. Mailed notice(maf) (Entered: 08/12/2019)
89 MOTION by Plaintiff City of Evanston, The United States Conference of Mayors Leave to File Supplemental Authority (Attachments: # 1 Exhibit, # 2 Exhibit)(Haussmann, Brian) Docket Text Modified by Clerk's Office on 8/14/2019 (ph, ). (Entered: 08/14/2019)
90 NOTICE of Motion by Brian C Haussmann for presentment of motion for miscellaneous relief, 89 before Honorable Harry D. Leinenweber on 8/21/2019 at 09:30 AM. (Haussmann, Brian) (Entered: 08/14/2019)
91 MINUTE entry before the Honorable Harry D. Leinenweber: Plaintiffs' motion 89 is granted. Plaintiffs may file the supplemental authority discussed in motion 89 in support of their motion for summary judgment. Presentment on 8/21/19 is stricken as moot. Mailed notice(maf) (Entered: 08/19/2019)
92 Plaintiffs Supplemental Authority In Support of Their Motion For Partial Summary Judgment by City of Evanston, The United States Conference of Mayors (Haussmann, Brian) (Entered: 08/19/2019)
93 MEMORANDUM Opinion and Order. For the reasons stated herein, Defendant's Motion to Dismiss 77 is denied. Plaintiffs' Motion for Summary Judgment 52 is granted in part and denied in part. The Court grants summary judgment for Plaintiffs on Counts I and II with respect to all challenged conditions, and on Count IV insofar as Plaintiffs are entitled to a declaration that Sections 1373 and 1644 violate the anticommandeering doctrine and the Attorney General cannot require compliance with these statutes as a condition of Byrne JAG funds. The Court dismisses Counts III and V as moot. Signed by the Honorable Harry D. Leinenweber on 9/26/2019: Mailed notice (maf) (Entered: 09/26/2019)
94 Enter Final Judgement and Order. For the reasons stated herein, The Court has granted summary judgment in Plaintiffs' favor on Counts I, II, and IV of the Amended Complaint (Dkt. No. 46), and dismissed Counts III and V. There being no Counts remaining to be decided on the merits, the Court now enters final judgment in this case. Plaintiffs may still seek reasonable attorneys' fees and costs in this matter. See 28 U.S.C. § 2412. The AttorneyGeneral is entitled to object to or oppose any attempt by Plaintiffs to recover the same. Signed by the Honorable Harry D. Leinenweber on 9/26/2019:Mailed notice (maf) (Main Document 94 replaced on 9/27/2019) (maf, ). (Entered: 09/26/2019)
95 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing set for 10/1/2019 at 09:00 AM.Mailed notice(maf) (Entered: 09/26/2019)
96 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing held. Plaintiffs shall file their fee petition and bill of costs on or before 10/29/19. Defendant shall respond on or before 11/12/19. Reply, if any, due 11/19/19. The Court will rule by mail. Mailed notice(maf) (Entered: 10/01/2019)
97 MANDATE of USCA dated 10/23/2019 regarding notice of appeal 37 ; USCA No.18−3178; No record to be returned. (ph, ) (Entered: 10/24/2019)
98 CERTIFIED copy of order dated 10/23/2019 from the 7th Circuit regarding notice of appeal 37 ; Appellate case no.: 18−3178: Upon consideration of the JOINT STIPULATION OF DISMISSAL, filed on October 23, 2019, by Attorney Daniel

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10/28/2019 10/29/2019 11/04/2019 11/06/2019
11/25/2019 11/26/2019 11/26/2019 11/26/2019 12/10/2019
12/20/2019
01/17/2020 02/04/2020 02/28/2020 03/02/2020
03/10/2020 03/10/2020 03/16/2020

Tenny, IT IS ORDERED that this appeal is voluntarily DISMISSED, pursuant to Federal Rule of Appellate Procedure 42(b). (ph, ) (Entered: 10/24/2019)
99 MOTION by Plaintiff The United States Conference of Mayors for bill of costs (Attachments: # 1 Exhibit)(Haussmann, Brian) (Entered: 10/28/2019)
100 MOTION by Plaintiff The United States Conference of Mayors for attorney fees and expenses (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Haussmann, Brian) (Entered: 10/29/2019)
101 ATTORNEY Appearance for Defendants Jefferson Beauregard Sessions III, Matthew G Whitaker by Charles E.T. Roberts (Roberts, Charles) (Entered: 11/04/2019)
102 MINUTE entry before the Honorable Harry D. Leinenweber: Parties have agreed to the extension for the fee petition and bill of costs as follows: Defendant shall respond on or before 12/12/19. Reply, if any, due 12/23/19. The Court will rule by mail. Mailed notice(maf) (Entered: 11/06/2019)
103 NOTICE of appeal by Jefferson Beauregard Sessions III, Matthew G Whitaker regarding orders 94 Receipt number: y (Mauler, Daniel) (Entered: 11/25/2019)
104 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 103 . (ph, ) (Entered: 11/26/2019)
105 TRANSMITTED to the 7th Circuit the short record on notice of appeal 103 . Notified counsel (ph, ) (Entered: 11/26/2019)
106 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 103 ; USCA Case No. 19−3358. (ph, ) (Entered: 11/26/2019)
107 MINUTE entry before the Honorable Harry D. Leinenweber: Parties have agreed to the extension for the fee petition and bill of costs as follows: Defendant shall respond on or before 1/3/20. Reply, if any, due 1/17/20. The Court will rule by mail. Mailed notice(maf) (Entered: 12/10/2019)
108 MINUTE entry before the Honorable Harry D. Leinenweber: Parties have agreed to the extension for the fee petition and bill of costs as follows: Defendant shall respond on or before 1/17/20. Reply, if any, due 2/7/20. The Court will rule by mail. Mailed notice(maf) (Entered: 12/20/2019)
109 RESPONSE by Matthew G Whitakerin Opposition to MOTION by Plaintiff The United States Conference of Mayors for attorney fees and expenses 100 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Roberts, Charles) (Entered: 01/17/2020)
110 MINUTE entry before the Honorable Harry D. Leinenweber: Parties have agreed to the extension for the fee petition and bill of costs as follows: Reply shall be filed on or before 2/28/20. The Court will rule by mail. Mailed notice(maf) (Entered: 02/04/2020)
111 REPLY by Plaintiff The United States Conference of Mayors to motion for attorney fees 100 (Haussmann, Brian) (Entered: 02/28/2020)
112 NOTICE OF SUPPLEMENTAL AUTHORITY by Jefferson Beauregard Sessions III, Matthew G Whitaker in Opposition to Plaintiffs' Motion for Attorney Fees. (Attachments: # 1 Exhibit Opinion of the U.S. Court of Appeals for the Second Circuit)(Roberts, Charles) (Entered: 03/02/2020)
113 MOTION by Plaintiff The United States Conference of Mayors for leave to file Response to Defendant's Notice of Supplemental Authority (Attachments: # 1 Exhibit Exhibit 1 to Motion)(Haussmann, Brian) (Entered: 03/10/2020)
114 NOTICE of Motion by Brian C Haussmann for presentment of motion for leave to file 113 before Honorable Harry D. Leinenweber on 3/19/2020 at 09:30 AM. (Haussmann, Brian) (Entered: 03/10/2020)
115 ORDER Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 16, 2020. All open cases are impacted by this Amended General Order. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/16/2020: Mailed notice. (td, ) (Entered: 03/16/2020)

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03/16/2020 03/17/2020 03/25/2020 03/26/2020 03/26/2020 03/30/2020
03/31/2020 04/03/2020 04/23/2020 04/23/2020 04/24/2020
05/08/2020 05/12/2020

117 ORDER Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 16, 2020. All open cases are impacted by this Amended General Order. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/16/2020: Mailed notice. (td, ) (Entered: 03/17/2020)
116 MINUTE entry before the Honorable Harry D. Leinenweber: Plaintiff's motion 113 is granted. Plaintiff's response to Defendant's notice of supplemental authority [113−1] is received. No appearance is needed on 3/19/20.Mailed notice(maf) (Entered: 03/17/2020)
118 MOTION by Plaintiff City of Evanston to substitute attorney (Ruggie, Alexandra) (Entered: 03/25/2020)
119 MOTION by Plaintiff The United States Conference of Mayors for leave to file Supplemental Authority in Support of Its Motion for Attorney Fees (Attachments: # 1 Exhibit)(Haussmann, Brian) (Entered: 03/26/2020)
120 NOTICE of Motion by Brian C Haussmann for presentment of motion for leave to file 119 before Honorable Harry D. Leinenweber on 4/21/2020 at 09:30 AM. (Haussmann, Brian) (Entered: 03/26/2020)
122 ORDER Seconded Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 30, 2020. All open cases are impacted by this Second Amended General Order. Amended General Order 20−0012, entered on March 17, 2020, and General Order 20−0014, entered on March 20, 2020, are vacated and superseded by this Second Amended General. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/30/2020: Mailed notice. (docket1, ) (Entered: 03/31/2020)
121 MINUTE entry before the Honorable Harry D. Leinenweber: Motion to substitute attorney 118 is granted. Plaintiff's motion 119 is granted. Plaintiff's supplemental authority in support of its motion for attorney's fees is received. No appearance is needed on 4/21/20. Mailed notice(maf) (Entered: 03/31/2020)
123 MOTION by Defendants Jefferson Beauregard Sessions III, Matthew G Whitaker for leave to file Response to Plaintiff's Supplemental Authority (Attachments: # 1 Exhibit)(Roberts, Charles) (Entered: 04/03/2020)
124 MINUTE entry before the Honorable Harry D. Leinenweber: Defendants' motion for leave to file Response to Plaintiff's Supplemental Authority 123 is received. Mailed notice(maf) (Entered: 04/23/2020)
125 MEMORANDUM Opinion and Order: For the reasons stated herein, Plaintiff's Motion for Attorney's Fees and Expenses (Dkt. No. 100) is granted in part and denied in part. Plaintiff is entitled to $97,546.43 in attorney's fees plus the reasonable fees for time spent briefing this Motion and $283.75 in costs and expenses. Signed by the Honorable Harry D. Leinenweber on 4/23/2020: Mailed notice (maf) (Entered: 04/23/2020)
126 ORDER Third Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on April 24, 2020. All open cases are impacted by this Third Amended General Order. Parties are must carefully review all obligations under this Order, including the requirement listed in paragraph number 5 to file a joint written status report in most civil cases. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 4/24/2020: Mailed notice. (docket3, ) (Entered: 04/27/2020)
127 SUPPLEMENT TO UNITED STATES CONFERENCE OF MAYORS MOTION FOR ATTORNEY FEES AND EXPENSES (Attachments: # 1 Exhibit)(Haussmann, Brian) (Entered: 05/08/2020)
128 ORDER: For the reasons stated herein, the Court supplements the Conference's $97,546.43 fee award by $21,953.39. Accordingly, the Conference is awarded $119,499.82 in fees and $283.75 in costs and expenses to be paid directly to the Conference's counsel. Signed by the Honorable Harry D. Leinenweber on 5/12/2020: Mailed notice (maf) (Entered: 05/12/2020)

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05/12/2020 06/02/2020 06/02/2020
06/16/2020 06/22/2020 06/30/2020 06/30/2020 07/01/2020 07/02/2020
07/06/2020

129 MINUTE entry before the Honorable Harry D. Leinenweber: Civil case terminated. Mailed notice (maf) (Entered: 05/12/2020)
130 MOTION by Defendants Jefferson Beauregard Sessions III, Matthew G Whitaker for reconsideration regarding order, 128 Supplemental Fee Award (Attachments: # 1 Exhibit A − Defendant's Response to Supplemental Fee Request)(Roberts, Charles) (Entered: 06/02/2020)
131 MINUTE entry before the Honorable Harry D. Leinenweber: Defendant's Motion for Reconsideration of the Court's Order Supplementing the United States Conference of Mayors' Award of Attorney's Fees and Expenses 130 is granted. Defendant is granted leave to file a response to Plaintiff's Supplement to its Motion for Attorney's Fees and Expenses 127 . Defendant's response is received [130−1]. Plaintiff shall file a reply on or before 6/16/20. The Court will rule by mail. Mailed notice(maf) (Entered: 06/02/2020)
132 REPLY by Plaintiff The United States Conference of Mayors to supplement 127 its Motion for Attorney Fees and Expenses (Haussmann, Brian) (Entered: 06/16/2020)
133 NOTICE of appeal by Jefferson Beauregard Sessions III, Matthew G Whitaker regarding orders 125 Receipt number: y (Roberts, Charles) (Entered: 06/22/2020)
134 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 133 . (rc, ) (Entered: 06/30/2020)
135 TRANSMITTED to the 7th Circuit the short record on notice of appeal 133 . Notified counsel (rc, ) (Entered: 06/30/2020)
136 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 133 ; USCA Case No. 20−2150 (sxb, ) (Entered: 07/01/2020)
137 ORDER: For the reasons stated in the attached order, the Court revises the Conference's fee award as follows: the initial $97,546.43 fee award is supplemented by $21,953.38. Accordingly, the Conference is awarded $119,499.81 in fees and $283.75 in costs and expenses to be paid directly to the Conference's counsel. Enter order. Signed by the Honorable Harry D. Leinenweber on 7/2/2020: The clerk is directed to supplement a copy of this order to 7th Circuit Court of Appeals forthwith. Mailed notice(maf) (Entered: 07/02/2020)
FORWARDED copy of document 137 to the USCA (mc, ) (Entered: 07/06/2020)

 
 Case: 1:18-cv-04853 Document #: 1 Filed: 07/16/18 Page 1 of 33 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CITY OF EVANSTON and THE UNITED STATES CONFERENCE OF MAYORS,

Plaintiffs,

v.

Case No. 18-cv-4853

JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as Attorney General of the United States,

Defendant.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

The United States Conference of Mayors (the “Conference”) and the City of Evanston,

Illinois (“Evanston”) (collectively, “Plaintiffs”), for their complaint against defendant Jefferson

Beauregard Sessions III (“Defendant” or the “Attorney General”), state as follows:

INTRODUCTION

1. The Conference and Evanston bring this action to stop the federal government’s

aggressive and escalating effort to force cities into becoming the deportation arm of the federal

government. The Conference and Evanston seek to enjoin the Attorney General of the United

States from imposing three sweeping and unlawful conditions on the Edward Byrne Memorial

Justice Assistance Grant Program (“Byrne JAG”)—an established federal grant program that

provides crucial support for law enforcement in hundreds of cities nationwide.

2. The Department seeks to impose three conditions on the fiscal year (“FY”) 2017

Byrne JAG funds under a cloud of uncertainty created by the Department’s increasingly

aggressive positions. As a condition of receiving FY 2017 Byrne JAG funds, the Department

requires that: (1) cities give the Department of Homeland Security (“DHS”), which includes U.S.

Immigration and Customs Enforcement (“ICE”), 48 hours’ notice, or at least as much notice “as

