APPEAL,TERMINATED
U.S. District Court District of Oregon (Eugene (6)) CIVIL DOCKET FOR CASE #: 6:18−cv−01959−MC

State of Oregon et al v. Trump et al

Date Filed: 11/09/2018

Assigned to: Judge Michael J. McShane

Date Terminated: 08/29/2019

Case in other court: Ninth Circuit, 19−35843

Jury Demand: None

Cause: 8 U.S. Code § 1644 − Communication between State and Nature of Suit: 440 Civil Rights: Other

local gov't agencies and INS

Jurisdiction: U.S. Government Defendant

Plaintiff

State of Oregon

represented by Marc Abrams Oregon Department of Justice 100 SW Market Street Portland, OR 97201 971−673−1880 Fax: 971−673−5000 Email: marc.abrams@doj.state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin E. Kidd Department. of Justice 1162 Court St. NE Salem, OR 97301 503−947−4700 Fax: 503−947−4791 Email: justin.kidd@doj.state.or.us ATTORNEY TO BE NOTICED

Peenesh H. Shah Oregon Department of Justice 1162 Court Street, NE Salem, OR 97301 503−378−4402 Email: peenesh.h.shah@doj.state.or.us ATTORNEY TO BE NOTICED

Timothy Daly Smith Oregon Department of Justice 1162 Court Street NE Salem, OR 97201−4096 (503) 934−4400 Fax: (503) 373−7067 Email: tim.smith@doj.state.or.us ATTORNEY TO BE NOTICED

Plaintiff
Kate Brown Governor

represented by Marc Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin E. Kidd (See above for address) ATTORNEY TO BE NOTICED

Peenesh H. Shah (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ellen Roseblum Attorney General
Plaintiff City of Portland
V. Defendant Donald J Trump President of the United States, in his official capacity

Timothy Daly Smith (See above for address) ATTORNEY TO BE NOTICED
represented by Marc Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin E. Kidd (See above for address) ATTORNEY TO BE NOTICED
Peenesh H. Shah (See above for address) ATTORNEY TO BE NOTICED
Timothy Daly Smith (See above for address) ATTORNEY TO BE NOTICED
represented by Tracy Pool Reeve City of Portland City Attorney's Office 1221 SW 4th Avenue Suite 430 Portland, OR 97204 503−823−4055 Fax: 503−823−3089 Email: Tracy.Reeve@portlandoregon.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denis M. Vannier City Attorney's Office 1221 SW Fourth Avenue Room 430 Portland, OR 97204 503−823−4047 Fax: 503−823−3089 Email: denis.vannier@portlandoregon.gov ATTORNEY TO BE NOTICED
Naomi Sheffield Portland City Attorney's Office 1221 SW 4th Ave. Room 430 Portland, OR 97204 503−823−3122 Fax: 503−823−3089 Email: naomi.sheffield@portlandoregon.gov ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler U.S. Department of Justice Civil Division − Federal Programs Branch 1100 L Street, NW

Defendant Matthew G. Whitaker acting Attorney General of the United States, in his official capacity
Defendant United States of America
Defendant William P. Barr

Washington, DC 20005 202−616−0773 Fax: 202−616−8470 Email: dan.mauler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson US Department of Justice 20 Massachusetts Avenue Room 7210 P.O. Box 883 Washington, DC 20044 (202) 514−3495 Fax: (202) 616−8470 Email: scott.simpson@usdoj.gov TERMINATED: 04/18/2019
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) TERMINATED: 04/18/2019
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) TERMINATED: 04/18/2019
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) TERMINATED: 04/18/2019

Date Filed 11/09/2018
11/09/2018

# Docket Text
1 Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: 0979−5630653 Jury Trial Requested: No. Filed by State of Oregon, Ellen Roseblum, Kate Brown against Donald J Trump, United States of America, Matthew G. Whitaker (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons, # 4 Proposed Summons). (Abrams, Marc) (Entered: 11/09/2018)
2 Notice of Case Assignment to Judge Michael J. McShane and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. Discovery is to be completed by 3/11/2019. Joint Alternate Dispute Resolution Report is due by 4/8/2019. Pretrial Order is due by 4/8/2019. Ordered by Judge Michael J. McShane. (Attachments: # 1 Summons Issued)

11/21/2018 11/30/2018 11/30/2018 12/07/2018 12/10/2018
12/26/2018 12/27/2018 01/02/2019 01/29/2019 02/12/2019 02/25/2019 03/05/2019 03/05/2019
03/06/2019 03/14/2019 03/15/2019 03/15/2019 03/25/2019

(kf) (Entered: 11/09/2018)
3 First Amended Complaint for Declaratory, Injunctive, and Mandamus Relief. Filed by State of Oregon, Ellen Roseblum, Kate Brown against All Defendants. (Abrams, Marc) (Entered: 11/21/2018)
4 Affidavit of Service upon Matthew G. Whitaker served on 11/14/2018 Filed by State of Oregon; Ellen Roseblum; Kate Brown. (Abrams, Marc) (Main Document 4 replaced on 12/10/2018) (cw). (Entered: 11/30/2018)
5 Affidavit of Service upon United States of America served on 11/14/2018 Filed by State of Oregon; Ellen Roseblum; Kate Brown. (Abrams, Marc) (Main Document 5 replaced on 12/10/2018) (cw). (Entered: 11/30/2018)
6 Affidavit of Service upon Donald J Trump served on 11/14/2018 Filed by State of Oregon; Ellen Roseblum; Kate Brown. (Abrams, Marc) (Entered: 12/07/2018)
7 Clerk's Notice of Docket Correction regarding 4 Affidavit of Service, 5 Affidavit of Service. The PDF attached to these entries at filing was incorrect. The documents were missing a case caption cover page. A corrected PDF has been uploaded and has replaced the incorrect attachments. The Notice of Electronic Filing will be regenerated to all parties. (cw) (Entered: 12/10/2018)
8 Notice of Association of Attorney Marc Abrams,Justin E. Kidd for State of Oregon,Justin E. Kidd for Ellen Roseblum,Justin E. Kidd for Kate Brown. Filed by State of Oregon, Ellen Roseblum, Kate Brown. (Abrams, Marc) (Entered: 12/26/2018)
9 Unopposed Motion for Stay of Proceedings in Light of Lapse of Appropriations. Filed by All Defendants. (Simpson, W.) (Entered: 12/27/2018)
10 ORDER: Granting Unopposed Motion for Stay 9 . Ordered by Judge Michael J. McShane. (cp) (Entered: 01/02/2019)
11 Stipulated Motion (Stipulation and Proposed Order Regarding Schedule). Filed by All Defendants. (Simpson, W.) (Entered: 01/29/2019)
12 ORDER: Granting Motion for extension of time to answer 11 . Answer is due 2/26/2019. The Stay in this case is lifted. Ordered by Judge Michael J. McShane. (cp) (Entered: 02/12/2019)
13 Unopposed Motion for Extension of Time to Answer Amended Complaint 3 . Filed by United States of America, Donald J Trump, William P. Barr. (Simpson, W.) (Entered: 02/25/2019)
14 Motion to Dismiss for Failure to State a Claim , Motion to Dismiss for Lack of Jurisdiction . Oral Argument requested. Filed by William P. Barr, United States of America, Donald J Trump. (Simpson, W.) (Entered: 03/05/2019)
15 Request for Judicial Notice in Support of Motion to Dismiss for Failure to State a Claim, Motion to Dismiss/Lack of Jurisdiction 14 . Oral Argument requested. Filed by William P. Barr, Donald J Trump, United States of America. (Simpson, W.) (Entered: 03/05/2019)
16 ORDER: Granting Motion for Extension of Time to Answer 13 . Answer is due by 3/5/2019. Ordered by Judge Michael J. McShane. (cp) (Entered: 03/06/2019)
17 Unopposed Motion for Extension of Time to File a Response/Reply to Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction 14 . Filed by All Plaintiffs. (Abrams, Marc) (Entered: 03/14/2019)
18 ORDER: Granting Motion for Extension of Time to File Response to Motion to Dismiss for Failure to State a Claim 14 . Response is due by 4/9/2019. Ordered by Judge Michael J. McShane. (cp) (Entered: 03/15/2019)
19 Motion to File Excess Pages . Filed by Kate Brown, City of Portland, Ellen Roseblum, State of Oregon. (Abrams, Marc) (Entered: 03/15/2019)
20 ORDER: Granting Motion to File Excess Pages 19 . Ordered by Judge Michael J. McShane. (cp) (Entered: 03/25/2019)

04/08/2019 04/08/2019 04/08/2019 04/08/2019 04/08/2019 04/18/2019 04/18/2019 05/02/2019
05/13/2019
05/28/2019 05/31/2019
06/03/2019
07/18/2019 07/19/2019 07/26/2019
08/07/2019

21 Motion for Summary Judgment and Response to Defendants' Motion to Dismiss. Filed by All Plaintiffs. (Abrams, Marc) (Entered: 04/08/2019)
22 Declaration of Michael Schmidt. Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 21 .) (Abrams, Marc) (Entered: 04/08/2019)
23 Declaration of Peenesh Shah. Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 21 .) (Abrams, Marc) (Entered: 04/08/2019)
24 Declaration of Timothy D. Smith. Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 21 .) (Abrams, Marc) (Entered: 04/08/2019)
25 Declaration of Veronica Nordeen. Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 21 .) (Abrams, Marc) (Entered: 04/08/2019)
26 Notice of Attorney Substitution:Attorney Daniel D. Mauler is substituted as counsel of record in place of Attorney W. Scott Simpson Filed by All Defendants. (Mauler, Daniel) (Entered: 04/18/2019)
27 Unopposed Motion for Extension of Time to File a Response/Reply to Motion for Summary Judgment and Response to Defendants' Motion to Dismiss 21 . Filed by All Defendants. (Mauler, Daniel) (Entered: 04/18/2019)
28 ORDER: Granting Defendants' Unopposed Motion for Extension of Time to File Response to Motion for Summary Judgment and Reply to Defendants' Motion to Dismiss 21 . Responses and Replies are due by 5/13/2019. Ordered by Judge Michael J. McShane. (cp) (Entered: 05/02/2019)
29 Response in Opposition to Motion for Summary Judgment and Response to Defendants' Motion to Dismiss 21 Oral Argument requested, Reply to Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction 14 Oral Argument requested. Filed by All Defendants. (Mauler, Daniel) (Entered: 05/13/2019)
30 Reply to Motion for Summary Judgment and Response to Defendants' Motion to Dismiss 21 . Filed by All Plaintiffs. (Abrams, Marc) (Entered: 05/28/2019)
31 Scheduling Order by Judge Michael J. McShane regarding Request for Judicial Notice 15 , Motion for Summary Judgment 21 and Motion to Dismiss 14 . Oral Argument is set for 6/27/2019 at 10:00AM in Eugene Courtroom 2 before Judge Michael J. McShane. Ordered by Judge Michael J. McShane. (plb) (Entered: 05/31/2019)
32 Scheduling Order by Judge Michael J. McShane: Based upon the request of the parties, the Oral Argument regarding Motions 14 , 15 , and 21 set for 6/27/2019 is reset for 7/26/2019 at 01:30PM in Eugene Courtroom 2 before Judge Michael J. McShane. Ordered by Judge Michael J. McShane. (cp) (Entered: 06/03/2019)
33 Notice of Supplemental Authority Filed by All Defendants. (Attachments: # 1 Attachment) (Mauler, Daniel) (Entered: 07/18/2019)
34 Response to Notice of Supplemental Authority. Filed by All Plaintiffs. (Related document(s): Notice 33 .) (Abrams, Marc) (Entered: 07/19/2019)
35 MINUTES of Proceedings: Motion Hearing Held regarding Request for Judicial Notice 15 , Motion for Summary Judgment 21 and Motion to Dismiss 14 . Motions taken under advisement as of 7/26/2019. Marc Abrams, Peenesh H. Shah, Timothy Daly Smith, Naomi Sheffield and Denis M. Vannier present as counsel for plaintiffs. Daniel D. Mauler present as counsel for defendants. Court Reporter: Deborah Cook. Judge Michael J. McShane presiding. (cp) (Entered: 07/31/2019)
36 OPINION AND ORDER: Based on the foregoing, Defendants' Motion to Dismiss, 14 is denied and Plaintiffs' Motion for Summary Judgment, 21 is granted in part. Within 14 days, the parties shall confer on a proposed form of judgment and a proposed form of order with specific language for a permanent injunction, writ of mandamus, and, if desired, a declaration. The proposed form of order and proposed form of judgment shall be submitted within 21 days of this Opinion and Order. If the parties cannot agree on proposed language for either document, each shall submit its own version, with Defendants' proposed language shown in redline. The parties shall also submit a joint statement of no more than 10 pages explaining any disagreements.

08/28/2019 08/29/2019
09/06/2019 09/06/2019 10/04/2019
10/04/2019 10/24/2019 11/08/2019

Signed on 8/7/2019 by Judge Michael J. McShane. (cp) (Entered: 08/07/2019)
37 Joint Notice Statement Regarding Proposed Judgment and Order Filed by State of Oregon. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Smith, Timothy) (Entered: 08/28/2019)
38 JUDGMENT AND ORDER: Judgement and Order Denying Defendants' Motion to Dismiss; Granting Plaintiffs' Motion for Summary Judgment in Part and Issuing Injunctions and Mandamus. Signed on 8/29/2019 by Judge Michael J. McShane. (cp) (Entered: 08/29/2019)
39 Bill of Costs and Disbursements. Filed by All Plaintiffs. (Abrams, Marc) (Entered: 09/06/2019)
40 Declaration of Marc Abrams. Filed by All Plaintiffs. (Related document(s): Bill of Costs 39 .) (Abrams, Marc) (Entered: 09/06/2019)
41 Notice of Appeal to the 9th Circuit from Order on Motion to Dismiss for Failure to State a Claim,,,, Order on Request for Judicial Notice,,,, Order on motion for summary judgment,,, 36 , Judgment 38 (fee exempt status selected (AUSA)) . Filed by All Defendants. (Mauler, Daniel) (Entered: 10/04/2019)
USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal 41 . Case Appealed to Ninth Circuit Case Number 19−35843 assigned. (kf) (Entered: 10/04/2019)
42 ORDER: Granting Taxation of Costs. 39 Costs taxed in the amount of $420.00 against Defendant. Signed on 11/24/2019 by Judge Michael J. McShane. (cp) (Entered: 10/24/2019)
43 Amended Order, from USCA for the 9th Circuit, appeals remained stayed pending further order of this court. USCA # 19−35843 re Notice of Appeal 41 . (kf) (Entered: 11/08/2019)

 
 Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 1 of 26

ELLEN F. ROSENBLUM Oregon Attorney General MARC ABRAMS #890149 Assistant Attorney-in-Charge Oregon Department of Justice 1162 Court Street NE Salem, OR 97301 Telephone: (503) 947-4700 Fax: (503) 947-4791 Email: marc.abrams@doj.state.or.us
Additional attorneys listed on signature page
Attorneys for Plaintiffs State of Oregon, Kate Brown, and Ellen Rosenblum
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

THE STATE OF OREGON; KATE BROWN, Governor; and ELLEN ROSENBLUM, Attorney General,
Plaintiffs,

Case No.
COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF

v.

DONALD J. TRUMP, President of the United States, in his official capacity; MATTHEW G. WHITAKER, Acting Attorney General of the United States, in his official capacity; and the UNITED STATES OF AMERICA,

Defendants.

INTRODUCTION

1.

The State of Oregon acting by and through its Governor Kate Brown and its Attorney

General Ellen Rosenblum (together the “State of Oregon”) brings this complaint to enforce the

boundaries between the broad constitutional police powers of the State of Oregon under the

Tenth Amendment and the federal government’s power over the subject of immigration and the

status of undocumented residents.