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practicable” prior to releasing any alien in custody to allow ICE to take custody of that individual (the “notice condition”); (2) cities give DHS officials unlimited access to local law enforcement facilities to interrogate any suspected non-citizen held there, effectively federalizing city facilities (the “access condition”); and (3) the chief legal officer of each local government certify compliance with 8 U.S.C. § 1373 (“Section 1373”), a federal statute that purports to bar local governments from restricting the sharing of immigration status information with the federal government (the “compliance condition”).
3. These three conditions are unauthorized and unconstitutional. The conditions also fly in the face of longstanding and diverse policies in Evanston and other Conference member cities that promote cooperation between immigrant communities and local law enforcement, ensure access to essential services for all residents, and make residents safer. Compliance with the conditions would require many applicants to violate local law, undermine public safety and effective policing in the cities, and undermine the cities’ policy choices. Neither federal law nor the United States Constitution permits the Attorney General to dictate local policy by imposing unauthorized conditions on a critical source of local government funding.
4. The Department’s newly imposed conditions on Byrne JAG funds are also directly at odds with Conference policy resolutions, which collectively represent the views of the nation’s mayors. In 2017 and 2018, the Conference adopted policy resolutions addressed to the federal government’s efforts to force localities to engage in federal immigration enforcement. The resolutions called for: (a) an end to unconstitutional funding threats to cities in an effort to coerce and compel them into implementing federal immigration law; (b) the end of the Department’s unconstitutionally broad interpretation of Section 1373; and (c) the award of Byrne JAG funds to municipalities without the imposition of unconstitutional conditions.
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5. Because of the Department’s imposition of the notice, access, and compliance conditions, Evanston and the Conference’s other member cities face a Hobson’s choice: agree to accept the Department’s unconstitutional grant conditions or stand on their rights and forfeit crucial Byrne JAG funds.
6. The Conference and Evanston seek a declaration that the Department’s compliance, notice, and access conditions on Byrne JAG funding are unlawful. The Conference and Evanston also seek an injunction preventing the Department from imposing the notice, access, and compliance conditions on FY 2017 Byrne JAG funds, and from including the conditions in future applications and award documents.
PARTIES 7. Plaintiff The United States Conference of Mayors is a non-profit association organized under the laws of Illinois and with its offices in the District of Columbia. As the official non-partisan organization of United States cities with populations of 30,000 or more, the Conference represents the interests of over 1,400 cities in the United States. This includes numerous cities in this federal district and in every other jurisdiction in the country. Nearly 150 million people reside in these cities. 8. Plaintiff Evanston is a municipal corporation and home rule unit of government organized and existing under the constitution and laws of the State of Illinois. Evanston was incorporated in 1857, and is home to approximately 74,895 residents, including a vibrant immigrant community. 9. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States. He is sued in his official capacity. The Attorney General is the federal official in charge of the United States Department of Justice, which took, and threatens imminently to take, the governmental actions at issue in this lawsuit.
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JURISDICTION AND VENUE 10. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1346. The Court is authorized to issue the relief sought here under the Administrative Procedure Act, 5 U.S.C. §§ 702, 705, 706, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. 11. Venue is proper in the Northern District of Illinois under 28 U.S.C. § 1391(e). Defendant is a United States officer being sued in his official capacity. Evanston resides in this judicial district and substantial events giving rise to this action occurred in this judicial district. The Conference consents to adjudication of these issues in this district.
FACTUAL ALLEGATIONS A. The Byrne JAG program provides critical funds to cities. 12. Congress established the Byrne JAG program in 2005 to serve as the primary source of federal criminal justice funding for states and localities. The Office of Justice Programs (“OJP”) within the Department oversees the program. 13. The goal of the Byrne JAG program is to allow states and local governments the “flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution” for local policing. See H.R. Rep. No. 109-233, at 89 (2005).1 To that end, the Byrne JAG program is structured as a formula grant, which awards funds to all eligible grantees according to a prescribed formula. See 34 U.S.C. § 10156(d)(2)(A) (providing that the Attorney General “shall allocate to each unit of local government” funds consistent with the established formula).
1 The Byrne JAG program was created in the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006), which in turn amended the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197.
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14. Byrne JAG funds are distributed across states and localities based on their population and relative levels of violent crime. The Byrne JAG distribution formula for states is a function of population and violent crime. 34 U.S.C. § 10156(a). The formula for local governments is a function of the state’s allocation and the ratio of violent crime in the locality to violent crime in the state. Id. § 10156(d).
15. The formula-based approach entitles cities to their share of the Byrne JAG formula allocation so long as their proposed programs meet at least one of eight broadly defined goals, see 34 U.S.C. § 10152(a)(1)(A)-(H) (listing eligible programs such as general law enforcement, prevention and education, drug treatment, and mental health), and their applications contain a series of statutorily required certifications and attestations. Id. § 10153(a).
B. The Conference was formed to address the intersection of federal and local policy and has resolved to oppose the Attorney General’s actions.
16. In 1932, during the midst of the Great Depression, the nation’s cities were close to bankruptcy and their residents were largely unemployed and without access to sufficient food, housing, law enforcement, and other necessities. In response to the appeals of mayors across the country, Congress created a $300 million federal assistance program for cities, marking the first time in the nation’s history that federal relief was provided directly to cities. A few weeks later, the Conference was founded to coordinate its cities’ interactions with the federal government.
17. Today the Conference’s member cities are home to immigrant populations that are both recent arrivals and multigenerational families. The Conference proudly recognizes that cities are diverse, multicultural centers, and that their diversity reflects core American values, fosters economic prosperity and opportunity, enriches cities’ cultures, and keeps our nation competitive and strong.
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18. The Conference’s primary roles include promoting the development of effective national city and metro-area-focused policy; strengthening federal-city relationships; ensuring that federal policy meets urban needs; providing mayors with leadership and management tools that allow them to do their jobs better; and creating a forum in which mayors share ideas, information, and best practices, and through which cities coordinate on shared policy goals.
19. Conference members speak with a united voice on organizational policies and goals. Mayors contribute to the development of national urban policy by serving on one or more of the Conference’s standing committees or in another leadership role. A list of member cities whose mayors currently serve in leadership roles is attached as Exhibit A to this complaint.
20. The adoption of a resolution is the principal means by which the Conference speaks on matters of policy. The policy positions adopted at the annual meeting collectively represent the views of the nation’s mayors.
21. Conference members met from June 23-26, 2017 for the 2017 annual meeting. The meeting was attended by over 250 mayors from cities across the country, including those from nearly every state and the Commonwealth of Puerto Rico.
22. At the annual meeting, the Conference’s members passed three resolutions recognizing the importance of immigrants to their communities, supporting immigrant rights, standing against policies that target immigrant communities, and opposing the administration’s punitive welcoming city policies.
23. First, the Conference passed a resolution titled “Opposing Punitive Sanctuary Jurisdiction Policies.” (A true and correct copy of this resolution is attached as Exhibit B to this complaint.)
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24. This resolution reflected the Conference members’ considered judgment that,
among other things:
(a) Many local jurisdictions determined that their local law enforcement efforts and personnel have neither the authority, the priority, nor the resources to serve as immigration enforcement officers;
(b) Trust between local law enforcement and the communities they serve is critical to preventing, solving, and prosecuting crimes, and many jurisdictions determined that having local law enforcement officers serve as immigration officers would break that trust;
(c) Many local jurisdictions and authorities lack the law enforcement resources to act as immigration officers at the expense of local law enforcement priorities; and
(d) Cities and other local government entities must have the discretion to make individualized determinations relative to local values, expenditure of resources, priorities, and liabilities assumed, all taking into account that immigrants residing in the nation’s cities must be able to trust all of city government that their Fourth Amendment rights will be guaranteed, and that local law enforcement efforts to build trust and supportive relationships with all communities are essential to preventing and prosecuting crime and helping victims.
(Ex. B at 1-2.)
25. Accordingly, the Conference resolved to:
(a) Oppose punitive sanctuary jurisdiction policies that limit local control and discretion;
(b) Urge Congress, the administration, and states to pursue immigration enforcement policies that recognize that local law enforcement has limited resources and community trust is critical to local law enforcement and community safety; and
(c) Oppose federal and state policies that commandeer local law enforcement or require local authorities to (i) violate, or be placed at risk of violating, a person’s Fourth Amendment rights; (ii) expend limited resources to act as immigration agents; or (iii) otherwise assist federal immigration authorities beyond what is determined by local policy.
(Id. at 2-3.)
26. Second, the Conference passed a resolution titled “Supporting Immigrants,
Refugees and Asylum Seekers and Standing Against Discriminatory and Harmful Policies that
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Target These Vulnerable Communities.” (A true and correct copy of this resolution is attached as Exhibit C to this complaint.) This resolution recognized that cities across America are home to immigrant populations, including recent arrivals and multigenerational families; that immigrants contribute to cities in important ways; and that the administration has nonetheless antagonized and intimidated immigrant communities through executive orders and by threatening punitive actions against welcoming cities. (Ex. C at 1.) The Conference thus resolved to call on Congress to act against policies that discriminate against and target immigrants, and to oppose “the Administration’s efforts to hold immigrants hostage as bargaining chips to threaten withholding federal funding from cities across the nation.” (Id. at 1-2.)
27. Third, the Conference passed a resolution titled “Supporting Immigrant Rights.” (A true and correct copy of this resolution is attached as Exhibit D to this complaint.) This resolution recognized that the United States is enriched by the diversity of immigrants; that cities are diverse, multicultural centers that reflect core American values and foster economic prosperity; and that data shows that welcoming cities are stronger economically and safer than other cities. (Ex. D at 1.) In addition, the resolution recognized that the federal government seeks to restrict funding to welcoming jurisdictions and coerce cities into becoming the deportation arm of the federal government, which undermines mayors’ abilities to ensure community safety by eroding trust between local law enforcement and residents. (Id. at 1-2.) The Conference thus resolved to “call for an end to unconstitutional federal funding threats to states and local governments in an effort to coerce and compel them into implementing federal immigration law,” and to “urge members of Congress to withdraw legislation that attempts to cut local law enforcement funding necessary to ensure the safety of our communities.” (Id. at 2.)
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28. From June 8-11, 2018, Conference members met in Boston for this year’s annual meeting. More than 240 mayors from cities across the country attended, including those from nearly every state and the Commonwealth of Puerto Rico.
29. At the 2018 annual meeting, the Conference’s members adopted an additional resolution, titled “Opposing Unconstitutional Requirements Placed on Byrne JAG Funding and Urging the Immediate Awarding of FY 2017 Byrne JAG Grants.” (A true and correct copy of this resolution is attached as Exhibit E to this complaint.) The resolution stated that cities “will not be bullied, intimidated or coerced into making a false choice between grants with offensive conditions attached, on the one hand, and our values as welcoming cit[ies] and the principles of community policing, on the other.” (Ex. E at 1.) The resolution recognized that the Department does not have the authority to impose new conditions on a grant program created by Congress and “cannot commandeer local law enforcement to carry out federal immigration law functions.” (Id. at 2.) The Conference resolved to call on the Department “to award Byrne JAG funds to municipalities without imposing additional unconstitutional conditions.” (Id. at 3.)
30. Each of these resolutions passed with a wide majority of the Conference members present for the annual meetings. In fact, after conclusion of a vote on a proposed resolution that passes, a member mayor who attended the vote may request to be recorded as having voted “No” on that specific resolution. Only five mayors in attendance at the annual meeting recorded a no vote as to any of the three 2017 resolutions. Only one mayor in attendance at the 2018 annual meeting recorded a no vote as to the 2018 resolution.
C. Conference members rely on Byrne JAG funds. 31. Many Conference members rely on Byrne JAG funds for critical law enforcement needs in their cities. (See, e.g., Ex. A.) As such, the Conference has long supported the Byrne
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JAG program. 2 Over the past decade, Conference members have routinely applied for and
received those funds.
32. Evanston, a Conference member, first received Byrne JAG funds in 2009 and has
received funds every year since. Evanston uses Byrne JAG funds to train officers through the
Police Learning Institute, pay personnel, and to purchase equipment. In FY 2016, Evanston
received $14,685 through the Byrne JAG program.
33. Evanston receives its Byrne JAG funds through the application submitted by
Chicago, Illinois. Because Chicago’s costs of preventing and investigating violent crimes exceed
those of surrounding jurisdictions, 34 U.S.C. § 10156(d)(4) obligates Chicago to file a Byrne
JAG application on behalf of itself and other, neighboring communities, including Evanston.
34. Many of the Conference’s members use Byrne JAG funds for diverse purposes,
reflecting both the varied law enforcement needs of different communities and Congress’s intent
to preserve local discretion and flexibility in Byrne JAG-funded law enforcement programs.
These include, for example, the following Conference members:
(a) Iowa City, Iowa (population 74,398) uses Byrne JAG funds to promote traffic safety, to establish a search and rescue program aimed at individuals at risk for wandering, to partially fund a drug task force, and to purchase equipment.
(b) Los Angeles, California (population 3,792,621) uses Byrne JAG funds for its Community Law Enforcement and Recovery (CLEAR) program, which aims to reduce gang violence in the city and rehabilitate communities that experienced significant crime. The program promotes and funds special criminal investigative units, an aggressive vertical prosecutorial program, probation and parole officers, youth intervention organizations, and schools.
(c) New Orleans, Louisiana (population 391,495) uses Byrne JAG funds on gun violence reduction initiatives, alternatives to incarceration for municipal court, diversion programs for eligible defendants with mental illness, pre-trial and probation advocacy, domestic violence monitoring court, and technology
2 See The U.S. Conference of Mayors, Public Safety First Resolution, June 2012, available at http://www.greenandhealthyhomes.org/sites/default/files/AdoptedResolutionsFull1.pdf.
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upgrades including body cameras and audio surveillance equipment for its police force.
(d) New York, New York (population 8,175,133) uses Byrne JAG funds to support a wide range of programs, including efforts to improve the collection, organization and evaluation of criminal justice data; a specialized unit that investigates illegal hotels, building violations, and illegal adult establishments; initiatives to reduce the number of people with mental and behavioral needs who cycle through the criminal justice system by connecting them with interventions and services; and initiatives to ensure the safety of students and reduce crime in schools. In addition, the City’s five District Attorneys use Byrne JAG funds to support many programs, including the Kings County Drug Treatment Alternative-to-Prison program, which diverts hundreds of nonviolent offenders to community-based residential drug treatment programs, and the New York County Cybercrime and Identity Theft Bureau, which protects the public and institutions from organized cybercrime and identity theft schemes.
(e) Portland, Oregon (population 639,863) has used Byrne JAG funds to support its New Options for Women (NOW) program, which provides services to women who experienced sexual exploitation while working in the commercial sex industry.
(f) Providence, Rhode Island (population 178,042) uses Byrne JAG funds to pay personnel to conduct targeted enforcement patrols and to contract with Family Service of Rhode Island for the services of a part-time Bilingual Police Liaison.
(g) Sacramento, California (population 493,025) uses Byrne JAG funds to support the ongoing maintenance and operations of its Police Department’s helicopter program.
35. Many other Conference members receive Byrne JAG funds and use them for still
different, but no less critical, law enforcement purposes. These members include cities listed
separately on Exhibit A, and many other cities like them.
D. The Conference, Evanston, and other Conference members promote policies of cooperation between local law enforcement and immigrants.
36. In exercising its discretion over local law enforcement policy, Evanston made the
considered judgment that devoting local resources to immigration enforcement would be
detrimental to community safety, and that concerns for safety are best addressed by promoting a
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policy of cooperation between local law enforcement and immigrants. This policy judgment is codified in Evanston’s “Welcoming City Ordinance.” See Evanston City Code § 1-22.
37. Evanston’s Welcoming City Ordinance reflects the Evanston City Council’s findings that “the 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” and that one of Evanston’s “most important goals is to enhance the City’s relationship with the immigrant communities.” Id. § 1-22-2.
38. In its current form, the Welcoming City Ordinance, codified as Chapter 22 of the Evanston City Code, contains several key provisions relevant to this lawsuit, including:
(a) Subject to certain exceptions, no Evanston agent or agency shall “[s]top, arrest, search, detain or continue to detain a person solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation.” §1-22-10(A)(1).
(b) Subject to certain exceptions, no Evanston agent or agency shall “[d]etain, or continue to detain, a person based upon an immigration detainer, when such immigration detainer is based solely on a violation of a civil immigration law.” § 1-22-10(A)(3).
(c) Nothing in section 1-22-10 “prohibits communication between federal agencies or officials and law enforcement or officials.” §1-22-10(D).
(d) Except as otherwise provided by federal law, no Evanston agent or agency shall disclose citizenship or immigration status information “unless required to do so by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains.” § 1-22-8.
39. These and the other provisions of the Welcoming City Ordinance play a vital role in strengthening the relationship between Evanston’s government, its police force, and its immigrant community. It is essential that Evanston’s police officers have the flexibility needed to engage the immigrant community in their crime-fighting initiatives without projecting a constant threat of deportation.
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40. Evanston is not alone. Many other Conference members have adopted similar
policies. These include, for example, Gary, Indiana; Los Angeles, California; New Orleans, Louisiana; New York, New York; Philadelphia, Pennsylvania; and Providence, Rhode Island. 3
41. Welcoming city policies and similar policies are sound. One study found that
“crime is statistically significantly lower in sanctuary counties compared to nonsanctuary counties . . . controlling for population characteristics.”4 Indeed, a broad coalition of police
chiefs explained that “build[ing] trusting and supportive relations with immigrant communities . . . is essential to reducing crime and helping victims.”5
42. Welcoming city policies are rooted in the judgment that restricting entanglement
with ICE secures and enhances community trust in local law enforcement. Local law
enforcement relies upon all community members (regardless of immigration status) to report
crimes, serve as witnesses, and assist in investigations and prosecutions. Indeed, in the
Conference members’ experience, even the perception that local law enforcement is assisting in
immigration enforcement can erode trust, disrupt lines of communication, and make law
enforcement’s job much more difficult.
3 Gary – Ordinance No. 9100; The Los Angeles Police Department & Federal Immigration Enforcement: Frequently Asked Questions, available at http://assets.lapdonline.org/assets/pdf/immigrationfaq.pdf; New Orleans – New Orleans Police Department Operations Manual, Chapter 41.6.1, available at https://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/Chapter-41-6-1-Immigration-Statusapproval.pdf/; New York – Executive Order Nos. 34 and 41, available at https://www1.nyc.gov/assets/immigrants/downloads/pdf/eo-34.pdf and https://www1.nyc.gov/assets/immigrants/downloads/pdf/eo-41.pdf; Philadelphia – Executive Order No. 16, available at https://www.ilrc.org/sites/default/files/resources/2016-01_philadelphia_pep_order.pdf; Providence – Resolution of the City Council, available at https://www.ilrc.org/sites/default/files/resources/providence_resolution.pdf. 4 Tom K. Wong, Center for American Progress, The Effects of Sanctuary Policies on Crime and the Economy 6 (2017), http://tinyurl.com/y75lsykd. 5 Press Release, Major Cities Chiefs Ass’n, U.S. Mayors, Police Chiefs Concerned with Sanctuary Cities Executive Order (Jan. 25, 2017), http://tinyurl.com/y8zqhypw.
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43. For these reasons, the Conference has for years opposed the federal government’s attempts to penalize cities that adopt welcoming city policies such as those cited above. In 2015, for example, the Conference opposed Senate Bill 2146, the “Stop Sanctuary Policies and Protect Americans Act,” which proposed to deny Community Development Block Grants and other federal aid to cities that adopted policies like those identified above.
44. Shifting the federal responsibility of enforcing civil immigration law to local governments diverts critical resources from their law enforcement agencies, compromises public safety, and hinders local police department policies. The Conference continues to oppose similar legislation when proposed (none of which Congress passed).
E. The Department imposed three unlawful conditions on FY 2017 Byrne JAG funds.
45. For over a decade, the Department administered the Byrne JAG program as Congress intended: funding critical local law enforcement initiatives without seeking to leverage funding to conscript local agencies to enforce federal immigration law. But now the Department seeks to impose three conditions on FY 2017 Byrne JAG funds under a cloud of uncertainty created by the Department’s increasingly aggressive positions: (1) the notice condition; (2) the access condition; and (3) the compliance condition. Each condition is unauthorized and unlawful.
1. The notice condition 46. The FY 2017 Byrne JAG solicitation stated that the awards would be conditioned on grant applicants providing “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 pursuant to the Immigration and Nationality Act.” (A true and correct copy of the U.S. Dep’t of Justice, Edward Byrne Memorial Justice Assistance Grant
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Program FY 2017 Local Solicitation is attached as Exhibit F and is available at https://www.bja.gov/Funding/JAGLocal17.pdf. The quoted language is found at page 30.)
47. The FY 2017 Byrne JAG award documents, which the Department recently sent jurisdictions around the country, revise and expand on what the notice condition entails. From the date a city accepts the award and throughout the time of the award’s performance, each city must have in place an “ordinance, -rule, -regulation, -policy, or -practice . . . designed to ensure that, when a local-government (or local-government-contracted) correctional facility receives from DHS a formal written request . . . that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and – as early as practicable . . . provide the requested notice to DHS.” (A true and correct copy of the Department’s sample award document is attached as Exhibit G and is available at https://www.bja.gov/Jag/SampleAwardDocument/. The quoted language is found at page 19.) The award document specifies that DHS currently requests notice “as early as practicable (at least 48 hours, if possible).” (Ex. G at 18.)
2. The access condition 48. The FY 2017 Byrne JAG solicitation stated that the awards would also be conditioned on grant applicants permitting “personnel of the [DHS] to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States.” (Ex. F at 30.) The requirement appears to mandate that federal immigration agents be given unprecedented and unfettered access to local law enforcement facilities and to any person being held there. 49. The FY 2017 Byrne JAG award documents revise and expand on what the notice condition entails. From the date a city accepts the award and throughout the time of the award’s performance, each city must have in place an “ordinance, -rule, -regulation, -policy, or -practice .
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. . designed to ensure that [any, not just DHS] agents of the United States are given access [to] a local-government (or local-government-contracted) correctional facility” to permit the federal “agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in the United States.” (Ex. G at 19.)
3. The compliance condition 50. The FY 2017 Byrne JAG solicitation stated that to validly accept an award, a local government must certify compliance with Section 1373. In fact, the application required certifications by both a city’s chief legal officer and its chief executive. (Ex. F at 22-23.) 51. Section 1373 provides that state and local entities may not “prohibit, or in any way restrict” their entities and officials from sending or receiving citizenship or immigration status information from or to DHS. 8 U.S.C. § 1373(a). Section 1373 further states that no person or agency may “prohibit, or in any way restrict” state and local entities from sending, requesting, or receiving immigration status information from or to DHS; maintaining immigration status information; or exchanging immigration status information with other entities. 8 U.S.C. § 1373(b). 52. The FY 2017 Byrne JAG award documents revise and expand on what the compliance condition entails. The compliance condition is set forth in three separate award conditions⸻ Conditions 52, 53, and 54. Condition 52 requires a local government to submit a certification of compliance with Section 1373 signed by the chief legal officer. (Ex. G at 15.) Condition 53 requires ongoing compliance with Section 1373, and requires subrecipients (i.e., those who receive their funds through another applicant) to certify compliance with Section 1373. (Id. at 16.)
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F. The conditions are ambiguous, arbitrary, and without justification. 53. The Department imposed the notice, access, and compliance conditions without any explanation, reasoning, or opportunity for exchange with local governments or law enforcement. In early July 2017, after demanding that cities justify their compliance with Section 1373, the Department cryptically announced that “[s]ome” jurisdictions “potentially violate” Section 1373, without indicating which certifications it found lacking and without identifying any defect.6 54. In late July 2017, shortly before the Byrne JAG application for FY 2017 was set to go online, the Department suddenly announced significant changes to the Byrne JAG application process in a two-paragraph press release and accompanying press “backgrounder” document.7 The Department’s press release failed to explain how the Department arrived at the new conditions or what alternatives it considered. The press release was silent as to the Byrne JAG program’s purpose and how the notice, access, and compliance conditions relate to, let alone serve to advance, the program’s interests. The Department also failed to provide any guidance as to how the conditions will operate in practice. 55. The notice, access, and compliance conditions are ambiguous, leaving cities uncertain as to how to comply. The ambiguity threatens to induce unconstitutional action. For example, the notice condition would require cities to detain individuals longer than they otherwise would, potentially violating the individuals’ Fourth Amendment rights and state law and thereby expose these cities to liability; the access condition would demand that cities open
6 Press Release, U.S. Dep’t of Justice, Department of Justice Reviewing Letters from Ten Potential Sanctuary Jurisdictions (July 6, 2017), http://tinyurl.com/ybdhf7vy. 7 See Press Release, U.S. Dep’t of Justice, Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs (July 25, 2017), https://tinyurl.com/y9ttqhsl; U.S. Dep’t of Justice, Backgrounder on Grant Requirements, https://tinyurl.com/ycfgbgl4.
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their facilities to federal officials without regard to local detention needs. Evanston Police Department regulations and those of many Conference member cities’ police forces require that individuals arrested without a warrant be released or transferred to court without unnecessary delay, but in any event no later than 48 hours after arrest. See, e.g., Evanston Police Department Policy Manual § 900.3. Such matters are also informed by the law of many states, which require that certain detainees be released within 48 hours. See, e.g., Ill. Admin. Code §§ 720.30, 720.150.
56. Just as fundamentally, complying with the notice and access conditions would undermine public safety. Welcoming city policies assist effective policing by building trust between law enforcement officers and the immigrant community. Conversely, policing suffers when community members, whatever their immigration status, do not feel free to report crimes, assist in investigations, or testify as witnesses. The Department’s insistence that cities nationwide give immigration enforcement agents on-demand access to their detention facilities to investigate potential civil immigration violations, and that cities detain individuals solely so to allow the investigation of possible civil immigration violations, undermines crucial public trust, cuts local law enforcement efforts off at the knees, and makes everyone in these cities less safe.
G. The Department lacks any authority to impose the three conditions. 57. No legal basis exists for the three conditions. The Byrne JAG statute gives the Department no authority to impose the notice, access, and compliance conditions on Byrne JAG funds. Congress repeatedly demonstrates its ability (when it so desires) to expressly confer agency discretion to add substantive conditions to federal grants. In the same statute that includes the Byrne JAG grant, the Omnibus Crime Control and Safe Streets Act of 1968, Congress created a different grant program that expressly authorized administering agencies to impose reasonable grant conditions. See 34 U.S.C. § 10446(e)(3) (Attorney General may “impose
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reasonable conditions on grant awards . . . .”). And Congress expressly conferred such authority in other federal grant programs. See, e.g., 47 U.S.C. § 1204(b)(2) (Under Secretary of Commerce can “establish such conditions . . . as may be appropriate to ensure the efficiency and integrity of the grant program”); 25 U.S.C. § 1652(b) (similar).
58. The Byrne JAG statute gives the Attorney General limited ministerial authority to specify the “form” of the application, 34 U.S.C. § 10153(A) (requiring jurisdictions to submit an application containing the enumerated components “in such form as the Attorney General may require”). However, the statute nowhere authorizes the Attorney General or the Department to impose additional substantive conditions to the application. Indeed, doing so would upend Congress’s formula approach for distributing funds based on population and violent crime, and instead allocate grants using criteria invented by the Department.
59. Although the Byrne JAG statute requires that grantees comply with “all applicable Federal laws,” that phrase refers to the host of laws that regulate the conduct of federal grant recipients as grant recipients.8 It does not refer to every section of the U.S. Code that could possibly apply to a state or local government. Section 1373 does not regulate grantees as grantees nor do its terms mention federal grants or funds. In fact, none of the three conditions concerns applicable federal requirements. Each condition addresses civil immigration
8 See, e.g., 41 U.S.C. § 4712(a)(1) (“An employee of a contractor, subcontractor, grantee, or subgrantee or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body . . . information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds . . . .”); 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”); 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.”).
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enforcement, which is wholly inapplicable to criminal justice grants. In addition, there is no federal law requiring cities to provide ICE with “at least 48 hours’ advance notice” before releasing anyone in custody, and no federal law requires local police departments to give DHS officials access to detention facilities.
60. In fact, Congress considered, but did not pass, legislation that would penalize cities for seeking to set their own law enforcement priorities. See Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. (2015) (proposing funding cuts for any sanctuary jurisdiction that violates Section 1373 or “prohibits any government entity or official from complying with a detainer”). Notably, however, Congress never passed legislation authorizing the executive branch to impose any penalty on local jurisdictions based on the refusal to comply with detainer or other immigration enforcement requests.
61. The notice, access, and compliance conditions represent a sharp break with past agency practice. The Department never before imposed any conditions of this nature on Byrne JAG funds.
62. The three conditions also violate core constitutional principles. Separation of powers principles operate as independent restraints on cooperative federalism arrangements like the Byrne JAG program. The Constitution gives the spending power to Congress, not the executive branch. Federal agencies therefore may not invent funding conditions out of whole cloth.
63. The notice, access, and compliance conditions also run afoul of the Tenth Amendment. The anti-commandeering principle ensures that the sovereign states are free to legislate as they see fit to promote the safety and welfare of their residents. The principle forbids
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Congress to “unequivocally dictate[] what a state [or local] legislature may and may not do.” Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018).
64. Section 1373 “unequivocally dictates” to cities that they may not promulgate policies or regulations that prohibit local officials from sharing immigration status information with federal officials. Id.; see, e.g., City of Philadelphia v. Sessions, No. 17-3894, 2018 WL 2725503, at *28-33 (E.D. Pa. June 6, 2018); accord United States v. California, No. 2:18-cv490-JAM-KJN, 2018 WL 3301414, at *14 (E.D. Cal. July 5, 2018) (“The Court finds the constitutionality of Section 1373 highly suspect.”).
65. The notice and access conditions “unequivocally dictate[]” to cities that they must enact ordinances or policies concerning the administration of detention facilities and providing advance notification to federal officials. The notice condition seeks to fundamentally reorganize the way the Conference’s members balance their Fourth Amendment obligations against their interest in effective law enforcement. The access condition requires a fundamental restructuring of police procedures and functions to accommodate on-demand access to detainees by federal agents. The federalization of bedrock local government functions violates the Tenth Amendment’s anti-commandeering principle. See Murphy, 138 S. Ct. at 1477 (“The Federal Government may not command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”) (quoting Printz v. United States, 521 U.S. 898, 935 (1997)).
H. The Department’s unlawful conditions will injure Evanston and the Conference’s other members, forcing them to choose between vital law enforcement funding and their constitutional rights.
66. Evanston and the Conference’s other members now face an impossible choice: sacrifice their sovereignty and their residents’ safety by acceding to unlawful funding demands that will undermine community-officer trust and cooperation, or forfeit crucial monies used to
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fund essential policing operations. The Department cannot force the Conference’s members to choose between their right to exercise municipal sovereignty and their right to receive formula grant funds that Congress allocated to them.
67. The importance of Byrne JAG funds and the choice cities now face is underscored by the number of local governments challenging the conditions. In August 2017, the City of Chicago, a member of the Conference, filed a lawsuit challenging the three unauthorized and unconstitutional Byrne JAG conditions. City of Chicago v. Sessions, Case No. 17-cv-5720 (N.D. Ill.) (Leinenweber, J.) In addition to Chicago, the State of Illinois, City of Philadelphia, City and County of San Francisco, City of Los Angeles, State of California, and City of West Palm Beach filed lawsuits challenging the Byrne JAG conditions.9
68. On September 15, 2017, the district court granted Chicago’s motion for a nationwide preliminary injunction as to the notice and access conditions because Chicago was likely to succeed on its claims that the Department lacked the authority to impose those conditions. City of Chicago v. Sessions, 264 F. Supp. 3d 933, 943, 951 (N.D. Ill. 2017) (“The notice and access conditions exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires.”).
69. On September 26, 2017, the Attorney General filed a motion to stay the nationwide preliminary injunction. Chicago, No. 17-cv-5720, Dkt. 80. Two days later, on September 28, 2017, counsel for the Conference appeared at the presentment of the Attorney General’s motion to stay and alerted the court that the Conference intended to seek leave to
9 State of Illinois v. Sessions (No. 18-cv-4791, N.D. Ill.); City of Philadelphia v. Sessions (No. 17-3894, E.D. Pa.); City & County of San Francisco v. Sessions (No. 17-4642, N.D. Cal.); City of Los Angeles v. Sessions (No. 17-7215, C.D. Cal.); State of California v. Sessions (No. 17-4701, N.D. Cal.); City of West Palm Beach v. Sessions (No.18-cv-80131, S.D. Fla.).
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intervene in the case. The Conference filed its motion to intervene on October 6, 2017. Id., Dkt. 91.
70. On November 16, 2017, the district court denied the Conference’s motion to intervene. At that time, the district court explained that the Conference “can represent the interests of its members who may suffer an impending injury caused by the defendant’s acts.” Chicago, 2017 WL 5499167, at *5 (N.D. Ill. Nov. 16, 2017). However, the court denied intervention because the nationwide injunction in place at the time protected the Conference’s member cities’ interests. Id. at *9-10 (“Unless and until the status of the nationwide injunction changes, there is no reason to permit an intervention that will further complicate this litigation.”).
71. On April 19, 2018, the United States Court of Appeals for the Seventh Circuit affirmed the district court’s grant of a nationwide injunction as to the notice and access conditions. City of Chicago v. Sessions, 888 F.3d 272, 293 (7th Cir. 2018). The panel unanimously concluded 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,” and two of the three judges held that the district court “did not abuse its discretion in granting the nationwide preliminary injunction.” Id.
72. The Attorney General subsequently filed a petition for rehearing en banc as to the scope of the preliminary injunction. Chicago, No. 17-2991, Dkt. 119. Notably, the Attorney General did not request rehearing on the Seventh Circuit’s decision that Chicago established a likelihood of success on its claims that the Attorney General lacked authority to impose the notice and access conditions.
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73. On June 4, 2018, the Seventh Circuit voted to partially rehear the case en banc “only as to the geographic scope of the preliminary injunction entered by the district court.” Chicago, No. 17-2991, Dkt. 128. On June 26, 2018, the Court stayed the preliminary injunction issued by the district court “as to geographic areas in the United States beyond the City of Chicago pending the disposition of the case by the en banc court.” Chicago, No. 17-2991, Dkt. 134.
74. Even though the Attorney General did not appeal the Seventh Circuit’s decision that Chicago was likely to succeed on the merits of its claims that the Attorney General lacks the authority to impose the notice and access conditions, the Department began issuing FY 2017 Byrne JAG award notification documents as soon as the Seventh Circuit stayed the preliminary injunction as to geographic areas outside the City of Chicago. A few hours after the Seventh Circuit stayed the nationwide injunction, on June 26, 2018, the Department issued FY 2017 Byrne JAG award notifications to Conference member cities. (See Ex. A.) Upon information and belief, the Department issued awards containing all three challenged conditions to hundreds of municipalities.10
75. However, the Department continues to withhold FY 2017 Byrne JAG award documents from many Conference member cities, including the cities located within Illinois, Wisconsin, Indiana, California, Oregon, and Vermont. The Department’s refusal to disperse the FY 2017 Byrne JAG funds to certain states and local governments adds confusion and uncertainty to the award process.
76. The Department’s imposition of the notice, access, and compliance conditions and its continued refusal to issue awards to certain cities pose a threat of imminent harm to Evanston
10 See https://ojp.gov/funding/Explore/OJPAwardData htm. -24-

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and the Conference’s other members. Without Byrne JAG funds, Evanston and the Conference’s other members will have to shut down important local programs; change program staffing, scope, or goals; or divert funds from other policing objectives to sustain the programs.
77. The Conference and Evanston, therefore, bring this action and seek to enjoin the Attorney General from imposing the unlawful conditions.
COUNT ONE: ULTRA VIRES 78. The Conference and Evanston incorporate by reference the preceding paragraphs’ allegations. 79. The Department of Justice may only exercise authority conferred by statute. 80. The Department lacks statutory authority to condition Byrne JAG funds on the notice, access, and compliance conditions. Indeed, such authority is at odds with the text, structure, and purpose of the Byrne JAG statute. 81. The Byrne JAG statute gives the Department no authority to impose additional substantive grant conditions on Byrne JAG funds. City of Chicago v. Sessions, 888 F.3d 272, 285 (7th Cir. 2018). The Department lacks statutory authority to impose the notice, access, and compliance conditions on Byrne JAG funds. The three conditions are not “applicable Federal law” and do not deal with the administration and spending of funds. 82. The formula-grant structure of the Byrne JAG program also contradicts the Department’s purported authority to promulgate the conditions. Unlike discretionary grants, which agencies award on a competitive basis subject to agency discretion, formula grants are awarded pursuant to a statutory formula. If the Department had the authority to impose new substantive conditions on all grantees, the effect would be to contradict Congress’s formula and reallocate funds to jurisdictions that adopted the Department’s preferred policy. It would also contradict Congress’s intent to give states and local governments the “flexibility to spend money
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for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005).
83. As a direct and proximate result of these unlawful conditions, Evanston and the Conference’s other members will be forced to accept unlawful and unconstitutional grant conditions or forego Byrne JAG funds and shut down the programs the funds support.
84. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, the Conference and Evanston are entitled to a declaration that the Attorney General is without authority to impose the notice, access, and compliance conditions on FY 2017 Byrne JAG funds; and a permanent injunction preventing the conditions from going into effect.
COUNT TWO: SEPARATION OF POWERS 85. The Conference and Evanston incorporate by reference the preceding paragraphs’ allegations. 86. The Constitution vests the spending power in Congress, not the executive branch. U.S. Const. art. I § 8, cl. 1. Absent a statutory provision or express delegation, only Congress is entitled to attach conditions to federal funds. 87. The executive branch “does not have unilateral authority to refuse to spend . . . funds” that Congress already appropriated “for a particular project or program.” In re Aiken Cty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013); see also Train v. City of New York, 420 U.S. 35, 44 (1975). Imposing a new condition on a federal grant program amounts to refusing to spend money appropriated by Congress unless that condition is satisfied. 88. The notice condition was not imposed by Congress, but rather by the Department in issuing the FY 2017 Byrne JAG application. Therefore, the notice condition amounts to improper usurpation of Congress’s spending power by the executive branch.
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89. The access condition was not imposed by Congress, but rather by the Department in issuing the FY 2017 Byrne JAG application. Therefore, the access condition amounts to improper usurpation of Congress’s spending power by the executive branch.
90. The compliance condition was not imposed by Congress, but rather by the Department in issuing its OJP guidance and the FY 2016 and FY 2017 Byrne JAG applications. Therefore, the compliance condition amounts to improper usurpation of Congress’s spending power by the executive branch.
91. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, the Conference and Evanston are entitled to a declaration that the notice, access, and compliance conditions for the FY 2017 Byrne JAG funds violate the constitutional principle of separation of powers and impermissibly arrogate to the executive branch power that is reserved to the legislative branch; and a permanent injunction preventing the conditions from going into effect.
COUNT THREE: SPENDING CLAUSE 92. The Conference and Evanston incorporate by reference the preceding paragraphs’ allegations. 93. Not only did Congress not authorize (expressly or impliedly) the notice, access, and compliance conditions; but Congress could not have authorized the conditions because they do not satisfy additional requirements of the Spending Clause. 94. First, the notice, access, and compliance conditions are not germane to the stated purposes of the Byrne JAG funds. None of the conditions are relevant to the federal interest in the Byrne JAG funds that Conference members receive or to the Byrne JAG program generally. 95. The notice and access conditions are not relevant to the federal interest in the Byrne JAG funds the Conference’s members receive. Information about when detainees will be released, and policies related to access for federal agents bear no relevance to the purchase of
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equipment, community programs, or other uses to which Conference members put Byrne JAG funds.
96. The compliance condition is not relevant to the federal interest in the Byrne JAG funds the Conference’s members receive. Sharing information about immigration status with federal officials bears no connection to the purchase of equipment, community programs, or other uses to which Conference members put Byrne JAG funds.
97. The compliance, notice, and access conditions also are not relevant to the federal interest in the Byrne JAG program more generally. The conditions actively undermine Congress’s goals of dispersing funds across the country, targeting funds to combat violent crime, and respecting local judgment in setting law enforcement strategy.
98. Second, the notice, access, and compliance conditions would impermissibly induce Byrne JAG recipients to engage in unconstitutional activity.
99. The Spending Clause prohibits the federal government from imposing spending conditions to “induce the States to engage in activities that would themselves be unconstitutional.” S. Dakota v. Dole, 483 U.S. 203, 210 (1987). The three conditions seek to require Byrne JAG recipients to engage in unconstitutional activity, such as detaining individuals without probable cause in violation of the Fourth Amendment.
100. Third, the notice, access, and compliance conditions are unconstitutionally ambiguous.
101. Federal restrictions on state and local funding must be articulated unambiguously to allow the recipient to knowingly accept the conditions and ascertain what is expected.
102. The three conditions are ambiguous as to what is expected of grant recipients, particularly given Evanston’s and other Conference members’ welcoming city policies and other
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relevant policies and practices. The conditions do not provide cities with notice to make a choice knowingly and cognizant of the consequences of their participation.
103. Many interpretations of the three conditions raise serious constitutional concerns. Where a grant recipient must resolve tension between the Constitution and a federal agency’s informal interpretation announced in a guidance document to ascertain what is expected of it, a condition cannot be characterized as unambiguous.
104. The compliance condition is ambiguous, and many interpretations of the condition raise serious constitutional concerns. Section 1373 uses sweeping language with no discernable limiting principle. The Department added to the confusion by suggesting without explanation that Section 1373 implicates a wide range of state and local governance practices, from formal laws to informal cultural norms. In addition, the Department compounded the confusion by questioning the compliance of many jurisdictions with Section 1373 without deciding whether the Department believes those jurisdictions’ policies comply.11
105. Fourth, the notice, access, and compliance conditions are unconstitutionally coercive.
106. The Spending Clause prohibits grant conditions that are “so coercive as to pass the point at which ‘pressure turns into compulsion.’” Dole, 483 U.S. at 211 (citation omitted).
107. As a direct and proximate result of the notice, access, and compliance conditions, the Conference’s members are forced to either accept unlawful and unconstitutional grant conditions or forego Byrne JAG funds. The three conditions threaten financial consequences that exceed the point at which pressure turns to constitutionally impermissible compulsion.
11 Press Release, U.S. Dep’t of Justice, Department of Justice Reviewing Letters from Ten Potential Sanctuary Jurisdictions (July 6, 2017), http://tinyurl.com/ybdhf7vy.
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108. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, the Conference and Evanston are entitled to a declaration that the notice, access, and compliance conditions for the FY 2017 Byrne JAG funds violate the Constitution’s Spending Clause; and a permanent injunction preventing the conditions from going into effect.
COUNT FOUR: COMMANDEERING 109. The Conference and Evanston incorporate by reference the preceding paragraphs’ allegations. 110. The Tenth Amendment prohibits the federal government from requiring states and localities “to administer or enforce a federal regulatory program.” Murphy v. NCAA, 138 S. Ct. 1461, 1477 (2018). The anti-commandeering principle prevents the federal government from shifting the costs of regulation to states and local governments. Id. Where the “whole object” of a federal statutory provision is to “direct the functioning” of state and local governments, that provision is unconstitutional and must be enjoined. Printz, 521 U.S. at 932, 935; New York v. United States, 505 U.S. 144, 186-187 (1992). That description precisely fits each of the three conditions. 111. When Congress enacted Section 1373, it sought to ensure that “[t]he acquisition, maintenance, and exchange of immigration-related information by State and local agencies” could be used to enforce federal law. S. Rep. No. 104-249, at 19-20 (1996). In doing so, it sought to “require [state and local officers] to provide information that belongs to the State and is available to them only in their official capacity”—in other words, to engage in unconstitutional commandeering. Printz, 521 U.S. at 932 n.17. 112. Further, Section 1373 prohibits state and local governments from engaging in a core aspect of governing: controlling the actions of their own employees. Compliance with Section 1373 results in the federal government commandeering cities by directing how city
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personnel should act and handle data under local control to advance a federal program. In fact, the Department instructed that states and local governments may need to provide affirmative instruction to employees to comply.12 Section 1373 requires local officers to follow federal directives and usurps the local policymaking process.
113. The notice and access condition impermissibly commandeer cities and cannot be validly imposed on Byrne JAG funding recipients. The notice condition seeks to fundamentally reorganize not just how cities’ officers spend their time, but also the way the Conference’s members balance their Fourth Amendment obligations against their interest in effective law enforcement. The access condition requires a fundamental restructuring of police procedures and functions to accommodate on-demand access to detainees by federal agents.
114. As a direct and proximate result of these unconstitutional conditions, the Conference’s members will be forced to accept unlawful and unconstitutional grant conditions or forego Byrne JAG funds and shut down or materially alter the programs the funds support.
115. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, the Conference and Evanston are entitled to a declaration that the notice, access, and compliance conditions for the FY 2017 Byrne JAG funds violate the Tenth Amendment; and a permanent injunction preventing the conditions from going into effect.
COUNT FIVE: ADMINISTRATIVE PROCEDURE ACT (Arbitrary and Capricious)
116. The Conference and Evanston incorporate by reference the preceding paragraphs’ allegations.
12 See Memorandum from Michael E. Horowitz, Inspector Gen., U.S. Dep’t of Justice, to Karol V. Mason, Assistant Attorney Gen., Office of Justice Programs, U.S. Dep’t of Justice, Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients 6 (May 31, 2016), https://tinyurl.com/y9rpwge4.
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117. In addition to the Attorney General lacking statutory and constitutional authority to impose the notice, access, and compliance conditions, the conditions are arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 706.
118. The Department’s decision to condition FY 2017 Byrne JAG funds on compliance with the three conditions deviates from past agency practice without reasoned explanation or justification. The Department failed to rely on reasoned decision-making and, to the extent it cited reasons at all, those reasons are contradicted by evidence.
119. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, the Conference and Evanston are entitled to a declaration that the notice, access, and compliance conditions for the FY 2017 Byrne JAG funds violate the APA; and a permanent injunction preventing those conditions from going into effect.
PRAYER FOR RELIEF WHEREFORE, The United States Conference of Mayors and the City of Evanston pray that this Court: a) Declare that the notice, access, and compliance conditions for the FY 2017 Byrne JAG program are unlawful; b) Preliminarily and permanently enjoin the Attorney General from imposing the notice, access, and compliance conditions on FY 2017 Byrne JAG funds; and from imposing the notice, access, and compliance conditions on future Byrne JAG funds; c) Retain jurisdiction to monitor the Department’s compliance with this Court’s judgment; d) Award Plaintiffs their reasonable attorney fees, expenses, and costs as permitted by federal law, including the Administrative Procedure Act and 28 U.S.C. § 2412; and e) Grant such other relief as this Court may deem proper.
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Dated: July 16, 2018

Respectfully submitted,
THE UNITED STATES CONFERENCE OF MAYORS and CITY OF EVANSTON
By: /s/ Brian C. Haussmann Counsel for the United States Conference of Mayors
Brian C. Haussmann John M. Fitzgerald Katherine M. O’Brien Kyle A. Cooper TABET DIVITO & ROTHSTEIN LLC 209 South LaSalle Street, 7th Floor Chicago, IL 60604 Telephone: (312) 762-9450 bhaussmann@tdrlawfirm.com jfitzgerald@tdrlawfirm.com kobrien@tdrlawfirm.com kcooper@tdrlawfirm.com
By: /s/ Michelle L. Masoncup Counsel for City of Evanston
Michelle L. Masoncup Corporation Counsel Law Department City of Evanston 2100 Ridge Avenue Evanston, IL 60201 Telephone: (847) 448-8009 mmasoncup@cityofevanston.org

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 Case: 1:18-cv-04853 Document #: 23 Filed: 08/09/18 Page 1 of 12 PageID #:503

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CITY OF EVANSTON and THE UNITED STATES CONFERENCE OF MAYORS,
Plaintiffs,
v.
JEFFERSON BEAUREGARD SESSIONS III, in his Official Capacity as Attorney General of the United States,
Defendant.

Case No. 18 C 4853 Judge Harry D. Leinenweber

ORDER
The City of Evanston and the U.S. Conference of Mayors seek a preliminary injunction enjoining the Attorney General from attaching three Conditions to funds under the Edward Byrne Memorial Justice Assistance Grant Program. As set forth herein, the Court finds that both Plaintiffs have standing to pursue their claims and, further, are entitled to preliminary injunctive relief. The Court accordingly enters an injunction enjoining the Attorney General from attaching the three challenged Conditions to grants awarded to Evanston and to any Conference member who faces the Attorney General’s fast-approaching “accept or decline” deadlines. However, out of deference to the court of appeals and its pending en banc rehearing concerning the nationwide scope of the preliminary injunction in this Court’s related case, City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017), the Court stays its injunction as to the Conference.