Page 1 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2
Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 2 of 26
2. Defendants seek to create a national requirement that state and local law enforcement assist in the federal government’s immigration enforcement. Defendants have implemented this national requirement by imposing sweeping new conditions on an established and congressionally appropriated federal grant program ― the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) ― that has for years provided crucial support for law enforcement in Oregon. Essentially, Defendants have “used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.” City of Chicago v. Sessions, 888 F.3d 272, 277 (7th Cir. 2018). In support of this effort, Defendants rely on two immigration statutes ― 8 U.S.C. §§ 1373 and 1644 ― that violate the Tenth Amendment to the U.S. Constitution.
3. In response, the State of Oregon now seeks to protect its jurisdiction and its residents from Defendants’ unconstitutional attempt to compel the State of Oregon to enforce federal immigration policies in a manner contrary to the State’s best interests.
4. In their effort to impermissibly commandeer the resources of the State of Oregon, Defendants have withheld Byrne JAG funds because the State of Oregon has not acquiesced to Defendants’ immigration enforcement demands. As a result, the State of Oregon has been unlawfully deprived of $2,034,945 in federal funds for fiscal year (“FY”) 2017 and expects to be deprived of $2,092,704 for FY 2018.
5. In effect, Defendants seek to use the Byrne JAG program as a tool to further their immigration enforcement agenda. Defendants appear to have targeted the State of Oregon for denial of Byrne JAG funds based on their interpretation of two Oregon laws ― ORS 181A.820 and ORS 180.805. Defendants have implied in correspondence with Oregon officials that these Page 2 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 3 of 26
statutes violate federal law by preventing cooperation between law enforcement and immigration authorities. But in the statutes requiring Defendants to distribute Byrne JAG funds to states and localities, Congress did not impose any condition requiring states to have laws that aid Defendants’ implementation of federal immigration policy. For that reason, the Seventh Circuit recently concluded that Defendants’ actions are unlawful. Chicago v. Sessions, 888 F.3d at 287. Defendants’ decision to withhold this federally-mandated funding for law enforcement is contrary to law, good policing, and common sense.
6. The State of Oregon seeks declaratory, injunctive, and mandamus relief to address Defendants’ violations of federal statutes and the Constitution of the United States. Most importantly, the State of Oregon seeks a declaration that 8 U.S.C. §§ 1373 and 1644, which are the ultimate source of this conflict, are unconstitutional.
PARTIES 7.
Plaintiff State of Oregon is a sovereign state in the United States of America existing under the constitution of the State of Oregon. Pursuant to 34 U.S.C. §§ 10151-10158 the State of Oregon is an eligible recipient of funds under the Byrne JAG program.
8. Plaintiff Kate Brown is the Governor of the State of Oregon.
9. Plaintiff Ellen Rosenblum is the Attorney General for the State of Oregon. Rosenblum is the chief law officer of the State of Oregon and attorney for the Oregon Criminal Justice Commission, as well as the head of the Oregon Department of Justice, authorized by Chapter 180 of the Oregon Revised Statutes to ensure that Oregon’s laws are enforced.
Page 3 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 4 of 26
10. Brown in her official capacity as Governor of the State of Oregon, and Rosenblum, in her official capacity as Attorney General of the State of Oregon, bring this civil action on behalf of the State of Oregon, its agencies and political subdivisions. They also bring this action on behalf of the State as parens patriae to protect Oregon residents. Plaintiffs have the authority to bring this action under ORS 180.060 and the common law.
11. Defendant Donald J. Trump is President of the United States of America and is the head of the executive branch of the government of the United States of America. He is sued in his official capacity pursuant to 5 U.S.C. § 702.
12. Defendant Matthew G. Whitaker is the Acting Attorney General of the United States of America, and he oversees the United States Department of Justice (“USDOJ”), including the Office of Justice Programs (“OJP”), which administers the Byrne JAG program. He is sued in his official capacity pursuant to 5 U.S.C. § 702.
JURISDICTION AND VENUE 13.
Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 because this case involves a civil action arising under the U.S. Constitution and the laws of the United States. The Court also has jurisdiction under 28 U.S.C. § 1346 because this is a civil action against the federal government founded upon the U.S. Constitution and an Act of Congress. The Court has authority to provide relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. The Court also has authority to provide mandamus relief pursuant to 28 U.S.C. § 1361.
14. Pursuant to 28 U.S.C. § 1391(e)(1), venue is proper in the District of Oregon because the Oregon Attorney General and the State of Oregon have offices in Salem, Marion County, Page 4 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 5 of 26
Oregon, and Defendants have offices at 1000 SW Third Ave, Portland, Oregon, and at 405 E. 8th Avenue, Eugene, Oregon.
INTRADISTRICT ASSIGNMENT 15.
Assignment to the Eugene Division of this District is proper pursuant to Local Rule 32(3) because Plaintiff State of Oregon has its capital in Salem, Marion County, Oregon.
STANDING 16.
The State of Oregon brings this action to protect numerous important state interests harmed by Defendants’ actions. This Court can provide the State of Oregon with meaningful redress.
17. Defendants’ unlawful actions threaten the State of Oregon’s proprietary interests in millions of dollars appropriated by Congress for the direct benefit of Oregon, its law enforcement agencies, and its residents. Defendants are required by statute to distribute Byrne JAG funds to the State of Oregon pursuant to a strict formula. See 34 U.S.C. § 10156(a). The State of Oregon is entitled to an allocation of over $2,034,945 in Byrne JAG funds for FY 2017. To date Defendants have withheld the State of Oregon’s FY 2017 Byrne JAG funds. The State of Oregon has now applied for Byrne JAG funds for FY 2018, and expects to be entitled to receive $2,092,704 for FY 2018. Because Defendants have not paid the Byrne JAG funds for FY 2017, the State of Oregon expects that Defendants will also withhold the Byrne JAG funds for FY 2018. Absent injunctive relief, the State of Oregon will face significant funding shortfalls for critical law enforcement initiatives funded by Byrne JAG.
18. Defendants’ actions threaten the physical and economic health and well-being of Oregon residents, including those assisted by Oregon law enforcement entities entitled to receive Byrne Page 5 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 6 of 26
JAG funds. Oregon has a legitimate interest in preventing present and future harm to its residents. Governor Brown and Attorney General Rosenblum therefore have authority to commence this legal action under the doctrine of parens patriae.
19. The Oregon Attorney General, as the State of Oregon’s chief law officer, is uniquely situated to seek declaratory and injunctive relief that protects the rights of law enforcement entities and state and local government entities across Oregon. In addition, Defendants have specifically and impermissibly required the Oregon Attorney General to certify the State of Oregon’s compliance with unconstitutional federal requirements.
20. In addition to requiring the Oregon Attorney General to certify that the State complies with unconstitutional statutes, Defendants are purporting to require certification that subgrantees comply with those unconstitutional provisions. The State of Oregon has numerous subgrantees, many of them counties and cities that exercise a significant degree of political independence pursuant to Oregon’s constitution and laws. Ascertaining subgrantee compliance with unconstitutional statues is an unjustified burden. And it is exacerbated by the inexplicably broad interpretation of the relevant statutes that Defendants have endorsed. Defendants have stated in other legal proceedings that “information regarding citizenship or immigration status” under 8 U.S.C. § 1373 encompasses any “information critical in applying the ‘immigration laws,’” including information helpful to Defendants in effectuating the “removal of aliens.”
21. Earlier this year, United States Secretary for Homeland Security Kirstjen Nielsen stated that, at her department’s request, the USDOJ was exploring commencing criminal prosecutions under 8 U.S.C. § 1324 against state and local elected officials of jurisdictions that do not actively assist federal immigration enforcement. In January, then-acting Director of the U.S. Immigration and Customs Enforcement (“ICE”),Tom Homan, similarly stated, “we gotta start charging some Page 6 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 7 of 26
of these politicians with crimes” and “hold back their funding.” The certifications that Defendants are requiring grant recipients to submit echo these public comments, threatening “criminal prosecution” of state and local officials and “holding back funding” from jurisdictions that do not actively assist Defendants’ immigration enforcement efforts.
22. Finally, Defendants’ actions directly injure the sovereignty of the State of Oregon. The federal statutes at issue, 8 U.S.C. §§ 1373 and 1644, require the State of Oregon to exercise its police power in a manner contrary to the best interests of Oregon residents.
FACTUAL AND LEGAL BACKGROUND 23.
This case presents a conflict between federal immigration enforcement policies and the State of Oregon’s exercise of its broad police powers under the Tenth Amendment.
24. “Immigration policy shapes the destiny of the Nation.” Arizona v. United States, 567 U.S. 387, 415 (2012). Plaintiff does not dispute that the United States has significant power over the subject of immigration and the status of undocumented residents. Id. at 394. “The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.” Id. at 395.
25. While the federal government has significant power to regulate immigration, “[w]ith power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.” Arizona v. United States, 567 U.S. 387, 416. That responsibility also requires ensuring that the federal immigration laws do not encroach on Page 7 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 8 of 26
the states’ sovereign authority to exercise their broad police powers according to their own political will.
26. The authority of the federal government with regard to immigration does not diminish the separate sovereignty of the states:
When the original States declared their independence, they claimed the powers inherent in sovereignty—in the words of the Declaration of Independence, the authority “to do all * * * Acts and Things which Independent States may of right do.” The Constitution limited but did not abolish the sovereign powers of the States, which retained “a residuary and inviolable sovereignty.” The Federalist No. 39, p. 245 (C. Rossiter ed. 1961). Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of ‘dual sovereignty.’ Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018).
27. A core aspect of state sovereignty is the notion that Congress cannot issue legislative directives to states in their role as states. “Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.” Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. at 1476.
Immigration and Nationality Act Sections 1373 and 1644 28.
Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., Congress granted the executive branch significant power over the regulation and enforcement of immigration laws in the U.S. See Arizona v. United States, 567 U.S. at 395-96.
29. Section 1373 of the INA, which Congress passed in 1996, prohibits state and local governments from restricting government officials or entities from communicating information regarding immigration status to ICE. It states in relevant part:
(a) In General. Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in Page 8 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 9 of 26
any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Additional Authority of Government Entities. Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity. 8 U.S.C. § 1373.
30.
In 1996, Congress also passed Section 1644 of the INA, which similarly bars state and
local government officials or entities from restricting how they communicate information
regarding immigration status to ICE. It states:
Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or 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.
31.
Both of these statutes specifically regulate conduct by states (and political subdivisions of
states) in their sovereign capacities. Specifically, the statutes purport to prohibit state and local
governments from enacting laws (or adopting other policies) that govern the official conduct of
public officers and employees.
Oregon’s Immigration Enforcement Statutes
32.
The State of Oregon has enacted laws regarding the participation of local and state law
enforcement agencies in federal immigration enforcement. In 1987, Oregon enacted
Page 9 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 10 of 26
ORS 181A.820, which bars Oregon law enforcement agencies from expending money for the
purpose of detecting or apprehending persons whose only violation of law is that they are
persons of foreign citizenship present in the United States in violation of federal immigration
laws.
33.
In 2017, the Oregon Legislature enacted ORS 180.805, which the legislature drafted to
specifically to comply with Section 1373. The statute, in pertinent part, provides as follows:
(1) Except as required by state or federal law, a public body may not disclose, for the purpose of enforcement of federal immigration laws, the following information concerning any person, whether current or otherwise:
(a) The person’s address; (b) The person’s workplace or hours of work; (c) The person’s school or school hours; (d) The person’s contact information, including telephone number, electronic mail address or social media account information; (e) The identity of known associates or relatives of the person; (f) The date, time or location of the person’s hearings, proceedings or appointments with the public body that are not matters of public record; or (g) Information described in paragraphs (a) through (f) of this subsection with respect to known relatives or associates of the person. *** (3)(a) If a public body collects information concerning a person’s citizenship or immigration status, the public body may decline to disclose the information unless disclosure is required by: (A) State or federal law; (B) A court order; or (C) A warrant authorized by a court. ***
(5) Nothing in this section prohibits any public body from complying with a federal immigration authority as required by federal law. ***
34.
Oregon’s state and local officials are responsible for policing, protecting, and serving all
residents, including more than 389,000 foreign-born individuals, who live in the State. To
achieve those goals, the State of Oregon enacted the foregoing statutes as an exercise of the
State’s police power to regulate the health, welfare, and public safety of its residents. Those
Page 10 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 11 of 26
laws are instrumental to building the trust necessary to ensuring that victims report crimes to law enforcement so that perpetrators are apprehended before harming others. Building that trust has historically been difficult in immigrant communities, where residents often fear—regardless of immigration status—that engaging with law enforcement could result in deportation. When local and state officials engage in immigration enforcement, as Defendants contemplate, vulnerable victims and witnesses are less likely to come forward to report crimes, creating a danger to all Oregon residents.
35. Moreover, those laws ensure that state and local resources are devoted to fulfilling state and local policing responsibilities. State and local law enforcement agencies are not required to expend their limited resources on enforcing immigration policies that are a federal responsibility.
36. Oregon is not alone in adopting this approach. Across the country, many other state and local jurisdictions have enacted laws to limit state and local law enforcement of federal immigration policy. See e.g. City of Chicago v. Sessions, 888 F.3d at 281; City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 591, 602 (E.D. Pa. 2017). Significantly, Oregon law does not interfere with Defendants’ lawful pursuit of its civil immigration activities in Oregon. See City of Chicago v. Sessions, 888 F.3d at 281 (“The federal government can and does freely operate in ‘sanctuary’ localities.”).
The Byrne JAG Program 37.
The USDOJ, overseen by Defendant Whitaker and acting through the OJP, administers the Byrne JAG program. See 34 U.S.C. §§ 10151-10158.
38. The Byrne JAG program is a mandatory formula grant: it requires awarding grant funds based on a statutorily-defined formula, and the federal government must disburse funds in the Page 11 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 12 of 26
amount dictated by that formula if an applicant meets the requirements set forth in the authorizing statutes. 34 U.S.C § 10156.
39. Byrne JAG awards are provided to each state, as well as to certain local jurisdictions within each state. Under the governing statute, defendants “shall” allocate all congressionallyappropriated funds to each state and qualifying unit of local government according to a prescribed methodology. 34 U.S.C. § 10156(a), (b), (c), (d).
40. The Byrne JAG program supports state and local law enforcement efforts by providing an additional source of funding for personnel, equipment, training, and other criminal justice needs. 34 U.S.C § 10152. The purposes of the grant include: supporting law enforcement programs, reducing recidivism, conducting crime prevention and education programs for at-risk youth, and supporting programs for crime victims and witnesses.
41. The Byrne JAG program merges two earlier programs: the Edward Byrne Memorial State and Local Law Enforcement Assistance Program grants; and Local Law Enforcement Block Grants. See Pub. L. No. 109-162, 119 Stat. 2960, 3094 (2006). In merging those two programs, Congress identified eight types of programs that the grant was intended to fund: (1) law enforcement programs; (2) prosecution and court programs; (3) prevention and education programs; (4) corrections and community corrections programs; (5) drug treatment and enforcement programs; (6) planning, evaluation, and technology improvement programs; (7) crime victim and witness programs; and (8) mental health programs and related law enforcement and corrections programs. 34 U.S.C. § 10152(a)(1)(A)-(H).
42. For FY 2017, Congress has appropriated $396 million for the Byrne JAG program. Consolidated Appropriations Act of 2017, Pub. L. No. 115–31, 131 Stat. 135, 203. Page 12 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 13 of 26
43. Federal law entitles the State of Oregon to Byrne JAG funds so long as it proposes to use them to achieve one of the eight criminal justice goals articulated in the authorizing statute. See id. § 10152(a)(1). The State of Oregon may retain some of these funds for itself, see id. § 10156(c)(1), and must disburse the rest to its local governments, see id. § 10156(c)(2).
44. The State of Oregon has received Byrne JAG funds every year since the program’s creation in 2005. The State of Oregon has used Byrne JAG funds to support drug treatment and enforcement programs, mental health programs, and technology improvement programs among other efforts. With respect to the FY 2017 Byrne JAG award, the State of Oregon planned to use the grants to support specialty courts designed to address root causes of criminal activity and to provide statewide assistance to local crime victims. For FY 2018, the State of Oregon plans to use Byrne JAG funds to support specialty court programs that target non-violent felony offenders in an integrated, systemic approach to reduce drug use and recidivism while increasing public safety.
45. To date, the State of Oregon has not received the FY 2017 grant totaling $2,034,945 that Congress has appropriated in law enforcement funding to the State of Oregon and its political subdivisions pursuant to the Byrne JAG program.
46. For FY 2018, the State of Oregon anticipates receiving $2,092,704, but the State anticipates that Defendants will also withhold the FY 2018 funds.
Defendants Impose Three Unlawful Conditions on Byrne JAG Funds 47.
The Byrne JAG authorizing statute, 34 U.S.C. § 10153(a)(5)(D), requires that jurisdictions comply with “applicable Federal laws.” Page 13 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 14 of 26
48. On July 25, 2017, Defendants announced they were seeking state and municipal applications for FY 2017 Byrne JAG funds. In this solicitation, Defendants announced new requirements for every state and municipality receiving FY 2017 Byrne JAG funds, including the three unlawful, immigration-related conditions that are the subject of this action. This complaint refers to those conditions as the “Compliance Condition,” the “Access Condition”, and the “Notice Condition.”
49. For the purposes of this lawsuit, and consistent with its correspondence with OJP, the State of Oregon does not allege or concede that it is out of compliance with the Compliance, Access or Notice Conditions. State of Oregon’s compliance or noncompliance is ultimately immaterial to the question whether Defendants have authority to impose the conditions. Under the governing statutes, State of Oregon is entitled to Byrne JAG funds and cannot be required to meet these additional, unconstitutional, conditions. A. Compliance Condition.
50. In the FY 2017 Byrne JAG solicitation, Defendants announced that, “in order to validly to accept an FY 2017 [Byrne] JAG award, the chief legal officer of the applicant State must properly execute, and the State must submit, the specific certification regarding compliance with 8 U.S.C. § 1373 attached to this solicitation as Appendix II.” Similarly, Defendants announced that, “in order validly to accept a Fiscal Year (FY) 2017 JAG award, the chief legal officer of the applicant unit of local government must properly execute, and the unit of local government must submit, the specific certification regarding compliance with 8 U.S.C. § 1373 attached to this solicitation as Appendix II.” The Attorney General of Oregon is the State’s chief legal officer, As a result, the Attorney General must execute and submit certification regarding the State of Oregon’s compliance with 8 U.S.C. § 1373. Page 14 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 15 of 26
51. Defendants’ FY 2018 Byrne JAG solicitation added additional language requiring the jurisdictions’ chief legal officer to certify compliance with 8 U.S.C. § 1644. Defendants’ FY 2018 Certificate of Compliance confirms that the Attorney General (on behalf of the State of Oregon) must certify compliance with 8 U.S.C. § 1644. As a result, for the FY 2018 Byrne JAG, the Attorney General must execute and submit certification regarding the State of Oregon’s respective compliance with 8 U.S.C. §§ 1373 and 1644. B. The Access and Notice Conditions.
52. Defendants’ FY 2017 state and local government solicitations also announced the application of two additional “express conditions” relating to immigration enforcement – the Access Condition and the Notice Condition.
53. Pursuant to the Access Condition, Defendants require recipients of Byrne JAG funds to “permit personnel of the U.S. Department of Homeland Security (“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.”
54. Pursuant to the Notice Condition, Defendants require recipients of Byrne JAG funds to “provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.”
Defendants Withhold the FY 2017 Byrne JAG Award 55.
The Oregon Criminal Justice Commission (“OCJC”) is the Oregon state agency that receives and administers Byrne JAG funds on behalf of Oregon. OCJC responded to Page 15 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 16 of 26
Defendants’ solicitation by the deadline of August 25, 2017. OCJC’s application proposed to use Byrne JAG funds to achieve the criminal justice goals articulated in the authorizing statute, see 34 U.S.C. § 10152(a)(1), and OCJC’s approach satisfied all other lawfully imposed requirements.
56. According to the FY 2017 Byrne JAG solicitation, Defendants anticipated issuing Byrne JAG award notifications by September 30, 2017. To date, however, Defendants have not issued an award notification or otherwise contacted OCJC or any other state entity regarding an acceptance of Oregon’s FY 2017 Byrne JAG applications.
57. Instead of responding directly to Oregon’s Byrne JAG application, Defendants responded in a letter to the State dated November 15, 2017, claiming that ORS 181A.820 and ORS 180.805 appear to conflict with 8 U.S.C. § 1373. OJP’s letter did not explain OJP’s view that ORS 181A.820 and ORS 180.805 conflict with 8 U.S.C. § 1373(a). Instead it requested a narrative detailing any Oregon “laws, policies, or practices that violate section 1373,” including ORS 181A.820 and ORS 180.805. OCJC replied with a detailed explanation that the laws do not conflict with federal law.
58. On April 17, 2018, the OJP sent an email to OCJC in which it explained that “The Bureau of Justice Assistance (BJA) has not awarded its FY 2017 Byrne JAG grants due to the issuance of a nationwide injunction by a U.S. District Court on September 15, 2017,” but that in the meantime “state and local applicants for Byrne JAG grants under the FY 2017 program may obligate and expend their own funds on allowable JAG projects after the start date of October 1, 2016. Once the grants are awarded, FY 2017 Byrne JAG funds received, if any, may be used for reimbursement of those expenditures.”
Page 16 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 17 of 26
59. Defendants’ imposition of immigration-related conditions on FY 2017 Byrne JAG funding has been litigated in several courts, including the Seventh Circuit, which concluded in April 2018 that the USDOJ lacked authority to impose the Access and Notice Conditions. City of Chicago v. Sessions, 888 F.3d at 277; see also City of Chicago v. Sessions, No. 17CV5720, 2018 WL 3608564, at *11-*12 (N.D. Ill. July 27, 2018). Two district courts have also held that Section 1373 violates the Tenth Amendment and that as a result, Defendants may not condition the receipt of Byrne JAG funds on compliance with an unconstitutional statute. City of Chicago v. Sessions, 2018 WL 3608564, at *5-*11 (“Section 1373 is this unconstitutional on its face.”); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 328-31 (E.D. Pa. 2018) (holding Section 1373 unconstitutional under the anti-commandeering doctrine).
60. Despite these rulings, Defendants continue to withhold State of Oregon’s FY 2017 Byrne JAG funds. Defendants’ correspondence with the State of Oregon regarding Oregon’s 2017 Byrne JAG application indicates that Defendants seek to override Oregon policy designed to encourage all residents to interact with state and local law enforcement, and with government agencies.
Defendants Impose Further Conditions on FY 2018 Byrne JAG Funds 61.
On July 20, 2018, Defendants announced that they would impose a number of immigration-related conditions on jurisdictions seeking FY 2018 Byrne JAG funding.
62. Two of those conditions are materially identical to the Access and Notice Conditions discussed above. Defendants have also expanded the Compliance condition to incorporate 8 U.S.C. § 1644 in addition to § 1373. Given the substantive similarities between the two federal
Page 17 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 18 of 26
statutes, this addition does not appear to meaningfully change the nature of the Compliance Condition.
63. In addition to the certification required with regard to the Compliance Condition, the 2018 application requires applicants to respond to questions related to the Compliance Condition: (1) Does your jurisdiction have any laws, policies, or practices related to whether, when, or how employees may communicate with DHS or 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? Answers, and potentially additional material, “must be provided by the applicant as part of the JAG application,” as a condition of receiving Byrne JAG funds.
64. The FY 2018 Byrne JAG application also states that the “reasonable costs” of complying with the Notice and Access Conditions, including the costs of “honoring any duly authorized requests from DHS that is encompassed by these conditions, will be allowable costs under the award.” That provision further demonstrates Defendants’ usurpation of the Congressional spending power. Byrne JAG funds, which Congress explicitly directed to support local criminaljustice efforts, will instead be used to unlawfully fund federal immigration enforcement.
65. The FY 2018 Byrne JAG applications also purports to condition awards on the jurisdiction’s chief legal officer (the Attorney General) certifying that the jurisdiction will not “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 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, including any building or any means to aid or abet in the commission of the preceding acts’).”
Page 18 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 19 of 26
Defendants Lack Authority to Impose the Compliance Condition 66.
Because 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment, Defendants may not rely on the Compliance Condition to withhold Plaintiffs’ FY 2017 Byrne JAG funds, or to reject Plaintiff’s FY 2018 Byrne JAG applications. The Tenth Amendment limits Congress’s legislative authority to those powers enumerated in the Constitution. Congress may not directly compel states and their political subdivisions to enact a regulation or enforce a federal regulatory program, may not conscript state officers for such purpose, and may not prohibit a state from enacting laws. This constitutional anti-commandeering principle “is one of the Constitution’s structural protections of liberty.” Printz v. United States, 521 U.S. 898, 921 (1997). Among other benefits, 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.
67. The Supreme Court recently affirmed that the anti-commandeering principle prevents Congress from issuing direct orders to state legislatures. Murphy v. NCAA, 138 S. Ct. at 1478. This is precisely what 8 U.S.C. § 1373(a) and (b) and § 1644 do. These provisions dictate to states like Oregon that they may not promulgate laws or regulations that prohibit state or local officials from sharing immigration-status information with federal officials, even if sharing that information would directly undermine state or local programs. “A more direct affront to state sovereignty is not easy to imagine.” Id. Sections 1373(a)-(b) and 1644 regulate only state actors, and regulate them only in their capacity as state actors. Thus neither is a preemptive federal law. Murphy v. NCAA, 138 S. Ct. at 1481. 8 U.S.C. § 1373(a)-(b) and § 1644 are unconstitutional.
68. Defendants may not condition Oregon’s Byrne JAG funds on the State’s compliance with an unconstitutional statute. City of Chicago v. Sessions, 2018 WL 3608564, at *13 (“[T]he Page 19 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 20 of 26
Attorney General has no authority to demand compliance with Section 1373, hereby deemed unconstitutional, under the Byrne JAG statute.”); City of Philadelphia v. Sessions, 309 F. Supp. 3d at 329 (“Because the JAG Byrne Program requires compliance with an unconstitutional statute (in this case, Section 1373) in order to receive grant funds, the Certification Condition is itself unconstitutional.”); see also generally United States v. California, No. 2:18-cv-490-JAMKJN, 2018 WL 3301414, at *14 (E.D. Cal. July 5, 2018) (“The Court finds the constitutionality of Section 1373 highly suspect.”).
Defendants Lack Authority to Impose the Notice and Access Conditions 69.
For different, but equally important constitutional reasons, Defendants also lack the authority to impose the Access and Notice Conditions. The creation of these conditions by the executive branch to impede congressionally-appropriated funding of state and local law enforcement violates the doctrine of separation of powers by invading Congress’s spending authority. “The power of the purse does not belong to the Executive Branch. It rests in the Legislative Branch.” City of Chicago v. Sessions, 888 F.3d at 283. Defendants, as executive branch officials, have no authority to impose additional conditions on the receipt of funds appropriated by the legislative branch for the Byrne JAG program; the authority to condition the receipt of federal funds lies exclusively with Congress. As the Seventh Circuit held in City of Chicago v. Sessions, 888 F.3d at 283-87, the Byrne JAG statute does not contain a single provision that could authorize Defendants to impose the Access and Notice Conditions on any state or local jurisdiction. Nor does any other statute grant Defendants such authority.
70. Finally, nothing in the Byrne JAG statutes empowers Defendants to simply decline to issue an award letter to any jurisdiction that, in Defendants’ estimation, does not share the Department’s commitment to enforcing federal immigration policy. As noted above, the Byrne JAG is a formula grant administered by Defendants, who “shall” allocate all congressionallyPage 20 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 21 of 26
appropriated funds to each state and qualifying unit of local government according to a prescribed methodology. 34 U.S.C. §§ 10156(a), (b), (c), (d). Defendants may not constructively deny funds appropriated by Congress for the benefit of the State of Oregon by simply declining to act.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF DECLARATORY AND INJUNCTIVE RELIEF (Compliance Condition – 8 U.S.C. §§ 1373 and 1644 Violate the Tenth Amendment)
71. State of Oregon repeats and re-alleges Paragraphs 1 through 70 as if fully set forth herein.
72. The Tenth Amendment to the United States Constitution prohibits the federal government from requiring state and local governments to govern according to Congress’s instructions, or from commandeering state and local officials to administer or enforce a federal regulatory program. This anti-commandeering principle also forbids Congress from unequivocally dictating what a state legislature may and may not do.
73. Sections 1373 and 1644 on their face violate the Tenth Amendment because they require state and local governments to govern according to Congress’s instructions.
74. In addition, Sections 1373 and 1644 on their face violate the Tenth Amendment because they commandeer state and local officials to administer or enforce a federal regulatory program.
75. Because Sections 1373 and 1644 violate the Tenth Amendment, Defendants cannot require the State of Oregon to certify compliance with these unconstitutional statutes.
Page 21 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 22 of 26
76. An actual controversy exists because Defendants are requiring the State of Oregon to certify compliance with Sections 1373 and 1644 in order to obtain congressionally appropriated federal funds even though the two statutes violate the Tenth Amendment.
77. Pursuant to 28 U.S.C. § 2201, State of Oregon is entitled to a declaration that Sections 1373 and 1644 violate the Tenth Amendment and are unconstitutional.
78. Plaintiffs are also entitled to a declaration that Defendants cannot rely on these statutes, or on any reporting or certification requirements related to these statutes, to withhold the Byrne JAG funds under the Compliance Condition.
79. State of Oregon is also entitled to injunctive relief prohibiting Defendants from withholding FY 2017 Byrne JAG funds due to State of Oregon.
80. State of Oregon is also entitled to injunctive relief prohibiting Defendants from declining to accept and process State of Oregon’s FY 2018 Byrne JAG applications, and from withholding FY 2018 Byrne JAG funds due to State of Oregon.
SECOND CLAIM FOR RELIEF VIOLATION OF CONGRESSIONAL SPENDING AUTHORITY AND SEPARATION
OF POWERS DECLARATORY AND INJUNCTIVE RELIEF (Ultra Vires as to the Access and Notice Conditions)
81. Plaintiff repeats and re-alleges Paragraphs 1 through 79 as if fully set forth herein.
Page 22 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 23 of 26
82. Article I, Section I of the United States Constitution vests Congress with legislative powers, and Article I, Section VIII of the United States Constitution vests exclusively in Congress the spending power to “provide for * * * the General Welfare of the United States.” Absent a statutory provision or express delegation, only Congress is empowered to attach conditions to federal funds.
83. Defendants are officials of the Executive Branch. The executive does not have unilateral authority to refuse to spend funds that have already been appropriated by Congress for a particular project or program. Imposing a new condition on a federal grant program amounts to refusing to spend money appropriated by Congress.
84. Congress has not enacted the Access and Notice Conditions as part of any statutory scheme.
85. Congress has not enacted the Access and Notice Conditions as applicable to Byrne JAG funds.
86. Congress has not delegated to Defendants the authority to impose the Access and Notice Conditions on the acceptance of an application for Byrne JAG funds, the processing of such an application, or on the issuance of Byrne JAG funds.
87. Defendants’ imposition of the Notice and Access Conditions, and of all related reporting and certification requirements, unconstitutionally intrudes upon and usurps powers that belong to Congress, violating the principle of separation of powers generally and the Spending Clause specifically. Page 23 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 24 of 26
88. Pursuant to 28 U.S.C. § 2201, State of Oregon is entitled to a declaration that the Access and Notice Conditions are ultra vires and unconstitutional; that these conditions do not provide a basis for withholding or terminating any of the State’s federal funding; that Defendants may not impose these conditions or any related reporting or certification requirements to withhold the State’s FY 2017 Byrne JAG funds; that Defendants may not impose these conditions or any related reporting or certification requirements to decline to accept and process State of Oregon’s FY 2018 Byrne JAG applications, or to deny State of Oregon’s FY 2018 Byrne JAG funds; and that these conditions and any related reporting or certification requirements should be set aside.
89. State of Oregon is also entitled to injunctive relief prohibiting Defendants from withholding FY 2017 Byrne JAG funds due to State of Oregon.
90. State of Oregon is also entitled to injunctive relief prohibiting Defendants from declining to accept and process State of Oregon’s FY 2018 Byrne JAG applications, and from withholding FY 2018 Byrne JAG funds due to State of Oregon.
THIRD CLAIM FOR RELIEF (Mandamus) 91.
State of Oregon repeats and re-alleges Paragraphs 1 through 89 as if fully set forth herein. 92.
Pursuant to Part A, Subchapter V, Chapter 101, Subtitle 1, of Title 34 of the United States Code, 34 U.S.C. §§ 10151-10158, Plaintiff has a clear right to receive from Defendants — and Defendants have a nondiscretionary duty to provide to State of Oregon — Byrne JAG award notifications for the full amount of funds to which it is entitled that do not contain any
Page 24 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 25 of 26
unconstitutional or unlawful conditions. No other adequate remedy is available to State of Oregon.
93. In other lawsuits in which state and local jurisdictions have won injunctions barring Defendants from imposing unlawful conditions on the receipt of Byrne JAG funds, Defendants have simply declined to issue new award notifications — thereby complying with the letter of those injunctions, but still denying Byrne JAG funds to those jurisdictions.
94. Pursuant to 28 U.S.C. § 1361, this Court has the authority to issue a writ of mandamus compelling Defendants Trump and Whitaker to perform their duty to provide Plaintiff with Byrne JAG funds in the full amount of funds to which State of Oregon is entitled for FY 2017 forward, without attaching unconstitutional or otherwise unlawful conditions.
PRAYER FOR RELIEF WHEREFORE, the State of Oregon, Governor Kate Brown, and Attorney General Ellen Rosenblum request the following relief: 1. Declare that 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment and enjoin Defendants from taking any action based on alleged noncompliance with those federal statutes. 2. Declare that because 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment, the Compliance Condition does not provide a basis for withholding or terminating any of State of Oregon’s congressionally appropriated Byrne JAG funding. 3. Declare that the Access and Notice Conditions are ultra vires because those conditions violate Article I, Section VIII of the US Constitution (the Spending Clause), as well as separation-of-powers principles, and are therefore unconstitutional and cannot provide a basis for withholding or terminating any of State of Oregon’s congressionally appropriated Byrne JAG funding. Page 25 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 1 Filed 11/09/18 Page 26 of 26
4. Enjoin Defendants from requiring State of Oregon to comply with, or certify compliance with, 8 U.S.C. § 1373(a)-(b) and/or 8 U.S.C. § 1644 as a prerequisite to disbursing any of State of Oregon’s congressionally appropriated Byrne JAG funding.
5. Enjoin Defendants from requiring State of Oregon to comply with, or certify compliance with, the Access and Notice Conditions, or any other conditions relating to federal immigration laws or policy, as a prerequisite to disbursing any of State of Oregon’s congressionally appropriated Byrne JAG funding.
6. Issue a writ of mandamus pursuant to 28 U.S.C. § 1361 compelling Defendants Trump and Whitaker to perform their duty to provide State of Oregon with Byrne JAG funds for FY 2017 forward without attaching any unconstitutional or otherwise unlawful conditions.
7. Award State of Oregon its costs and fees in this action. 8. Award such other relief as the Court deems proper and just. DATED November 9 , 2018.
Respectfully submitted, ELLEN F. ROSENBLUM Attorney General
s/ Marc Abrams MARC ABRAMS #890149 Assistant Attorney-in-Charge TIMOTHY SMITH #914374 Senior Assistant Attorney General PEENESH SHAH #112131 Assistant Attorney General Trial Attorneys Tel (503) 947-4700 Fax (503) 947-4791 marc.abrams@doj.state.or.us tim.smith@doj.state.or.us Peenesh.H.Shah@doj.state.or.us Of Attorneys for Plaintiffs
Page 26 - COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9262736 v2 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