Case: 1:18-cv-04853 Document #: 23 Filed: 08/09/18 Page 2 of 12 PageID #:504
STATEMENT This case presents the same issues this Court has twice ruled upon in a related case. See generally City of Chicago v. Sessions, No. 17 C 5720, 2018 WL 3608564 (N.D. Ill. July 27, 2018); City of Chicago v. Sessions, 264 F. Supp. 3d 933. For the sake of brevity, this Order incorporates the facts laid out in those opinions. Before the Court now is a Motion for a Temporary Restraining Order and a Preliminary Injunction brought by the City of Evanston and the U.S. Conference of Mayors. Those Plaintiffs ask the Court to enjoin the Attorney General’s attachment of three Conditions to the funds provided by the Byrne JAG grant which lies at the heart of both this dispute and the related case. This Court and others have referred to these three as the Notice, Access, and Compliance Conditions, respectively. In the Chicago v. Sessions case, as the litigants well know, the Seventh Circuit affirmed this Court’s preliminary, nationwide injunction against the first two Conditions. Thereafter, the court of appeals voted en banc to vacate and rehear only the nationwide aspect of the injunction. In so doing, the en banc court also stayed this Court’s preliminary injunction as to all areas of the country beyond Chicago. While that rehearing was pending, this Court entered a permanent injunction enjoining the imposition of not only the first two Conditions contemplated by the preliminary ruling, but also the third and final Condition given the Supreme Court’s intervening ruling in Murphy v. National Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018). Out of deference to the Seventh Circuit’s pending rehearing and respect for judicial economy, this Court stayed its permanent injunction, as the higher court had preliminarily, to all areas beyond Chicago.
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When the Seventh Circuit stayed the nationwide scope of the injunction, the Attorney General demanded that Evanston and many members of the Conference agree to the Conditions or else forgo the Financial Year 2017 award. The Attorney General imposed August decision deadlines on those members, meaning the Plaintiffs here require injunctive relief, if at all, within the next few days. (Cochran Decl. ¶¶ 42-46, Dkt. 10-1 (explaining that some Conference members face an August 10th deadline, while others face a deadline of August 27th).) For simplicity’s sake, the Court will refer to these below simply as to the “accept or decline” deadlines.
With the above in mind, the Court considers Plaintiffs’ Motion. Writ large, the Attorney General has two objections to the sought-after injunction: First, he contends Plaintiffs lack standing; second, he contends that even if Plaintiffs have standing, they fail to pass the bar for injunctive relief.
To have standing, “a plaintiff must show he is under threat of suffering an ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citation omitted). The Attorney General argues Evanston lacks standing because it is merely a “subrecipient,” and the City of Chicago (which is presently protected from the Conditions by injunction) is the “recipient” that applies for Byrne JAG awards on Evanston’s behalf. The Attorney General explains that he determined not to enforce any award conditions in any FY 2017 Byrne JAG award made to Chicago while the injunction is in force, and that “this non-
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enforcement would also apply to any subaward under Chicago’s award.” (See Trautman Decl. ¶ 5, Dkt. 15-1.) This explanation does not clear up matters nor indicate that Evanston is free from the hazards imposed by the Attorney General’s August deadlines. In court on August 8th, the Acting Assistant Attorney General represented that when a subrecipient receives funds, it is the recipient only who signs the contract with the DOJ promising to adhere to the Conditions. And yet, the Attorney General does not dispute that said subrecipient must still comply with those Conditions regardless, as Evanston declares it has had to do in years past. (See Gergits Decl. ¶¶ 4-5, Dkt. 10-3.) Thus, to receive funds, Evanston must accept the Conditions just like the other would-be grantees, and the injunction presently in place as to Chicago does not insulate Evanston from that requirement. Evanston faces an imminent and concrete injury fairly traceable to Defendant’s actions; the City has standing to pursue injunctive relief.
That brings us to the Conference of Mayors. The Court considered the Conference’s standing once before, when the Conference sought to intervene in the Chicago v. Sessions case. 2017 WL 5499167, at *5. The Court agreed the Conference had standing, though it considered standing on a less exacting standard than the one it must now apply. Earlier, the Court accepted the Conference’s factual allegations as true; now, the Conference must present at least “competent proof,” meaning a “showing by a preponderance of the evidence,” that standing exists. Retired Chi. Police Ass’n v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996). The Attorney General marshals several arguments against standing. First, he argues the Conference represents mayors—not cities—upon whom the Conditions impose no burden. But the
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Conference’s constitution indicates the contrary is true: Said document precludes membership for municipalities of less than 30,000 people. (Conference Constitution, art. II, § 1, Dkt. 102.)
The balance of the Attorney General’s arguments is best considered within the framework for associational standing, which is what the Conference purports to have here. Such standing demands: (1) its members would otherwise have standing to sue in their own right; (2) the interests the association seeks to protect are germane to its organizational purposes; and (3) neither the claim asserted, nor the relief requested requires the participation of individual association members in the suit. Ezell v. City of Chicago, 651 F.3d 684, 696 (7th Cir. 2011) (citing Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 342-43 (1977)) (citations omitted).
To the first requirement: It is not necessary that every one of the association’s members has standing to sue in its own right. Rather, it suffices when any one member shows that it would have standing to bring suit on its own behalf. Hunt, 432 U.S. at 34243; accord Builders Ass’n of Greater Chi. v. City of Chicago, 170 F.R.D. 435, 438 (N.D. Ill. 1996). The Conference recounts that over 250 of its members were allocated FY 2017 awards and face the August “accept or decline” deadlines. (Cochran Decl. ¶¶ 42-47, Dkt. 10-1.) As this Court ruled once before, those cities all have standing, just as Chicago did in its case. See City of Chicago, 2017 WL 5499167, at *5. The first requirement is met.
As for the second requirement, which turns upon the association’s “organizational purposes”: The Conference’s CEO declares that the Conference was founded to coordinate cities’ interactions with the federal government. To that end, the
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Conference adopted three resolutions “supporting immigrant rights,” signaling the Conference’s intent to protect and preserve local decision making and opposing so-called “punitive sanctuary jurisdiction policies that limit local control and discretion.” (Cochran Decl. ¶¶ 4-23, Dkt. 10-1.) The Conference’s actions and its chief executive’s words demonstrate that its interests in seeking injunctive relief—which would preserve the power and discretion of local decision making against federal overreach— accord with the Conference’s organizational purposes. (See id.)
The Attorney General has one other argument on this front worth mentioning. He contends that the Conference is not authorized to litigate on behalf of its members, which is required where said members have “profound conflicts of interest.” See Retired Chi. Police Ass’n, 76 F.3d at 864. Such profound conflicts occur where, for example, associations seek to sue their own members, see Sw. Suburban Bd. of Realtors, Inc. v. Beverly Area Planning Ass’n, 830 F.2d 1374, 1380-81 (7th Cir. 1987), or where the association’s suit, if successful, would increase some of its members’ insurance premiums, see Retired Chi. Police Ass’n, 76 F.3d at 865-66. As Plaintiffs point out, there are no such “profound conflicts” at play here. The Attorney General explains that some of the Conference’s members support the grant Conditions, and that other members, like the Texas municipalities, are bound to follow state-law requirements that mirror the federal Conditions anyway. These differences in policy preference or state law, however, do not amount to a profound conflict: Those Conference members that agree with the Attorney General’s Conditions may continue to accede to and support them, and the Texas municipalities are under no obligation to flout their statelaw requirements if this suit succeeds. Simply put, these lesser
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conflicts between members do not rise to the level preclusive of standing. See Builders Ass’n of Greater Chi., 170 F.R.D. at 43839 (citing United Automobile Workers v. Brock, 477 U.S. 274, 290 (1986)).
Finally, associational standing exists only when the suit does not require the participation of the individual members. The Court ruled once before that the injunctive and declaratory relief the Conference now seeks raises purely legal questions, is not contingent on evidence from a specific city, and thus is “amenable to associational standing.” City of Chicago v. Sessions, 2017 WL 5499167, at *5 (N.D. Ill. Nov. 16, 2017); cf. Brock, 477 U.S. at 287-88 (finding associational standing when suit presented only pure questions of law); Org. of Minority Vendors, Inc. v. Ill. Cent. Gulf R.R., 579 F. Supp. 574, 590 (N.D. Ill. 1983) (finding associational standing for group’s injunctive relief claims). This is so because every Conference member, regardless of its particular local policies, stands to benefit by being inoculated against federal overreach. The Court stands by that earlier ruling now. Accordingly, the Conference has met all three requirements to pass the associational standing threshold.
Having determined that Plaintiffs have standing, the question remains whether the Court should order the injunctive relief they seek. To win a preliminary injunction, Plaintiffs must show that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest. Winter v. Nat’l Res. Defense Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). When, as here, the Government is the opposing party, the last two factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009).
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Of course, the Court does not make this determination in a vacuum. Instead, the Court is guided by its earlier rulings in the Chicago v. Sessions case as well as the Seventh Circuit’s affirmance and subsequent vacatur of the nationwide scope of the injunction. In its earlier decisions, this Court found that the same argument presented by Plaintiffs here—namely that the Attorney General lacks the statutory authority to impose the Conditions—had merit. Though the plaintiffs at bar have changed, the legislation proscribing which conditions the Attorney General may attach has not. The Attorney General once more argues that hidden away within 34 U.S.C. § 10102 is a sweeping grant of authority that entitles him to impose these, and nearly any other condition, he chooses. Though he flavors that argument differently than he did last time around, it is substantially the same. The court of appeals labeled the earlier iteration “untenable,” and this Court agrees. City of Chicago v. Sessions, 888 F.3d 272, 285 (7th Cir. 2018). Said argument does no work for the Attorney General here. The Court believes Plaintiffs are likely to prevail on the merits of their claims.
Beyond that, Plaintiffs must show they face irreparable harm absent injunctive relief. This hurdle too has been cleared. First, the Attorney General has imposed August deadlines by which Plaintiffs must either accept the grant and its Conditions or else decline the funds outright. Because this Court has already found that the Attorney General lacks the authority to impose any of these Conditions, however, the choice Plaintiffs face—to decline funds or accept them upon pain of sacrificing their sovereign powers—is no choice at all and is itself sufficient to establish irreparable harm. Cf. Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 537-38 (N.D. Cal. 2017) (citing Morales v. Trans World
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Case: 1:18-cv-04853 Document #: 23 Filed: 08/09/18 Page 9 of 12 PageID #:511
Airlines, Inc., 504 U.S. 374, 380-81 (1992)). That some Conference members may like and even endorse the policies embodied by the Conditions does not change things. These localities still suffer an affront to their sovereignty when the Attorney General is permitted to direct their behavior in an unauthorized way. Indeed, by seeking to implement their own, pro-federal-immigration, preferred policies, those Conference members exercise the same local sovereignty the Attorney General now threatens to impinge.
Finally, Plaintiffs must show the balance of equities tips in favor of granting the requested injunction. This is where Plaintiffs’ prayer for relief runs into trouble. The Seventh Circuit recently vacated its affirmance of the Court’s nationwide injunction, signaling that a majority of that court has agreed to revisit the issue. After that, this Court published another ruling in which it found, based on an application of a recently-issued Supreme Court opinion, that 8 U.S.C. § 1373 is unconstitutional and thus the Compliance Condition, which subsumes that statute, is also unlawfully imposed. City of Chicago, 2018 WL 3608564, at *11. That Section 1373 determination was admittedly a closer question than the earlier-issued decision invalidating the Notice and Access Conditions, and the complexity of that latter decision gives the Court some pause in awarding the injunctive relief in this case.
The difficulty here arises from the scope of relief necessary to protect the Conference’s members from the imposition of the Conditions. The Conference has over 1,400 members across the country, though only about 250 ask for relief here. (Cochran Decl. ¶¶ 5, 42-47, Dkt. 10-1.) Even in its most limited form, any injunction issued in their favor will have effects throughout the country and certainly far beyond the borders of the Seventh
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Circuit. The Court recognizes that unlike in Chicago v. Sessions, the party requesting relief is not a single city—but an association comprised of many—and the injunction Plaintiffs seek is designed to protect their interests—rather than the interests of nonparties nationwide. Even so, a Conference-favoring injunction engenders many of the same concerns that agitated against entering a nationwide injunction in the Chicago case. Prime among these is denying difficult statutory questions—like the ones here concerning Section 1373—the chance to percolate through the courts in other jurisdictions. City of Chicago v. Sessions, 888 F.3d 272, 297 (7th Cir. 2018) (Manion, J., concurring in part and dissenting in part). Though this Court found such a broad injunction nevertheless appropriate in City of Chicago, the court of appeals has signaled it may have a different perspective. Thus, given the pending rehearing, this Court is disinclined to issue another, similarly-broad injunction absent further guidance from the court of appeals.
As evidenced by this Court’s recent ruling entering and staying the permanent injunction in the Chicago v. Sessions case, the Court believes judicial economy and the public interest will be best served if the court of appeals is permitted the opportunity to consider the rehearing now pending on these issues and express its opinion as to the nationwide injunction. This will avoid possibly subjecting the Attorney General and grant applicants across the nation to the judicial whiplash brought on by an en banc reversal. But the Attorney General’s fast-approaching “accept or decline” deadlines pose a problem. The Plaintiffs no doubt have a keen interest in jealously guarding their autonomy against federal outreach; yet this Court has a keen interest in deferring to the guidance of higher courts and, in accordance with
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that guidance, not binding up the litigation before other judges across the country without an acknowledgement of the propriety of doing so. (Cf. Order, City of Chicago v. Sessions, No. 17-2991 (7th Cir. June 14, 2018), Dkt. No. 131 (refusing Attorney General’s motion for immediate ruling on his motions for a stay and stating the court of appeals intended to rule only after the Supreme Court’s resolution of similar issues in Trump v. Hawaii, 138 S. Ct. 2392 (2018)).)
Fundamentally, this Court has considerable discretion in issuing a preliminary injunction. Computer Care v. Serv. Sys. Enters., 982 F.2d 1063, 1067 (7th Cir. 1992). Faced with competing and difficult-to-balance equities, the Court uses that discretion to rule as follows: The Court issues the sought-after injunction as to both Evanston and those members of the Conference who face the Attorney General’s August deadlines, though, in line with its recent ruling in the Chicago case, the Court also stays the injunction as to the Conference, which, by virtue of its membership, demands an injunction of near-nationwide effect. See City of Chicago, 2018 WL 3608564, at *18 (staying in large part this Court’s permanent nationwide injunction). As the Court laid out in City of Chicago, “[s]tays, like preliminary injunctions, are necessary to mitigate the damage that can be done during the interim period before a legal issue is finally resolved on its merits. The goal is to minimize the costs of error.” 2018 WL 3608564, at *18 (quoting In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014)). Further, “the greater the moving party’s likelihood of success on the merits, the less heavily the balance of harms must weigh in its favor, and vice versa.” Id. Especially given the close question posed by the Section 1373 analysis, the Court believes, as before, that the public interest
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will be best served by deferring to the court of appeals rather than mooting those many parallel suits now pending in different jurisdictions. Cf. California ex rel. Lockyer v. U.S. Dep’t of Agric., 710 F. Supp. 2d 916, 924 (N.D. Cal. 2008) (staying in part an injunction to minimize conflict with jurisdictions entertaining similar litigation), aff’d, 575 F.3d 999 (9th Cir. 2009). This interest in streamlining judicial economy weighs heavily enough even to overcome the injury those Conference members face in having to decide whether to accept the offered FY 2017 funds by the Attorney General’s deadlines.
Should the Conference believe this stay is improvidently imposed, it may raise the issue with the Seventh Circuit in short order. Until then, this Court believes it must hew closely to the deference required of it for higher authority. The requested injunction is now ordered, though immediately stayed as to the Conference.
IT IS SO ORDERED.

Dated: 8/9/2018

Harry D. Leinenweber, Judge United States District Court

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 Case: 1:18-cv-04853 Document #: 46 Filed: 12/10/18 Page 1 of 45 PageID #:670

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CITY OF EVANSTON and THE UNITED STATES CONFERENCE OF MAYORS,

Plaintiffs,

v.

Case No. 18-cv-4853

MATTHEW G. WHITAKER,1 as Acting Attorney General of the United States,

Defendant.

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

The United States Conference of Mayors (the “Conference”) and the City of Evanston,

Illinois (“Evanston”) (collectively, “Plaintiffs”), for their amended complaint against defendant

Matthew G. Whitaker, in his capacity as appointed Acting Attorney General of the United States,

(“Defendant” or the “Attorney General”), state as follows:

INTRODUCTION

1. The Conference and Evanston bring this action to stop the federal government’s

aggressive and escalating effort to force cities into becoming the deportation arm of the federal

government. The Conference and Evanston seek to enjoin the Attorney General of the United

States from imposing sweeping and unlawful conditions on the Edward Byrne Memorial Justice

Assistance Grant Program (“Byrne JAG”)—an established federal grant program that provides

crucial support for law enforcement in hundreds of cities nationwide.

1 On November 7, 2018, Attorney General Jefferson B. Sessions III resigned from office. Shortly thereafter, President Trump appointed Matthew Whitaker as the Acting Attorney General. Under Federal Rule of Civil Procedure 25(d), Whitaker is automatically substituted as party defendant for Sessions, and the Department of Justice and United States are bound by his admissions and pleadings in this action. Plaintiffs have amended the case caption in their filings accordingly. However, they do so without waiving any objection to Whitaker’s authority to act as Attorney General. As the State of Maryland maintains in a recent lawsuit, State of Maryland v. United States, D. Md. Case No. 1:18-cv-02849-ELH, Whitaker’s appointment may violate 28 U.S.C. § 508 and the Appointments Clause of the Constitution, U.S. Const. art. II, § 2.
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2. The Department of Justice (“Department”) first sought to impose three immigration-related conditions on the fiscal year (“FY”) 2017 Byrne JAG funds under a cloud of uncertainty created by the Department’s increasingly aggressive positions. As a condition of receiving FY 2017 Byrne JAG funds, the Department requires that: (1) cities give the Department of Homeland Security (“DHS”), which includes U.S. Immigration and Customs Enforcement (“ICE”), 48 hours’ notice, or at least as much notice “as practicable” prior to releasing any alien in custody to allow ICE to take custody of that individual (the “notice condition”); (2) cities give DHS officials unlimited access to local law enforcement facilities to interrogate any suspected non-citizen held there, effectively federalizing city facilities (the “access condition”); and (3) comply with, and certify such compliance with, 8 U.S.C. § 1373 (“Section 1373”), a federal statute that purports to bar local governments from restricting the sharing of immigration status information with the federal government (the “compliance condition”).
3. In August 2018, this Court issued a preliminary injunction that prohibits the Attorney General from imposing the notice, access, and compliance conditions on Evanston and the Conference’s other member cities. Indeed, courts throughout the country have enjoined the Attorney General from imposing the conditions.
4. Faced with numerous rulings that prohibit the Attorney General from imposing the unlawful conditions, the Attorney General ignored the courts and doubled-down. On October 1, 2018, the Attorney General began issuing FY 2018 Byrne JAG award notifications to hundreds of cities and other local jurisdictions. The FY 2018 award documents contain three conditions that are materially identical to the FY 2017 conditions preliminarily enjoined by this Court. Beyond that, the FY 2018 award documents include new unlawful conditions.
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5. As a condition of receiving FY 2018 Byrne JAG funds, the Department requires cities to (1) provide 48 hours’ advance notice, or at least as much notice as practicable, to DHS prior to releasing an alien from custody, just like the notice condition the Court preliminarily enjoined in this case and set aside as unlawful in Chicago’s and Illinois’ cases; (2) provide federal authorities with “access to any correctional facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his right to be or remain in the United States,” just like the access condition the Court preliminarily enjoined in this case and set aside as unlawful in Chicago’s and Illinois’ cases; (3) comply with Section 1373, which this Court already held facially unconstitutional, and comply with 8 U.S.C. § 1644 (“Section 1644”), which prohibits the same conduct as Section 1373, and is therefore unconstitutional for the same reasons (the “compliance condition”); (4) not publicly disclose federal law enforcement information in an attempt to conceal, harbor, or shield from detection fugitives from justice or undocumented immigrants, even where such disclosure would not violate the law (the “harboring condition”); and (5) provide additional information about communications with federal immigration authorities in an apparent attempt to help the Department enforce its other unlawful immigration-related conditions (the “questionnaire condition”). In connection with the conditions, the Department requires recipients to certify compliance with the conditions and various federal statutes, including 8 U.S.C. §§ 1226(a) and (c), 1231(a), 1324(a), 1357(a), 1366(1) and 1366(3), 1373, and 1644. (The conditions and certifications required to receive FY 2017 and FY 2018 Byrne JAG funds are collectively referred to as the “challenged conditions.”)
6. The challenged conditions are facially unauthorized and unconstitutional. The FY 2018 conditions are just as harmful as those that the Court struck down, and in precisely the same ways. The Attorney General once again seeks to dictate local policy by imposing
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unauthorized conditions on a critical source of local government funding. Neither federal law nor the United States Constitution permit the Attorney General’s actions.
7. The challenged conditions are also directly at odds with Conference policy resolutions, which collectively represent the views of the nation’s cities and their mayors. In 2017 and 2018, the Conference adopted policy resolutions addressed to the federal government’s efforts to force localities to engage in federal immigration enforcement. The resolutions called for: (a) an end to unconstitutional funding threats to cities in an effort to coerce and compel them into implementing federal immigration law; (b) the end of the Department’s unconstitutionally broad interpretation of Section 1373; and (c) the award of Byrne JAG funds to municipalities without the imposition of unconstitutional conditions.
8. Because of the Department’s imposition of the challenged conditions, Evanston and the Conference’s other members face a Hobson’s choice: agree to accept the Department’s unconstitutional grant conditions or stand on their rights and forfeit crucial Byrne JAG funds.
9. The Conference and Evanston seek a declaration that the challenged conditions are unlawful. The Conference and Evanston also seek an injunction preventing the Department from imposing the challenged conditions on FY 2017 Byrne JAG funds, FY 2018 Byrne JAG funds, and from including the conditions in future applications and awards. To prevent the endless cycle of litigation, in which the Attorney General imposes unlawful conditions on the receipt of federal grant funds each year until the Conference and Evanston sue and the Court intervenes, the requested relief should cover FY 2017, FY 2018, and all future grant years. The Conference and Evanston also request that the Court order the Attorney General to pay fees, expenses, and costs to the Conference and Evanston.
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PARTIES 10. Plaintiff The United States Conference of Mayors is a non-profit association organized under the laws of Illinois and with its offices in the District of Columbia. As the official non-partisan organization of United States cities with populations of 30,000 or more, the Conference represents the interests of over 1,400 cities in the United States. This includes numerous cities in this federal district and in every other jurisdiction in the country. Nearly 150 million people reside in these cities. 11. Plaintiff Evanston is a municipal corporation and home rule unit of government organized and existing under the constitution and laws of the State of Illinois. Evanston was incorporated in 1857, and is home to approximately 74,895 residents, including a vibrant immigrant community. 12. Defendant Matthew G. Whitaker has been appointed as the Acting Attorney General of the United States. He is sued in his official capacity. The Attorney General is the federal official in charge of the United States Department of Justice, which took, and threatens imminently to take, the governmental actions at issue in this lawsuit.
JURISDICTION AND VENUE 13. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1346. The Court is authorized to issue the relief sought here under the Administrative Procedure Act, 5 U.S.C. §§ 702, 705, 706; and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. 14. Venue is proper in the Northern District of Illinois under 28 U.S.C. § 1391(e). Defendant is a United States officer being sued in his official capacity. Evanston resides in this judicial district and substantial events giving rise to this action occurred in this judicial district. The Conference consents to adjudication of these issues in this district.
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FACTUAL ALLEGATIONS A. The Byrne JAG program provides critical funds to cities. 15. Congress established the Byrne JAG program in 2005 to serve as the primary source of federal criminal justice funding for states and localities. The Office of Justice Programs (“OJP”) within the Department oversees the program. 16. The goal of the Byrne JAG program is to allow states and local governments the “flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution” for local policing. H.R. Rep. No. 109-233, at 89 (2005).2 To that end, the Byrne JAG program is structured as a formula grant, which awards funds to all eligible grantees according to a prescribed formula. See 34 U.S.C. § 10156(d)(2)(A). 17. The Byrne JAG program requires that the Attorney General “shall allocate to each unit of local government,” funds in accordance with a formula based on population and relative levels of violent crime. 34 U.S.C. §§ 10156(d)(2)(A). The Byrne JAG distribution formula for states is a function of population and violent crime. Id. § 10156(a). The formula for local governments is a function of the state’s allocation and the ratio of violent crime in the locality to violent crime in the state. Id. § 10156(d). 18. The Attorney General must follow the statutory formula to determine allotments for each state and local government. 34 U.S.C. § 10156. The formula-based approach entitles cities to their share of the Byrne JAG formula allocation so long as their proposed programs meet at least one of eight broadly defined goals, see 34 U.S.C. § 10152(a)(1)(A)-(H) (listing eligible programs such as general law enforcement, prevention and education, drug treatment, and mental
2 The Byrne JAG program was created in the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006), which in turn amended the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197.
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health), and their applications contain a series of statutorily required certifications and attestations. Id. § 10153(a).
B. The Conference was formed to address the intersection of federal and local policy and has resolved to oppose the Attorney General’s actions.
19. In 1932, during the midst of the Great Depression, the nation’s cities were close to bankruptcy and their residents were largely unemployed and without access to sufficient food, housing, law enforcement, and other necessities. In response to the appeals of mayors across the country, Congress created a $300 million federal assistance program for cities, marking the first time in the nation’s history that federal relief was provided directly to cities. A few weeks later, the Conference was founded to coordinate its cities’ interactions with the federal government.
20. Today the Conference’s member cities are home to immigrant populations that are both recent arrivals and multigenerational families. The Conference proudly recognizes that cities are diverse, multicultural centers, and that their diversity reflects core American values, fosters economic prosperity and opportunity, enriches cities’ cultures, and keeps our nation competitive and strong.
21. The Conference’s primary roles include safeguarding the interests, rights, and privileges of municipalities; promoting the development of effective national city and metroarea-focused policy; strengthening federal-city relationships; ensuring that federal policy meets urban needs; providing mayors with leadership and management tools that allow them to do their jobs better; and creating a forum in which mayors share ideas, information, and best practices, and through which cities coordinate on shared policy goals.
22. Conference members speak with a united voice on organizational policies and goals. Mayors contribute to the development of national urban policy by serving on one or more
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of the Conference’s standing committees or in another leadership role. A list of member cities
whose mayors currently serve in leadership roles is attached as Exhibit A to this complaint.
23. The adoption of a resolution is the principal means by which the Conference
speaks on matters of policy. The policy positions adopted at the Conference’s annual meetings
collectively represent the views of the nation’s cities.
24. Conference members met from June 23-26, 2017 for the 2017 annual meeting.
Over 250 mayors representing cities across the country, including those from nearly every state
and the Commonwealth of Puerto Rico, attended the meeting.
25. At the 2017 annual meeting, the Conference’s members passed three resolutions
recognizing the importance of immigrants to their communities, supporting immigrant rights,
standing against policies that target immigrant communities, and opposing the administration’s
punitive welcoming city policies.
26. First, the Conference passed a resolution titled “Opposing Punitive Sanctuary
Jurisdiction Policies” (attached as Exhibit B). This resolution reflects the Conference members’
considered judgment that, among other things:
(a) Many local jurisdictions determined that their local law enforcement efforts and personnel have neither the authority, the priority, nor the resources to serve as immigration enforcement officers;
(b) Trust between local law enforcement and the communities they serve is critical to preventing, solving, and prosecuting crimes, and many jurisdictions determined that having local law enforcement officers serve as immigration officers would break that trust;
(c) Many local jurisdictions and authorities lack the law enforcement resources to act as immigration officers at the expense of local law enforcement priorities; and
(d) Cities and other local government entities must have the discretion to make individualized determinations relative to local values, expenditure of resources, priorities, and liabilities assumed, all taking into account that immigrants residing in the nation’s cities must be able to trust all of city government that their Fourth Amendment rights will be guaranteed, and that local law enforcement efforts to
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build trust and supportive relationships with all communities are essential to preventing and prosecuting crime and helping victims. (Ex. B at 1-2.) 27. Accordingly, the Conference resolved to: (a) Oppose punitive sanctuary jurisdiction policies that limit local control and discretion; (b) Urge Congress, the administration, and states to pursue immigration enforcement policies that recognize that local law enforcement has limited resources and community trust is critical to local law enforcement and community safety; and (c) Oppose federal and state policies that commandeer local law enforcement or require local authorities to (i) violate, or be placed at risk of violating, a person’s Fourth Amendment rights; (ii) expend limited resources to act as immigration agents; or (iii) otherwise assist federal immigration authorities beyond what is determined by local policy. (Id. at 2-3.) 28. Second, the Conference passed a resolution titled “Supporting Immigrants, Refugees and Asylum Seekers and Standing Against Discriminatory and Harmful Policies that Target These Vulnerable Communities” (attached as Exhibit C). This resolution recognizes that cities are home to immigrant populations, including recent arrivals and multigenerational families; that immigrants contribute to cities in important ways; and that the administration has nonetheless antagonized and intimidated immigrant communities through executive orders and by threatening punitive actions against welcoming cities. (Ex. C at 1.) The Conference resolved to call on Congress to act against policies that discriminate against and target immigrants, and to oppose “the Administration’s efforts to hold immigrants hostage as bargaining chips to threaten withholding federal funding from cities across the nation.” (Id. at 1-2.) 29. Third, the Conference passed a resolution titled “Supporting Immigrant Rights” (attached as Exhibit D). This resolution recognizes that: the United States is enriched by the diversity of immigrants; cities are diverse, multicultural centers that reflect core American values
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and foster economic prosperity; and data show that welcoming cities are stronger economically and safer than other cities. (Ex. D at 1.) In addition, the resolution recognizes that the federal government seeks to restrict funding to welcoming jurisdictions and coerce cities into becoming the deportation arm of the federal government, which undermines cities’ abilities to ensure community safety by eroding trust between local law enforcement and residents. (Id. at 1-2.) The Conference thus resolved to “call for an end to unconstitutional federal funding threats to states and local governments in an effort to coerce and compel them into implementing federal immigration law,” and to “urge members of Congress to withdraw legislation that attempts to cut local law enforcement funding necessary to ensure the safety of our communities.” (Id. at 2.)
30. From June 8-11, 2018, Conference members met in Boston for the 2018 annual meeting. More than 240 mayors representing cities across the country attended, including those from nearly every state and the Commonwealth of Puerto Rico.
31. At the 2018 annual meeting, the Conference passed a resolution titled “Opposing Unconstitutional Requirements Placed on Byrne JAG Funding and Urging the Immediate Awarding of FY 2017 Byrne JAG Grants” (attached as Exhibit E). The resolution states that cities “will not be bullied, intimidated or coerced into making a false choice between grants with offensive conditions attached, on the one hand, and our values as welcoming cit[ies] and the principles of community policing, on the other.” (Ex. E at 1.) The resolution recognizes that the Department has no authority to impose new conditions on a grant program created by Congress and “cannot commandeer local law enforcement to carry out federal immigration law functions.” (Id. at 2.) The Conference resolved to call on the Department “to award Byrne JAG funds to municipalities without imposing additional unconstitutional conditions.” (Id. at 3.)
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32. Each of these resolutions passed with a wide majority of the Conference members present for the meetings. In fact, after conclusion of a vote on a proposed resolution that passes, a mayor who attended the vote may request to be recorded as having voted “No” on that specific resolution. Only five mayors in attendance at the annual meeting recorded a no vote as to any of the three 2017 resolutions. Only one mayor in attendance at the 2018 annual meeting recorded a no vote as to the 2018 resolution.
C. Conference members rely on Byrne JAG funds. 33. Many Conference members rely on Byrne JAG funds for critical law enforcement needs. As such, the Conference has long supported the Byrne JAG program. (See Ex. F (2012 Conference resolution reaffirming the Conference’s strong support for the Byrne JAG program and noting that the program is “critical to the safety of our cities”).) 34. Over the past decade, Conference members have routinely applied for and received Byrne JAG funds. 35. Evanston, a Conference member, first received Byrne JAG funds in 2009 and has received funds every year since. Evanston uses Byrne JAG funds to train officers through the Police Learning Institute, pay personnel, and to purchase equipment. In FY 2016, Evanston received $14,685 through the Byrne JAG program. 36. Evanston receives its Byrne JAG funds through the application submitted by Chicago, Illinois. Because Chicago’s costs of preventing and investigating violent crimes exceed those of surrounding jurisdictions, 34 U.S.C. § 10156(d)(4) obligates Chicago to file a Byrne JAG application on behalf of itself and other, neighboring communities, including Evanston. 37. Many of the Conference’s members use Byrne JAG funds for diverse purposes, reflecting both the varied law enforcement needs of different communities and Congress’s intent
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to preserve local discretion and flexibility in Byrne JAG-funded law enforcement programs.
These include, for example, the following Conference members:
(a) Iowa City, Iowa (population 74,398) uses Byrne JAG funds to promote traffic safety, to establish a search and rescue program aimed at individuals at risk for wandering, to partially fund a drug task force, and to purchase equipment.
(b) Los Angeles, California (population 3,792,621) uses Byrne JAG funds for its Community Law Enforcement and Recovery (CLEAR) program, which aims to reduce gang violence in the city and rehabilitate communities that experienced significant crime. The program promotes and funds special criminal investigative units, an aggressive vertical prosecutorial program, probation and parole officers, youth intervention organizations, and schools.
(c) New Orleans, Louisiana (population 391,495) uses Byrne JAG funds on gun violence reduction initiatives, alternatives to incarceration for municipal court, diversion programs for eligible defendants with mental illness, pre-trial and probation advocacy, domestic violence monitoring court, and technology upgrades including body cameras and audio surveillance equipment for its police force.
(d) New York, New York (population 8,175,133) uses Byrne JAG funds to support a wide range of programs, including efforts to improve the collection, organization and evaluation of criminal justice data; a specialized unit that investigates illegal hotels, building violations, and illegal adult establishments; initiatives to reduce the number of people with mental and behavioral needs who cycle through the criminal justice system by connecting them with interventions and services; and initiatives to ensure the safety of students and reduce crime in schools. In addition, the City’s five District Attorneys use Byrne JAG funds to support many programs, including the Kings County Drug Treatment Alternative-to-Prison program, which diverts hundreds of nonviolent offenders to community-based residential drug treatment programs, and the New York County Cybercrime and Identity Theft Bureau, which protects the public and institutions from organized cybercrime and identity theft schemes.
(e) Portland, Oregon (population 639,863) has used Byrne JAG funds to support its New Options for Women (NOW) program, which provides services to women who experienced sexual exploitation while working in the commercial sex industry.
(f) Providence, Rhode Island (population 178,042) uses Byrne JAG funds to pay personnel to conduct targeted enforcement patrols and to contract with Family Service of Rhode Island for the services of a part-time Bilingual Police Liaison.
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(g) Sacramento, California (population 493,025) uses Byrne JAG funds to support the ongoing maintenance and operations of its Police Department’s helicopter program.
38. Many other Conference members receive Byrne JAG funds and use them for still different, but no less critical, law enforcement purposes. These members include cities listed separately on Exhibit A, and many other cities like them.
D. The Conference, Evanston, and other Conference members promote policies of cooperation between local law enforcement and immigrants.
39. In exercising its discretion over local law enforcement policy, Evanston made the considered judgment that devoting local resources to federal civil immigration enforcement would be detrimental to community safety, and that concerns for safety are best addressed by promoting a policy of cooperation between local law enforcement and immigrants. This policy judgment is codified in Evanston’s “Welcoming City Ordinance.” Evanston City Code § 1-22.
40. Evanston’s Welcoming City Ordinance reflects the Evanston City Council’s findings that “the 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” and that one of Evanston’s “most important goals is to enhance the City’s relationship with the immigrant communities.” Id. § 1-22-2.
41. In its current form, the Welcoming City Ordinance, codified as Chapter 22 of the Evanston City Code, contains several key provisions relevant to this lawsuit, including:
(a) Subject to certain exceptions, no Evanston agent or agency shall “[s]top, arrest, search, detain or continue to detain a person solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation.” §1-22-10(A)(1).
(b) Subject to certain exceptions, no Evanston agent or agency shall “[d]etain, or continue to detain, a person based upon an immigration detainer, when such immigration detainer is based solely on a violation of a civil immigration law.” § 1-22-10(A)(3).
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(c) Nothing in section 1-22-10 “prohibits communication between federal agencies or officials and law enforcement or officials.” §1-22-10(D).
(d) Except as otherwise provided by federal law, no Evanston agent or agency shall disclose citizenship or immigration status information “unless required to do so by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains.” § 1-22-8.
42. These and the other provisions of the Welcoming City Ordinance play a vital role
in strengthening the relationship between Evanston’s government, its police force, and its
immigrant community. It is essential that Evanston’s police officers have the flexibility needed
to engage the immigrant community in their crime-fighting initiatives without projecting a
constant threat of deportation.
43. Evanston is not alone. Many other Conference members have adopted similar
policies. These include, for example, Gary, Indiana; Los Angeles, California; New Orleans,
Louisiana; New York, New York; Philadelphia, Pennsylvania; Providence, Rhode Island; and
Boston, Massachusetts. 3
44. Welcoming city policies and similar policies are sound. One study found that
“crime is statistically significantly lower in sanctuary counties compared to nonsanctuary
counties . . . controlling for population characteristics.”4 Indeed, a broad coalition of police
3 Gary – Ordinance No. 9100; The Los Angeles Police Department & Federal Immigration Enforcement: Frequently Asked Questions, http://assets.lapdonline.org/assets/pdf/immigrationfaq.pdf; New Orleans – New Orleans Police Department Operations Manual, Chapter 41.6.1, https://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/Chapter-41-6-1-Immigration-Statusapproval.pdf/; New York – Executive Order Nos. 34 and 41, https://www1.nyc.gov/assets/immigrants/downloads/pdf/eo-34.pdf and https://www1.nyc.gov/assets/immigrants/downloads/pdf/eo-41.pdf; Philadelphia – Executive Order No. 16, https://www.ilrc.org/sites/default/files/resources/2016-01_philadelphia_pep_order.pdf; Providence – Resolution of the City Council, https://www.ilrc.org/sites/default/files/resources/providence_resolution.pdf. Boston – An Ordinance Establishing a Boston Trust Act. 4 Tom K. Wong, Center for American Progress, The Effects of Sanctuary Policies on Crime and the Economy 6 (2017), http://tinyurl.com/y75lsykd.
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chiefs explained that “build[ing] trusting and supportive relations with immigrant communities . . . is essential to reducing crime and helping victims.”5
45. Welcoming city policies are rooted in the judgment that restricting entanglement with ICE secures and enhances community trust in local law enforcement. Local law enforcement relies upon all community members (regardless of immigration status) to report crimes, serve as witnesses, and assist in investigations and prosecutions. Indeed, in the Conference members’ experience, even the perception that local law enforcement is assisting in immigration enforcement can erode trust, disrupt lines of communication, and make law enforcement’s job much more difficult.
46. For these reasons, the Conference has for years opposed the federal government’s attempts to penalize cities that adopt welcoming city policies such as those cited above. In 2015, for example, the Conference opposed Senate Bill 2146, the “Stop Sanctuary Policies and Protect Americans Act,” which proposed to deny Community Development Block Grants and other federal aid to cities that adopted policies like those identified above.
47. Shifting the federal responsibility of enforcing civil immigration law to local governments diverts critical resources from their law enforcement agencies, compromises public safety, and hinders local police department policies. The Conference continues to oppose similar legislation when proposed (none of which Congress passed).
E. The Department imposed unlawful conditions on FY 2017 Byrne JAG funds. 48. For over a decade, the Department administered the Byrne JAG program as Congress intended: funding critical local law enforcement initiatives without seeking to leverage funding to conscript local agencies to enforce federal immigration law. But now the Department
5 Press Release, Major Cities Chiefs Ass’n, U.S. Mayors, Police Chiefs Concerned with Sanctuary Cities Executive Order (Jan. 25, 2017), http://tinyurl.com/y8zqhypw.
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seeks to impose three conditions on FY 2017 Byrne JAG funds: (1) the notice condition; (2) the access condition; and (3) the compliance condition. In conjunction with the conditions, the Department also requires applicants to submit certifications signed by its chief legal officer and chief executive (i.e., the mayor). Each condition is facially unauthorized and unconstitutional.
1. The notice condition 49. The FY 2017 Byrne JAG local solicitation (attached as Exhibit G) states that the awards will be conditioned on grant applicants providing “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 pursuant to the Immigration and Nationality Act.” (Ex. G at 30, https://www.bja.gov/Funding/JAGLocal17.pdf.) 50. The FY 2017 Byrne JAG award documents revise and expand on what the notice condition entails. (A copy of the Department’s sample award document is attached as Exhibit H.) From the date a city accepts the award and throughout the time of the award’s performance, each city must have in place an “ordinance, -rule, -regulation, -policy, or -practice . . . designed to ensure that, when a local-government (or local-government-contracted) correctional facility receives from DHS a formal written request . . . that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and – as early as practicable . . . provide the requested notice to DHS.” (Ex. H at 19.) The award documents specify that DHS currently requests notice “as early as practicable (at least 48 hours, if possible).” (Id. at 18.)
2. The access condition 51. The FY 2017 Byrne JAG solicitation states that the awards will also be conditioned on grant applicants permitting “personnel of the [DHS] to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and
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inquire as to his or her right to be or remain in the United States.” (Ex. G at 30.) The requirement appears to mandate that federal immigration agents be given unprecedented and unfettered access to local law enforcement facilities and to any person being held there.
52. The FY 2017 Byrne JAG award documents revise and expand on what the notice condition entails. From the date a city accepts the award and throughout the time of the award’s performance, each city must have in place an “ordinance, -rule, -regulation, -policy, or -practice … designed to ensure that [any] agents of the United States … are given access [to] a localgovernment (or local-government-contracted) correctional facility” to permit the federal “agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in the United States.” (Ex. H at 19.)
3. The compliance condition 53. The FY 2017 Byrne JAG solicitation states that to validly accept an award, a local government must certify compliance with Section 1373. In fact, the application requires certifications by both a city’s chief legal officer and its chief executive. (Ex. G at 22-23.) 54. Section 1373 provides that state and local entities may not “prohibit, or in any way restrict” their entities and officials from sending or receiving citizenship or immigration status information from or to DHS. 8 U.S.C. § 1373(a). Section 1373 further states that no person or agency may “prohibit, or in any way restrict” state and local entities from sending, requesting, or receiving immigration status information from or to DHS; maintaining immigration status information; or exchanging immigration status information with other entities. Id. § 1373(b). 55. The FY 2017 Byrne JAG award documents revise and expand on what the compliance condition entails. The compliance condition is set forth in multiple award conditions. (Ex. H at 15-17.) The condition requires a recipient to submit a certification of compliance with Section 1373 signed by the chief legal officer, as well as a certification by the chief executive
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adopting the chief legal officer’s certification. (Id. at 15.) The condition also requires ongoing compliance with Section 1373, and requires subrecipients (i.e., those who receive their funds through another applicant) to certify compliance with Section 1373. (Id. at 16.)
F. The Department imposed unlawful conditions on FY 2018 Byrne JAG funds. 56. To date, this Court has enjoined the Attorney General from imposing the notice, access, and compliance conditions in three separate lawsuits, including this case. ECF No. 23; City of Chicago v. Sessions, No. 17-cv-5720, 2018 WL 3608564, at *17 (N.D. Ill. July 27, 2018) (Leinenweber, J.) (permanently enjoining the Attorney General from imposing the notice, access, and compliance conditions); see also City of Chicago v. Sessions, No. 17-cv-5820, ECF No. 211 (same); State of Illinois v. Sessions, No. 18-cv-4791, ECF No. 25 (same). This Court is not alone. See City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 321 (E.D. Pa. 2018); City and Cty. of San Francisco v. Sessions, No. 17-cv-04642-WHO, 2018 WL 4859528, at *1 (N.D. Cal. Oct. 5, 2018). 57. The Attorney General, however, continues to insist upon forcing the conditions on cities, states, and other local governments. The FY 2018 Byrne JAG local solicitation, required certifications, and award documents reflect the Attorney General’s decision to re-impose the notice, access, and compliance conditions, as well as new conditions similarly designed to conscript state and local officers into the service of federal immigration-enforcement priorities.
1. The notice condition 58. The FY 2018 Byrne JAG local solicitation (attached as Exhibit I) states that the awards will require recipients to not “impede the exercise of the authority of the federal government under 8 U.S.C. § 1266(a) & (c) … and 8 U.S.C. § 1231(a)(4)” by specifically requiring recipients to provide “at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the recipient’s custody when DHS requests such notice in
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order to take custody of the alien pursuant to the Immigration and Nationality Act.” (Ex. I at 3637.)
59. The FY 2018 Byrne JAG award documents revise and expand on what the notice condition entails. (A copy of the 2018 award documents sent to Albuquerque, New Mexico is attached as Exhibit J.) The FY 2018 Byrne JAG award documents require that from the date a city accepts the award and throughout the time of the award’s performance, each city, agency, and official must not “interfere with the ‘removal’ process by failing to provide – as early as practicable … – advance notice to DHS of the scheduled release date and time for a particular alien, if a State or local government (or government-contracted) correctional facility receives from DHS a formal written request pursuant to the INA that seeks such advance notice.” (Ex. J at 21.) The award documents specify that DHS currently requests notice “as early as practicable (at least 48 hours, if possible).” (Id.) The conduct required by this condition is identical to the conduct the Attorney General attempted to require with the FY 2017 notice condition.
2. The access condition 60. The FY 2018 Byrne JAG solicitation states that the awards will require recipients “not to impede the exercise by DHS agents … of their authority under 8 U.S.C. § 1357(a)(1)” by specifically requiring recipients to “permit DHS agents to have access to any correctional facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his right to be or remain in the United States.” (Ex. I at 37.) 61. The FY 2018 Byrne JAG award documents require that from the date a city accepts the award and throughout the time of the award’s performance, each city, agency, and official must not “imped[e] access to any State or local government (or government-contracted) correctional facility by [federal] agents for the purpose [of] ‘interrogat[ing] any alien or person believed to be an alien as to his [or her] right to be or to remain in the United States.’” (Ex. J at
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20.) The award documents define the term impede to include “taking or continuing any action, or implementing or maintaining any law, policy, rule, or practice that (a) is designed to prevent or to significantly delay or complicate, or (b) has the effect of preventing or of significantly delaying or complicating.” (Id.) The conduct required by this condition is identical to the conduct the Attorney General attempted to require with the FY 2017 notice condition.
3. The compliance condition 62. The FY 2018 Byrne JAG solicitation states that the awards will be conditioned on the recipient complying with Section 1373 and Section 1644, as well as certifying compliance with those provisions. (Ex. I at 27, 36, 42, 57.) 63. Section 1644 proscribes the exact same conduct as Section 1373. Section 1644 provides that no state or local entities “may be prohibited, or in any way restricted, from sending … or receiving … information regarding the immigration status, lawful or unlawful, of an alien in the United States.” 8 U.S.C. § 1644. 64. The compliance condition is set forth in multiple FY 2018 award conditions. (Ex. J at 16-18.) The compliance condition requires a local government to submit a certification of compliance with Section 1373 and Section 1644 signed by the chief legal officer, as well as a certification by the chief executive adopting the chief legal officer’s certification. (Id. at 16.) The condition also requires ongoing compliance with Section 1373 and Section 1644, and requires subrecipients to certify their compliance with Section 1373 and Section 1644. (Id. at 17.) This condition is materially identical to the FY 2017 compliance condition.
4. The harboring condition 65. The FY 2018 Byrne JAG solicitation states that the Byrne JAG awards will be conditioned on the applicant agreeing “[n]ot to violate, or aid or abet any violation of, 8 U.S.C. § 1324(a) (forbidding any ‘person,’ in ‘knowing or in reckless disregard of the fact that an alien
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has come to, entered, or remains in the United States in violation of law,’ to ‘conceal, harbor, or shield from detection, or attempt to conceal, harbor, or shield from detection, such alien in any place . . .’ or to ‘engage in any conspiracy to commit any of the preceding acts … or aid or abet the commission of any of the preceding acts’).” (Ex. I at 36.)
66. The FY 2018 Byrne JAG award documents require that from the date a city accepts the award and throughout the time of the award’s performance, “no public disclosure may be made of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection” any undocumented immigrant, even when doing so would not violate any statute. (Ex. J at 19.)
5. The questionnaire condition 67. The FY 2018 Byrne JAG solicitation states that an applicant “will not be able to access award funds (and its award will include a condition that withholds funds)” until it responds to the following questions: (1) “Does your jurisdiction have any laws, policies, or practices related to whether, when, or how employees may communicate with DHS or ICE?”; and (2) “Is your jurisdiction subject to any laws from a superior political entity (e.g., a state law that binds a city) that meet the description in question 1?” (Ex. I at 27-28, 52.) If the answer to either question is yes, the applicant must provide a copy of each law or policy, describe each practice, and explain how the law, policy, or practice complies with Section 1373. (Id.) Direct recipients must also collect this information from all of their subrecipients. (Id. at 28, 52.) 68. The FY 2018 Byrne JAG award documents state that a direct recipient may not make a subaward “unless it first obtains from the proposed recipient responses to the questions identified in the program solicitation” and all subrecipient responses “must be made available to DOJ upon request.” (Ex. J at 22.)
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6. Certifications signed by city mayors and chief legal officers 69. The Department will not provide Byrne JAG funds to applicants unless they certify compliance with the challenged conditions. The current versions of the certifications are attached as Exhibit K-M.6 70. In addition to the certification of compliance with Section 1373 and Section 1644 signed by the applicant’s chief legal officer, applicants must submit two additional certifications, one signed by the chief legal officer and another signed by the chief executive (in the case of cities, the mayor). (Ex. I at 1.) A city’s chief legal officer must certify compliance with Sections 1373 and 1644, as well as with 8 U.S.C. § 1226(a) and (c), 1231(a)(4), 1324(a), 1357(a), & 1366(1) and (3). (Ex. K; Ex. L.) The certification signed by a city’s chief executive (i.e., mayor) adopts the chief legal officer’s certifications and certifies compliance with additional grant conditions. (Ex. M.) G. The conditions are ambiguous, arbitrary, and without justification. 71. The challenged conditions represent a sharp break with past agency practice. The Department never before imposed any conditions of this nature on Byrne JAG funds. The Department imposed the challenged conditions without any explanation, reasoning, or opportunity for exchange with local governments or law enforcement. 72. In late July 2017, shortly before the Byrne JAG application for FY 2017 was set to go online, the Department suddenly announced significant changes to the Byrne JAG application process in a two-paragraph press release and accompanying press “backgrounder” document.7 The Department’s press release failed to explain how the Department arrived at the
6 The most up-to-date certifications for FY 2017 and FY 2018 are available at https://www.bja.gov/Jag/ (last visited Nov. 30, 2018). 7 See Press Release, U.S. Dep’t of Justice, Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs (July 25,
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new conditions or what alternatives it considered. The press release was silent as to the Byrne JAG program’s purpose and how the notice, access, and compliance conditions relate to, let alone serve to advance, the program’s interests. The Department also failed to provide any guidance as to how the conditions would operate in practice.
73. In 2018, the administration sought to weaponize Section 1324 against jurisdictions seeking to prioritize local law enforcement. In January 2018, then-Acting Director of U.S. immigration and Customs Enforcement Thomas Homan stated that he asked the Department to “[l]ook into criminal charges for elected officials with sanctuary policies” because they are harboring illegal aliens. During testimony before the Senate Judiciary Committee, Secretary of Homeland Security Kirstjen Nielsen confirmed that the Department “is reviewing what avenues may be available” to prosecute local elected officials under Section 1324.8
74. Since Section 1324 was enacted almost 70 years ago, the federal government has never attempted to prosecute an elected official acting in his or her official capacity for violating that statute. For much of this time, Conference members declined to participate in federal immigration enforcement without any indication that doing so violated any criminal statute. The attempt by this administration to criminalize local policy choices represents a significant threat to cities’ abilities to enact policies intended to foster public safety.
75. The challenged conditions are ambiguous, leaving cities uncertain as to how to comply. The ambiguity threatens to induce unconstitutional action. For example, the notice condition would require cities to detain individuals longer than they otherwise would, potentially
2017), https://tinyurl.com/y9ttqhsl; U.S. Dep’t of Justice, Backgrounder on Grant Requirements, https://tinyurl.com/ycfgbgl4. 8 Katie Benner, Democrats Question Justice Dept. Power to Charge Sanctuary City Leaders, N.Y. Times, Jan. 12, 2018, https://www.nytimes.com/2018/01/18/us/politics/justice-department-sanctuary-citiescriminal-charges-elected-offiicals.html.
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violating the individuals’ Fourth Amendment rights and state law and thereby expose these cities to liability; the access condition would demand that cities open their facilities to federal officials without regard to local detention needs. Evanston Police Department regulations and those of many Conference member cities’ police forces require that individuals arrested without a warrant be released or transferred to court without unnecessary delay, but in any event no later than 48 hours after arrest. See, e.g., Evanston Police Department Policy Manual § 900.3. Such matters are also informed by the law of many states, which require that certain detainees be released within 48 hours. See, e.g., Ill. Admin. Code §§ 720.30, 720.150.
76. Just as fundamentally, complying with the challenged conditions would undermine public safety. Welcoming city policies assist effective policing by building trust between law enforcement officers and the immigrant community. Conversely, policing suffers when community members, whatever their immigration status, do not feel free to report crimes, assist in investigations, or testify as witnesses. The Department’s insistence that cities nationwide give immigration enforcement agents on-demand access to their detention facilities to investigate potential civil immigration violations, and that cities detain individuals solely so to allow the investigation of possible civil immigration violations, undermines public trust, cuts local law enforcement efforts off at the knees, and makes everyone in these cities less safe.
H. The Department lacks any authority to impose the challenged conditions. 77. The Byrne JAG statute gives the Department no authority to impose additional substantive grant conditions on Byrne JAG funds, including the notice and access conditions. ECF No. 23 at 8; City of Chicago v. Sessions, 888 F.3d 272, 285 (7th Cir. 2018); City of Chicago v. Sessions, 2018 WL 3608564, at *12-13 (concluding that the Attorney General has no authority to impose the notice and access conditions or to demand compliance with Section 1373).
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78. Indeed, federal law prohibits the Department from using the Byrne JAG program to “exercise any discretion, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.” 34 U.S.C. § 10228.
79. Congress repeatedly demonstrates its ability (when it so desires) to expressly confer agency discretion to add substantive conditions to federal grants. In the same statute that includes the Byrne JAG program, Congress created a different grant program that expressly authorized administering agencies to impose reasonable grant conditions. See 34 U.S.C. § 10446(e)(3) (Attorney General may “impose reasonable conditions on grant awards . . . .”). And Congress expressly conferred such authority in other federal grant programs. See, e.g., 47 U.S.C. § 1204(b)(2) (Under Secretary of Commerce can “establish such conditions . . . as may be appropriate to ensure the efficiency and integrity of the grant program”); 25 U.S.C. § 1652(b) (similar).
80. The Byrne JAG statute restricts the Attorney General’s authority to define or modify the components of the application submitted by local governments wishing to receive a grant. The statute gives the Attorney General limited ministerial authority to specify the “form” of the application. 34 U.S.C. § 10153(A) (requiring jurisdictions to submit an application containing the enumerated components “in such form as the Attorney General may require”). Although the Attorney General may require applicants to “comply with all provisions of this part and all other applicable Federal laws,” id. § 10153(a)(5)(D), that phrase refers to the host of laws that regulate the conduct of federal grant recipients as grant recipients.9
9 See, e.g., 41 U.S.C. § 4712(a)(1) (“An employee of a contractor, subcontractor, grantee, or subgrantee or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body . . . information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds . . . .”); 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any
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81. The text, history, and structure of 34 U.S.C. § 10153—which appears in a section of the Byrne JAG statute enumerating the responsibilities of grant recipients, and authorizes the United States Attorney General to require applicants to certify compliance “with all provisions of this part and all other applicable Federal laws,” 34 U.S.C. § 10153(a)(5)(D)—establishes that “applicable Federal laws” refers only to the body of laws that by their express text apply to federal grants. It does not refer to every section of the U.S. Code that could possibly apply to a state or local government.
82. Section 1373 and Section 1644 are not applicable laws within the meaning of 34 U.S.C. §§ 10153(a)(5)(D). Those provisions concern only information-sharing with federal authorities, contain no limits on the use of federal funds, and are textually unconnected to the Byrne JAG program.
83. Sections 1226(a) and (c), 1231(a), 1357(a), and 1366(1) and (3) are not applicable laws within the meaning of the Byrne JAG statute. By their terms, those provisions apply to the federal government, not individual cities and states. Section 1324 does not apply to state or local governments. These provisions are textually unconnected to the Byrne JAG program.
84. None of the challenged conditions concern applicable federal requirements. Each condition addresses civil immigration enforcement, which is wholly inapplicable to criminal justice grants. For example, there is no federal law requiring cities to provide ICE with “at least 48 hours’ advance notice” before releasing anyone in custody, and no federal law requires local police departments to give DHS officials access to detention facilities.
program or activity receiving Federal financial assistance.”); 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.”).
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85. In fact, Congress considered, but did not pass, legislation that would penalize cities for seeking to set their own law enforcement priorities. See Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. (2015) (proposing funding cuts for any sanctuary jurisdiction that violates Section 1373 or “prohibits any government entity or official from complying with a detainer”). Notably, however, Congress never passed legislation authorizing the executive branch to impose any penalty on local jurisdictions based on the refusal to comply with detainer or other immigration enforcement requests.
86. The challenged conditions also violate core constitutional principles. Separation of powers principles operate as independent restraints on cooperative federalism arrangements like the Byrne JAG program. The Constitution gives the spending power to Congress, not the executive branch. Federal agencies therefore may not invent funding conditions out of whole cloth.
87. The challenged conditions run afoul of the Tenth Amendment. The anticommandeering principle ensures that the sovereign states are free to legislate as they see fit to promote the safety and welfare of their residents. The principle forbids Congress to “unequivocally dictate[] what a state [or local] legislature may and may not do.” Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018).
88. Section 1373 and Section 1644 “unequivocally dictate[]” to cities that they may not promulgate policies or regulations that prohibit local officials from sharing immigration status information with federal officials. Id.; see, e.g., City of Philadelphia v. Sessions, No. 173894, 2018 WL 2725503, at *28-33 (E.D. Pa. June 6, 2018); accord United States v. California, No. 2:18-cv-490-JAM-KJN, 2018 WL 3301414, at *14 (E.D. Cal. July 5, 2018) (“The Court finds the constitutionality of Section 1373 highly suspect.”).
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89. The challenged conditions dictate what actions local law enforcement entities must take to accommodate federal immigration policies.
90. The compliance and questionnaire conditions impermissibly commandeers local governments. Using Section 1373 and 1644, the Attorney General attempts to commandeer cities by directing how their personnel act and handle data under local control in order to advance a federal program.
91. The notice and access conditions “unequivocally dictate[]” to cities that they must enact ordinances or policies concerning the administration of detention facilities and providing advance notification to federal officials. The notice condition seeks to fundamentally reorganize the way the Conference’s members balance their Fourth Amendment obligations against their interest in effective law enforcement. The access condition requires a fundamental restructuring of police procedures and functions to accommodate on-demand access to detainees by federal agents. The harboring and questionnaire conditions commandeer cities by directing how their personnel must act and handle data under local control in order to advance a federal program.
92. The federalization of bedrock local government functions violates the Tenth Amendment’s anti-commandeering principle. See Murphy, 138 S. Ct. at 1477 (“The Federal Government may not command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”) (quoting Printz v. United States, 521 U.S. 898, 935 (1997)).
I. The Department’s unlawful conditions will injure Evanston and the Conference’s other members, forcing them to choose between vital law enforcement funding and their constitutional rights.
93. Evanston and the Conference’s other members now face an impossible choice: sacrifice their sovereignty and their residents’ safety by acceding to unlawful funding demands that will undermine community-officer trust and cooperation, or forfeit crucial monies used to
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fund essential policing operations. The Department cannot force the Conference’s members to choose between their right to exercise municipal sovereignty and their right to receive formula grant funds that Congress allocated to them.
94. The importance of Byrne JAG funds and the choice cities now face is underscored by the number of local governments challenging the conditions. In August 2017, the City of Chicago, a member of the Conference, filed a lawsuit challenging the notice, access, and compliance conditions. City of Chicago v. Sessions, Case No. 17-cv-5720 (N.D. Ill.) (Leinenweber, J.). In addition to Chicago, the State of Illinois, City of Philadelphia, City and County of San Francisco, City of Los Angeles, State of California, City of Providence, City of Central Falls, City of New York, and City of West Palm Beach filed lawsuits challenging the Byrne JAG conditions.10
95. On September 15, 2017, the district court granted Chicago’s motion for a nationwide preliminary injunction as to the notice and access conditions because Chicago was likely to succeed on its claims that the Department lacked the authority to impose those conditions. City of Chicago v. Sessions, 264 F. Supp. 3d 933, 943, 951 (N.D. Ill. 2017) (“The notice and access conditions exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires.”).
96. On September 26, 2017, the Attorney General filed a motion to stay the nationwide preliminary injunction. Chicago, No. 17-cv-5720, ECF No. 80. Two days later, on September 28, 2017, counsel for the Conference appeared at the presentment of the Attorney
10 State of Illinois v. Sessions (No. 18-cv-4791, N.D. Ill.); City of Philadelphia v. Sessions (No. 17-3894, E.D. Pa.); City & County of San Francisco v. Sessions (No. 17-4642, N.D. Cal.); City of Los Angeles v. Sessions (No. 17-7215, C.D. Cal.); State of California v. Sessions (No. 17-4701, N.D. Cal.); City of Providence & City of Central Falls v. Sessions (No. 18-cv-437, D.R.I.); City of New York v. Sessions (No. 18-cv-6474, S.D.N.Y.); City of West Palm Beach v. Sessions (No.18-cv-80131, S.D. Fla.).
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General’s motion to stay and alerted the court that the Conference intended to seek leave to intervene in the case. The Conference filed its motion to intervene on October 6, 2017. Id., ECF No. 91.
97. On November 16, 2017, the district court denied the Conference’s motion to intervene. At that time, the district court explained that the Conference “can represent the interests of its members who may suffer an impending injury caused by the defendant’s acts.” Chicago, 2017 WL 5499167, at *5 (N.D. Ill. Nov. 16, 2017). However, the court denied intervention because the nationwide injunction in place at the time protected the Conference’s member cities’ interests. Id. at *9-10 (“Unless and until the status of the nationwide injunction changes, there is no reason to permit an intervention that will further complicate this litigation.”).
98. On April 19, 2018, the United States Court of Appeals for the Seventh Circuit affirmed the district court’s grant of a nationwide injunction as to the notice and access conditions. City of Chicago v. Sessions, 888 F.3d at 293. The panel unanimously concluded 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,” and two of the three judges held that the district court “did not abuse its discretion in granting the nationwide preliminary injunction.” Id.
99. The Attorney General subsequently filed a petition for rehearing en banc as to the scope of the preliminary injunction, which the Seventh Circuit subsequently vacated. Chicago, No. 17-2991, ECF No. 119 and ECF No. 154. Notably, the Attorney General did not request rehearing on the Seventh Circuit’s decision that Chicago established a likelihood of success on its claims that the Attorney General lacked authority to impose the notice and access conditions.
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100. This Court ultimately granted summary judgment in Chicago’s favor on all three conditions, concluding that the notice, access, and compliance conditions were ultra vires and unconstitutional. City of Chicago v. Sessions, 2018 WL 3608564, at *12-13, 17.
101. Even though the Attorney General did not appeal the Seventh Circuit’s decision that Chicago was likely to succeed on the merits of its claims that the Attorney General lacks the authority to impose the notice and access conditions, the Department began issuing FY 2017 Byrne JAG award notification documents as soon as the Seventh Circuit stayed the preliminary injunction as to geographic areas outside the City of Chicago. A few hours after the Seventh Circuit stayed the nationwide injunction, on June 26, 2018, the Department issued FY 2017 Byrne JAG award notifications to Conference member cities.
102. In July 2018, Evanston and the Conference sought a preliminary injunction to prevent the Attorney General from imposing the notice, access, and compliance conditions on Byrne JAG funds. ECF No. 10. On August 9, 2018, this Court issued a preliminary injunction prohibiting the enforcement of the notice, access, and compliance conditions against Evanston and the Conference’s other members. ECF No. 23 at 11. This Court held that Evanston and the Conference had standing to seek the requested injunctive relief and were “likely to prevail on the merits of their claims” that the Attorney General lacks authority to impose the conditions on Byrne JAG funds. Id. at 3-8. Notwithstanding its finding that the elements of injunctive relief had been established with respect to the Conference’s members, the Court was “disinclined to issue” a program wide (or nationwide) injunction “absent further guidance from the court of appeals.” Id. at 8. Noting its own “keen interest in deferring to the guidance of higher courts,” the Court “stay[ed] the injunction as to the Conference, which, by virtue of its membership, demands an injunction of near-nationwide effect.” Id. at 10-11.
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103. On August 29, 2018, the Seventh Circuit granted the Conference’s emergency motion to lift the stay, explaining that “the injunction is limited to the parties actually before the court who have demonstrated a right to the relief,” and ordering that the injunction “shall be in effect as originally ordered by the district court.” Appeal No. 18-2374, ECF No. 13 at 2.
104. After the Seventh Circuit lifted the stay, the Department began issuing FY 2017 award documents to Conference member cities that had not yet received them. The Department has issued FY 2017 awards containing the notice, access, and compliance conditions to hundreds of municipalities.11
105. Despite numerous courts enjoining the Attorney General from imposing the notice, access, and compliance conditions, the Department began issuing FY 2018 Byrne JAG award documents with the challenged conditions to Conference member cities on October 1, 2018. However, the Department continues to withhold FY 2018 Byrne JAG award documents from many Conference member cities. The Department’s refusal to disperse the FY 2018 funds to certain states and local governments adds confusion and uncertainty to the award process.
106. The Department’s imposition of the challenged conditions and its continued refusal to issue awards to certain cities pose a threat of imminent harm to Evanston and the Conference’s other members. Without Byrne JAG funds, Evanston and the Conference’s other members will have to shut down important local programs; change program staffing, scope, or goals; or divert funds from other policing objectives to sustain the programs.
COUNT ONE: ULTRA VIRES 107. Plaintiffs incorporate by reference the preceding paragraphs’ allegations. 108. The Attorney General may only exercise authority conferred by statute.
11 See https://ojp.gov/funding/Explore/OJPAwardData.htm. -32-