 
 Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 1 of 33

ELLEN F. ROSENBLUM Oregon Attorney General MARC ABRAMS #890149 Assistant Attorney-in-Charge Oregon Department of Justice 1162 Court Street NE Salem, OR 97301 Telephone: (503) 947-4700 Fax: (503) 947-4791 Email: marc.abrams@doj.state.or.us
Additional attorneys listed on signature page
Attorneys for Plaintiffs State of Oregon, Kate Brown, and Ellen Rosenblum
TRACY P. REEVE #891123 City Attorney DENIS M. VANNIER #044406 Senior Deputy City Attorney Portland Office of the City Attorney 1221 SW Fourth Avenue, Suite 430 Portland, OR 97204 Telephone: (503) 823-4047 Fax: (503) 823-3089 Email: Denis.Vannier@portlandoregon.gov
Attorneys for Plaintiff City of Portland

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

THE STATE OF OREGON; KATE BROWN, Governor; ELLEN ROSENBLUM, Attorney General; and THE CITY OF PORTLAND,
Plaintiffs,

Case No. 6:18-cv-01959-MC
FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF

v.
DONALD J. TRUMP, President of the United States, in his official capacity; MATTHEW G. WHITAKER, Acting Attorney General of the United States, in his official capacity; and the UNITED STATES OF AMERICA,
Defendants.