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109. The Byrne JAG statute does not authorize the Attorney General to impose the challenged conditions on the receipt of Byrne JAG funds, or to deny funds to states or local governments that fail to comply with those conditions. Indeed, such authority is at odds with the text, structure, and purpose of the Byrne JAG statute. These conditions are not “applicable Federal law” and do not deal with the administration and spending of funds.
110. The Attorney General may not demand that cities and other local governments comply with Section 1373 or Section 1644 as a condition of receiving Byrne JAG funds because Section 1373 and Section 1644 are unconstitutional. The Byrne JAG statute sanctions only the imposition of applicable federal laws; as unconstitutional laws, Section 1373 and Section 1644 no longer fall within that category. Therefore, the Attorney General has no authority to demand compliance with Section 1373 or Section 1644 under the Byrne JAG statute.
111. In addition, Section 1373 and Section 1644 are not applicable federal laws within the meaning of 34 U.S.C. § 10153(a)(5)(D) because they are not relevant to the administration and spending of funds. Section 1373 and Section 1644 concern only information-sharing with federal authorities, contain no limits on the use of federal funds, and are textually unconnected to the Byrne JAG program. Thus, Section 1373 and Section 1644 are not applicable laws within the meaning of 34 U.S.C. § 10153(a)(5)(D).
112. The Attorney General does not have the authority to demand compliance with Sections 1226(a) and (c), 1231(a), 1324(a), 1357(a), 1366(1) and 1366(3). Those provisions are not applicable federal laws within the meaning of 34 U.S.C. § 10153(a)(5)(D) because they are not relevant to the administration and spending of funds. In addition, the harboring condition specifically states that it applies even where disclosure of information would not violate federal anti-harboring laws.
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113. The Byrne JAG program’s formula-grant structure contradicts the Department’s purported authority to promulgate the challenged conditions. Unlike discretionary grants, which agencies award on a competitive basis subject to agency discretion, formula grants are awarded pursuant to a statutory formula. If the Department had the authority to impose new substantive conditions on all grantees, the effect would be to contradict Congress’s formula and reallocate funds to jurisdictions that adopted the Department’s preferred policy. It would also contradict Congress’s intent to give states and local governments the “flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005).
114. In addition, the challenged conditions are invalid under 34 U.S.C. § 10228(a), which prohibits executive branch officials from using law enforcement grants to exert “any direction, supervision, or control” over any local police force or criminal justice agency.
115. As a direct and proximate result of these unlawful conditions, Evanston and the Conference’s other members will be forced to accept unlawful and unconstitutional grant conditions or forego Byrne JAG funds and shut down the programs the funds support.
116. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Evanston and the Conference are entitled to a declaration that the Attorney General is without authority to impose the challenged conditions on FY 2017 Byrne JAG funds, FY 2018 Byrne JAG funds, or materially identical conditions in future grant years; an order that the challenged conditions be set aside; and a permanent injunction preventing the conditions from going into effect.
117. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Evanston and the Conference are entitled to an award of their costs, attorney fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the challenged conditions is not substantially justified
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because, among other reasons, it contravenes the Court’s order setting aside materially identical conditions the Attorney General attempted to impose on FY 2017 Byrne JAG funds.
118. Pursuant to 28 U.S.C. § 2412(b), Evanston and the Conference are entitled to an award of their costs, attorney fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the FY 2018 notice, access, and compliance conditions demonstrates bad faith and an attempt to undermine or avoid the Court’s order setting aside materially identical conditions the Attorney General attempted to impose on FY 2017 Byrne JAG funds.
COUNT TWO: SEPARATION OF POWERS 119. Plaintiffs incorporate by reference the preceding paragraphs’ allegations. 120. The Constitution vests the spending power in Congress, not the executive branch. U.S. Const. art. I § 8, cl. 1. Absent a statutory provision or express delegation, only Congress is entitled to attach conditions to federal funds. 121. When an agency acts “contrary to constitutional right, power, privilege, or immunity,” a reviewing court must “hold unlawful and set aside” the challenged action. 5 U.S.C. § 706. 122. The executive branch “does not have unilateral authority to refuse to spend . . . funds” that Congress already appropriated “for a particular project or program.” In re Aiken Cty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013); see also Train v. City of New York, 420 U.S. 35, 44 (1975). Imposing a new condition on a federal grant program amounts to refusing to spend money appropriated by Congress unless that condition is satisfied. 123. None of the challenged conditions were imposed by Congress; rather, the Department imposed these conditions. Therefore, the challenged conditions amount to an improper usurpation of Congress’s spending power by the executive branch.
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124. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, the Conference and Evanston are entitled to a declaration that the challenged conditions for the FY 2017 and FY 2018 Byrne JAG funds, as well as any materially identical conditions the Attorney General may impose in future grant years, violate the constitutional principle of separation of powers and impermissibly arrogate to the executive branch power that is reserved to the legislative branch; and a permanent injunction preventing the conditions from going into effect.
125. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Evanston and the Conference are entitled to an award of their costs, attorney fees, and expenses associated with this litigation. The Attorney General’s attempt to impose challenged conditions is not substantially justified because, among other reasons, it contravenes the Court’s order setting aside materially identical conditions the Attorney General attempted to impose on FY 2017 Byrne JAG funds.
126. Pursuant to 28 U.S.C. § 2412(b), Evanston and the Conference are entitled to an award of their costs, attorney fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the FY 2018 notice, access, and compliance conditions demonstrates bad faith and an attempt to undermine or avoid the Court’s order setting aside materially identical conditions.
COUNT THREE: SPENDING CLAUSE 127. Plaintiffs incorporate by reference the preceding paragraphs’ allegations. 128. Not only did Congress not authorize (expressly or impliedly) the challenged conditions; but Congress could not have authorized the conditions because they do not satisfy additional requirements of the Spending Clause. 129. First, the challenged conditions are not germane to the stated purposes of the Byrne JAG funds. None of the conditions are relevant to the federal interest in the Byrne JAG funds that Conference members receive or to the Byrne JAG program generally.
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130. The notice and access conditions are not relevant to the federal interest in the Byrne JAG funds the Conference’s members receive. Information about when detainees will be released, and policies related to access for federal agents bear no relevance to the uses to which Conference members put Byrne JAG funds.
131. The compliance condition is not relevant to the federal interest in the Byrne JAG funds the Conference’s members receive. Sharing information about immigration status with federal officials bears no connection to the uses to which Conference members put Byrne JAG funds.
132. The harboring condition is not relevant to the federal interest in the Byrne JAG funds the Conference’s members receive. By regulating public disclosure by public entities, the harboring condition appears so far-reaching as to instruct state and local governments how to govern in myriad and complex ways, none of which bear any connection to the uses to which Conference members put Byrne JAG funds.
133. The questionnaire condition is not relevant to the federal interest in the Byrne JAG funds the Conference’s members receive. The information sought is not relevant to the Byrne JAG program. The apparent purpose of the questionnaire is to help the Department enforce its other unlawful immigration-related conditions.
134. The challenged conditions relate to civil immigration enforcement and are not relevant to the federal interest in the Byrne JAG program more generally. The program is intended to provide funding to states and local governments for criminal justice purposes. The challenged conditions actively undermine Congress’s goals of dispersing funds across the country, targeting funds to combat violent crime, and respecting local judgment in setting law enforcement strategy.
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135. Second, the challenged conditions would impermissibly induce Byrne JAG recipients to engage in unconstitutional activity.
136. The Spending Clause prohibits the federal government from imposing spending conditions to “induce the States to engage in activities that would themselves be unconstitutional.” S. Dakota v. Dole, 483 U.S. 203, 210 (1987). The challenged conditions seek to require Byrne JAG recipients to engage in unconstitutional activity.
137. Third, the challenged conditions are unconstitutionally ambiguous. 138. Federal restrictions on state and local funding must be articulated unambiguously to allow the recipient to knowingly accept the conditions and ascertain what is expected. 139. All of challenged conditions are ambiguous as to what is expected of grant recipients, particularly given Evanston’s and other Conference members’ welcoming city policies and other relevant policies and practices. The conditions do not provide cities with notice to make a choice knowingly and cognizant of the consequences of their participation. 140. Many interpretations of the challenged conditions raise serious constitutional concerns. Where a grant recipient must resolve tension between the Constitution and a federal agency’s informal interpretation announced in a guidance document to ascertain what is expected of it, a condition cannot be characterized as unambiguous. 141. The compliance condition is ambiguous, and many interpretations of the condition raise serious constitutional concerns. Section 1373 and Section 1644 use sweeping language with no discernable limiting principle. The Department added to the confusion by suggesting without explanation that Section 1373 implicates a wide range of state and local governance practices, from formal laws to informal cultural norms. In addition, the Department
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compounded the confusion by questioning the compliance of many jurisdictions with Section 1373 without deciding whether the Department believes those jurisdictions’ policies comply.12
142. The other challenged conditions are likewise ambiguous. For example, the Department has offered no guidance on how a city’s disclosure of information could constitute “conceal[ing], harbor[ing], or shield[ing] from detection” any individual.
143. Fourth, the challenged conditions are unconstitutionally coercive. 144. The Spending Clause prohibits grant conditions that are “so coercive as to pass the point at which ‘pressure turns into compulsion.’” Dole, 483 U.S. at 211 (citation omitted). 145. As a direct and proximate result of the challenged conditions, the Conference’s members are forced to either accept unlawful and unconstitutional grant conditions or forego Byrne JAG funds. The challenged conditions threaten financial consequences that exceed the point at which pressure turns to constitutionally impermissible compulsion. 146. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, the Conference and Evanston are entitled to a declaration that the challenged conditions for the FY 2017 and FY 2018 Byrne JAG funds, as well as any materially identical conditions the Attorney General may impose in future grant years, violate the Constitution’s Spending Clause; and a permanent injunction preventing the conditions from going into effect. 147. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Evanston and the Conference are entitled to an award of their costs, attorney fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the challenged conditions is not substantially justified because, among other reasons, it contravenes the Court’s order setting aside materially identical conditions the Attorney General attempted to impose on FY 2017 Byrne JAG funds.
12 Press Release, U.S. Dep’t of Justice, Department of Justice Reviewing Letters from Ten Potential Sanctuary Jurisdictions (July 6, 2017), http://tinyurl.com/ybdhf7vy.
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148. Pursuant to 28 U.S.C. § 2412(b), Evanston and the Conference are entitled to an award of their costs, attorney fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the FY 2018 notice, access, and compliance conditions demonstrates bad faith and an attempt to undermine or avoid the Court’s order setting aside materially identical conditions.
COUNT FOUR: COMMANDEERING 149. Plaintiffs incorporate by reference the preceding paragraphs’ allegations. 150. The Tenth Amendment prohibits the federal government from requiring states and localities “to administer or enforce a federal regulatory program.” Murphy v. NCAA, 138 S. Ct. 1461, 1477 (2018). The anti-commandeering principle prevents the federal government from shifting the costs of regulation to states and local governments. Id. Where the “whole object” of a federal statutory provision is to “direct the functioning” of state and local governments, that provision is unconstitutional and must be enjoined. Printz v. United States, 521 U.S. at 898, 932, 935 (1997); New York v. United States, 505 U.S. 144, 186-187 (1992). That description precisely fits each of the challenged conditions. 151. Section 1373 is facially unconstitutional. When Congress enacted Section 1373, it sought to ensure that “[t]he acquisition, maintenance, and exchange of immigration-related information by State and local agencies” could be used to enforce federal law. S. Rep. No. 104249, at 19-20 (1996). In doing so, it sought to “require [state and local officers] to provide information that belongs to the State and is available to them only in their official capacity”—in other words, to engage in unconstitutional commandeering. Printz, 521 U.S. at 932 n.17. 152. Section 1644 is facially unconstitutional. Section 1644 is substantially identical to Section 1373. Section 1373 and Section 1644 prohibit state and local governments from engaging in a core aspect of governing: controlling the actions of their own employees.
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Compliance with Sections 1373 and 1644 result in the federal government commandeering cities by directing how city personnel should act and handle data under local control to advance a federal program. In fact, the Department instructed that states and local governments may need to provide affirmative instruction to employees to comply.13 Section 1373 and Section 1644 require local officers to follow federal directives and usurp the local policymaking process.
153. Because Section 1373 and Section 1644 are facially unconstitutional, they cannot be validly enforced against Byrne JAG funding recipients as “applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D).
154. The challenged conditions impermissibly commandeer cities and cannot be validly imposed on Byrne JAG funding recipients.
155. As a direct and proximate result of these unconstitutional conditions, the Conference’s members will be forced to accept unlawful and unconstitutional grant conditions or forego Byrne JAG funds and shut down or materially alter the programs the funds support.
156. Pursuant to 28 U.S.C. § 2201, the Conference and Evanston are entitled to a declaration that 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment and cannot be validly imposed as conditions on the Byrne JAG program.
157. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, the Conference and Evanston are entitled to a declaration that the challenged conditions for the FY 2017 and FY 2018 Byrne JAG funds, as well as any materially identical conditions the Attorney General may impose in future grant years, violate the Tenth Amendment; a declaration that the challenged conditions
13 See Memorandum from Michael E. Horowitz, Inspector Gen., U.S. Dep’t of Justice, to Karol V. Mason, Assistant Attorney Gen., Office of Justice Programs, U.S. Dep’t of Justice, Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients 6 (May 31, 2016), https://tinyurl.com/y9rpwge4.
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cannot be validly imposed as conditions on the Byrne JAG program; and a permanent injunction preventing the conditions from going into effect.
158. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Evanston and the Conference are entitled to an award of their costs, attorney fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the challenged conditions is not substantially justified because, among other reasons, it contravenes the Court’s order setting aside materially identical conditions the Attorney General attempted to impose on FY 2017 Byrne JAG funds.
159. Pursuant to 28 U.S.C. § 2412(b), Evanston and the Conference are entitled to an award of their costs, attorney fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the FY 2018 notice, access, and compliance conditions demonstrates bad faith and an attempt to undermine or avoid the Court’s order setting aside materially identical conditions.
COUNT FIVE: ADMINISTRATIVE PROCEDURE ACT (Arbitrary and Capricious)
160. Plaintiffs incorporate by reference the preceding paragraphs’ allegations. 161. In addition to the Attorney General lacking statutory and constitutional authority to impose the challenged conditions, the conditions are arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 706. 162. The Department’s decision to condition FY 2017 Byrne JAG funds and FY 2018 Byrne JAG funds on compliance with the challenged conditions deviates from past agency practice without reasoned explanation or justification. The Department failed to rely on reasoned decision-making and, to the extent it cited reasons at all, those reasons are contradicted by evidence.
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163. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, the Conference and Evanston are entitled to a declaration that the challenged conditions for the FY 2017 and FY 2018 Byrne JAG funds, as well as any materially identical conditions the Attorney General may impose in future grant years, violate the APA; and a permanent injunction preventing those conditions from going into effect.
164. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Evanston and the Conference are entitled to an award of their costs, attorney fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the challenged conditions is not substantially justified because, among other reasons, it contravenes the Court’s order setting aside materially identical conditions the Attorney General attempted to impose on FY 2017 Byrne JAG funds.
165. Pursuant to 28 U.S.C. § 2412(b), Evanston and the Conference are entitled to an award of their costs, attorney fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the FY 2018 notice, access, and compliance conditions demonstrates bad faith and an attempt to undermine or avoid the Court’s order setting aside materially identical conditions.
PRAYER FOR RELIEF WHEREFORE, The United States Conference of Mayors and the City of Evanston pray that this Court: a) Declare that the challenged conditions for the FY 2017 and FY 2018 Byrne JAG programs are unlawful; b) Preliminarily and permanently enjoin the Attorney General from imposing the challenged conditions on the FY 2017 and FY 2018 Byrne JAG funds, and from imposing the challenged conditions, as well as materially identical conditions, on future Byrne JAG funds;
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c) Retain jurisdiction to monitor the Department’s compliance with this Court’s