Page 1 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3
Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 2 of 33
INTRODUCTION 1.
The State of Oregon acting by and through its Governor Kate Brown and its Attorney General Ellen Rosenblum (together the “State of Oregon”) and the City of Portland (the “City”) bring this complaint to enforce the boundaries between the broad constitutional police powers of the State of Oregon under the Tenth Amendment and the federal government’s power over the subject of immigration and the status of undocumented residents.
2. Defendants seek to create a national requirement that state and local law enforcement assist in the federal government’s immigration enforcement. Defendants have implemented this national requirement by imposing sweeping new conditions on an established and congressionally appropriated federal grant program ― the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) ― that has for years provided crucial support for law enforcement in Oregon. Essentially, Defendants have “used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.” City of Chicago v. Sessions, 888 F.3d 272, 277 (7th Cir. 2018). In support of this effort, Defendants rely on two immigration statutes ― 8 U.S.C. §§ 1373 and 1644 ― that violate the Tenth Amendment to the U.S. Constitution.
3. In response, the State of Oregon and the City now seek to protect their jurisdictions and their residents from Defendants’ unconstitutional attempt to compel the State of Oregon and the City to enforce federal immigration policies in a manner contrary to their best interests.
4. In their effort to impermissibly commandeer the resources of the State of Oregon and the City, Defendants have withheld Byrne JAG funds because the State of Oregon and the City have
Page 2 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 3 of 33
not acquiesced to Defendants’ immigration enforcement demands. As a result, the State of Oregon has been unlawfully deprived of $2,034,945 in federal funds for fiscal year (“FY”) 2017 and expects to be deprived of $2,092,704 for FY 2018.
5. Similarly, the City has been deprived of $391,515 for FY 2018. In addition, while Defendants recently provided the City with an award notice in the amount of $385,515 for FY 2017 pursuant to a preliminary injunction won by the United States Conference of Mayors, of which the City is a member, see City of Evanston et al. v. Sessions, No. 18 c 4853, Dkt. No. 23 (N.D. Ill. Aug. 9, 2018) (stay lifted in United States Conference of Mayors v. Sessions, No. 182734, Dkt. No. 13 (7th Cir. Aug. 29, 2018)), Defendants still have not processed that award or disbursed any of those funds. Moreover, Defendants have stated that, while they will not enforce their immigration enforcement demands against the City’s FY 2017 award while Defendants’ action against the United States Conference of Mayors in the Seventh Circuit is pending, they may do so or seek reimbursement from the City if Defendants eventually prevail that action.
6. In effect, Defendants seek to use the Byrne JAG program as a tool to further their immigration enforcement agenda. Defendants appear to have targeted the State of Oregon and the City for denial of Byrne JAG funds based on their interpretation of two Oregon laws ― ORS 181A.820 and ORS 180.805. Defendants have implied in correspondence with Oregon officials that these statutes violate federal law by preventing cooperation between law enforcement and immigration authorities. But in the statutes requiring Defendants to distribute Byrne JAG funds to states and localities, Congress did not impose any condition requiring states to have laws that aid Defendants’ implementation of federal immigration policy. For that reason, the Seventh Circuit recently concluded that Defendants’ actions are unlawful. Chicago v. Sessions, 888 F.3d at 287. Defendants’ decision to withhold this federally-mandated funding for
Page 3 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 4 of 33
law enforcement is contrary to law, good policing, and common sense. 7.
The State of Oregon and the City seek declaratory, injunctive, and mandamus relief to address Defendants’ violations of federal statutes and the Constitution of the United States. Most importantly, the State of Oregon and the City seek a declaration that 8 U.S.C. §§ 1373 and 1644, which are the ultimate source of this conflict, are unconstitutional.
PARTIES 8.
Plaintiff State of Oregon is a sovereign state in the United States of America existing under the constitution of the State of Oregon. Pursuant to 34 U.S.C. §§ 10151-10158 the State of Oregon is an eligible recipient of funds under the Byrne JAG program.
9. Plaintiff Kate Brown is the Governor of the State of Oregon.
10. Plaintiff Ellen Rosenblum is the Attorney General for the State of Oregon. Rosenblum is the chief law officer of the State of Oregon and attorney for the Oregon Criminal Justice Commission, as well as the head of the Oregon Department of Justice, authorized by Chapter 180 of the Oregon Revised Statutes to ensure that Oregon’s laws are enforced.
11. Brown in her official capacity as Governor of the State of Oregon, and Rosenblum, in her official capacity as Attorney General of the State of Oregon, bring this civil action on behalf of the State of Oregon, its agencies and political subdivisions. They also bring this action on behalf of the State as parens patriae to protect Oregon residents. Plaintiffs have the authority to bring this action under ORS 180.060 and the common law.
Page 4 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 5 of 33
12. Plaintiff City of Portland is a municipal corporation of the State of Oregon duly organized and existing under the laws of the State of Oregon. Pursuant to 34 U.S.C. §§ 1015110158 the City is an eligible recipient of funds under the Byrne JAG program.
13. Defendant Donald J. Trump is President of the United States of America and is the head of the executive branch of the government of the United States of America. He is sued in his official capacity pursuant to 5 U.S.C. § 702.
14. Defendant Matthew G. Whitaker is the Acting Attorney General of the United States of America, and he oversees the United States Department of Justice (“USDOJ”), including the Office of Justice Programs (“OJP”), which administers the Byrne JAG program. He is sued in his official capacity pursuant to 5 U.S.C. § 702.
JURISDICTION AND VENUE 15.
Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 because this case involves a civil action arising under the U.S. Constitution and the laws of the United States. The Court also has jurisdiction under 28 U.S.C. § 1346 because this is a civil action against the federal government founded upon the U.S. Constitution and an Act of Congress. The Court has authority to provide relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. The Court also has authority to provide mandamus relief pursuant to 28 U.S.C. § 1361.
16. Pursuant to 28 U.S.C. § 1391(e)(1), venue is proper in the District of Oregon because the Oregon Attorney General and the State of Oregon have offices in Salem, Marion County, Oregon, the City has offices in Portland, Oregon, and Defendants have offices at 1000 SW Third
Page 5 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 6 of 33
Ave, Portland, Oregon, and at 405 E. 8th Avenue, Eugene, Oregon. INTRADISTRICT ASSIGNMENT 17.
Assignment to the Eugene Division of this District is proper pursuant to Local Rule 32(3) because Plaintiff State of Oregon has its capital in Salem, Marion County, Oregon.
STANDING 18.
Plaintiffs bring this action to protect numerous important state interests harmed by Defendants’ actions. This Court can provide the State of Oregon and the City with meaningful redress.
19. Defendants’ unlawful actions threaten the State of Oregon’s proprietary interests in millions of dollars appropriated by Congress for the direct benefit of Oregon, its law enforcement agencies, and its residents. Defendants are required by statute to distribute Byrne JAG funds to the State of Oregon pursuant to a strict formula. See 34 U.S.C. § 10156(a). The State of Oregon is entitled to an allocation of over $2,034,945 in Byrne JAG funds for FY 2017. To date Defendants have withheld the State of Oregon’s FY 2017 Byrne JAG funds. The State of Oregon has now applied for Byrne JAG funds for FY 2018, and expects to be entitled to receive $2,092,704 for FY 2018. Because Defendants have not paid the Byrne JAG funds for FY 2017, the State of Oregon expects that Defendants will also withhold the Byrne JAG funds for FY 2018. Absent injunctive relief, the State of Oregon will face significant funding shortfalls for critical law enforcement initiatives funded by Byrne JAG.
20. Defendants’ unlawful actions similarly threaten the City’s proprietary interests in hundreds of thousands of dollars appropriated by Congress for the direct benefit of the City, its
Page 6 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 7 of 33
law enforcement agencies, and its residents. Defendants are required by statute to distribute Byrne JAG funds to the City pursuant to a strict formula. See 34 U.S.C. § 10156(a). For FY 2017, the City was entitled to an allocation of $385,515. This allocation was unlawfully withheld for over a year, and an award notice was only recently provided pursuant to a preliminary injunction. City of Evanston et al. v. Sessions, No. 18 c 4853, Dkt. No. 23 (N.D. Ill. Aug. 9, 2018) (stay lifted in United States Conference of Mayors v. Sessions, No. 18-2734, Dkt. No. 13 (7th Cir. Aug. 29, 2018)). Notwithstanding that award notice, Defendants have not yet processed that award and the City has not yet received the $385,515. The City has now applied for Byrne JAG funds for FY 2018 and expects to be entitled to $391,684 for FY 2018. In the FY 2018 Byrne JAG solicitation, the Department of Justice specifically noted that it would issue awards by September 30, 2018. In early October 2018, USDOJ began releasing FY 2018 Byrne JAG award letters. To date, USDOJ has issued 752 FY 2018 local awards, totaling almost $59 million. Despite the release of a substantial portion of FY 2018 funding, USDOJ has not yet issued the City’s award. Absent injunctive relief, the City will face significant funding shortfalls for critical law enforcement initiatives funded by Byrne JAG.
21. Defendants’ actions threaten the physical and economic health and well-being of Oregon residents, including those assisted by Oregon law enforcement entities entitled to receive Byrne JAG funds. Oregon has a legitimate interest in preventing present and future harm to its residents. Governor Brown and Attorney General Rosenblum therefore have authority to commence this legal action under the doctrine of parens patriae.
22. The Oregon Attorney General, as the State of Oregon’s chief law officer, is uniquely situated to seek declaratory and injunctive relief that protects the rights of law enforcement entities and state and local government entities across Oregon. In addition, Defendants have
Page 7 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 8 of 33
specifically and impermissibly required the Oregon Attorney General to certify the State of Oregon’s compliance with unconstitutional federal requirements.
23. The City Attorney is the chief legal officer for the City of Portland. Defendants have specifically and impermissibly required the City Attorney to certify the City’s compliance with unconstitutional federal requirements.
24. In addition to requiring the Oregon Attorney General and the City Attorney to certify that the State and the City, respectively, comply with unconstitutional statutes, Defendants are purporting to require certification that subgrantees comply with those unconstitutional provisions. The State of Oregon has numerous subgrantees, many of them counties and cities that exercise a significant degree of political independence pursuant to Oregon’s constitution and laws. The City, meanwhile, also has county and city subgrantees that are politically independent of the City. Ascertaining subgrantee compliance with unconstitutional statues is an unjustified burden. And it is exacerbated by the inexplicably broad interpretation of the relevant statutes that Defendants have endorsed. Defendants have stated in other legal proceedings that “information regarding citizenship or immigration status” under 8 U.S.C. § 1373 encompasses any “information critical in applying the ‘immigration laws,’” including information helpful to Defendants in effectuating the “removal of aliens.”
25. Earlier this year, United States Secretary for Homeland Security Kirstjen Nielsen stated that, at her department’s request, the USDOJ was exploring commencing criminal prosecutions under 8 U.S.C. § 1324 against state and local elected officials of jurisdictions that do not actively assist federal immigration enforcement. In January, then-acting Director of the U.S. Immigration and Customs Enforcement (“ICE”) Tom Homan, similarly stated, “we gotta start charging some
Page 8 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 9 of 33
of these politicians with crimes” and “hold back their funding.” The certifications that Defendants are requiring grant recipients to submit echo these public comments, threatening “criminal prosecution” of state and local officials and “holding back funding” from jurisdictions that do not actively assist Defendants’ immigration enforcement efforts.
26. Finally, Defendants’ actions directly injure the sovereignty of the State of Oregon and the City. The federal statutes at issue, 8 U.S.C. §§ 1373 and 1644, require the State of Oregon and the City to exercise their police power in a manner contrary to the best interests of Oregon and City residents.
FACTUAL AND LEGAL BACKGROUND 27.
This case presents a conflict between federal immigration enforcement policies and the State of Oregon’s and the City’s exercise of their broad police powers under the Tenth Amendment.
28. “Immigration policy shapes the destiny of the Nation.” Arizona v. United States, 567 U.S. 387, 415 (2012). Plaintiffs do not dispute that the United States has significant power over the subject of immigration and the status of undocumented residents. Id. at 394. “The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.” Id. at 395.
29. While the federal government has significant power to regulate immigration, “[w]ith power comes responsibility, and the sound exercise of national power over immigration depends
Page 9 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 10 of 33
on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.” Arizona v. United States, 567 U.S. 387, 416. That responsibility also requires ensuring that the federal immigration laws do not encroach on the states’ sovereign authority to exercise their broad police powers according to their own political will.
30. The authority of the federal government with regard to immigration does not diminish the separate sovereignty of the states:
When the original States declared their independence, they claimed the powers inherent in sovereignty—in the words of the Declaration of Independence, the authority “to do all * * * Acts and Things which Independent States may of right do.” The Constitution limited but did not abolish the sovereign powers of the States, which retained “a residuary and inviolable sovereignty.” The Federalist No. 39, p. 245 (C. Rossiter ed. 1961). Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of ‘dual sovereignty.’ Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018).
31. A core aspect of state sovereignty is the notion that Congress cannot issue legislative directives to states in their role as states. “Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.” Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. at 1476.
Immigration and Nationality Act Sections 1373 and 1644 32.
Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., Congress granted the executive branch significant power over the regulation and enforcement of immigration laws in the U.S. See Arizona v. United States, 567 U.S. at 395-96.
Page 10 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 11 of 33
33.
Section 1373 of the INA, which Congress passed in 1996, prohibits state and local
governments from restricting government officials or entities from communicating information
regarding immigration status to ICE. It states in relevant part:
(a) In General. Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Additional Authority of Government Entities. Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity. 8 U.S.C. § 1373.
34.
In 1996, Congress also passed Section 1644 of the INA, which similarly bars state and
local government officials or entities from restricting how they communicate information
regarding immigration status to ICE. It states:
Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or 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.
35.
Both of these statutes specifically regulate conduct by states (and political subdivisions of
states) in their sovereign capacities. Specifically, the statutes purport to prohibit state and local
Page 11 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 12 of 33
governments from enacting laws (or adopting other policies) that govern the official conduct of
public officers and employees.
Oregon’s Immigration Enforcement Statutes
36.
The State of Oregon has enacted laws regarding the participation of local and state law
enforcement agencies in federal immigration enforcement. In 1987, Oregon enacted
ORS 181A.820, which bars Oregon law enforcement agencies from expending money for the
purpose of detecting or apprehending persons whose only violation of law is that they are
persons of foreign citizenship present in the United States in violation of federal immigration
laws.
37.
In 2017, the Oregon Legislature enacted ORS 180.805, which the legislature drafted
specifically to comply with Section 1373. The statute, in pertinent part, provides as follows:
(1) Except as required by state or federal law, a public body may not disclose, for the purpose of enforcement of federal immigration laws, the following information concerning any person, whether current or otherwise:
(a) The person’s address; (b) The person’s workplace or hours of work; (c) The person’s school or school hours; (d) The person’s contact information, including telephone number, electronic mail address or social media account information; (e) The identity of known associates or relatives of the person; (f) The date, time or location of the person’s hearings, proceedings or appointments with the public body that are not matters of public record; or (g) Information described in paragraphs (a) through (f) of this subsection with respect to known relatives or associates of the person. *** (3)(a) If a public body collects information concerning a person’s citizenship or immigration status, the public body may decline to disclose the information unless disclosure is required by: (A) State or federal law; (B) A court order; or (C) A warrant authorized by a court. ***
Page 12 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 13 of 33
(5) Nothing in this section prohibits any public body from complying with a federal immigration authority as required by federal law. ***
38. Oregon’s state and local officials are responsible for policing, protecting, and serving all residents, including more than 389,000 foreign-born individuals, who live in the State. To achieve those goals, the State of Oregon enacted the foregoing statutes as an exercise of the State’s police power to regulate the health, welfare, and public safety of its residents. Those laws are instrumental to building the trust necessary to ensuring that victims report crimes to law enforcement so that perpetrators are apprehended before harming others. Building that trust has historically been difficult in immigrant communities, where residents often fear—regardless of immigration status—that engaging with law enforcement could result in deportation. When local and state officials engage in immigration enforcement, as Defendants contemplate, vulnerable victims and witnesses are less likely to come forward to report crimes, creating a danger to all Oregon residents.
39. Moreover, those laws ensure that state and local resources are devoted to fulfilling state and local policing responsibilities. State and local law enforcement agencies are not required to expend their limited resources on enforcing immigration policies that are a federal responsibility.
40. Oregon is not alone in adopting this approach. Across the country, many other state and local jurisdictions have enacted laws to limit state and local law enforcement of federal immigration policy. See e.g. City of Chicago v. Sessions, 888 F.3d at 281; City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 591, 602 (E.D. Pa. 2017). Significantly, Oregon law does not interfere with Defendants’ lawful pursuit of its civil immigration activities in Oregon. See City of Chicago v. Sessions, 888 F.3d at 281 (“The federal government can and does freely operate in ‘sanctuary’ localities.”).
Page 13 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 14 of 33
The City of Portland and its Police Bureau Policies 41.
In accordance with ORS 181A.820, the Portland Police Bureau does not enforce federal immigration laws. In January 2017, the Portland Chief of Police explained that compliance with ORS 181A.820, and positive engagement with refugees and immigrants in Portland, improves public safety.
42. Portland Police Bureau Policy 810.10 states: “The Portland Police Bureau is committed to protecting, serving and supporting all residents and community members of the City of Portland, regardless of their national origin or immigration status. Accordingly, no Bureau member shall interrogate, detain, arrest, initiate an investigation or take other official police action against an individual solely on the basis of either of these aspects of their identity.”
43. Portland Police Bureau Policy 810.10 further states: “When necessary, the Bureau partners with [the Department of Homeland Security (“DHS”)] to assist in their efforts of managing emergency situations and combatting a wide array of global criminal threats related to drug and human trafficking, terrorism, and human rights violations. Although the Bureau supports the DHS mission as it relates to confronting these security and human rights threats, the Bureau is steadfast in its commitment to contributing to the City’s efforts to create a welcoming environment that encourages diversity and inclusivity.”
44. Portland Police Bureau Policy 810.10 further states: “To the extent that the mission of DHS, as communicated to the Bureau, is enforcement of immigration laws, the Bureau will follow the direction of the state statutory law and City ordinances by not enforcing or assisting in the enforcement of federal immigration laws, as that is a federal function. Moreover, the Bureau
Page 14 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 15 of 33
shall not expend personnel, equipment, monetary, or other resources to enforce or assist in the enforcement of federal immigration laws, unless in a manner that comports with applicable law.”
45. Portland Police Bureau Policy 810.10 further states: “Members shall not arrest a person for the sole reason that they are an undocumented immigrant” and “shall not assist ICE, CBP or ERO as it pertains to the enforcement of federal immigration laws.” However, “Where necessary to further the investigation of a federal, state or local crime unrelated to the enforcement of federal immigration laws, members may exchange information with investigative branches of DHS (e.g., HSI) or the federal government.”
46. Finally, Portland Police Bureau Policy 810.10 provides: “Federal law prohibits the Bureau from limiting or in any way restricting the exchange of information regarding the citizenship or immigration status, lawful or unlawful, between a government official and an agency responsible for the enforcement of federal immigration laws. However, the Bureau shall not require members to disclose or otherwise share information regarding an individual’s immigration status with any federal immigration law enforcement agencies.”
The Byrne JAG Program 47.
The USDOJ, overseen by Defendant Whitaker and acting through the OJP, administers the Byrne JAG program. See 34 U.S.C. §§ 10151-10158.
48. The Byrne JAG program is a mandatory formula grant: it requires awarding grant funds based on a statutorily-defined formula, and the federal government must disburse funds in the amount dictated by that formula if an applicant meets the requirements set forth in the authorizing statutes. 34 U.S.C. § 10156.
Page 15 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 16 of 33
49. Byrne JAG awards are provided to each state, as well as to certain local jurisdictions within each state. Under the governing statute, defendants “shall” allocate all congressionallyappropriated funds to each state and qualifying unit of local government according to a prescribed methodology. 34 U.S.C. § 10156(a), (b), (c), (d).
50. The Byrne JAG program supports state and local law enforcement efforts by providing an additional source of funding for personnel, equipment, training, and other criminal justice needs. 34 U.S.C § 10152. The purposes of the grant include: supporting law enforcement programs, reducing recidivism, conducting crime prevention and education programs for at-risk youth, and supporting programs for crime victims and witnesses.
51. The Byrne JAG program merges two earlier programs: the Edward Byrne Memorial State and Local Law Enforcement Assistance Program grants; and Local Law Enforcement Block Grants. See Pub. L. No. 109-162, 119 Stat. 2960, 3094 (2006). In merging those two programs, Congress identified eight types of programs that the grant was intended to fund: (1) law enforcement programs; (2) prosecution and court programs; (3) prevention and education programs; (4) corrections and community corrections programs; (5) drug treatment and enforcement programs; (6) planning, evaluation, and technology improvement programs; (7) crime victim and witness programs; and (8) mental health programs and related law enforcement and corrections programs. 34 U.S.C. § 10152(a)(1)(A)-(H).
52. For FY 2017, Congress has appropriated $396 million for the Byrne JAG program. Consolidated Appropriations Act of 2017, Pub. L. No. 115–31, 131 Stat. 135, 203.
Page 16 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 17 of 33
53. The City is a qualifying unit of local government under the Byrne JAG statute, and Federal law entitles the State of Oregon and the City to Byrne JAG funds so long as they propose to use them to achieve one of the eight criminal justice goals articulated in the authorizing statute. See 34 U.S.C. § 10152(a)(1). The State of Oregon may retain some of these funds for itself, see id. § 10156(c)(1), and must disburse the rest to its local governments, see id. § 10156(c)(2).
54. The State of Oregon has received Byrne JAG funds every year since the program’s creation in 2005. The State of Oregon has used Byrne JAG funds to support drug treatment and enforcement programs, mental health programs, and technology improvement programs among other efforts. With respect to the FY 2017 Byrne JAG award, the State of Oregon planned to use the grants to support specialty courts designed to address root causes of criminal activity and to provide statewide assistance to local crime victims. For FY 2018, the State of Oregon plans to use Byrne JAG funds to support specialty court programs that target non-violent felony offenders in an integrated, systemic approach to reduce drug use and recidivism while increasing public safety.
55. To date, the State of Oregon has not received the FY 2017 grant totaling $2,034,945 that Congress has appropriated in law enforcement funding to the State of Oregon and its political subdivisions pursuant to the Byrne JAG program.
56. For FY 2018, the State of Oregon anticipates receiving $2,092,704, but the State anticipates that Defendants will also withhold the FY 2018 funds.
Page 17 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 18 of 33
57. The City has also received Byrne JAG funds every year since the program’s creation in 2005. The City has used Byrne JAG funds, among other things, to purchase bulletproof vests and special-threat plates, tactical medical kits, GPS systems, and to fund a victims’ advocate in the Sex Crimes Unit. In addition, the City, as authorized by the Byrne JAG statute, has passed on funds to subrecipients Multnomah County and the City of Gresham, who have used those Byrne JAG funds to support, among other things, a Neighborhood Deputy District Attorney, police equipment, and a parole and probation officer.
58. The City has now been awarded, but has not yet received, the FY 2017 JAG award totaling $385,515 that Congress has appropriated in law-enforcement funding for the City and its subgrantees pursuant to the Byrne JAG program. Moreover, Defendants have indicated that they may seek to enforce immigration enforcement requirements against the City or seek reimbursement of any disbursed FY 2017 funds from the City if Defendants prevail in their separate action against the United States Conference of Mayors.
59. For FY 2018, the City anticipates receiving $391,694 in Byrne JAG funds. Of those FY 2018 funds, $189,585 are to be retained by the City for its Police Bureau, $148,960 are to be passed on to subgrantee Multnomah County for its district attorney’s office, and $53,149 are to be passed on to subgrantee City of Gresham for its police bureau. The City anticipates that Defendants will withhold the FY 2018 funds.
Defendants Impose Three Unlawful Conditions on Byrne JAG Funds 60.
The Byrne JAG authorizing statute, 34 U.S.C. § 10153(a)(5)(D), requires that jurisdictions comply with “applicable Federal laws.”
Page 18 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 19 of 33
61. On July 25, 2017, Defendants announced they were seeking state and municipal applications for FY 2017 Byrne JAG funds. In this solicitation, Defendants announced new requirements for every state and municipality receiving FY 2017 Byrne JAG funds, including the three unlawful, immigration-related conditions that are the subject of this action. This complaint refers to those conditions as the “Compliance Condition,” the “Access Condition”, and the “Notice Condition.”
62. For the purposes of this lawsuit, and consistent with its correspondence with OJP, the State of Oregon does not allege or concede that it is out of compliance with the Compliance, Access or Notice Conditions. Nor does the City of Portland allege or concede that its Police Bureau policies are inconsistent with those conditions. Plaintiffs’ compliance or noncompliance is ultimately immaterial to the question whether Defendants have authority to impose the conditions. Under the governing statutes, Plaintiffs are entitled to Byrne JAG funds and cannot be required to meet these additional, unconstitutional, conditions. A. Compliance Condition.
63. In the FY 2017 Byrne JAG solicitation, Defendants announced that, “in order to validly to accept an FY 2017 [Byrne] JAG award, the chief legal officer of the applicant State must properly execute, and the State must submit, the specific certification regarding compliance with 8 U.S.C. § 1373 attached to this solicitation as Appendix II.” Similarly, Defendants announced that, “in order validly to accept a Fiscal Year (FY) 2017 JAG award, the chief legal officer of the applicant unit of local government must properly execute, and the unit of local government must submit, the specific certification regarding compliance with 8 U.S.C. § 1373 attached to this solicitation as Appendix II.” The Attorney General of Oregon is the State’s chief legal officer, as
Page 19 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 20 of 33
a result, the Attorney General must execute and submit certification regarding the State of Oregon’s compliance with 8 U.S.C. § 1373.
64. Defendants’ FY 2018 Byrne JAG solicitation added additional language requiring the jurisdictions’ chief legal officer to certify compliance with 8 U.S.C. § 1644. Defendants’ FY 2018 Certificate of Compliance confirms that the Attorney General (on behalf of the State of Oregon) and the City Attorney (on behalf of the City) must certify compliance with 8 U.S.C. § 1644. As a result, for the FY 2018 Byrne JAG, the Attorney General and the City Attorney must execute and submit certification regarding the State of Oregon’s and the City’s respective compliance with 8 U.S.C. §§ 1373 and 1644. B. The Access and Notice Conditions.
65. Defendants’ FY 2017 state and local government solicitations also announced the application of two additional “express conditions” relating to immigration enforcement – the Access Condition and the Notice Condition.
66. Pursuant to the Access Condition, Defendants require recipients of Byrne JAG funds to “permit personnel of the U.S. Department of Homeland Security (“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.”
67. Pursuant to the Notice Condition, Defendants require recipients of Byrne JAG funds to “provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.”
Page 20 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 21 of 33
Defendants Withhold the FY 2017 Byrne JAG Award 68.
The Oregon Criminal Justice Commission (“OCJC”) is the Oregon state agency that receives and administers Byrne JAG funds on behalf of Oregon. OCJC responded to Defendants’ solicitation by the deadline of August 25, 2017. OCJC’s application proposed to use Byrne JAG funds to achieve the criminal justice goals articulated in the authorizing statute, see 34 U.S.C. § 10152(a)(1), and OCJC’s approach satisfied all other lawfully imposed requirements.
69. Similarly, the City responded to Defendants’ solicitation by the deadline of August 25, 2017. The City’s application proposed to use Byrne JAG funds to achieve the criminal justice goals articulated in the authorizing statute and satisfied all other lawfully imposed requirements.
70. According to the FY 2017 Byrne JAG solicitation, Defendants anticipated issuing Byrne JAG award notifications by September 30, 2017. To date, however, Defendants have not issued an award notification or otherwise contacted OCJC or any other state entity regarding an acceptance of Oregon’s FY 2017 Byrne JAG applications. And while Defendants have issued an award notification to the City pursuant to a preliminary injunction, City of Evanston et al. v. Sessions, No. 18 c 4853, Dkt. No. 23 (N.D. Ill. Aug. 9, 2018) (stay lifted in United States Conference of Mayors v. Sessions, No. 18-2734, Dkt. No. 13 (7th Cir. Aug. 29, 2018)), Defendants have not processed the City’s award or released the funds related to the FY 2017 Byrne JAG award to the City at this time.
71. Instead of responding directly to Oregon’s Byrne JAG application, Defendants responded
Page 21 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 22 of 33
in a letter to the State dated November 15, 2017, claiming that ORS 181A.820 and ORS 180.805 appear to conflict with 8 U.S.C. § 1373. OJP’s letter did not explain OJP’s view that ORS 181A.820 and ORS 180.805 conflict with 8 U.S.C. § 1373(a). Instead it requested a narrative detailing any Oregon “laws, policies, or practices that violate section 1373,” including ORS 181A.820 and ORS 180.805. OCJC replied with a detailed explanation that the laws do not conflict with federal law.
72. On April 17, 2018, the OJP sent an email to OCJC in which it explained that “The Bureau of Justice Assistance (BJA) has not awarded its FY 2017 Byrne JAG grants due to the issuance of a nationwide injunction by a U.S. District Court on September 15, 2017,” but that in the meantime “state and local applicants for Byrne JAG grants under the FY 2017 program may obligate and expend their own funds on allowable JAG projects after the start date of October 1, 2016. Once the grants are awarded, FY 2017 Byrne JAG funds received, if any, may be used for reimbursement of those expenditures.”
73. Defendants’ imposition of immigration-related conditions on FY 2017 Byrne JAG funding has been litigated in several courts, including the Seventh Circuit, which concluded in April 2018 that the USDOJ lacked authority to impose the Access and Notice Conditions. City of Chicago v. Sessions, 888 F.3d at 277; see also City of Chicago v. Sessions, No. 17CV5720, 2018 WL 3608564, at *11-*12 (N.D. Ill. July 27, 2018). Two district courts have also held that Section 1373 violates the Tenth Amendment and that as a result, Defendants may not condition the receipt of Byrne JAG funds on compliance with an unconstitutional statute. City of Chicago v. Sessions, 2018 WL 3608564, at *5-*11 (“Section 1373 is this unconstitutional on its face.”); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 328-31 (E.D. Pa. 2018) (holding Section 1373 unconstitutional under the anti-commandeering doctrine).
Page 22 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 23 of 33
74. Despite these rulings, Defendants continue to withhold State of Oregon’s FY 2017 Byrne JAG funds. Moreover, while the City, as a member of the United States Conference of Mayors, is expressly included in a similar ruling, see City of Evanston et al. v. Sessions, No. 18 c 4853, Dkt. No. 23 (N.D. Ill. Aug. 9, 2018) (stay lifted in United States Conference of Mayors v. Sessions, No. 18-2734, Dkt. No. 13 (7th Cir. Aug. 29, 2018)), it has still not received its FY 2017 Byrne JAG funds. Defendants’ correspondence with the State of Oregon regarding Oregon’s 2017 Byrne JAG application indicates that Defendants seek to override Oregon policy designed to encourage all residents to interact with state and local law enforcement, and with government agencies.
Defendants Impose Further Conditions on FY 2018 Byrne JAG Funds 75.
On July 20, 2018, Defendants announced that they would impose a number of immigration-related conditions on jurisdictions seeking FY 2018 Byrne JAG funding.
76. Two of those conditions are materially identical to the Access and Notice Conditions discussed above. Defendants have also expanded the Compliance condition to incorporate 8 U.S.C. § 1644 in addition to § 1373. Given the substantive similarities between the two federal statutes, this addition does not appear to meaningfully change the nature of the Compliance Condition.
77. In addition to the certification required with regard to the Compliance Condition, the 2018 application requires applicants to respond to questions related to the Compliance Condition: (1) Does your jurisdiction have any laws, policies, or practices related to whether, when, or how employees may communicate with DHS or ICE? Page 23 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 24 of 33
(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? Answers, and potentially additional material, “must be provided by the applicant as part of the JAG application,” as a condition of receiving Byrne JAG funds.
78. The FY 2018 Byrne JAG application also states that the “reasonable costs” of complying with the Notice and Access Conditions, including the costs of “honoring any duly authorized requests from DHS that is encompassed by these conditions, will be allowable costs under the award.” That provision further demonstrates Defendants’ usurpation of the Congressional spending power. Byrne JAG funds, which Congress explicitly directed to support local criminaljustice efforts, will instead be used to unlawfully fund federal immigration enforcement.
79. The FY 2018 Byrne JAG applications also purport to condition awards on the jurisdiction’s chief legal officer (the Attorney General for the State of Oregon, and the City Attorney for the City of Portland) certifying that the jurisdiction will not “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 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, including any building or any means to aid or abet in the commission of the preceding acts’).”
Defendants Lack Authority to Impose the Compliance Condition 80.
Because 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment, Defendants may not rely on the Compliance Condition to withhold Plaintiffs’ FY 2017 Byrne JAG funds, or to reject Plaintiffs’ FY 2018 Byrne JAG applications. The Tenth Amendment limits Congress’s legislative authority to those powers enumerated in the Constitution. Congress may not directly
Page 24 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 25 of 33
compel states and their political subdivisions to enact a regulation or enforce a federal regulatory program, may not conscript state officers for such purpose, and may not prohibit a state from enacting laws. This constitutional anti-commandeering principle “is one of the Constitution’s structural protections of liberty.” Printz v. United States, 521 U.S. 898, 921 (1997). Among other benefits, 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.
81. The Supreme Court recently affirmed that the anti-commandeering principle prevents Congress from issuing direct orders to state legislatures. Murphy v. NCAA, 138 S. Ct. at 1478. This is precisely what 8 U.S.C. § 1373(a) and (b) and § 1644 do. These provisions dictate to states like Oregon that they may not promulgate laws or regulations that prohibit state or local officials from sharing immigration-status information with federal officials, even if sharing that information would directly undermine state or local programs. “A more direct affront to state sovereignty is not easy to imagine.” Id. Sections 1373(a)-(b) and 1644 regulate only state actors, and regulate them only in their capacity as state actors. Thus neither is a preemptive federal law. Murphy v. NCAA, 138 S. Ct. at 1481. 8 U.S.C. § 1373(a)-(b) and § 1644 are unconstitutional.
82. Defendants may not condition Oregon’s or the City’s Byrne JAG funds on their compliance with an unconstitutional statute. City of Chicago v. Sessions, 2018 WL 3608564, at *13 (“[T]he Attorney General has no authority to demand compliance with Section 1373, hereby deemed unconstitutional, under the Byrne JAG statute.”); City of Philadelphia v. Sessions, 309 F. Supp. 3d at 329 (“Because the JAG Byrne Program requires compliance with an unconstitutional statute (in this case, Section 1373) in order to receive grant funds, the Certification Condition is itself unconstitutional.”); see also generally United States v. California, No. 2:18-cv-490-JAM-
Page 25 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 26 of 33
KJN, 2018 WL 3301414, at *14 (E.D. Cal. July 5, 2018) (“The Court finds the constitutionality of Section 1373 highly suspect.”).
Defendants Lack Authority to Impose the Notice and Access Conditions 83.
For different, but equally important constitutional reasons, Defendants also lack the authority to impose the Access and Notice Conditions. The creation of these conditions by the executive branch to impede congressionally-appropriated funding of state and local law enforcement violates the doctrine of separation of powers by invading Congress’s spending authority. “The power of the purse does not belong to the Executive Branch. It rests in the Legislative Branch.” City of Chicago v. Sessions, 888 F.3d at 283. Defendants, as executive branch officials, have no authority to impose additional conditions on the receipt of funds appropriated by the legislative branch for the Byrne JAG program; the authority to condition the receipt of federal funds lies exclusively with Congress. As the Seventh Circuit held in City of Chicago v. Sessions, 888 F.3d at 283-87, the Byrne JAG statute does not contain a single provision that could authorize Defendants to impose the Access and Notice Conditions on any state or local jurisdiction. Nor does any other statute grant Defendants such authority.
84. Finally, nothing in the Byrne JAG statutes empowers Defendants to simply decline to issue an award letter to any jurisdiction that, in Defendants’ estimation, does not share the Department’s commitment to enforcing federal immigration policy. As noted above, the Byrne JAG is a formula grant administered by Defendants, who “shall” allocate all congressionallyappropriated funds to each state and qualifying unit of local government according to a prescribed methodology. 34 U.S.C. §§ 10156(a), (b), (c), (d). Defendants may not constructively deny funds appropriated by Congress for the benefit of the State of Oregon and the City by simply declining to act.
Page 26 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 27 of 33
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF DECLARATORY AND INJUNCTIVE RELIEF (Compliance Condition – 8 U.S.C. §§ 1373 and 1644 Violate the Tenth Amendment)
85. Plaintiffs repeat and re-allege Paragraphs 1 through 84 as if fully set forth herein.
86. The Tenth Amendment to the United States Constitution prohibits the federal government from requiring state and local governments to govern according to Congress’s instructions, or from commandeering state and local officials to administer or enforce a federal regulatory program. This anti-commandeering principle also forbids Congress from unequivocally dictating what a state legislature may and may not do.
87. Sections 1373 and 1644 on their face violate the Tenth Amendment because they require state and local governments to govern according to Congress’s instructions.
88. In addition, Sections 1373 and 1644 on their face violate the Tenth Amendment because they commandeer state and local officials to administer or enforce a federal regulatory program.
89. Because Sections 1373 and 1644 violate the Tenth Amendment, Defendants cannot require the State of Oregon and the City to certify compliance with these unconstitutional statutes.
90. An actual controversy exists because Defendants are requiring the State of Oregon and the City to certify compliance with Sections 1373 and 1644 in order to obtain congressionally
Page 27 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 28 of 33
appropriated federal funds even though the two statutes violate the Tenth Amendment. 91.
Pursuant to 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that Sections 1373 and 1644 violate the Tenth Amendment and are unconstitutional.
92. Plaintiffs are also entitled to a declaration that Defendants cannot rely on these statutes, or on any reporting or certification requirements related to these statutes, to withhold the Byrne JAG funds under the Compliance Condition.
93. Plaintiffs are also entitled to injunctive relief prohibiting Defendants from withholding FY 2017 Byrne JAG funds due to them.
94. Plaintiffs are also entitled to injunctive relief prohibiting Defendants from declining to accept and process Plaintiffs’ FY 2018 Byrne JAG applications, and from withholding FY 2018 Byrne JAG funds due to State of Oregon and the City.
SECOND CLAIM FOR RELIEF VIOLATION OF CONGRESSIONAL SPENDING AUTHORITY AND SEPARATION
OF POWERS DECLARATORY AND INJUNCTIVE RELIEF (Ultra Vires as to the Access and Notice Conditions)
95. Plaintiffs repeat and re-allege Paragraphs 1 through 94 as if fully set forth herein.
96. Article I, Section I of the United States Constitution vests Congress with legislative powers, and Article I, Section VIII of the United States Constitution vests exclusively in Congress the spending power to “provide for * * * the General Welfare of the United States.” Page 28 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 29 of 33
Absent a statutory provision or express delegation, only Congress is empowered to attach conditions to federal funds.
97. Defendants are officials of the Executive Branch. The executive does not have unilateral authority to refuse to spend funds that have already been appropriated by Congress for a particular project or program. Imposing a new condition on a federal grant program amounts to refusing to spend money appropriated by Congress.
98. Congress has not enacted the Access and Notice Conditions as part of any statutory scheme.
99. Congress has not enacted the Access and Notice Conditions as applicable to Byrne JAG funds.
100. Congress has not delegated to Defendants the authority to impose the Access and Notice Conditions on the acceptance of an application for Byrne JAG funds, the processing of such an application, or on the issuance of Byrne JAG funds.
101. Defendants’ imposition of the Notice and Access Conditions, and of all related reporting and certification requirements, unconstitutionally intrudes upon and usurps powers that belong to Congress, violating the principle of separation of powers generally and the Spending Clause specifically.
102. Pursuant to 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Access and Notice Conditions are ultra vires and unconstitutional; that these conditions do not provide a
Page 29 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 30 of 33
basis for withholding or terminating any of the State’s and City’s federal funding; that Defendants may not impose these conditions or any related reporting or certification requirements to withhold the State’s and City’s FY 2017 Byrne JAG funds; that Defendants may not impose these conditions or any related reporting or certification requirements to decline to accept and process Plaintiffs’ FY 2018 Byrne JAG applications, or to deny Plaintiffs’ FY 2018 Byrne JAG funds; and that these conditions and any related reporting or certification requirements should be set aside.
103. Plaintiffs are also entitled to injunctive relief prohibiting Defendants from withholding FY 2017 Byrne JAG funds due to them.
104. Plaintiffs are also entitled to injunctive relief prohibiting Defendants from declining to accept and process Plaintiffs’ FY 2018 Byrne JAG applications, and from withholding FY 2018 Byrne JAG funds due to State of Oregon and the City.
THIRD CLAIM FOR RELIEF (Mandamus) 105.
Plaintiffs repeat and re-allege Paragraphs 1 through 104 as if fully set forth herein. 106.
Pursuant to Part A, Subchapter V, Chapter 101, Subtitle 1, of Title 34 of the United States Code, 34 U.S.C. §§ 10151-10158, Plaintiffs have a clear right to receive from Defendants — and Defendants have a nondiscretionary duty to provide to Plaintiffs — Byrne JAG award notifications for the full amount of funds to which they are entitled that do not contain any unconstitutional or unlawful conditions. No other adequate remedy is available to Plaintiffs.
Page 30 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 31 of 33
107. In other lawsuits in which state and local jurisdictions have won injunctions barring Defendants from imposing unlawful conditions on the receipt of Byrne JAG funds, Defendants have simply declined to issue new award notifications — thereby complying with the letter of those injunctions, but still denying Byrne JAG funds to those jurisdictions.
108. Pursuant to 28 U.S.C. § 1361, this Court has the authority to issue a writ of mandamus compelling Defendants Trump and Whitaker to perform their duty to provide Plaintiffs with Byrne JAG funds in the full amount of funds to which Plaintiffs are entitled for FY 2017 forward, without attaching unconstitutional or otherwise unlawful conditions.
PRAYER FOR RELIEF WHEREFORE, the State of Oregon, Governor Kate Brown, Attorney General Ellen Rosenblum, and the City of Portland request the following relief: 1. Declare that 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment and enjoin Defendants from taking any action based on alleged noncompliance with those federal statutes. 2. Declare that because 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment, the Compliance Condition does not provide a basis for withholding or terminating any of Plaintiffs’ congressionally appropriated Byrne JAG funding. 3. Declare that the Access and Notice Conditions are ultra vires because those conditions violate Article I, Section VIII of the US Constitution (the Spending Clause), as well as separation-of-powers principles, and are therefore unconstitutional and cannot provide a basis for withholding or terminating any of Plaintiffs’ congressionally appropriated Byrne JAG funding. 4. Enjoin Defendants from requiring Plaintiffs to comply with, or certify compliance with, 8 U.S.C. § 1373(a)-(b) and/or 8 U.S.C. § 1644 as a prerequisite to disbursing any of
Page 31 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 32 of 33
Plaintiffs’ congressionally appropriated Byrne JAG funding. 5. Enjoin Defendants from requiring Plaintiffs to comply with, or certify compliance
with, the Access and Notice Conditions, or any other conditions relating to federal immigration laws or policy, as a prerequisite to disbursing any of Plaintiffs’ congressionally appropriated Byrne JAG funding.
6. Issue a writ of mandamus pursuant to 28 U.S.C. § 1361 compelling Defendants Trump and Whitaker to perform their duty to provide Plaintiffs with Byrne JAG funds for FY 2017 forward without attaching any unconstitutional or otherwise unlawful conditions.
Page 32 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

Case 6:18-cv-01959-MC Document 3 Filed 11/21/18 Page 33 of 33
7. Award Plaintiffs their costs and fees in this action.
8. Award such other relief as the Court deems proper and just.
DATED November 21 , 2018.
Respectfully submitted,
ELLEN F. ROSENBLUM Attorney General
s/ Marc Abrams MARC ABRAMS #890149 Assistant Attorney-in-Charge TIMOTHY SMITH #914374 Senior Assistant Attorney General PEENESH SHAH #112131 Assistant Attorney General JUSTIN KIDD #094070 Assistant Attorney General Trial Attorneys Tel (503) 947-4700 Fax (503) 947-4791 Marc.Abrams@doj.state.or.us Tim.Smith@doj.state.or.us Peenesh.H.Shah@doj.state.or.us Justin.Kidd@doj.state.or.us
Of Attorneys for Plaintiffs State of Oregon, Kate Brown and Ellen Rosenblum
TRACY P. REEVE #891123 Portland City Attorney
s/ Tracy P. Reeve DENIS M. VANNIER #044406 Senior Deputy City Attorney NAOMI SHEFFIELD #170601 Deputy City Attorney Tel: (503) 823-4047 Fax: (503) 823-3089 Denis.Vannier@portlandoregon.gov Naomi.Sheffield@portlandoregon.gov
Of Attorneys for Plaintiff City of Portland
Page 33 - FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
Justice #9293999 v3 Oregon Department of Justice 1162 Court Street NE Salem, OR 97301
(503) 947-4700 / Fax: (503) 947-4791

 
 406 F.Supp.3d 940 (2019)
The State of OREGON; Kate Brown, Governor; Ellen Rosenblum, Attorney General; and The City of Portland, Plaintiffs, v.
Donald J. TRUMP, President of the United States, in his official capacity; William P. Barr, Attorney General of the United States, in his official capacity; and The United States of America, Defendants.
No. 6:18-cv-01959-MC.
United States District Court, D. Oregon, Eugene Division.
Signed August 7, 2019.
950*950 Marc Abrams, Oregon Department of Justice, Tracy Pool Reeve, Denis M. Vannier, Naomi Sheffield, Portland City Attorney's Office, Portland, OR, Justin E. Kidd, Peenesh H. Shah, Timothy Daly Smith, Oregon Department of Justice, Salem, OR, for Plaintiffs.
Daniel D. Mauler, U.S. Department of Justice, Civil Division, W. Scott Simpson, US Department of Justice, Washington, DC, for Defendants.
OPINION AND ORDER
Michael J. McShane, United States District Judge.
The present dispute touches upon many of the same principles and tensions which have animated our Republic's legal and political discourse since its founding. The President of the United States and his Attorney General seek to advance their policy priorities by pressuring states and localities to comply with two immigration-related laws and by withholding federal funds from jurisdictions which refuse to assist immigration authorities. The laws at issue, 8 U.S.C. §§ 1373 and 1644, prohibit states and localities from enacting rules which prevent their employees from sharing a person's immigration status with federal officials. The State of Oregon and the City of Portland, both of which have been targeted, believe that Sections 1373 and 1644 are unconstitutional intrusions upon their legislative independence. They also believe that the funding conditions imposed by the Attorney General are contrary to the intent of Congress. The case comes before the Court on Defendants' Motion to Dismiss and Plaintiffs' Motion for Summary Judgment. Because Sections 1373 and 1644 violate the Tenth Amendment, and Defendants otherwise lack the authority to withhold the disputed funds, Plaintiffs' motion is GRANTED in part.
BACKGROUND

I. The Byrne JAG Program
The present conflict centers on the Edward Byrne Memorial Justice Assistance Grant Program ("Byrne JAG Program"). See Pub. L. No. 109-162, § 1111, 1119 Stat. 2960, 3094 (2006) (codified as amended at 34 U.S.C. §§ 10151-10158). The Byrne JAG Program is a federal grant program administered by the Office of Justice Programs, a subdivision of the United States Department of Justice. See 34 U.S.C. §§ 10101-10102, 10141, 10151. The purpose of the Byrne JAG Program is to support state and local criminal justice efforts by providing an additional source of funding for personnel, equipment, training, and other needs. Id. § 10152(a)(1). States and localities may use Byrne JAG funds to support criminal justice initiatives in several different areas, including law enforcement, prosecution, crime prevention, corrections, drug treatment, technology, mental health, and victim and witness services. See id. §§ 10152(a)(1), 10153(a).
Under the Byrne JAG Program, grants are distributed directly to states and localities according to a formula, the variables of which are derived from a jurisdiction's population and violent crime statistics. 34 U.S.C. § 10156. To receive and draw upon 951*951 a Byrne JAG award, a jurisdiction must apply to the Attorney General in the form and manner prescribed by statute, see id. §§ 10153, 10155, and comply with all lawful conditions outlined in the grant solicitation and award documents, see, e.g., Schmidt Decl. Exs. 1, 11, ECF No. 22; Defs.' Req. for Judicial Notice in Supp. Mot. Dismiss ("RJN") Exs. E, F, ECF No. 15. A jurisdiction, once awarded its statutory share of funds, may also make subawards to local governments and community organizations. 34 U.S.C. § 10152(b). Although funds appropriated by Congress for the Byrne JAG Program must be allocated according to the statutory formula, the Attorney General retains some discretion to reserve and redistribute certain funds. See id. §§ 10156(f), 101057.
II. History of Participation
The State of Oregon had, until 2017, received Byrne JAG funds every year since the program's creation in 2005. Schmidt Decl. ¶ 6; Nordeen Decl. ¶ 2, ECF No. 25; see also RJN Ex. A. During that time, the State of Oregon used its more than $26 million in Byrne JAG funds to support, among other things, programs for mental health treatment, technology improvement, and drug treatment and enforcement. Schmidt Decl. ¶ 9. With respect to the contested FY 2017 award, the State of Oregon plans to use its funds to support specialty courts designed to address root causes of criminal activity and provide statewide assistance to local crime victims. Schmidt Decl. ¶¶ 12, 15, Ex. 4 at 2, 7-8, 16-17. With respect to the contested FY 2018 award, the State of Oregon plans to use its funds to support specialty court programs which target non-violent felony offenders in an integrated, systemic approach to reduce drug use and recidivism while increasing public safety. Schmidt Decl. ¶ 22, Ex. 12 at 1-2, 8-14, 20-21.
Similarly, the City of Portland had, until 2017, received Byrne JAG funds every year since the program's creation in 2005. Nordeen Decl. ¶ 2; see also RJN, Ex. B. During that time, the City of Portland used its Byrne JAG funds to, among other things, purchase bulletproof

vests and special-threat plates, acquire tactical medical kits, install Global Positioning Systems, and add two Victim Advocates to the Portland Police Bureau's Sex Crimes Unit. Nordeen Decl. ¶ 3. In addition, the City of Portland has historically distributed funds to subrecipients Multnomah County and the City of Gresham, which have used those funds to, among other things, support a Neighborhood Deputy District Attorney, purchase police equipment, and add a full-time Parole and Probation Officer. Nordeen Decl. ¶ 4. The City of Portland plans to support similar initiatives with the contested FY 2017 and FY 2018 funds. Nordeen Decl. Exs. 2, 5.
III. FY 2017 and FY 2018 Funding Conditions
Starting in 2017, the Attorney General imposed three new immigration-related conditions on the receipt of Byrne JAG funds. See generally Schmidt Decl. Exs. 1-3; Nordeen Decl. Ex. 1; RJN Ex. D. The conditions are included in the FY 2017 state and local solicitations promulgated by the Department of Justice and, more importantly, the award agreements adopted by grantees. See, e.g., Schmidt Decl. Ex. 1; Nordeen Decl. Ex. 1; RJN Ex. D. As relevant here, a jurisdiction must formally agree to each condition prior to drawing upon an award of FY 2017 Byrne JAG funds. See, e.g., RJN Ex. D ¶ 1. The FY 2017 conditions can be summarized as follows:
• Notice Condition: A grantee must provide 48 hours' "advance notice"—or as much advance notice as is "practicable"—of the "scheduled release date and time" of any alien in the jurisdiction's custody if the jurisdiction 952*952 receives a "formal written request" from the United States Department of Homeland Security ("DHS"). RJN Ex. D ¶ 55; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4. • Access Condition: A grantee must allow DHS personnel to "access" any detention facility which it maintains and "meet with individuals who are (or are believed ... to be) aliens" and "inquire as to their right to be or remain in the United States." RJN Ex. D ¶ 55; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4. • Compliance Condition: A grantee must certify that it complies with 8 U.S.C. § 1373. RJN Ex. D ¶ 54; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4. Section 1373 provides that no "State[] or local government entity or official may ... prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status... of any individual." 8 U.S.C. § 1373(a).
In 2018, the Attorney General again imposed immigration-related conditions on the receipt of Byrne JAG funds. See generally Schmidt Decl. Ex. 11; Nordeen Decl. Ex. 4; RJN Exs. E, F. Two of those conditions are substantively indistinguishable from the Notice and Access Conditions described above. RJN Ex. E ¶¶ 45-46; see also Schmidt Decl. ¶ 22, Ex. 11 at 1, 35-37, 42-43; Nordeen Decl. Ex. 4 at 36-37, 42-43. A third condition merely expands the Compliance Condition to include 8 U.S.C. § 1644—a statute which is functionally equivalent to Section 1373—and to require that jurisdictions describe any "laws, policies, or practices related to whether, when, or how employees may communicate with DHS or [Immigration and Customs Enforcement]." Schmidt Decl. Ex. 11 at 27-28, 52; see also Nordeen Decl. Ex.

4 at 52; RJN Ex. E ¶ 47. But a fourth and final FY 2018 condition imposes a new restriction on grantees' conduct:
• Disclosure Condition: A grantee must not publicly disclose "federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice" or any "alien who has come to, entered, or remains in the United States" in violation of federal law. RJN Ex. E ¶ 44.[1]
As with FY 2017 Byrne JAG awards, grantees must formally agree to each of the immigration-related conditions prior to drawing upon their FY 2018 funds. See, e.g., RJN Exs. E, F. Thus, even if a jurisdiction receives a notice of award from the Department of Justice, it may not draw upon those funds until it agrees to the conditions listed in the award document. 953*953 See RJN Ex. E ¶ 1 ("Failure to comply with any one or more of these award requirements... may result in the Office of Justice Programs ... withhold[ing] award funds, disallow[ing] costs, or suspend[ing] or terminat[ing] the award."); see also Schmidt Decl. Ex. 11 at 1; Nordeen Decl. Ex. 4 at 1.
IV. FY 2017 and FY 2018 Awards
Plaintiffs applied in August 2017 for a FY 2017 Byrne JAG award and in August 2018 for a FY 2018 Byrne JAG award. See Schmidt Decl. ¶¶ 15, 22, Exs. 4, 11; Nordeen Decl. ¶¶ 6, 12, Exs. 2, 5. Based on the statutory formula, the State of Oregon expected to receive $2,034,945 for FY 2017 and $2,092,704 for FY 2018, Schmidt Decl. Ex. 13 at 1, Ex. 14 at 1, while the City of Portland expected to receive $385,515 for FY 2017 and $391,694 for FY 2018, see Nordeen Decl. ¶ 11, Ex. 2. Defendants anticipated issuing Byrne JAG award notifications by September 30, 2017 for FY 2017 grantees and September 30, 2018 for FY 2018 grantees. See Schmidt Decl. Ex. 1 at 31, Ex. 11 at 35; Nordeen Decl. Ex. 1 at 29, Ex. 4 at 35
As represented at oral argument, however, the State of Oregon did not receive notice of its FY 2017 or FY 2018 Byrne JAG awards until July 2019. That delay was the result of concerns within the Department of Justice that at least one Oregon law, Or. Rev. Stat. § 181A.820, prevents the State of Oregon from satisfying the Notice, Access, and Compliance Conditions. See Schmidt Decl. ¶¶ 17-18, Exs. 6-9. Section 181A.820 provides in relevant part that "[n]o law enforcement agency of the State of Oregon or any political subdivision of the state" may use "agency moneys, equipment, or personnel" to "detect[] or apprehend[]" persons whose only transgression is the violation of "federal immigration laws."[2] Although the State of Oregon recently received its FY 2017 and FY 2018 awards, the Department of Justice's view of Section 181A.820 is seemingly unchanged. The State of Oregon, as such, cannot accept or draw upon the funds without risking penalties. See, e.g., Schmidt Decl. Ex. 3 (stating that the Department of Justice will, among other actions, "claw back" funds from jurisdictions which violate the challenged conditions).
The City of Portland is in a similar position. Although the City of Portland received its FY 2017 Byrne JAG award on October 10, 2018, Defendants only issued the award pursuant to

a preliminary injunction in City of Evanston v. Sessions, No. 18-cv-4853 (N.D. Ill. Aug. 9, 2018). Defendants have yet to issue the City of Portland its FY 2018 Byrne JAG award. Nordeen Decl. ¶ 14. Despite multiple inquiries from the City of Portland, the Department of Justice has offered no explanation for the ten-month delay. Nordeen Decl. Exs. 6-7. As a political subdivision of the State of Oregon, however, the City of Portland is subject to Section 181A.820. Its Police Bureau is also bound by an internal rule, Directive 810.10, which mirrors Section 181A.820 and prohibits personnel from "enforcing or assisting in the enforcement of federal immigration laws." RJN Ex. G at 2; see also Nordeen Decl. ¶ 17. Thus, even if Defendants were to issue a FY 2018 award to the City of Portland, it would be unable to accept or draw upon those funds without risking penalties for 954*954 perceived violations of the Notice, Access, and Compliance Conditions.
V. Conflicting Policy Priorities
Defendants maintain that the contested conditions and statutes—and, by implication, the pressure on Plaintiffs to repeal their allegedly incompatible laws and policies—are essential to a properly functioning system of federal immigration laws. See Defs.' Mot. Dismiss 1, ECF No. 14. They point in particular to the extensive intergovernmental coordination and cooperation contemplated by the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 11011537. See Defs.' Mot. Dismiss 6-9. As relevant here, that cooperation and coordination includes, among other things, the decision to allow state and local governments to prosecute and punish illegal aliens who commit crimes before allowing the federal government to take immigration measures against those same persons. See 8 U.S.C. § 1231; see also id. § 1226(c)(1) (mandating that immigration detention for removal proceedings begin only "when the alien is released" from state or local criminal detention). Defendants believe that this and other features of the INA are only practicable if state and local governments provide information and access to immigration authorities.
Plaintiffs, however, believe that the health, welfare, and public safety of their residents is best served by refraining from the enforcement and administration of federal immigration laws. See Shah Decl. Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8. That determination, they explain, is reflected in the laws and policies targeted by Defendants. See Shah Decl. Exs. 14; Nordeen Decl. ¶¶ 16-17, Ex. 8. According to Plaintiffs, those laws and policies are instrumental to ensuring that all members of their communities feel safe cooperating with and obtaining the assistance of law enforcement agencies. See Shah Decl. ¶¶ Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8. In particular, Plaintiffs believe that, when state and local officials are associated with federal immigration enforcement, vulnerable victims and witnesses are less likely to come forward and report crimes, creating a danger to all members of their communities. See Shah Decl. Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8. Plaintiffs have, as such, declined to change their laws and policies in the face of funding pressures from the President and his Attorney General.
VI. Procedural History of the Lawsuit

The State of Oregon initiated the present action on November 9, 2018. Shortly thereafter, the City of Portland joined in the suit and, together, the State of Oregon and the City of Portland submitted an amended complaint on November 21, 2018. In their First Amended Complaint ("FAC"), ECF No. 3, Plaintiffs challenge Defendants' authority to impose the Notice, Access, and Disclosure Conditions. They also bring a facial constitutional challenge to Sections 1373 and 1644, the statutes on which the Compliance Condition is based. To remedy their injuries, Plaintiffs seek declaratory, injunctive, and mandamus relief. On March 5, 2019, Defendants filed a Motion to Dismiss. In response, on April 8, Plaintiffs filed a Motion for Summary Judgment, ECF No. 21. After briefing and oral argument, both motions are now before the Court.
STANDARDS
I. Motion to Dismiss Under Rule 12(b)(1)
A motion to dismiss under Fed. R. Civ. P. 12(b)(1) tests the subject matter jurisdiction of a federal court. Under the U.S. Constitution, this Court is without jurisdiction to resolve any claim which is not ripe for review, Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 579, 955*955 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985), or which a plaintiff lacks standing to assert, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At a constitutional minimum, standing requires a plaintiff to show that she has "suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury can be traced to the challenged action and is likely to be redressed by a favorable decision." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (internal quotation marks and citations omitted). Similarly, a claim is ripe within the meaning of Article III if it presents "concrete legal issues" in the context of "actual cases, not abstractions." United Pub. Workers v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754 (1947) (internal quotation marks and citations omitted). The party invoking federal jurisdiction bears the burden of establishing both requirements. Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
II. Motion to Dismiss Under Rule 12(b)(6)
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain factual allegations sufficient to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible on its face when the factual allegations allow a court to infer the defendant's liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The factual allegations must present more than "the mere possibility of misconduct." Id. at 678, 129 S.Ct. 1937. When considering a motion to dismiss, a court must accept all allegations of material fact as true and construe those facts in the light most favorable to the non-moving party, Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000), but it is "not bound to accept as true a legal

conclusion couched as a factual allegation," Twombly, 550 U.S. at 555, 127 S.Ct. 1955. If a complaint is dismissed, the court must grant the plaintiff leave to amend unless it "determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).
III. Motion for Summary Judgment Under Rule 56(a)
A district court must award summary judgment "if 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." Fed. R. Civ. P. 56(a). A fact is "material" if it could affect the outcome of the case and an issue is "genuine" if a reasonable jury could find in favor of the non-moving party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citation omitted). When ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the movant carries her burden, then the non-moving party must present "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (internal quotation marks omitted) (citing Fed. R. Civ. P. 56(e)). The "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient" to avoid summary judgment. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
956*956 DISCUSSION
Plaintiffs challenge the Notice, Access, Compliance, and Disclosure Conditions on three main grounds. First, Plaintiffs argue that Defendants are without constitutional or statutory authority to impose the Notice, Access, and Disclosure Conditions upon recipients of Byrne JAG funds and that the promulgation of those conditions therefore infringes on the power vested in Congress under the Spending Clause of the U.S. Constitution. Second, Plaintiffs contend that, insofar as the Compliance Condition is premised on a valid congressional delegation of condition-making authority, that authority cannot include the conditioning of funds on compliance with statutes which violate the Tenth Amendment. Finally, Plaintiffs argue that, even if they possess the statutory authority to impose all four of the challenged conditions, Defendants run afoul of limitations inherent in the Spending Clause. Defendants contest each of Plaintiffs' legal arguments and move to dismiss the FAC on standing and ripeness grounds. Because the standing and ripeness requirements of Article III are jurisdictional, the Court addresses them first.
I. Justiciability: Standing and Ripeness
Defendants argue that the Court is without jurisdiction to resolve the present dispute. See Fed. R. Civ. P. 12(b)(1). They contend both that Plaintiffs lack standing to bring their claims and that their claims are not ripe for judicial review. With respect to each theory, Defendants argue that Plaintiffs have yet to suffer a concrete injury as a result of