judgment;

d) Award Plaintiffs their reasonable attorney fees, expenses, and costs as permitted

by federal law, including the Administrative Procedure Act and 28 U.S.C. § 2412; and

e) Grant such other relief as this Court may deem proper.

Dated: December 10, 2018

Respectfully submitted,

THE UNITED STATES CONFERENCE OF MAYORS and CITY OF EVANSTON

By: /s/ Brian C. Haussmann Counsel for the United States Conference of Mayors
Brian C. Haussmann Katherine M. O’Brien John M. Fitzgerald Kyle A. Cooper TABET DIVITO & ROTHSTEIN LLC 209 South LaSalle Street, 7th Floor Chicago, IL 60604 Telephone: (312) 762-9450 bhaussmann@tdrlawfirm.com kobrien@tdrlawfirm.com jfitzgerald@tdrlawfirm.com kcooper@tdrlawfirm.com
By: /s/ Michelle L. Masoncup Counsel for City of Evanston
Michelle L. Masoncup Corporation Counsel Law Department City of Evanston 2100 Ridge Avenue Evanston, IL 60201 Telephone: (847) 448-8009 mmasoncup@cityofevanston.org

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CERTIFICATE OF SERVICE I hereby certify that on December 10, 2018, I electronically filed the foregoing document by using the Court’s CM/ECF system. Counsel for all parties are registered CM/ECF users, and service will be accomplished by the CM/ECF system.
By: /s/ Brian C. Haussmann Brian C. Haussmann

 
 City of Evanston v. Barr, 412 F.Supp.3d 873 (2019)

412 F.Supp.3d 873 United States District Court, N.D. Illinois, Eastern
Division.
CITY OF EVANSTON and the United States Conference of Mayors, Plaintiffs, v.
William P. BARR, in his Official Capacity as Attorney General of the United States, Defendant.
Case No. 18 C 4853 |
Signed 09/26/2019
Synopsis Background: City and United States Conference of Mayors brought action alleging that immigration-related notice, access, and compliance conditions that Attorney General placed on Edward Byrne Memorial Justice Assistance Grant (JAG) Program grants were ultra vires and violated separation of powers, Spending Clause, Tenth Amendment’s anti-commandeering doctrine, and Administrative Procedure Act (APA). Plaintiffs moved to summary judgment, and Attorney General moved to dismiss or for summary judgment.
Holdings: The District Court, Harry D. Leinenweber, Senior District Judge, held that:
city alleged sufficient injury in fact to establish standing;
Conference had associational standing to bring action;
Attorney General lacked statutory authority to impose questionnaire condition requiring grant applicants to describe any of its laws, policies, or practices relating to communication with federal immigration agencies;
permanent injunction covering all future years of Byrne JAG Program was appropriate
issuance of nationwide permanent injunction was not warranted; and
issuance of permanent injunction barring proposed conditions on funds on all impacted Conference members
1

was warranted.
Motions granted in part and denied in part.
Procedural Posture(s): Motion for Summary Judgment; Motion to Dismiss for Failure to State a Claim; Motion to Dismiss for Lack of Subject Matter Jurisdiction.
Attorneys and Law Firms
*876 Michelle Lee Masoncup, City of Evanston, Evanston, IL, Brian C Haussmann, Amie Marie Bauer, John Matthew Fitzgerald, Katherine M. O’Brien, Kyle Alexander Cooper, Tabet DiVito & Rothstein LLC, Chicago, IL, for Plaintiffs.
Brad P. Rosenberg, Daniel Duane Mauler, Charles E.T. Roberts, U.S. Department of Justice, Washington, DC, AUSA, United States Attorney’s Office, Chicago, IL, for Defendant.
MEMORANDUM OPINION AND ORDER
Harry D. Leinenweber, Judge
This litigation concerns the U.S. Attorney General’s ability to attach conditions *877 to funds that Congress charged his office with distributing to State and local governments. Plaintiffs, the City of Evanston and the U.S. Conference of Mayors (the “Conference”), bring suit against the Attorney General for alleged violations of the U.S. Constitution and the Administrative Procedures Act. Plaintiffs now seek summary judgment in their favor. The Attorney General, in turn, contends that the Court should dismiss Plaintiffs’ Amended Complaint, or in the alternative, grant summary judgment in his favor. For the reasons stated herein, Defendant’s Motion to Dismiss (Dkt. No. 77) is denied and Plaintiffs’ Motion for Summary Judgment (Dkt. No. 52) is granted in part and denied in part.

City of Evanston v. Barr, 412 F.Supp.3d 873 (2019)
I. BACKGROUND
In addition to describing the most relevant facts here, the Court incorporates those facts previously described in its earlier ruling. (See Aug. 9, 2018, Order, Dkt. No. 23.) The Conference is a non-profit and non-partisan association that exists to address the intersection of federal and local policy on behalf of cities with populations of 30,000 or more. (Def.’s Resp. to Pls.’ Stmt. of Facts (“PSOF”) ¶¶ 1, 8-10, Dkt. No. 80.) The Conference’s members are cities, which are represented in the Conference by their mayors. (Id. ¶ 8.) Evanston is a municipal corporation and home rule unit of government in Illinois and is a member of the Conference. (Id. ¶ 2.) The Conference has resolved to oppose the Attorney General’s decision to attach certain immigration-related conditions to Byrne JAG funds. (Id. ¶ 8.)
The Byrne JAG program is the primary source of federal criminal justice funding to States and units of local government. (PSOF ¶ 18.) The Office of Justice Programs (OJP) within the Department of Justice (DOJ) oversees the Byrne JAG program. (Id.) Byrne JAG funds are administered according to a statutory formula based on share of violent crime, population, and other factors. See 34 U.S.C. § 10156. Conference members have applied for and received Byrne JAG funds since 2006. (PSOF ¶ 24.) In FY 2017, approximately 350 Conference members were directly allocated around $50 million in Byrne JAG funds. (Id. ¶ 26.)
Cities can also receive Byrne JAG funds indirectly through their State or a nearby local government. DOJ does not make direct grants to cities that, under the Byrne JAG formula, would receive less than a certain minimum—$10,000 in FY 2017 and FY 2018. (Id. ¶ 20.) Cities that are allocated less than $10,000 receive their Byrne JAG funds through an application submitted by the State or nearby local government. (PSOF ¶ 21.) Additionally, the Byrne JAG statute requires cities that bear a higher cost of preventing and investigating violent crimes than their neighboring community to submit a joint application for the aggregate JAG funds allocated both to itself and its neighbor. See 34 U.S.C. § 10156(d)(4). For this reason, Evanston receives its Byrne JAG funds through the application submitted by the City of Chicago. (PSOF ¶ 21.) To draw down its JAG funds, Evanston must supply all information or certifications, and agree to any conditions, that DOJ requires of all grant recipients. (Id. ¶ 21.) Evanston was allocated $12,654 in FY 2017 Byrne JAG funds, and $10,919 in FY 2018. (Id. ¶¶ 26, 29.)
2

Plaintiffs filed this suit in July of 2018, seeking an injunction to keep the Attorney General from enforcing certain “notice, access, and Section 1373 compliance conditions” in the FY 2017 Byrne JAG grants. On August 9, 2018, after issuing a ruling on the merits of those conditions in a parallel case, *878 City of Chicago v. Sessions, No. 17-cv-5720 (N.D. Ill.), the Court issued a preliminary injunction in this case. (See Aug. 9, 2018, Order.) At that time, the Attorney General had imposed a fast-approaching deadline by which Conference members had to agree to those three unlawful conditions or forgo their FY 2017 awards. Accordingly, the Court issued the preliminary injunction to cover both Evanston and those Conference members facing an “accept or decline” deadline. (See Aug. 9, 2018, Order at 11.) However, because the nationwide scope of the injunction in the City of Chicago case was (and remains) on appeal before the Seventh Circuit, the Court stayed the injunction as to the Conference members. Soon after, the Seventh Circuit lifted that stay, holding that this case is “fundamentally different” than the situation in City of Chicago because the injunction in this case is “limited to parties actually before the court who have demonstrated a right to relief.” (See Evanston and U.S. Conference of Mayors v. Sessions, No. 18-2734 (7th Cir.), Aug. 29, 2018, Order, Dkt. No. 33.) Thus, since the Seventh Circuit’s Order, the preliminary injunction has prohibited the Attorney General from imposing the notice, access, and Section 1373 compliance conditions on receipt of the FY 2017 Byrne JAG funds for Evanston or any Conference members that faced an accept or decline deadline.
DOJ began distributing FY 2018 Byrne JAG awards in October of 2018. (PSOF ¶ 45.) In December of 2018, Plaintiffs filed their Amended Complaint, asserting that the Attorney General had again attached the unlawful notice, access, and Section 1373 compliance conditions (the “repeat conditions”) to the FY 2018 JAG funds. Plaintiffs also alleged that the Attorney General imposed new unconstitutional conditions on the FY 2018 grants, namely:
1. The Section 1644 compliance condition. This condition requires the applicant’s Chief Legal Officer to certify that the “program or activity” funded under the Byrne JAG award complies with 8 U.S.C. § 1644. (Byrne JAG Program FY 2018 Local Solicitation at 27, Ex. H to Pl.’s Request for Judicial Notice (RJN), Dkt. No. 62-2.) 8 U.S.C. § 1644 provides: “Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or

City of Evanston v. Barr, 412 F.Supp.3d 873 (2019)
in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.” 8 U.S.C. § 1644.
2. The harboring condition. This condition prohibits the recipient jurisdiction from making any public disclosure “of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under 18 U.S.C. ch. 49, or any alien who has come to, entered, or remains in the United States in violation of 8 U.S.C. ch. 12.” (See Albuquerque FY 2018 Byrne JAG Award ¶ 44, Ex. S to Pl.’s RJN, Dkt. No. 62-3.)
3. The additional certification requirement. This condition requires the applicant’s Chief Executive to submit a “Certifications and Assurances by the Chief Executive of the Applicant Government.” (Certifications and Assurances by the Chief Executive of the Applicant Government, Ex. K to Pl.’s RJN, Dkt. No. 63-2.) The condition incorporates a requirement that the applicant’s Chief Legal officer certify that the applicant government has no “law, rule, policy, or practice that would apply to the ‘program or activity’ to be funded” that would “(a) impede the exercise by federal officers of authority under 8 U.S.C. § 1357(a); or (b) impede the exercise by federal officers of authority relating to 8 U.S.C. § 1226(a) or (c), *879 8 U.S.C. § 1231(a), or 8 U.S.C. § 1366(1) or (3).” (State or Local Government: FY 2018 Certification, Ex. L to Pl.’s RJN, Dkt. No. 62-3.)
4. The questionnaire condition. This condition requires each applicant to answer the following questions:
(1) Does your jurisdiction have any laws, policies, or practices related to whether, when, or how employees may communicate with [the Department of Homeland Security (DHS) ] or [Immigrations and Customs Enforcement (ICE) ]?
(2) Is your jurisdiction subject to any laws from a superior political entity (e.g., a state law that binds a city) that meet the description in question 1?
(3) If yes to either: Please provide a copy of each law or policy; Please describe each practice; Please explain how the law, policy, or practice complies with Section 1373.
3

(Byrne JAG Program FY 2018 Local Solicitation at 27-28, Ex. H to Pl.’s RJN.)
This Court recently issued a summary judgment opinion in which it held the Section 1644 compliance condition, harboring condition, and the additional certification requirement, as well as the repeat conditions, unlawful. See City of Chicago v. Barr, No. 18 C 6859, 2019 WL 4511546 (N.D. Ill. Sept. 19, 2019). The Court has not yet ruled on the legality of the questionnaire condition. The Court will refer to the seven conditions Plaintiffs seek to enjoin in this suit collectively as the “challenged conditions.”
The Amended Complaint contains five counts. Counts I and II allege that the challenged conditions are ultra vires and violate the separation of powers, because absent a statutory provision or express delegation, only Congress is entitled to attach conditions to federal funds. Count III asserts that the challenged conditions violate the Spending Clause of the U.S. Constitution. Count IV alleges that the challenged conditions violate the Tenth Amendment’s anti-commandeering doctrine. Count V charges that the challenged conditions are arbitrary and capricious in violation of the Administrative Procedure Act.
The Attorney General now moves to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or in the alternative, to grant summary judgment in his favor on all counts of the Amended Complaint. Plaintiffs move for summary judgment in their favor on Counts I, II, and IV, and seek a permanent injunction prohibiting the Attorney General from imposing the challenged conditions on the receipt of Byrne JAG funds. Plaintiffs concede that if the Court grants summary judgment in their favor on Counts I, II, and IV, then Counts III and V should be dismissed as moot. Plaintiffs further reserve their right, upon final judgment of the Court and pursuant to 28 U.S.C. § 2412, to seek reasonable attorneys’ fees, expenses, and costs.
The Court will first address the jurisdictional arguments for dismissal, and then turn to the merits of the Counts at issue in Plaintiffs’ Motion for Summary Judgment.
II. LEGAL STANDARDS

City of Evanston v. Barr, 412 F.Supp.3d 873 (2019)
A motion to dismiss pursuant to Rule 12(b)(1) tests the jurisdictional sufficiency of a complaint. See FED. R. CIV. P. 12(b)(1). The Attorney General asserts a facial challenge, as he argues that the Plaintiffs have not sufficiently alleged a basis of subject matter jurisdiction. See Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). In a facial challenge to subject matter jurisdiction, a court does not look *880 beyond the allegations in the complaint, which are taken as true for purposes of the motion. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). Plaintiffs bear the burden of establishing the elements necessary for jurisdiction. See Silha, 807 F.3d at 173.
Rule 12(b)(6) allows dismissal for “failure to state a claim upon which relief can be granted.” See FED. R. CIV. P. 12(b)(6). A court entertaining a Rule 12(b)(6) motion must construe the complaint in the light most favorable to the plaintiff and accept as true all well-pleaded facts alleged. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). To survive a motion to dismiss under Rule 12(b)(6), a complaint must “provide a short and plain statement of the claim showing that the pleader is entitled to relief, sufficient to provide the defendant with fair notice of the claim and its basis.” Id.; see also FED. R. CIV. P. 8(a)(2).
Summary judgment is appropriate when the movant shows that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See FED. R. CIV. P. 56. A court must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Foley v. City of Lafayette, Ind., 359 F.3d 925, 928 (7th Cir. 2004). In ruling on summary judgment, courts do not determine the truth of disputed matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
III. DISCUSSION
A. Evanston’s Standing
The Attorney General argues that dismissal under Rule
4

12(b)(1) is necessary because Evanston lacks standing and the Conference lacks associational standing. To establish Article III standing, an individual plaintiff must show (1) an “injury in fact,” (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a “likelihood” that the injury “will be redressed by a favorable decision.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014). To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016).
According to the Attorney General, Evanston cannot satisfy the injury in fact requirement because Evanston is a subgrantee of Chicago, and therefore is subject to the challenged conditions only to the extent that those conditions apply to Chicago itself. And Chicago is currently protected by an injunction in the Chicago v. Barr case from almost all of the conditions that Evanston challenges here. However, the Court has already considered and rejected this argument. (See Aug. 9, 2018, Order at 3-4.) The Attorney General does not dispute that subgrantees such as Evanston must supply any information and certifications, and agree to any conditions, that DOJ requires of all direct grant recipients. (PSOF ¶ 21.) Thus, as this Court has already held, an injunction that prohibits DOJ from enforcing the challenged conditions against Chicago “does not insulate Evanston” from the requirement to comply with those conditions. (Aug. 9, 2018, Order at 4.) Accordingly, Evanston faces a concrete and particularized injury that is clearly traceable to the Attorney General’s actions and is likely to be redressed by a favorable decision in this case.
As a final argument on Evanston’s standing, the Attorney General asserts that Evanston lacks standing to challenge *881 the additional certification requirement because OJP has publicly announced that it is currently not enforcing this requirement against Chicago and its sub-recipients. This argument fails for the same reason the Court explained in its recent City of Chicago opinion. See City of Chicago v. Barr, No. 18 C 6859, 2019 WL 4511546, at *7 (N.D. Ill. 2019) (the Attorney General’s voluntary cessation of imposing certain grant conditions does not defeat standing or moot plaintiff’s complaint). Thus, Evanston has standing to challenge the Byrne JAG conditions. The Court turns to the Conference’s standing.