Defendants' challenged conduct and that any otherwise cognizable injuries are contingent upon future events. Defendants also take issue with Plaintiffs' prayer for an injunction against all future immigration-related conditions on Byrne JAG funds—including those not presently before the Court—and argue that Plaintiffs cannot demonstrate an actual or imminent injury from conditions which do not yet exist. In response, Plaintiffs argue that they are suffering from an ongoing financial and budgetary injury as a result of Defendants' refusal to disburse Byrne JAG funds without the challenged conditions. Alternatively, they argue that, by imposing the conditions and moving to enforce Sections 1373 and 1644, Defendants are presently attempting to interfere with both the exercise of Plaintiffs' sovereign police powers and their rights under federal law.[3]
Under Article III of the U.S. Constitution, the "judicial Power" of federal courts is limited to "Cases" and "Controversies." U.S. Const. art. III, §§ 1-2. One component of this constitutional limitation is that a federal court may not "decide the merits of [a] dispute" unless the plaintiff demonstrates that she has "standing" as to each of her claims and requested forms of relief. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see also City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). To have Article III standing, a plaintiff must show that (1) she has suffered an "injury-in-fact," (2) her injury is "fairly traceable" to the actions of the defendant, and (3) her injury is likely to be "redressed by a favorable decision." Lujan, 504 U.S. at 56061, 957*957 112 S.Ct. 2130 (internal quotation marks and citations omitted). An injury-in-fact is one which stems from a "legally protected interest" and is both "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Id. at 560, 112 S.Ct. 2130. A threat of "future injury" may satisfy the injury-in-fact requirement if the "threatened injury is certainly impending" or there is a "substantial risk that the harm will occur." Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014). As the Ninth Circuit recently reiterated, a plaintiff "need only show a slight injury for standing." City of Los Angeles v. Barr, 929 F.3d 1163, 1173-74 (9th Cir. 2019) (citation omitted).
The "Case" or "Controversy" limitation of Article III also mandates that a plaintiff's claim be "ripe" for judicial review. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 579, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). The ripeness inquiry aims to ensure that any "harm asserted has matured sufficiently to warrant judicial intervention." Warth, 422 U.S. at 499 n.10, 95 S.Ct. 2197 (citations omitted). A claim is ripe within the meaning of Article III if it presents "concrete legal issues" in the context of "actual cases, not abstractions." United Pub. Workers, 330 U.S. at 89, 67 S.Ct. 556 (internal quotation marks and citations omitted). In evaluating ripeness, the core Article III inquiry is whether a claim "involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal quotation marks and citation omitted). To that end, the "constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing's injury in fact prong." Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000); see also Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1234 (10th Cir. 2004) ("Standing

and ripeness are closely related in that each focuses on whether the harm asserted has matured sufficiently to warrant judicial intervention.").
Here, the Court agrees with Plaintiffs, as well as every other court to have examined similar standing and ripeness challenges, that Plaintiffs have standing to pursue their claims and that those claims are ripe for judicial review. See City & Cty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 966 (N.D. Cal. 2018) (finding that the plaintiffs had "demonstrated Article III standing to challenge the conditions" and that their claims were "ripe for review"); State ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015, 1026-31 (N.D. Cal. 2018) (finding the same but addressing only the Compliance Condition); City & Cty. of San Francisco v. Sessions, No. 17-cv-04642-WHO, 2018 WL 6267848, at *1 (N.D. Cal. Mar. 5, 2018) (same); City of Philadelphia v. Sessions, 309 F. Supp. 3d 271, 279-80 (E.D. Pa. 2018) (addressing ripeness but not expressly reaching the issue of standing); City of Chicago v. Sessions, 321 F. Supp. 3d 855, 865-66 (N.D. Ill. 2018) (same); cf. also City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1235-38 (9th Cir. 2018) (rejecting the defendants' ripeness and standing arguments in pre-enforcement challenge to an executive order which conditioned federal funds on compliance with Section 1373); Cty. of Santa Clara v. Trump, 275 F. Supp. 3d 1196, 1208-11 (N.D. Cal. 2017) (same); City of Seattle v. Trump, No. 17-497-RAJ, 2017 WL 4700144, at *5-7 (W.D. Wash. Oct. 19, 2017) (same).
With respect to standing, Plaintiffs identify at least two injuries-in-fact. The first injury is financial in nature. Defendants continue to withhold the award 958*958 and/or release of Plaintiffs' FY 2017 and FY 2018 Byrne JAG funds based on the challenged conditions. Plaintiffs have operated without these funds for nearly two years. They are actively faced with the choice of either self-funding their proposed initiatives, forgoing those initiatives, or "chang[ing] their policies." City & Cty. of San Francisco, 897 F.3d at 1236. This interruption in the flow of promised federal funds is a cognizable injury-in-fact. Organized Vill. of Kake v. United States Dep't of Agric., 795 F.3d 956, 965 (9th Cir. 2015) (en banc) ("[A] loss of funds promised under federal law ... satisfies Article III's standing requirement."); cf. also E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1243 (9th Cir. 2018) (holding that "even a small reduction" in government funds to a private organization is a cognizable injury). Although Defendants contend that Plaintiffs' injuries "rest[] upon contingent future events" because Defendants have yet to withhold or claw back any specific funds, the Ninth Circuit has made clear that standing is available even for states and localities with policies which "arguably would qualify for grant withdrawal" under contested federal directives. City & Cty. of San Francisco, 897 F.3d at 1236. And rightly so: Plaintiffs' funding shortfalls and budgetary uncertainty are neither speculative nor hypothetical; they are real and ongoing harms.
Plaintiffs' second injury stems from infringements upon their sovereign interests.[4] A state or locality has standing to challenge interference with its operational and governance decisions. See, e.g., New York v. United States, 505 U.S. 144, 187-88, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (exercising jurisdiction based on sovereign injury from federal commandeering); Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 601, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) (noting that states have standing to challenge federal laws which hinder their "sovereign power" to "create and enforce a legal code"); see also Bowen

v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 50 n.17, 106 S.Ct. 2390, 91 L.Ed.2d 35 (1986) (finding "no question" that a state's sovereignty is "diminished" and standing therefore exists when federal law alters the state's ability to "structure its relationship with its employees"). The challenged statutes and conditions not only appear to conflict with Plaintiffs' laws and policies but aim to force or pressure Plaintiffs to change the same. Plaintiffs, to that end, challenge Defendants' conduct based not on the derivative interests of their citizens or an abstract interest in the rule of law; rather, they bring the present action to vindicate their own sovereign powers and rights as accorded by Congress and the Tenth Amendment. Because the challenged statutes and conditions are presently undermining Plaintiffs' "exercise of ... sovereign power to create and enforce a legal code," as well as interfering with at least one aspect of relations with their employees, Plaintiffs have standing.
The same facts support the ripeness of Plaintiffs' claims. As noted above, the instant dispute "presents concrete legal issues"—not "abstractions"—framed within the context of an "actual case[]." Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1123 (9th Cir. 2009) (internal quotation marks and citations 959*959 omitted). Plaintiffs challenge a final agency determination that FY 2017 and FY 2018 Byrne JAG funds are subject to the challenged conditions. See City of Chicago, 321 F. Supp. 3d at 865 ("Chicago ... does not challenge the Attorney general's not-yet-finalized decision whether to award the funds, but rather the decision to attach the [c]onditions to the grant in the first instance."); City of Philadelphia, 309 F. Supp. 3d at 280 (same). Those conditions, as well as Sections 1373 and 1644, are presently causing budgetary shortfalls and actively impinging upon Plaintiffs' sovereign prerogatives and federal rights. Plaintiffs must "choose between accepting the award with the [c]onditions or forgoing the award in favor of maintaining [their] policy preferences." City of Chicago, 321 F. Supp. 3d at 855. The requested relief is directed at these ongoing harms and does not require the Court to speculate as to "uncertain or contingent future events that may not occur as anticipated." The Ninth Circuit easily found as much in a case challenging a presidential directive merely threatening to withhold future Byrne JAG awards. See City & Cty. of San Francisco, 897 F.3d at 1236-39.[5]
Nevertheless, the Court agrees with Defendants that Plaintiffs lack standing to seek an injunction against all future "conditions relating to federal immigration laws and policy." FAC at 32. Plaintiffs cannot show any injuries from conditions which do not yet exist. As the Supreme Court has made clear, speculation or "subjective apprehension" about future harm is insufficient to support standing. Friends of the Earth v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 184, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotation marks and citation omitted). Instead, "[o]nce a plaintiff has been wronged, he is entitled to [seek] injunctive relief only if he can show that he faces a real or immediate threat that he will again be wronged in a similar way." Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010) (internal quotation marks and citation omitted); see also Susan B. Anthony List, 573 U.S. at 158, 134 S.Ct. 2334 ("An allegation of future injury may suffice if ... there is a substantial risk that the harm will occur." (internal quotation marks and citation omitted)). Plaintiffs are entitled to seek prospective relief from the existing conditions because their injuries are ongoing and there is a substantial risk that Defendants will continue to renew the same or similar conditions. It is pure speculation, however, that Defendants will impose

different conditions in the future and that Plaintiffs' laws or policies would conflict with them. Until such conditions are imposed, or at least threatened, Plaintiffs lack standing to seek declaratory or injunctive relief from the same.
II. Conditioning of Byrne JAG Funds
Moving to the merits, Plaintiffs challenge each of the FY 2017 and FY 2018 conditions imposed on the receipt of Byrne JAG funds. They argue that Defendants are without statutory or constitutional authority to impose the Notice, Access, and 960*960 Disclosure Conditions and that Sections 1373 and 1644—the statutes on which the Compliance Condition is based—violate the Tenth Amendment and therefore cannot form the basis for any funding condition. In assessing Plaintiffs' claims, the Court first addresses the level of deference, if any, owed to Defendants' statutory interpretations under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Court next examines Defendants' claimed statutory authority to impose the Notice, Access, and Disclosure Conditions. Since Defendants rely upon different statutory provisions to justify their promulgation of the Disclosure Condition and the Notice and Access Conditions, the Court addresses the Disclosure Condition separately. Finally, the Court assesses whether Sections 1373 and 1644 violate the Tenth Amendment and render the Compliance Condition invalid.[6]
A. Deference to Defendants' Statutory Interpretations
Prior to examining the parties' dueling statutory interpretations, the Court first considers whether Defendants' interpretations are entitled to any level of deference. Typically, a reviewing court must give effect to an agency's reasonable interpretation of any statute which it is tasked with administering. Chevron, 467 U.S. at 842-45, 104 S.Ct. 2778. That general rule, however, is subject to an important limitation: an agency's interpretation is entitled to no deference if Congress has clearly spoken to the question at issue. Id. at 842, 104 S.Ct. 2778. Instead, when a statute is unambiguous as to a specific matter, such that "the intent of Congress is clear," a court must "give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. When reviewing an agency's interpretation, a court must therefore first employ the "traditional tools of statutory construction" to determine whether "Congress had an intention on the precise question at issue." Id. at 843, 104 S.Ct. 2778 n.9. If it did, then "that is the end of the matter" and no deference is owed to the agency. Id. at 843, 104 S.Ct. 2778.
Interestingly, Defendants make no attempt to persuade the Court that their interpretations are entitled to deference under Chevron. Whether an agency may forfeit Chevron deference is the subject of some debate. See generally Note, Waiving Chevron Deference, 132 Harv. L. Rev. 1520 (2019). The weight of authority suggests that an agency may forfeit or waive its right to any deference available under Chevron. See, e.g., Neustar, Inc. v. FCC, 857 F.3d 886, 893-94 (D.C. Cir. 2017); Commodity Futures Trading Comm'n v. Erskine, 512 F.3d 309, 314 (6th Cir. 2008); cf. also Humane Soc'y of the U.S. v. Locke, 626 F.3d 1040, 1054 n.8 (9th Cir. 2010) (assuming without deciding that Chevron deference applied based

on a stipulation of the parties). The Supreme Court has also hinted in dicta that Chevron deference may be waived. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 480, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992) ("[I]t would be quite inappropriate to defer to an interpretation which has been abandoned by the policymaking agency itself."); cf. also United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (explaining that Supreme Court dicta has "a weight that is greater than ordinary judicial dicta").
The issue is more than academic here. Article I of the Constitution 961*961 "exclusively grants the power of the purse to Congress." City & Cty. of San Francisco, 897 F.3d at 1231 (citing U.S. Const. art. I, § 9, cl. 7; U.S. Const. art. I, § 8, cl. 1). That power includes "condition[ing] the receipt of funds, by states and others, on compliance with federal directives." Nevada v. Skinner, 884 F.2d 445, 447 (9th Cir. 1989). As the Ninth Circuit recently reaffirmed, the Executive Branch "does not have unilateral authority" to "thwart congressional will by canceling appropriations passed by Congress." City & Cty. of San Francisco, 897 F.3d at 1232 (internal quotation marks and citations omitted); Clinton v. City of New York, 524 U.S. 417, 438, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) ("[N]o provision in the Constitution ... authorizes the President to enact, to amend, or to repeal statutes."). To that end, the Executive Branch is without inherent power to "condition the payment of... federal funds on adherence to its political priorities." City of Chicago, 888 F.3d at 283. If the Executive Branch wishes to condition the receipt of federal funds, it may only do so pursuant to a specific delegation of spending authority by Congress. City & Cty. of San Francisco, 897 F.3d at 1233-34.
As a result, much of the present dispute turns upon the interpretation of statutory provisions which Defendants believe embody broad delegations of spending authority. Although several other courts have examined the same or similar claims, each has thus far been silent on the issue of deference. The most likely explanation is that the courts—every one of which has rejected the interpretations offered by Defendants—employed the "traditional tools of statutory construction" and determined that Congress had a clear intent not to delegate the condition-making authority claimed by Defendants. Chevron, 467 U.S. at 843 n.9, 104 S.Ct. 2778. Indeed, several courts have hinted at this rationale in passing. See, e.g., City of Philadelphia v. Attorney Gen. of the United States, 916 F.3d 276, 286 (3d Cir. 2019) (examining whether any of the statutory language is "ambiguous" and concluding that "it is not"); City & Cty. of San Francisco, 349 F. Supp. 3d at 945 (starting its inquiry with whether "Congress ha[d] directly spoken to the precise question at issue" (quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778)); cf. also City of Chicago, 888 F.3d at 284-85 (holding that the clear "intent" of Congress was "alone sufficient to end the inquiry"). As discussed below, the Court agrees that Congress was, indeed, clear in its intent to withhold the condition-making authority claimed by Defendants. There is no ambiguity in the contested provisions. It therefore follows that Defendants' interpretations are not entitled to deference under Chevron.
The same conclusion follows for a second reason. An agency's interpretation is entitled to "Chevron-style deference" only if it carries the "force of law." Christensen v. Harris Cty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (citations omitted). To carry the

force of a law, not only must Congress have delegated rulemaking authority to an agency, the agency must have exercised that authority when interpreting an ambiguous statute. United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). An agency interpretation may carry the force of law if it is reached through a "means less formal than `notice and comment' rulemaking," Barnhart v. Walton, 535 U.S. 212, 221, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002), but such instances are generally limited to resolving "interstitial" ambiguities and accompanied by a "thorough[ ]" explanation, Fox v. Clinton, 684 F.3d 67, 78 (D.C. Cir. 2012). Here, although the Byrne JAG statute allows the Attorney General to "issue rules," Defendants do not suggest that he exercised that authority. The challenged conditions, 962*962 moreover would fundamentally alter the Byrne JAG Program and appear only in solicitations, press releases, and award letters which "offer[ ] little more than uncited, conclusory assertions of law." Fox, 684 F.3d at 78. Thus, even if the contested provisions were ambiguous—which they are not—the agency's interpretations would be entitled to respect only insofar as they have "the power to persuade." Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Since, as discussed below, Defendants' interpretations are unpersuasive and contrary to the clear intent of Congress, they are entitled to no deference.[7]
B. Statutory Authorization for the Notice and Access Conditions
Plaintiffs challenge the Notice and Access Conditions as an unauthorized exercise of the congressional spending power. They argue that, because Congress has never delegated to Defendants a broad discretionary authority to condition the receipt of Byrne JAG funds, Defendants' efforts to impose the Notice and Access Conditions usurp the powers granted to Congress under the Spending Clause of the U.S. Constitution. Defendants respond that Plaintiffs' separation of powers concerns are inapposite because Congress has delegated to them virtually unbounded authority to condition the award of Byrne JAG funds. That power necessarily includes the ability to impose the Notice and Access Conditions. Defendants maintain that this delegated authority can be found either in two provisions of the Byrne JAG statute itself, see 34 U.S.C. § 10153(a)(4)-(5), or in an external provision outlining the duties and functions of the Assistant 963*963 Attorney General for the Office of Justice Programs, see 34 U.S.C. § 10102(a)(6).
The Court agrees with Plaintiffs, as well as every other court to have examined the issue, that Defendants lack the delegated authority to impose the Notice and Access Conditions. See City of Philadelphia v. Attorney Gen. of the United States, 916 F.3d 276, 284-91 (3d Cir. 2019) ("Congress has not empowered the Attorney General to enact the Challenged Conditions."); City of Chicago v. Sessions, 888 F.3d 272, 283-87 (7th Cir. 2018) ("[T]he Attorney General lacked the authority to impose the notice and access conditions on receipt of the Byrne JAG grants."); City & Cty. of San Francisco, 349 F. Supp. 3d at 945-49 (finding that the Attorney General is without authority to "impose the notice and access conditions"); City of Chicago v. Sessions, 321 F. Supp. 3d at 873-74 ("[N]either Byrne JAG nor any other statute grants the Attorney General the authority to impose [the] conditions ...."); New York v. United States Dep't of Justice, 343 F. Supp. 3d 213, 227-31

(S.D.N.Y. 2018) (holding that 34 U.S.C. § 10102(a)(6) "does not provide authority for imposing any of the challenged conditions"); City of Philadelphia, 309 F. Supp. 3d at 28081 (same); City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 615-17 (E.D. Pa. 2017) (same).
As an initial matter, the Court notes, and Defendants do not contest, that the Byrne JAG Program is a formula grant program. See 34 U.S.C. § 10156 (detailing the Byrne JAG grantdistribution formula); see also City of Chicago, 888 F.3d at 285 ("[T]he Byrne JAG grant ... is a formula grant rather than a discretionary grant."); City of Philadelphia, 916 F.3d at 290 (same); City & Cty. of San Francisco, 349 F. Supp. 3d at 945 (same). This means that Congress has already "determine[d] who the [grant] recipients are and how much money each shall receive." City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989). Importantly, formula grants are generally "not awarded at the discretion of a state or federal agency" but rather in accordance with the "statutory formula." Id. at 1088; see also City of Chicago, 888 F.3d at 285 ("[A] formula grant ... is structured so that the funds are allocated based on a carefully defined calculation ...."); City of Philadelphia, 916 F.3d at 280 (explaining that funds for formula grants are "distributed among all grantees based on a statutorily fixed formula"). Although the label Congress has chosen for the Byrne JAG Program is not dispositive—Congress may still have expressly delegated to Defendants the power to condition funds—it helps to frame and contextualize Defendants' arguments. See Kenneth J. Allen, Federal Grant Practice §§ 16:3 to 16:5 (2019).
The text and structure of the Byrne JAG statute, as well as its place within the broader statutory scheme governing Justice System Improvement, make clear that Congress did not intend to delegate the authority claimed by Defendants. See Negusie v. Holder, 555 U.S. 511, 542, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) ("[We] must begin with the plain meaning of the statute."); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) ("In ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole."). As the Third Circuit recently observed, Defendants only halfheartedly advance the argument that authorization for the Notice and Access Conditions can be found in the text of the Byrne JAG statute itself. City of Philadelphia, 916 F.3d at 284. That is because, on its face, the statute indisputably does not authorize the Attorney General to place conditions on the recipients of 964*964 Byrne JAG funds or withhold funds allocated under the statutory formula. See generally 34 U.S.C. §§ 10151-10158; see also City of Philadelphia, 916 F.3d at 284 ("Such authorization is nowhere to be found in the text of the statute."); City of Chicago, 888 F.3d at 284 ("[No] provision in the Byrne JAG statute authorizes the imposition of the conditions."). Defendants do not suggest otherwise.
Defendants instead contend that, given the lack of an express delegation, Section 10153(a) should be construed as impliedly delegating the claimed authority. Section 10153(a) requires Byrne JAG applications to include both "[a]n assurance that ... the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require" and "[a] certification that ... there has been appropriate coordination with affected agencies." 34 U.S.C. § 10153(a)(4), (5)(C). Defendants maintain that the "reporting" requirement authorizes the Notice Condition and

that the "coordination" requirement authorizes the Access Condition. The Court disagrees. See Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014) ("We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance." (citation omitted)); United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) ("[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance"); Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 174, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (same).
Defendants' interpretation would do violence to the plain meaning of both provisions. By its terms, the reporting requirement applies only to "programmatic and financial" information. 34 U.S.C. § 10153(a)(4). These are limiting terms which only encompass "information regarding the handling of federal funds and the programs to which those funds are directed." City of Philadelphia, 916 F.3d at 285. The provision is not, as Defendants suggest, a general information-sharing requirement and its terms are not broad enough to cover information unrelated to programs funded by the grant. Similarly, the coordination requirement only makes sense if it applies to a jurisdiction's coordination with agencies who will participate in a granted-funded program. After all, the provision is part of a grant scheme which encourages, and sometimes requires, states to pass funds through to local governments, with whom coordination would be necessary. See, e.g., 34 U.S.C. § 10156(c)(2), (d), (f); see also id. § 10153(a)(6)(A) (requiring states to submit a "Statewide plan ... which shall be designed in consultation with local governments" (emphasis added)). That reading is corroborated by the provision's use of the past tense—there must "ha[ve] been" coordination with "affected agencies," not ongoing coordination with federal agencies on matters unrelated to the use of Byrne JAG funds. Id. § 10153(a)(5)(C) (emphasis added).
The unbounded authority claimed by Defendants also stands in stark contrast to the narrow grants of ministerial and supervisory authority expressly provided for in the statute. See City of Chicago, 888 F.3d at 283-84 (detailing the Attorney General's express grants of authority and concluding that none approach the purported authority to "impose conditions that require states or local governments to assist in immigration enforcement"); City of Philadelphia, 916 F.3d at 285 (same). The provisions cited by Defendants, for instance, are nested under a principle clause which permits the Attorney General to 965*965 control the "form" of applications. 34 U.S.C. § 10153(a). The neighboring clauses, like the provisions relied upon by Defendants, principally relate to applicants' coordination with localities, 34 U.S.C. § 10153(a)(2)-(3), (6)(A)-(B), data on applicants' program outcomes, id. § 10153(a)(6)(C)-(E), applicants' compliance with other applicable laws, id. § 10153(a)(5)(D), and the truthfulness of applicants' representations, id. § 10153(a)(5). As a formula-driven program, these pro forma certification and evaluation requirements are not criteria on which the Attorney General may make sweeping decisions about funding levels. To the contrary, the Attorney General is only authorized to issue awards "in accordance with the formula established under section 10156 of this title." Id. § 10152(a)(1) (emphasis added).
The instances where the Attorney General may depart from that presumption and "withhold or re-allocate" funds were carefully delineated by Congress. City of Philadelphia, 916 F.3d

at 287. The Attorney General may, for example, re-allocate funds to "address ... precipitous or extraordinary increases in crime" or "mitigate significant programmatic harm resulting from operation of the formula." 34 U.S.C. § 10157(b). This discretion is extremely limited: any re-allocation is not to exceed "5 percent" of the "total amount made available" by Congress. Id. Similarly, the Attorney General may withhold up to four percent of a grantee's Byrne JAG funds for failing to participate in the National Instant Criminal Background Check System, see id. § 40914(b)(1), or "not more than ... 10-percent" of those funds for failing to report the number of persons who die in state and local custody, id. § 60105(c)(2). As the Third Circuit noted, "[a]ll other delegations of this sort are similarly circumscribed." City of Philadelphia, 916 F.3d at 286 (citing 34 U.S.C. § 20927(a) (mandating ten-percent penalty for a grantee's failure to comply with the Sex Offender Registration and Notification Act); id. § 30307(e)(2) (mandating five-percent penalty for a grantee's failure to comply with the Prison Rape Elimination Act)).
The apparent reluctance of Congress to delegate greater discretion makes sense given the detailed formula it provided. See 34 U.S.C. § 10156. It would be "anomalous" for Congress to have painstakingly detailed the funding scheme for Byrne JAG grants, narrowly defined the role and authority of the Attorney General, and then delegated by implication an unbounded authority which would trump all of the other provisions. Gonzales v. Oregon, 546 U.S. 243, 262, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) ("It would be anomalous for Congress to have so painstakingly described the Attorney General's limited authority..., but to have given him, just by implication, [an even broader] authority."); see also Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 341, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) ("We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest."); City of Philadelphia, 916 F.3d at 286 ("If Congress had already given the Attorney General this sweeping authority to withhold all funds for any reason, it would have no need to delineate numerous, specific circumstances under which [he or she] may withhold limited amounts of funds.").
Perhaps recognizing the shortcomings of their Section 10153 argument, Defendants direct the Court to Section 10102—a provision outside of the Byrne JAG statute. Section 10102, located in a separate subchapter, 34 U.S.C. §§ 10101-10111, lays out the "Duties and Functions" of the Assistant 966*966 Attorney General for the Office of Justice Programs. As relevant here, Section 10102 provides that the Assistant Attorney General "shall ... exercise such powers and functions as may be vested in the Assistant Attorney General 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." 34 U.S.C. § 10102(a) (emphasis added). Defendants contend that the italicized language is a stand-alone delegation of authority which allows the Assistant Attorney General to impose virtually any condition on Byrne JAG funds.
Defendants' interpretation of the provision is once again at odds with the plain meaning of its text. The syntax of the text—namely its use of a subordinate clause preceded by the word "including"—is dispositive. "In both legal and common usage, the word `including' is

ordinarily defined as a term of illustration, signifying that what follows is an example of preceding principle." Arizona State Bd. for Charter Schools v. United States Dept. of Educ., 464 F.3d 1003, 1008 (9th Cir. 2006) (citations omitted). Here, the independent clause modified by "including" lists the two sources from which the Assistant Attorney General "shall" derive his or her power: authorities expressly described elsewhere in the chapter and delegations from the Attorney General. See 34 U.S.C. § 10102(a)(6). This means that the Assistant Attorney General "has the power to place special conditions on grants only to the extent such power has been vested in him or her" elsewhere in the chapter or by delegation of the Attorney General. City of Philadelphia, 916 F.3d at 287. Because the Court already determined that the authority claimed by Defendants is not included as part of either the Byrne JAG statute or any other part of the United States Code, Defendants' position is "untenable." City of Chicago, 888 F.3d at 285.
Two additional aspects of the provision's text and structure evidence that Congress never intended Section 10102 to be a carte blanche delegation of authority. First, as several courts have noted, "special conditions" is a term of art referring to high-risk grantees. See, e.g., City of Philadelphia, 280 F. Supp. 3d at 617; see also Kenneth J. Allen, Federal Grant Practice §§ 25:1 to 25:13 (2019). Indeed, when Congress enacted the current version of Section 10102(a)(6), the Department of Justice's own regulations described "special conditions" as those intended for "high-risk grantees" who might struggle to meet existing grant requirements. 28 C.F.R. § 66.12(a) (2006). Defendants therefore ask too much of the "special conditions" language. Second, moving to the structure of the provision, each of the five subsections preceding Section 10102(a)(6) deals exclusively with the Assistant Attorney General's reporting and coordination duties. See 34 U.S.C. § 10102(a)(1)-(5). "The principle of noscitur a sociis—`a word is known by the company it keeps'—is helpful here." City of Philadelphia, 916 F.3d at 288 (citing Yates v. United States, 574 U.S. 528, 135 S. Ct. 1074, 1085, 191 L.Ed.2d 64 (2015)). A final catch-all provision in a list of ministerial powers would be a strange place indeed for Congress to hide the broad authority claimed by Defendants. Congress, as the Supreme Court has made clear, "does not alter the fundamental details of a regulatory scheme in vague or ancillary provisions—it does not, one might say, hide elephants in mouseholes." Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001).
Defendants nevertheless argue that the Court's reading would render the "special conditions" and "priority purposes" language surplusage. They maintain that, because the language was added to the first 967*967 clause as part of an amendment, Congress must have intended to confer "distinctive and meaningful power." The Court disagrees. Although the clause does little work, it still functions as an exemplification of the types of power the Assistant Attorney General may possess by delegation—potentially useful given the breadth of justice improvement programs over which the Attorney General has authority. See 34 U.S.C. §§ 10101-10726. More to the point, Defendants' suggested reading would render entire swaths of the Byrne JAG statute—the actual statute at issue here—unnecessary surplusage. See Marx v. Gen. Revenue Corp., 568 U.S. 371, 133 S. Ct. 1166, 1178, 185 L.Ed.2d 242 (2013) ("The canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme."). As discussed above, "[i]f Congress had already given the Attorney General th[e] sweeping authority to

withhold all funds for any reasons, it would have no need to delineate numerous, specific circumstances under which the Attorney General may withhold limited amounts of funds." City of Philadelphia, 916 F.3d at 286.
Lastly, Congress knew how to provide for condition-making authority over grant funds and did so in a neighboring subchapter. See 34 U.S.C. § 10446(e)(3) ("In disbursing grants [to combat violence against women] under this subchapter, the Attorney General may impose reasonable conditions on grant awards ...."). It also knew how to create discretionary and competitive grant programs and, once again, did so in neighboring parts and subchapters. See, e.g., id. §§ 10171-10191 (establishing "discretionary grant[ ]" programs for the Bureau of Justice Assistance); id. §§ 10381-10389 (establishing a competitive grant program for community policing funds). It would defy reason for the Court to find that the Byrne JAG statute does implicitly what other analogous statutes do explicitly. That conclusion is further supported by the fact that, on at least two occasions, Congress has rejected legislation which would have imposed immigration-related conditions on Byrne JAG funds. See Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 2(b)(2) (2015); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. § 3(b) (2015). Although the Ninth Circuit generally cautions against relying upon failed legislation, FTC v. AT & T Mobility LLC, 883 F.3d 848, 857 (2018), it recently found such evidence persuasive in the context of another conditional-funding dispute, see City & Cty. of San Francisco, 897 F.3d at 1234.[8]
In sum, the Court finds that Defendants are without the delegated authority to impose the Notice and Access Conditions and that, by doing so, Defendants infringed upon the authority reserved to Congress under the Spending Clause of the U.S. Constitution.
C. Statutory Authorization for the Disclosure Condition
Plaintiffs likewise challenge the Disclosure Condition as an unauthorized exercise 968*968 of the congressional spending authority. Their argument is substantially the same as that raised with respect to the Notice and Access Conditions. In response, Defendants reassert their view that Section 10102(a)(6) includes a delegation of virtually unchecked conditionmaking authority over Byrne JAG funds. That argument is foreclosed by the Court's prior analysis. Defendants, however, point to an additional statutory provision as delegating the necessary authority to impose the Disclosure Condition. That provision, 34 U.S.C. § 10102(a)(2), warrants separate attention. Defendants also raise a distinct procedural argument: that Plaintiffs failed to challenge the Disclosure Condition in their FAC and thus cannot raise it on summary judgment. Specifically, they argue that Plaintiffs made only "passing references" to the Disclosure Condition and omitted any mention of the substantive basis for their challenge in the three "claims for relief."
With respect to the procedural issue, Defendants' argument misconstrues contemporary pleading standards. The "[f]ederal pleading rules call for a `short and plain statement of the claim showing that the pleader is entitled to relief'; they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim

asserted." Johnson v. City of Shelby, 574 U.S. 10, 135 S. Ct. 346, 346, 190 L.Ed.2d 309 (2014) (emphasis added) (citing Fed. R. Civ. P. 8(a)(2)). Indeed, contrary to Defendants' implicit suggestion, notice pleading does not require a plaintiff to set forth "causes of action, statutes, or legal theories." Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008). Plaintiffs in the present case alleged adequate facts to put Defendants on notice that they intended to challenge the Disclosure Condition as one of several unauthorized funding requirements. See FAC ¶¶ 75-79. To that end, they specifically outlined the terms of the Disclosure Condition and asked that the Court "[e]njoin Defendants" from conditioning Byrne JAG funds on compliance with "any ... conditions relating to federal immigration laws or policy." FAC at 32 (emphasis added). That request, at the very least, encompassed all extant conditions named in the FAC. Defendants do not contend that Plaintiffs have failed to put forward evidence in support of their allegations or that the issues on summary judgment go beyond pure disputes of law.[9]
Defendants' substantive arguments fare no better. Section 10102(a)(2), 969*969 which neighbors the already-discussed Section 10102(a)(6), provides that the Assistant Attorney General "shall ... maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice." 8 U.S.C. § 10102(a)(2). Defendants—now scraping the bottom of the proverbial barrel—argue that, because the Assistant Attorney General's duty to "maintain liaison" would require him to form a "close connection" with state officials, that same duty necessarily includes the power to wholly condition Byrne JAG funds on the confidentiality of shared information because doing so ensures that everyone can work "safely and effectively together." In other words, Defendants believe that completely withholding funds from grantees who do not promise to protect immigration-related information is an implicit corollary to the Assistant Attorney General's undefined duty to ensure that everyone works well together.
There are several problems with that interpretation. The first is that it is unsupported by the text of the provision itself. Defendants hang their hat entirely on the dictionary definition of "liaison." See Merriam-Webster's Collegiate Dictionary (10th ed. 1998) (defining "liaison" as a "close bond or connection" or "a person who establishes and maintains communication for mutual understanding and cooperation"). There is, however, no portion of that definition which even hints at a punitive aspect to the act of liaising, let alone a discretionary authority to completely dissolve relations when one side does not abide by the wishes of the other. In fact, based on the definition offered by Defendants, that would seem to be antithetical to the relation-building function of a liaison. The remainder of the text is also silent as to any specific powers the Assistant Attorney General might wield in carrying out his liaison duties and Defendants cite no authority to suggest that "liaison[s]" are generally understood to have implied powers. In the end, Defendants once again ask too much of a pedestrian fragment of text—there is simply no portion of Section 10102(a)(2) which explicitly or implicitly provides the claimed authority.[10]
The structure of Section 10102 also weighs against Defendants' interpretation. As already discussed, each of the other provisions in Section 10102 deal exclusively with the Assistant Attorney General's reporting and coordination duties. See 34 U.S.C. § 10102(a)-(b); see also City of Chicago, 888 F.3d at 285 (characterizing Section 101012 in the same way); City

of Philadelphia, 916 F.3d at 288 (same). These are glorified ministerial responsibilities. The challenged condition, by contrast, requires Plaintiffs to guard against all disclosures which could "indirect[ly]" impact immigration enforcement and makes the Assistant Attorney General "the sole arbiter" of whether conduct violates that requirement. City & Cty. of San Francisco v. Sessions, 372 F. Supp. 3d 928, 944 (N.D. Cal. 2019) (emphasis added). That type of authority is neither contemplated by the text nor implied by the structure of Section 10102. Indeed, Section 10102(a)(2)—an otherwise unremarkable provision nested within a larger list of mundane responsibilities—would 970*970 again be an odd location for Congress to house such an authority. See Yates, 135 S. Ct. at 1085 (holding that courts should "avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words" (citation omitted)); see also Whitman, 531 U.S. at 468, 121 S.Ct. 903 ("Congress does not alter the fundamental details of a regulatory scheme in vague or ancillary provisions....").
Finally, the condition-making power claimed by Defendants is at odds with the Byrne JAG statute and its relation to other portions of the chapter. As already discussed, instances when the Attorney General may "withhold or re-allocate" Byrne JAG funds were carefully delineated by Congress. City of Philadelphia, 916 F.3d at 287. When Congress wanted grantees to engage in or refrain from certain types of conduct—even information sharing—it provided for specific and measured penalties. See, e.g., 34 U.S.C. § 40914(b)(1) (imposing up to a four-percent penalty if a grantee abstains from the National Instant Criminal Background Check System); id. § 60105(c)(2) (imposing up to a ten-percent penalty if a grantee fails to report the number of persons who die in state and local custody). If Congress had shared the same concerns about grantees disclosing immigration-related information, it could have enacted analogous penalties. But it did not. See also 34 U.S.C. § 10228(a) ("Nothing in this chapter ... shall be construed to authorize any ... employee of the United States to exercise any direction, supervision, or control over any police force or ... criminal justice agency of any State or any political subdivision thereof.").
As with the Notice and Access Conditions, the Court finds that Defendants are without the delegated authority to impose the Disclosure Condition and that, by doing so, they infringed upon the authority reserved to Congress under the Spending Clause of the U.S. Constitution.
D. Tenth Amendment and the Compliance Condition
Finally, Plaintiffs challenge two federal statutes, 8 U.S.C. §§ 1373 and 1644, pursuant to the Tenth Amendment. Plaintiffs argue that, because Congress directly restricted the legislative freedom of their respective policymaking bodies, both provisions are facially invalid under the anti-commandeering doctrine. The result, they contend, is that Defendants lack the statutory authority to impose the Compliance Condition because, even if Defendants could condition funds on compliance with "other applicable Federal laws," 34 U.S.C. § 10105(6), unconstitutional laws cannot be "applicable" laws. Defendants respond that the anticommandeering doctrine does not apply to voluntary grant programs like the one at issue here. In the alternative, they argue that Sections 1373 and 1644 are constitutional because

they are laws of general applicability (i.e., they evenhandedly regulate both states and private parties) and, even if they were not, because they fall within a purported informationgathering exception to the anti-commandeering doctrine.[11]
971*971 The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. This "truism," United States v. Darby, 312 U.S. 100, 124, 61 S.Ct. 451, 85 L.Ed. 609 (1941), merely confirms that the enumerated powers of Congress are not without limits and that "all other legislative power is reserved for the States," Murphy v. NCAA, ___ U.S. ___, 138 S. Ct. 1461, 1476, 200 L.Ed.2d 854 (2018). A corollary to this confirmation of "dual sovereignty," Printz v. United States, 521 U.S. 898, 919, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), is the anticommandeering doctrine—the principle that Congress may not "require the States to govern according to [its] instructions," New York v. United States, 505 U.S. 144, 162, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). The doctrine "represents the recognition" that Congress lacks "the power to issue direct orders to governments of the States." Murphy, 138 S. Ct. at 1476. As the Supreme Court recently confirmed, the anticommandeering doctrine applies with equal force to federal statutes which tell states to "enact" certain types of laws and federal statutes which tell states to "refrain" from enacting certain types of laws. Id. at 1478 (emphasis added).
Here, the Court agrees with Plaintiffs, as well as every other court to have considered the issue after Murphy, that Sections 1373 and 1644 violate the Tenth Amendment. See City & Cty. of San Francisco, 349 F. Supp. 3d at 949-53 ("I find that Section 1373 is unconstitutional."); City of Chicago, 321 F. Supp. 3d at 866-73 ("Section 1373 is unconstitutional and cannot stand."); New York, 343 F. Supp. 3d at 232-38 ("[Section] 1373[ ], in so far as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment."); see also City of Philadelphia, 309 F. Supp. 3d at 286-88 (denying the defendants' motion to dismiss an as-applied Tenth Amendment challenge to Section 1373); City of Philadelphia, 280 F. Supp. 3d at 651 (declining to base a preliminary injunction on the Tenth Amendment, but observing "that the effect of Section 1373 compliance may be to thwart policymakers' ability to extricate their state or municipality from involvement in a federal program" (citation omitted)).
As an initial matter, the voluntary nature of the Byrne JAG Program cannot save Sections 1373 and 1644 from Tenth Amendment scrutiny. Defendants are correct to note that the Spending Clause allows Congress and, when authorized, the Executive Branch to impose conditions on the receipt of federal funds. Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 576, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). That authority permits the federal government to reward states and localities who decide to voluntarily act or refrain from acting in ways which the government could not directly compel. Id. Although Defendants argue that they are merely asking Plaintiffs to accept conditions which mirror the terms of Sections 1373 and 1644, they are in fact asking Plaintiffs to directly comply with those statutes because any authority to condition Byrne JAG funds is limited to enforcing other "applicable" laws. See 34 U.S.C. § 10153(a)(5)(D). In turn, Plaintiffs challenge Sections

1373 and 1644 to both show that the provisions cannot be "applicable" laws under the Byrne JAG statute and, separately, to halt the provisions' continued 972*972 intrusion upon their sovereign powers. Indeed, both statutes "are extant federal law[s]" with which Plaintiffs "must comply, completely irrespective of whether or not [they] accept[ ] Byrne JAG funding." City of Chicago, 321 F. Supp. 3d at 867. The statutes therefore cannot escape scrutiny under the anti-commandeering doctrine.
Sections 1373 and 1644, in turn, fail under a straightforward application of anticommandeering principles. As discussed above, both provisions provide that states and localities "may not" enact rules which "in any way restrict[]" their officials from sharing a person's citizenship or immigration status with federal authorities. 8 U.S.C. §§ 1373(a)-(b), 1644. In doing so, Sections 1373 and 1644 "issue direct orders to state legislatures." Murphy, 138 S. Ct. at 1478. That is, each provision "dictates what a state legislature may and may not do." Id. Although Defendants suggest that the provisions should survive constitutional scrutiny because they direct Plaintiffs to "refrain from enacting" certain types of legislation, the Supreme Court has made clear that any distinction between action and inaction is "empty" and fails to recognize that the same "basic principle ... applies in either event." Id. (emphasis added). Because Sections 1373 and 1644 "require the states to govern according to [the] instructions" of Congress, it necessarily follows that they violate the Tenth Amendment. New York, 505 U.S. at 162, 112 S.Ct. 2408.
Defendants attempt to avoid that conclusion by characterizing Sections 1373 and 1644 as "valid preemption provision[s]," but they are "no such thing." Murphy, 138 S. Ct. at 1479. Under the Supremacy Clause of the U.S. Constitution, "federal law is supreme in the case of conflict with state law." Id. That "rule of decision," however, only holds true if the federal provision at issue "imposes restrictions or confers rights on private actors." Id. at 1479-80 (emphasis added) (citation omitted). Although some valid preemption provisions may be phrased as limitations on the enactment of state and local legislation, a preemption provision may never "operate directly on the States." Id. Instead, the essential characteristic of a valid preemption provision—"regardless of the language sometimes used by Congress"—is always that it "regulates the conduct of private actors, not the States." Id. at 1480-81. Here, Sections 1373 and 1644 are not only drafted as directives to states and localities, they also "operate" as tools of federal control over state and local legislative bodies. Id. In particular, the provisions create no rights or restrictions applicable to private actors; rather, by their terms, Sections 1373 and 1644 affect only state and local government "entit[ies]" and "official[s]." 8 U.S.C. §§ 1373, 1644. "Thus, there is simply no way to understand the provision[s] ... as anything other than ... direct command[s] to the States." Murphy, 138 S. Ct. at 1481.
Defendants attempt to distinguish the present case by arguing that Plaintiffs are actively thwarting the enforcement of federal immigration laws. That argument "is a red herring." City of Chicago, 888 F.3d at 282. "[N]othing in this case involves any affirmative interference with federal law enforcement at all, nor is there any interference whatsoever with federal immigration authorities." Id. (emphasis in original). Instead, "[t]he only conduct at issue here is the refusal of local law enforcement to aid in civil immigration enforcement." Id. Although a state or locality's decision to refrain from assisting in federal

enforcement may frustrate the efforts of immigration authorities, "[s]tanding aside does not equate to standing in the way." United States v. California, 314 F. Supp. 3d 1077, 1105 (E.D. Cal. 2018). States and localities have "the right, pursuant to the anticommandeering rule, to 973*973 refrain from assisting with federal [enforcement] efforts." United States v. California, 921 F.3d 865, 891 (9th Cir. 2019). It makes no difference, as Defendants maintain, that Sections 1373 and 1644 pertain to restrictions a state or local government may affirmatively place on its officials. A government may only operate through its officials and any statute permitting federal intervention into a state or local government's control over its officials would obliterate the ability of state and local governments to abstain from federal programs. That is precisely the type of affront to state sovereignty which the Tenth Amendment forbids.
Finally, Defendants argue that Sections 1373 and 1644 fall within an information-sharing carveout to the anti-commandeering doctrine. But there is no such carveout. The authority relied upon by Defendants is based entirely on dicta from Printz and does not encompass the type of statute at issue here. See Printz, 521 U.S. at 917-18, 117 S.Ct. 2365 (noting that some federal laws "require only the provision of information," but emphasizing that they "are not before us"). Unlike the statutes described in Printz, Sections 1373 and 1644 are "more than just ... information-sharing provision[s]," New York, 343 F. Supp. 3d at 236, which require local officials to engage in "purely ministerial reporting," Printz, 521 U.S. at 936, 117 S.Ct. 2365 (O'Connor, J., concurring). They instead "prevent state and local policymakers from enacting a wide range of information-governance rules," New York, 343 F. Supp. 3d at 236, and force them "to stand aside and allow the federal government to conscript the time and cooperation of local employees," City of Chicago, 321 F. Supp. 3d at 873. As the Supreme Court emphasized in Murphy, the anti-commandeering doctrine applies "not only to state officers with policymaking responsibility but also to those assigned more mundane tasks." 138 S. Ct. at 1477. Sections 1373 and 1644 therefore violate the Tenth Amendment.
As unconstitutional laws, Sections 1373 and 1644 "automatically drop[ ]" from the pool of "applicable" laws on which funding conditions may be based. City of Chicago, 321 F. Supp. 3d at 875; cf. also Branch v. Smith, 538 U.S. 254, 281-81, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003) (finding that the phrase "as state law requires" does not include unconstitutional state laws because such laws are a "legal nullity"). This means that the Compliance Condition fails for the same reason as the Notice, Access, and Disclosure Conditions; its promulgation is an unauthorized exercise of the congressional spending power. See City of Chicago, 321 F. Supp. 3d at 876 (explaining that the Compliance Condition "does not fail" because it violates the anti-commandeering doctrine; rather, it fails "because the authority on which it depends... has been stripped away"). Defendants, moreover, cannot remedy this infirmity simply by transferring the substance of Sections 1373 and 1644 into stand-alone funding conditions because, as discussed above, there are presently no open-ended delegations of spending authority which could independently support such conditions. Thus, not only are both provisions facially unconstitutional and unenforceable against Plaintiffs, the Compliance Condition itself is invalid under separation of powers principles.[12]
974*974 III. Appropriate Relief

Plaintiffs seek declaratory, injunctive, and mandamus relief. Defendants contest only the nationwide scope of the requested injunction and the propriety of mandamus relief. They do not object to Plaintiffs' request for a declaration as it relates to the FY 2017 and FY 2018 conditions. As such, Plaintiffs may rely upon the Court's analysis in Part II as satisfaction of its request for a declaration or, in the alternative, include a more concise restatement of the Court's conclusions in a proposed form of order. The parties' remaining arguments are addressed below.
A. Permanent Injunction
Plaintiffs argue that they are entitled to a permanent injunction with nationwide effect. Defendants do not contest that Plaintiffs are entitled to permanent injunctive relief but argue that any such relief should be limited to the parties in the case. A plaintiff seeking a permanent injunction must show: "(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." Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). Plaintiffs satisfy each element.
As to the first two elements, Plaintiffs have demonstrated irreparable constitutional injuries which cannot adequately be remedied with monetary damages. See Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008) ("Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm."), rev'd on other grounds, 562 U.S. 134, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011); Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) ("We have stated that an alleged constitutional infringement will often alone constitute irreparable harm." (internal quotation marks and citation omitted)). In the absence of an injunction, Plaintiffs would not only face the continued operation of unconstitutional statutes and funding conditions, they would be forced to either change their policies, forgo critical law enforcement funds, or risk federal sanctions. See, e.g., City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 340-41 (E.D.Pa. 2018) (discussing irreparable harm). Plaintiffs would, under any of these circumstances, risk public safety by eroding trust with immigrant communities or abandoning critical law enforcement initiatives funded by the Byrne JAG Program. See, e.g., City of Chicago, 321 F. Supp. 3d at 877-78 ("Trust once lost is not easily restored, and as such, is an irreparable harm for which there is no adequate remedy at law.").
As to the third element, Defendants do "not even attempt[ ] to argue that 975*975 the injunction causes [them] any burden at all." City & Cty. of San Francisco, 897 F.3d at 1244. Indeed, unlike the Hobson's choice faced by Plaintiffs, Defendants are free to continue enforcing federal immigration laws and must "simply pay money that Congress has already appropriated." City of Philadelphia, 309 F. Supp. 3d at 341. Finally, as the to the fourth element, an injunction would serve the public interest by thwarting Defendants' encroachment upon powers constitutionally reserved to Congress and the states. See New