City of Evanston v. Barr, 412 F.Supp.3d 873 (2019)
B. The Conference’s Standing
The Attorney General additionally moves to dismiss the Conference from this action for lack of associational standing. This Court has already twice held that the Conference has associational standing to litigate this issue on behalf of its members. See Aug. 9, 2018, Order at 5-7; City of Chicago v. Sessions, No. 17 C 5720, 2017 WL 5499167, at *5 (N.D. Ill. 2017). In his Motion to Dismiss, the Attorney General “renews” his challenge to the Conference’s associational standing and refers the Court to his brief in opposition to the preliminary injunction. (Def.’s Mot. at 10, 26, Dkt. No. 78.) Other than asserting he is “renewing” his objection to the Conference’s standing and referring the Court to an argument it has already considered and rejected, the Attorney General offers no explanation for why the Court should change its decision on standing.
Regardless, the Court will briefly note again why the Conference has associational standing. Associational standing requires that: (1) the Conference’s members would otherwise have standing to sue in their own right; (2) the interests that the Conference seeks to protect are germane to its organizational purpose; and (3) neither the claim asserted, nor the relief requested requires the participation of individual Conference members in the lawsuit. Ezell v. City of Chicago, 651 F.3d 684, 696 (7th Cir. 2011). The first requirement is met when even one member of the association shows that it would have standing to bring suit on its own behalf. Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Thus, Evanston’s standing alone would suffice to confer associational standing on the Conference. However, approximately 350 Conference members were directly allocated Byrne JAG funds in FY 2018, to say nothing of the potential number of Conference members who receive funds as subgrantees. (Joint Stip. ¶ 6, Dkt. No. 74-1.) Those 350 cities all have standing as they all face the injury of being obliged to comply with unlawful conditions; thus, the first requirement is clearly met. (See Aug. 9, 2018, Order at 5.) The second requirement is met because the purpose of the Conference is to coordinate cities’ interaction with the federal government, and this lawsuit seeks to prevent overreach by the Executive Branch and preserve local decision-making authority. (See id. at 6.) And the third requirement is satisfied
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because this suit raises a “pure question of law”—whether the Attorney General exceeded his statutory authority when imposing the challenged conditions on Byrne JAG funds—that is not contingent on evidence from any specific city. See Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 287-88, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986). Therefore, as this Court has held twice before, the Conference has associational standing.
C. First Six Challenged Conditions
Plaintiffs are entitled to summary judgment on Counts I and II with respect to *882 the notice, access, Section 1373 compliance, Section 1644 compliance, and harboring conditions, as well as the additional certification requirement. See City of Chicago v. Barr, No. 18 C 6859, 2019 WL 4511546, at *10-14 (N.D. Ill. 2019) (holding those conditions ultra vires).
Plaintiffs additionally move for summary judgment on Count IV. This Count alleges a violation of the Tenth Amendment’s anticommandeering doctrine, which limits Congress’s ability to issue orders directly to State and local governments. See Murphy v. Nat’l Collegiate Athletic Ass’n, ––– U.S. ––––, 138 S. Ct. 1461, 1475, 200 L.Ed.2d 854 (2018). In their motion for summary judgment, Plaintiffs explain that they seek a declaration that 8 U.S.C. §§ 1373 and 1644 violate the anticommandeering doctrine, and therefore the Attorney General cannot impose compliance with these laws as a condition of accepting Byrne JAG funding. Plaintiffs are entitled to this relief. See City of Chicago, 2019 WL 4511546, at *10 (“[T]he Court’s ruling that § 1373 violates the anticommandeering doctrine applies equally to § 1644.... [T]herefore compliance with § 1644 cannot be imposed as a condition of accepting Byrne JAG funds.”)
However, the Court notes that the Amended Complaint includes, within Count IV, a request for a declaratory judgment that all challenged conditions violate the Tenth Amendment’s anticommandeering principle. (See Am. Compl. ¶¶ 150, 157, Dkt. No. 46.) Plaintiffs presented arguments as to why all challenged conditions are ultra vires but did not argue that the challenged conditions themselves impermissibly commandeer state and local

City of Evanston v. Barr, 412 F.Supp.3d 873 (2019)
governments. Nor could they. See City of Chicago v. Sessions, 321 F. Supp. 3d 855, 867 (N.D. Ill. 2018) (“No Tenth Amendment problem exists when a federal agency imposes grant conditions, because the Spending Clause empowers the federal government to offer funds in exchange for state action it could not otherwise demand.”) (citations omitted). Thus, to the extent Plaintiffs seek a declaration that the challenged conditions violate the anticommandeering doctrine, that is denied.
Because the Court granted summary judgment in Plaintiffs’ favor on Counts I, II, and IV, Counts III and V need not be resolved and are dismissed as moot. See City of Chicago, 2019 WL 4511546, at *14.
D. Questionnaire Condition
The parties cross-move for summary judgment on Counts I and II as to the questionnaire condition. The questionnaire condition requires a Byrne JAG applicant to describe any of its laws, policies, or practices that relate to communication with DHS and ICE and to provide an explanation of how those laws, policies, or practices comply with 8 U.S.C. § 1373. (Byrne JAG Program FY 2018 Local Solicitation at 27-28.) Plaintiffs argue that the Attorney General lacks statutory authority to impose this condition.
The Executive Branch has “no inherent authority to place conditions on the receipt of federal funds—any such authority must be given to the executive by the legislature.” City of Chicago v. Sessions, 888 F.3d 272, 295 (7th Cir. 2018) (citing La. Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986)), reh’g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018), vacated, No. 17-2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018). This is because the power of the purse belongs to Congress, not the Executive. See City of Chicago, 888 F.3d at 283. Because the Attorney General’s authority to attach conditions to Byrne JAG grants and to depart from the funding distribution formula mandated by 34 U.S.C. § 10156 is “strictly circumscribed,” *883 id. at 286, whether the questionnaire condition is ultra vires depends on whether Congress has delegated to the Attorney General, by statute, the authority to impose such a condition. Thus, the
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Court faces a question of statutory interpretation.
Statutory interpretation begins with the plain language of the statute. United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008). A court must “assume that the legislative purpose [of the statute] is expressed by the ordinary meaning of the words used.” Id. (citations omitted). Absent clearly expressed Congressional intent to the contrary, the plain language should be conclusive. Id. The language and design of the statute as a whole may also provide guidance in determining the plain meaning of its provisions. Id.
The Attorney General identifies several statutory provisions that he claims give him the authority to impose the questionnaire condition. He first points to 34 U.S.C. § 10102, which sets forth the specific, delegated, and general powers of the Assistant Attorney General (AAG) for the Office of Justice Programs. The Attorney General contends that § 10102(a)(6) authorizes the questionnaire condition. This section authorizes the AAG to “exercise such other 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.” See 34 U.S.C. § 10102(a)(6). However, the Seventh Circuit has roundly rejected this provision as an independent source of authority for the Attorney General to create grant conditions, and the Court need not address it again. See City of Chicago, 888 F.3d at 285 (“[T]he Attorney General’s argument ... that the ‘including’ clause itself is a stand-alone grant of authority to the [AAG] to attach any conditions to any grants in that subchapter ... is untenable.”) This argument fails.
The Attorney General next points to §§ 10102(a)(2) and (a)(4), which require the AAG to “maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice,” and “maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice.” 34 U.S.C. §§ 10102(a)(2), (a)(4). This Court recently rejected the argument that the “maintain liaison” language confers authority on the Attorney General to impose immigration enforcement-related conditions on Byrne JAG funds. See City of Chicago, 2019 WL 4511546, at *12. The Court sees no reason to depart from that conclusion here. Sections 10102(a)(2) and (a)(4) are more plausibly read as an instruction for the AAG to maintain bilateral communications or act as a point of contact with state and local governments. See id. (citing

City of Evanston v. Barr, 412 F.Supp.3d 873 (2019)
City & Cty. of San Francisco v. Sessions, 372 F. Supp. 3d 928, 944 (N.D. Cal. 2019)). The AAG’s duty to “maintain liaison ... in matters relating to criminal justice” does not provide the Attorney General authority to require would-be Byrne JAG grantees to detail their laws, policies, and practices that relate to how their employees communicate with DHS or ICE, nor how each complies with Section 1373. Accordingly, this argument fails.
The Attorney General also contends that the Byrne JAG statute itself authorizes the imposition of the questionnaire condition, citing 34 U.S.C. § 10153(a). Section 10153(a) reads, in relevant part, “the chief executive officer of a State or unit of local government shall submit an application to the Attorney General ... in such form as the Attorney General may require.” *884 34 U.S.C. § 10153(a) (emphasis added). Defendant contends that the italicized language authorizes the Attorney General to “require applicants to include certain information about any laws or policies regarding communication with federal immigration authorities.” (Def.’s Mot. at 14.) According to the Attorney General, the authority to dictate the “form” of a Byrne JAG application includes the authority to require applicants to provide additional information in the application.
However, the plain language of § 10153(a) does not support this reading. Discussing the “form” language in § 10153(a) in the context of the Section 1373 compliance condition, the Southern District of New York noted that “the Attorney General’s authority to determine the ‘form’ of the application does not include the ability to dictate the ‘substance’ of which laws an applicant must comply with as a condition of grant funding.” States of New York v. Dep’t of Justice, 343 F. Supp. 3d 213, 230 (S.D.N.Y. 2018). That court explained that the definition of “form”—“the outer shape, structure, or configuration of something, as distinguished from its substance or matter”—indicates that § 10153(a) does not authorize the Attorney General to impose substantive conditions on Byrne JAG funds. Id. (citing Black’s Law Dictionary (10th ed. 2014) (emphasis added)). Similarly, the Attorney General’s authority to determine the “form” of the application does not constitute a grant of authority to require any additional information his office wishes.
Moreover, this section differentiates between “form” and “application” in such a way that indicates the Attorney General’s ability to determine “form” does not grant him authority to alter the substance of an application. “Form” is used twice in § 10153: once in § 10153(a) (“the chief executive officer of a State or unit of local government
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shall submit an application to the Attorney General ... in such form as the Attorney General may require”) and again in § 10153(a)(5):
Such application shall include the following ... A certification, made in a form acceptable to the Attorney General ... that (a) the programs to be funded by the grant meet all the requirements of this part; (b) all the information contained in the application is correct; (c) there has been appropriate coordination with affected agencies; and (d) the application will comply with all provisions of this part and all other applicable Federal laws.
34 U.S.C. § 10153(a)(5) (emphasis added). Section 10153(a)(5) allows the Attorney General to determine the “form” of the certification while mandating precisely what substance the certification must include. This indicates that in § 10153(a) Congress intended “form” to mean the configuration or structure of the application, just as in § 10153(a)(5) it intended “form” to mean the structure of a strictly circumscribed set of requirements.
This interpretation is consistent with the Seventh Circuit’s characterization of § 10153(a) as “explicit authority to ... determine the form of the application and the certification.” City of Chicago, 888 F.3d at 283; see also States of New York, 343 F. Supp. 3d at 229 (“§ 10153 ... sets forth largely technical and ministerial application requirements pertaining to the grant itself.”). Importantly, the Seventh Circuit held that none of the provisions in the Byrne JAG statute, including § 10153(a), “grant the Attorney General the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or local governments for the failure to comply with those conditions.” City of Chicago, 888 F.3d at 284. *885 The Attorney General himself describes the questionnaire condition as “requiring modest cooperation with federal law enforcement responsibilities in the immigration setting.” (Def.’s Mot. at 7.) Thus, the Attorney General apparently concedes that the questionnaire condition imposes exactly the type of burden on State and local governments that the Seventh Circuit has held the Byrne

City of Evanston v. Barr, 412 F.Supp.3d 873 (2019)
JAG statute does not authorize.
Furthermore, if the Attorney General’s ability to dictate “form” worked the way he argues it does, the effect would be to give his office authority carte blanche to require applicants to divulge whatever information the Attorney General wishes to extract. Because Congress does not hide elephants in mouseholes, Gonzales v. Oregon, 546 U.S. 243, 267, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006), such a broad grant of discretion would be far more explicit. Accordingly, Section 10153(a) does not authorize the Attorney General to impose the questionnaire condition.
Indeed, there is only one part of 34 U.S.C. § 10153 that appears to give the Attorney General any authority to determine the substance of the application: § 10153(a)(4). This part states that the Byrne JAG application shall include:
An assurance that, for each fiscal year covered by an application, the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require.
34 U.S.C. § 10153(a)(4) (emphasis added). However, as Plaintiffs have correctly noted, the questionnaire condition is not authorized under § 10153(a)(4) because the condition does not concern “programmatic” or “financial” data, records, or information. The meaning of “financial” is self-evident and clearly does not apply to the information at issue in the questionnaire condition. The Court interprets “programmatic” to mean information related to the program to be funded by the JAG grant. That is how this term is used elsewhere within § 10153 and in other sections of the Byrne JAG statute. See 34 U.S.C. § 10153(a)(5)(A) (authorizing the Attorney General to require the applicant to certify that “the programs to be funded by the grant meet all the requirements of this part”); 34 U.S.C. § 10152 (authorizing the Attorney General to make grants for criminal justice “programs”). An applicant’s descriptions of its laws, policies, and practice that relate to whether, when, and how its employees may communicate with DHS or ICE, and how its policies comply with Section 1373, do not constitute programmatic information. One
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other court has already so ruled. See City of Los Angeles v. Sessions, No. CV 18-7347, 2019 WL 1957966, at *5 (C.D. Cal. 2019) (holding that § 10153(a)(4) does not authorize the questionnaire condition because “Congress has limited the information that the Attorney General could require of States and local governments to programmatic and financial information”). Thus, § 10153(a)(4) does not authorize the Attorney General to impose the questionnaire condition.
Finally, the Attorney General argues that his office has historically imposed a large number of special conditions on Byrne JAG funds, most of which are not expressly authorized by statute. (Def.’s Mot. at 6-7; Def.’s Reply at 3-4, Dkt. No. 87.) Accordingly, the Attorney General concludes that Plaintiffs’ argument “proves too much,” as under Plaintiffs’ analysis, it would seem that many of the past and current Byrne JAG funding conditions would be invalid as ultra vires. This argument does the Attorney General no favors. Apart from suggesting that perhaps the Attorney General has imposed many conditions on Byrne JAG funds that are not *886 statutorily authorized—the validity of which are not before the Court in this suit—this argument does not identify any source of statutory authority for the questionnaire condition.
For the foregoing reasons, the Attorney General lacks statutory authority to impose the questionnaire condition, and it is ultra vires. Plaintiffs’ Motion for Summary Judgment on Counts I and II is granted as to the questionnaire condition.
E. Injunction
With the merits decided, the Court turns to Plaintiffs’ request for a permanent injunction in this case. Plaintiffs currently have a preliminary injunction that prohibits the Attorney General from imposing the notice, access, and Section 1373 compliance conditions on receipt of the FY 2017 Byrne JAG funds for Evanston or any Conference members that faced an accept or decline deadline in 2018. (See Aug. 9, 2018, Order at 11; Aug. 29, 2018 Order (7th Cir.).) Plaintiffs now seek a permanent injunction that prohibits the Attorney General from imposing any of the challenged conditions in all future years of the Byrne JAG program. Plaintiffs seek a “program-wide” injunction—that is, one that is nationwide in scope. The

City of Evanston v. Barr, 412 F.Supp.3d 873 (2019)
Court will first consider whether Plaintiffs are entitled to a permanent injunction and then assess the injunction’s proper scope.
1. Permanent Injunction
The Court may issue permanent injunctive relief if the moving party demonstrates:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). The Attorney General does not engage with these four requirements in its briefing. Instead, he argues that any injunction in this case should be limited to Evanston. Thus, it appears to the Court that the Attorney General does not object in principle to a permanent injunction of the challenged conditions. Regardless, Plaintiffs carry the burden to demonstrate that they are entitled to such an injunction, so the Court will proceed with its analysis without any input from the Attorney General.
Regarding the first and second factors, Plaintiffs have suffered irreparable injuries from the Attorney General violating the separation of powers doctrine, and the resultant law enforcement budget uncertainty among all Conference members who receive Byrne JAG funds. As this Court has noted before, a constitutional injury alone can constitute irreparable harm. See City of Chicago, 321 F. Supp. 3d at 878 (citing 11A Wright & Miller, Federal Practice & Procedure § 2948.1 (2d ed. 1995)). Evanston and other Conference members face such an injury here, as the Attorney General subjects their receipt of Byrne
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JAG funds on unconstitutional conditions. Additionally, the choice that Evanston and other Conference members face—suffer the constitutional injury or decline Byrne JAG funds entirely—is itself sufficient to establish irreparable harm. See Aug. 9, 2019, Order at 8; City of Chicago, 321 F. Supp. 3d at 878 (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992)); Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 538 (N.D. Cal. 2017), appeal dismissed as moot sub nom. City & Cty. of San Francisco v. Trump, No. 17-16886, 2018 WL 1401847 (9th Cir. 2018). Money *887 damages cannot adequately compensate for the constitutional injuries that Plaintiffs face. Accordingly, Plaintiffs have demonstrated the first two required elements for a permanent injunction.
Third, considering the balance of hardships between Plaintiffs and the Attorney General, a remedy in equity is warranted. Evanston and other Conference members would suffer significant hardship if they had to either accept unlawful conditions or forgo the Byrne JAG funds. In contrast, as this Court has already found, the Attorney General would suffer “little hardship” if he were forbidden from imposing unlawful conditions while otherwise being able to distribute Byrne JAG funds as usual. See City of Chicago, 2019 WL 4511546, at *15; City of Chicago, 321 F. Supp. 3d at 878.
And fourth, the public interest is served by a permanent injunction in this case, for the same reason the Court recently articulated in the Chicago v. Barr case. It is clearly in the public’s interest to enjoin the imposition of conditions that violate the separation of powers doctrine. See City of Chicago, 2019 WL 4511546, at *15. Thus, Plaintiffs have satisfied all four requirements for permanent injunctive relief as to DOJ’s imposition of the challenged conditions.
2. Scope of Injunction
The Court turns to its assessment of the appropriate scope of the injunction. When “district courts are properly acting as courts of equity, they have discretion unless a statute clearly provides otherwise.” United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 496, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001). The scope of injunctive relief is dictated by the extent of the violation

City of Evanston v. Barr, 412 F.Supp.3d 873 (2019)
established. Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). Injunctive relief should be “no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Id. When a court believes the underlying right to be highly significant, “it may write injunctive relief as broad as the right itself.” Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874, 879 (7th Cir. 2011).
The preliminary injunction in this case prohibits the Attorney General from imposing the notice, access, and Section 1373 compliance conditions on any Conference members who faced the “accept or decline” deadlines for the FY 2017 grants. Plaintiffs now seek an injunction that covers all future Byrne JAG program years. The Court finds, for the same reasons it recently articulated when granting an injunction for all future program years in the City of Chicago case, that this relief is warranted. See City of Chicago, 2019 WL 4511546, at *16 (an injunction covering all future Byrne JAG program years is the appropriate remedy given the nature of the legal violation and DOJ’s history of repeatedly imposing conditions this Court has held to be unlawful).
Additionally, Plaintiffs seek “program-wide” relief, that is, a nation-wide injunction that prohibits the Attorney General from imposing the challenged conditions on any Byrne JAG recipient. However, such an injunction would be a significant expansion of the preliminary injunction in this case, which covered only Conference members who faced accept or decline deadlines. Given that the validity of a national injunction in this context is currently on appeal before the Seventh Circuit, see City of Chicago v. William Barr, No. 18-2885 (7th Cir.), the Court declines to issue such an injunction in this case now.
In the absence of a nationwide injunction, Plaintiffs request an injunction that covers all impacted Conference members. This approach is appropriate as it is *888 “no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano, 442 U.S. at 702, 99 S.Ct. 2545. Furthermore, as the Seventh Circuit has noted, such an injunction is tailored to “the parties actually before the court who have demonstrated a right to the relief.” (See Aug. 29, 2018, Order.)
The Attorney General argues that the Court should limit injunctive relief to only those Conference members that, before summary judgment, affirmatively requested relief from the challenged conditions, demonstrated their authorization to seek such relief, and agreed to be bound by the results of this litigation. Citing the fact that the
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Conference has a diverse membership, which includes cities that want to be bound by the challenged conditions, Defendant contends that the scope of the injunction should be limited to those members who do not want to be bound by the challenged conditions. The Attorney General does not cite any cases in which a court held that an association had standing to pursue relief for its members but limited the scope of an injunction to individual association members who came forward with individualized proof that they were authorized to, and wished to, obtain the requested relief. This argument fails because an association that establishes standing and prevails is entitled to obtain relief for all of its impacted members. See Ezell v. City of Chicago, 651 F.3d 684, 696 (7th Cir. 2011). This is the reason that the third requirement for associational standing is that “neither the claim asserted, nor the relief requested requires the participation of individual association members in the lawsuit.” Id. (citing Hunt, 432 U.S. at 343, 97 S.Ct. 2434). Put simply, the Court has already determined in its associational standing analysis that the nature of the relief requested in this case does not require the participation of individual members in the lawsuit. The Court is not inclined to reverse course now that it is in the equitable remedy phase and require the participation of individual members.
This holding is in line with the doctrine of associational standing, which recognizes that:
[T]he primary reason people join an organization ... is often to create an effective vehicle for vindicating interests that they share with others. The only practical judicial policy when people pool their capital, their interests, or their activities under a name and form that will identify collective interests, often is to permit the association or corporation in a single case to vindicate the interests of all.
Brock, 477 U.S. at 290, 106 S.Ct. 2523 (internal quotations and citation omitted).
Moreover, the fact that some Conference members may support the policies embodied by the challenged conditions does not mean it would be inequitable to

City of Evanston v. Barr, 412 F.Supp.3d 873 (2019)
include those members within the scope of the injunction. These cities still suffer an affront to their sovereignty when the Attorney General is permitted to direct their behavior in an unauthorized way. (See Aug. 9, 2018, Order at 9.) This injury is not “peculiar to the individual member concerned” and the fact and extent of the injury do not “require individualized proof.” Brock, 477 U.S. at 287, 106 S.Ct. 2523 (discussing, in the associational standing context, the requirement that neither the claim asserted, nor the relief requested requires the participation of individual members in the lawsuit). Indeed, Conference members that want to implement their own, pro-immigration enforcement policies are seeking to exercise the local sovereignty that the Tenth Amendment and this permanent injunction are designed to protect. (See Aug. 9, 2018, Order at 9.) Additionally, the Court notes that *889 although the Attorney General does not have the authority to force Conference members to cooperate with federal immigration enforcement efforts as a condition to receiving Byrne JAG funds, “that does not mean that such cooperation is not allowed.” City of Chicago, 888 F.3d at 296 n.3 (Manion, J., concurring in part and dissenting in part). This eliminates any concerns the Court may have had about extending the permanent injunction to include all Conference members, including those who do not want the relief at hand.
Finally, the Attorney General asserts that the Court must limit the injunction to those Conference members that agree to be bound by it, because certain Conference members are suing him separately over the challenged conditions. The Attorney General is concerned that those members who are maintaining their own lawsuits should not be able to obtain one judgment in this case and a different judgment in their individual case. The Court has already considered this argument and rejected it. See City of Chicago, 2017 WL 5499167, at *5 (citing Chicago-Midwest Meat Ass’n v. City of Evanston, 589

F.2d 278, 281 n.3 (7th Cir. 1978); Hunt, 432 U.S. at 343, 97 S.Ct. 2434). If the Court had reached an adverse judgment for Plaintiffs in this case, stare decisis would protect the Attorney General against further litigation. Id.
Therefore, the Court grants a permanent injunction against the imposition of the challenged conditions upon Evanston and any Conference member that has been allocated, applied for, or has been awarded Byrne JAG funds in FY 2017, FY 2018, and in all future grant years.
IV. CONCLUSION
For the reasons stated herein, the Attorney General’s Motion to Dismiss (Dkt. No. 77) is denied. Plaintiffs’ Motion for Summary Judgment (Dkt. No. 52) is granted in part and denied in part as follows: the Court grants summary judgment for the Plaintiffs on Counts I and II with respect to all challenged conditions, and on Count IV insofar as Plaintiffs are entitled to a declaration that Sections 1373 and 1644 violate the anticommandeering doctrine and the Attorney General cannot require compliance with these statutes as a condition of Byrne JAG funds. The Court dismisses Counts III and V as moot.
IT IS SO ORDERED.
All Citations
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