York, 343 F. Supp. 3d at 244; see also Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) ("[E]nforcement of an unconstitutional law is always contrary to the public interest."). An injunction would also "bring[ ] clarity to all parties and to citizens dependent on public services," a result which "cannot" disserve the public interest. City & Cty. of San Francisco, 349 F. Supp. 3d at 970; see also City of Philadelphia, 309 F. Supp. 3d at 34142 (finding that the public interest is "better served" if grantees are not forced to choose between Byrne JAG funding and "losing hard-fought goodwill amongst the immigrant community" (citation omitted)). Plaintiffs and their political subdivisions are therefore entitled to a permanent injunction against the challenged statutes and funding conditions.[13]
That injunction, however, must be limited to Plaintiffs and their political subdivisions. It is hornbook law that "injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). "Where relief can be structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown." City & Cty. of San Francisco, 897 F.3d at 1244 (citation omitted). Here, Plaintiffs will receive complete relief from an injunction limited to the boundaries of this District. As already discussed at length, the award and size of Byrne JAG grants is non-discretionary and based on a detailed formula. See 34 U.S.C. § 10156. Plaintiffs are at no disadvantage if other jurisdictions consent to the challenged conditions; to the contrary, the value of their grants may actually increase if other states refuse funds. Id. § 10156(f). There is simply no evidence linking Plaintiffs' injuries to the nationwide operation of the offending statutes and conditions.[14] See City & Cty. of San Francisco, 897 F.3d at 1244. As such, 976*976 based on the record presently before it, the Court finds that a nationwide injunction is unnecessary to remedy Plaintiffs' specific harms and accord them complete relief. See New York, 343 F. Supp. 3d at 245.
B. Writ of Mandamus
Finally, Plaintiffs argue that they are entitled to a writ of mandamus compelling Defendants to disburse their Byrne JAG funds without the challenged conditions. In response, Defendants contend that mandamus relief would be inappropriate because ordering the disbursement of funds would interfere with their lawful discretion under the Byrne JAG statute and because Plaintiffs' injuries are adequately remedied by the permanent injunction. A federal court may "compel an officer or employee of the United States or any agency therefor to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. This is an "extraordinary remedy" and only available if: "(1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly described as to be free from doubt[;] and (3) no other adequate remedy is available." Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir. 2003). Plaintiffs satisfy each element.
First, Plaintiffs' claims are clear and certain. Sections 1373 and 1644 plainly violate the Tenth Amendment and there is no colorable argument that Defendants have the delegated authority to impose the challenged conditions. Second, as previously described at length, the award and size of Byrne JAG grants is nondiscretionary. Although the Attorney General

is empowered to dictate the "form" of an application and enforce the Byrne JAG statutes unambiguous reporting, coordination, and programmatic requirements, see 34 U.S.C. §§ 10153-10154, he may not withhold funds if an applicant or grantee satisfies those objective criteria. There is, moreover, no evidence to suggest that Plaintiffs fail to meet any of the criteria. Finally, no other adequate remedy is available to Plaintiffs. See In re A Community Voice, 878 F.3d 779, 786 (9th Cir. 2017) (citation omitted). Defendants maintain that there is no deadline by which they must award and disburse Byrne JAG funds. On that view, they are under no obligation to award or disburse Plaintiffs' funds even if Plaintiffs otherwise satisfy the statutory criteria. Defendants may simply sit on the funds without taking any final action. An injunction barring reliance on the challenged conditions would not protect against such conduct. And yet, as described in Part I, Plaintiffs' budgetary and programmatic injuries grow with each passing day. Plaintiffs are therefore entitled to a writ of mandamus compelling distribution of their FY 2017 and FY 2018 funds.
CONCLUSION
Based on the foregoing, Defendants' Motion to Dismiss, ECF No. 14, is DENIED and Plaintiffs' Motion for Summary Judgment, ECF No. 21, is GRANTED in part. Within 14 days, the parties shall confer on a proposed form of judgment and a proposed form of order with specific language for a permanent injunction, writ of mandamus, and, if desired, a declaration. The proposed form of order and proposed form of judgment shall be submitted within 21 days of this Opinion and Order. If the parties cannot agree on proposed language for either document, each shall submit its own version, with Defendants' proposed language shown in redline. The parties shall also submit a joint statement of no more than 10 pages explaining any disagreements.[15]
IT IS SO ORDERED.
[1] When Defendants issued the FY 2018 solicitations, they originally indicated that grantees might, as a condition of Defendants disbursing awarded funds, be required to first certify compliance with 8 U.S.C. § 1324(a). See Schmidt Decl. Ex. 11 at 37 ("Although the specific terms of ... [any] conditions [included in FY 2018 awards made pursuant to this solicitation] are what will govern the awards, included among such conditions will be some that, generally speaking, will require the recipient (and any subrecipient) that accepts the award to do some or all of the following."); Nordeen Decl. Ex. 4 at 36 (same). The certification could occur at some point between submission of an application and acceptance of any awarded funds. See Schmidt Decl. Ex. 11 at 1, 35-36; Nordeen Decl. Ex. 4 at 1, 35. The language regarding compliance with Section 1324, however, was dropped in FY 2018 award documents and replaced with the current wording of the Disclosure Condition. See, e.g., RJN Ex. E ¶ 44. That is the operative condition.
[2] Defendants also raised concerns about Or. Rev. Stat. § 180.805. See Schmidt Decl. ¶¶ 17-18, Exs. 6-9. Section 180.805, which is similar to Section 181A.820, prohibits any "public body" from disclosing a person's address, workplace, telephone number, or other information "for the purpose of enforcement of federal immigration laws." Or. Rev. Stat. § 180.805(1). Unlike Section 181A.820, however, Section 180.805 expressly provides that its terms only apply insofar as they are consistent with the requirements of federal law. Id.
[3] In their FAC, Plaintiffs further suggest that they have standing under the parens patriae doctrine and based on Defendants' public threats of prosecution against state and local officials who refuse to actively assist federal immigrations authorities in their efforts to enforce federal immigration laws. FAC ¶¶ 21, 25. Since Plaintiffs satisfy the standing requirement based on the theories outlined above, and because Plaintiffs do not discuss their alternative theories in the briefs, the Court declines to reach the other potential bases for Article III standing.

[4] The City of Portland's sovereign interests derive from the State of Oregon's decision to vest the city with a portion of its own sovereign police powers. See, e.g., Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 49 L.Ed. 643 (1905) ("[T]he state may invest local bodies called into existence for the purposes of local administration with the authority in some appropriate way to safeguard the public health and the public safety."). Defendants do not differentiate between the City and State in their briefs.
[5] Although Defendants issued an award notification to the City of Portland pursuant to a preliminary injunction in City of Evanston v. Sessions, No. 18-cv-4853, slip op. at 11 (N.D. Ill. Aug. 9, 2018), stay lifted by United States Conference of Mayors v. Sessions, No. 18-2734, slip op. at 2 (7th Cir. Aug. 29, 2018), they continue to fight the issuance of a permanent injunction in City of Evanston and have indicated to the City of Portland that they may enforce the challenged conditions if the preliminary injunction in City of Evanston is dissolved or reversed on appeal. The City of Portland's challenge to the FY 2017 conditions is therefore not moot. See Vitek v. Jones, 445 U.S. 480, 486-87, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (holding that a defendant's voluntary cessation of challenged conduct does not render a claim moot if cessation results from the issuance of an injunction).
[6] Because the Court finds that Defendants lack the delegated authority to impose the Notice, Access, Compliance, and Disclosure Conditions, it need not reach Plaintiffs' alternative Spending Clause argument.
[7] The availability of Chevron deference is what distinguishes the present case from the Ninth Circuit's recent decision in City of Los Angeles v. Barr. Under the statute challenged in Barr, 34 U.S.C. §§ 10381-10389, Congress had created a competitive grant program and delegated "broad authority" for the Attorney General to "fill gaps" in the statute, Barr, 929 F.3d at 1177. At issue was simply whether, in the exercise of this inherent and undisputed authority, the Attorney General had permissibly interpreted the types of factors which he could consider in assigning points to an application. Barr, 929 F.3d at 1173-74, 1177-82. That view of the grant program made sense: when there are more applicants than appropriated funds for grants, the Attorney General—absent specific instructions from Congress—must somehow distinguish between applicants. The parties in Barr were, as such, only arguing about whether the term "community policing" evidenced a clear congressional intent to prevent the Attorney General from using immigration as one of many scoring factors and, if it did not, whether doing so was based on a reasonable interpretation of the term under Chevron. Id. at 1177-82.
The Byrne JAG statute, by contrast, does not create a competitive grant program—Congress appropriates money which must be divided, if not necessarily distributed, among all of the states according to a formula—and the powers of the Attorney General to administer the program and withhold funds is carefully circumscribed. See 34 U.S.C. §§ 10151-10158. Accordingly, at issue in the present case is not whether the Attorney General permissibly interpreted a piece of his undisputed discretionary authority to choose among grant applicants; rather, it is whether he possesses the unbounded discretion to not award or disburse Byrne JAG funds in the first instance. More so than with a single non-dispositive factor used as part of a larger scoring scheme for a competitive grant program, the authority to completely withhold a grant to which each state is statutorily assigned a share—regardless of whether it applies for the grant—is an authority of substantial economic and political significance. The Supreme Court, however, "expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance." Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014) (citation omitted). As discussed below, Congress did not do so in the Byrne JAG statute and, to the contrary, clearly intended to withhold such authority as evidenced by the text and structure of the statute and its surrounding provisions.
[8] Defendants also argue that they have an historical practice of attaching conditions to Byrne JAG funds. There are two problems with that argument. First, unlike those challenged here, none of the conditions cited by Defendants are "blanket requirements with which the grantee must comply under all circumstances; rather their applicability is conditioned on whether federal funds are used in a particular area." City of Philadelphia, 916 F.3d at 290 (citation omitted). Second, even if the conditions previously imposed by the Attorney General were analogous to those presently in dispute, "an agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate." SEC v. Sloan, 436 U.S. 103, 119, 98 S.Ct. 1702, 56 L.Ed.2d 148 (1978) (citation omitted).
[9] In any event, even if the FAC were deficient as to the Disclosure Condition, Defendants were clearly aware of the claim because they raised it sua sponte in their response to Plaintiffs' Motion for Summary Judgment and acknowledged that Plaintiffs had previously made "passing references" to the Disclosure Condition. Defendants, in fact, submitted documents reflecting the Disclosure Condition, see RJN Ex. E ¶ 44, Ex. F ¶ 44, and knew that

Plaintiffs intended to challenge as broad a swath of immigration-related conditions as constitutionally permissible under Article III, see Defs.' Mot. Dismiss 15-17. When, as here, the evidentiary record is fully developed on summary judgment, the defendant was at least constructively aware of the plaintiff's intent to challenge a particular action, the issue is purely one of law, and the parties are able to fully present their legal arguments, requiring an amended pleading would provide no benefit to the parties or the Court. See, e.g., Cummings v. City of Akron, 418 F.3d 676, 681 (6th Cir. 2005) ("Here, regardless of the fact that [Plaintiff] failed to raise unlawful entry in his complaint, Defendants were clearly on notice of [his] unlawful entry claim."); Renkel v. United States, 456 F.3d 640, 642 n.2 (6th Cir. 2006) (allowing a claim which was first raised in opposition to a motion to dismiss because the issue was "purely one of law"); Carter v. Ford Motor Co., 561 F.3d 562, 568 (6th Cir. 2009) ("Sometimes, as we have recognized, a claim raised in response to a summary judgment motion provides sufficient notice to the opposing party." (citations omitted)); Moore v. City of Harriman, 272 F.3d 769, 774 (6th Cir. 2001) (en banc) ("Subsequent filings in a case may rectify deficiencies in the initial pleadings."); cf. also Johnson v. Hanada, No. 06-cv-1206-BR, 2009 WL 73867, at *3-5 (D. Or. Jan. 8, 2009) (applying the "course-of-proceedings" test to an action under 42 U.S.C. § 1983).
[10] On Defendants' strained reasoning, it seems that virtually any condition—including the Notice and Access Conditions, as well as any other information sharing requirement—could be justified by the Attorney General's need to foster inter-governmental "cooperation" and "trust" as part of his duty to "maintain liaison" with grantees.
[11] Plaintiffs seemingly accept Defendants' view that the "applicable Federal laws" language encompasses every federal law applicable to a state or locality rather than only those laws which expressly apply to federal `grants. The Court therefore assumes without deciding that Defendants' interpretation is correct. Since Plaintiffs bring an independent constitutional challenge to Sections 1373 and 1644 in addition to their derivative challenge based on the Compliance Condition, the Court need not consider whether it could avoid the constitutional issue by construing the "applicable Federal laws" language more narrowly. See, e.g., City & Cty. of San Francisco, 349 F. Supp. 3d at 95355 (finding that, although it was a "close call," the term "applicable" is intended to refer only to "laws related to grant applications" (citation omitted)); New York, 343 F. Supp. 3d at 230-31 (same).
[12] Defendants also argue that the Attorney General's power to dictate the "form" of an application necessarily includes the power to ask applicants and grantees if they have laws or policies which could prevent their employees from communicating with federal immigration authorities. 34 U.S.C. § 10153(a). The authority to dictate the "form" of an application, however, does not include an ability to dictate its "substance." New York, 343 F. Supp. 3d at 230 (citation omitted); see also Form, Black's Law Dictionary (10th ed. 2014) (defining "form" as "[t]he outer shape, structure, or configuration of something, as distinguished from its substance or matter"). As already discussed, the Attorney General is empowered to require that Byrne JAG applicants submit "programmatic and financial" information, but neither of those terms encompass information about laws unrelated to an applicant or grantee's handling of federal funds or the programs to which those funds are directed. 34 U.S.C. § 10153(a)(4). It would make little sense for Congress to have described the types of information which the Attorney General may require if the Attorney General was already empowered—a few lines earlier within the same subsection—to condition Byrne JAG funds on the submission of virtually any information. See Marx, 133 S. Ct. at 1178 ("The canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.").
[13] At oral argument, Plaintiffs requested that any injunction, even one without nationwide effect, also run to the benefit of political subdivisions of the State of Oregon. Under the Byrne JAG statute, a political subdivision may be a direct grantee or a subgrantee of Byrne JAG funds. 34 U.S.C. § 10156(c)-(d). Those funds, whether by direct grant or subgrant from the State of Oregon, come with the same conditions attached. In turn, "[t]he political subdivisions experience the same injuries described earlier, which necessarily flow to the [State of Oregon] by virtue of the subdivisions' position within [its] geographic boundaries and political systems." New York, 343 F. Supp. 3d at 245 n.28. That injury is only "compounded insofar as the [state] must ... monitor compliance" with any subgrants it makes to political subdivisions within its borders. Id. As such, to accord Plaintiffs complete relief, the permanent injunction applies both to the State of Oregon and the political subdivisions within its borders. See id.; California ex. rel. Becerra v. Sessions, No. 17-cv-04701-WHO, 2018 WL 6069940, at *1 (N.D. Cal. Nov. 20, 2018) (extending permanent injunction of challenged conditions to "any California state entity" and "any California political subdivision).
[14] On this point, the Court respectfully disagrees with the Seventh Circuit. See City of Chicago, 888 F.3d at 29293 ("[T]he structure of the Byrne JAG program itself supports the district court's determination to impose a nationwide injunction because the recipients of the grant are interconnected.").

[15] Defendants also submitted a request for judicial notice. See Defs.' Req. for Judicial Notice in Supp. Mot. Dismiss, ECF No. 15. Plaintiffs filed no opposition to that request. Since the exhibits are matters of public record and not subject to reasonable dispute, Defendants' request is GRANTED. See Fed. R. Evid. 201(b).

 
 Case 6:18-cv-01959-MC Document 38 Filed 08/29/19 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

THE STATE OF OREGON, KATE BROWN, Governor; ELLEN ROSENBLUM, Attorney General; and THE CITY OF PORTLAND,
Plaintiffs,
v.
DONALD J. TRUMP, President of the United State, in his official capacity; WILLIAM P. BARR, Attorney General of the United States, in his official capacity; and the UNITED STATES OF AMERICA,

Case No. 6:18-cv-01959-MC
JUDGMENT AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS; GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IN PART, AND ISSUING INJUNCTIONS AND MANDAMUS

Defendants.

MCSHANE, Judge: This case comes before the Court on Defendants’ Motion to Dismiss (ECF No. 14), and
Plaintiffs’ Combined Motion for Summary Judgment and Response to Defendants’ Motion to Dismiss (ECF No. 21) (collectively the “Motions”). After considering the Motions together with the supplemental briefs, pleadings, declarations, and exhibits (ECF Nos. 3, 15, 22-25, 29-30), and after hearing the parties arguments at oral argument, the Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. In the First Amended Complaint (ECF No. 3), Plaintiffs challenge five requirements for fiscal year (“FY”) 2017 and seven requirements for FY 2018 Edward Byrne Memorial Justice Assistance Grants (“Byrne JAG”), herein referred to as the “Immigration Page 1 - JUDGMENT AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS; GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IN PART, AND ISSUING INJUNCTIONS AND MANDAMUS

Case 6:18-cv-01959-MC Document 38 Filed 08/29/19 Page 2 of 5
Enforcement Requirements.” The Immigration Enforcement Requirements at issue are found in paragraphs 52, 53, 54, 55, and 56 of Exhibit C to the Request for Judicial Notice filed by Defendants as ECF No. 15 at pages 62-66, in paragraphs 52, 53, 54, 55, and 56 of Exhibit D to ECF No. 15 at pages 91-95, and in paragraphs 41, 42, 43, 44, 45, 46, and 47 of Exhibit E of ECF No. 15 at pages 116-122.
2. On March 5, 2019, Defendants’ filed Defendants’ Motion to Dismiss (ECF No. 14) and Defendants’ Request for Judicial Notice (ECF No. 15) (collectively, “Defendants’ Motion”).
3. On April 8, 2019, Plaintiffs filed Plaintiffs’ Combined Motion for Summary Judgment and Response to Defendants’ Motion to Dismiss (ECF No. 21) and supporting declarations and exhibits (ECF Nos. 22-25) (collectively, “Plaintiffs’ Motion”).
4. On July 26, 2019, the Court held a hearing on Defendants’ Motion and Plaintiffs’ Motion and heard the arguments by counsel.
5. On August 8, 2019, the Court issued its Opinion and Order (ECF No. 36) denying Defendants’ Motion and granting Plaintiffs’ Motion in part. The Court concluded that Plaintiffs have standing to pursue their claims and that Plaintiffs’ claims are ripe for judicial review. The Court further concluded that Defendants lack the delegated authority to impose the Immigration Enforcement Requirements and that by doing so, Defendants infringed upon the authority reserved to Congress under the Spending Clause of the U.S. Constitution. Finally, the Court found that 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment.
Based on its findings and conclusions, and pursuant to Federal Rule of Civil Procedure 58, the Court hereby ENTERS judgment in favor of Plaintiffs and against Defendants, and grants the following relief as set forth below:
Page 2 - JUDGMENT AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS; GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IN PART, AND ISSUING INJUNCTIONS AND MANDAMUS

Case 6:18-cv-01959-MC Document 38 Filed 08/29/19 Page 3 of 5
DECLARATION The Court concludes that declaratory relief under 28 U.S.C. § 2201 is appropriate in this case. It is hereby DECLARED that: 1. The Immigration Enforcement Requirements are unconstitutional and unlawful because they exceed the congressional authority conferred on the Executive Branch and are ultra vires on their face. 2. 8 U.S.C. §§ 1373 and 1644 are unconstitutional on their face under the Tenth Amendment of the United States Constitution.
PERMANENT INJUNCTION The Court also concludes that each of the necessary elements for issuing a permanent injunction is met. In particular, the Court concludes that Plaintiffs have succeeded on the merits of their claims and that absent an injunction, Plaintiffs would suffer irreparable injury; the balance of equities favor Plaintiffs; and the requested relief is in the public interest. Pursuant to Federal Rule of Civil Procedure 65, it is now ORDERED that Defendants ARE HEREBY RESTRAINED AND ENJOINED from directly or indirectly committing or performing the following acts: 1. Using the Immigration Enforcement Requirements as conditions for Byrne JAG funding for any Oregon state entity, the City of Portland, or any Oregon political subdivision. 2. Withholding, terminating, or clawing back Byrne JAG funding from, or disbarring or making ineligible for Byrne JAG, any Oregon state entity, the City of Portland, or any Oregon political subdivision on the basis of the Immigration Enforcement Requirements. 3. Withholding, terminating, or clawing back Byrne JAG funding from, or disbarring or making ineligible for Byrne JAG, any Oregon state entity, the City of Portland, or any Oregon political subdivision on account of any grant condition challenged in this lawsuit and based on ORS 181A.820, ORS 180.805, or Portland Police Bureau Directive 810.10. Page 3 - JUDGMENT AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS; GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IN PART, AND ISSUING INJUNCTIONS AND MANDAMUS

Case 6:18-cv-01959-MC Document 38 Filed 08/29/19 Page 4 of 5

4. Enforcing 8 U.S.C. §§ 1373 and 1644’s statutory obligations in relation to the Bryne JAG program against any Oregon state entity, the City of Portland, or any Oregon

political subdivision.

MANDATORY INJUNCTION

As set forth in the Court’s August 7, 2019 Opinion and Order, the Court concluded that all the necessary elements for issuing Plaintiffs mandamus relief are met.

The Court hereby ORDERS Defendants to issue to Plaintiffs without further delay the

FY 2017 Byrne JAG awards and the FY 2018 Byrne JAG awards, without enforcement of the

enjoined conditions, and to disburse Byrne JAG funds, upon a jurisdiction’s acceptance of the award, to the Oregon Criminal Justice Commission, the City of Portland, and all Oregon political

subdivisions that applied for Byrne JAG awards for FY 2017 and/or FY 2018; provided,

however, that nothing in this Order shall relieve any jurisdiction from its obligation to provide

certification of, and compliance with, any other condition of the awards other than the

Immigration Enforcement Requirements, and Defendants are not required to disburse the awards

until such other conditions for disbursement are met. Nothing in this Order shall impair, affect,

or relieve the jurisdictions or any other Byrne JAG award recipient within the District of Oregon

from the obligation to certify and comply with any and all other grant conditions apart from the

Immigration Enforcement Requirements, nor shall it impair Defendants’ ability to enforce the

conditions in the awards other than the Immigration Enforcement Requirements.

Acceptance of the FY 2017 and/or FY 2018 awards by the Oregon Criminal Justice

Commission, the City of Portland, and/or any Oregon political subdivision shall not be construed

as acceptance of the enjoined conditions.

After the jurisdiction or entity accepts the FY 2017 and/or FY 2018 awards, Defendants

are further ORDERED to process and approve the jurisdiction’s requests for drawdowns of the jurisdiction’s FY 2017 and/or FY 2018 Byrne JAG funds as it would in the ordinary course, and

Page 4 - JUDGMENT AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS; GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IN PART, AND ISSUING INJUNCTIONS AND MANDAMUS

Case 6:18-cv-01959-MC Document 38 Filed 08/29/19 Page 5 of 5
without regard to the enjoined conditions, compliance with 8 U.S.C. §§ 1373 and 1644, or whether the jurisdiction spent its own money on the program or activity funded.
COSTS Plaintiffs are awarded their reasonable costs and expenses pursuant to 28 U.S.C. §§ 1920 and 2412. Plaintiff will file a motion pursuant to Fed. R. Civ. P. 54 no later than 14 days after the entry of judgment. IT IS SO ORDERED DATED August 29, 2019.
_ /s/ Michael J. McShane_______ Michael McShane
United States District Judge
Page 5 - JUDGMENT AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS; GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IN PART, AND ISSUING INJUNCTIONS AND MANDAMUS

 
 Case 6:18-cv-01959-MC Document 42 Filed 10/24/19 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

THE STATE OF OREGON, KATE BROWN, Governor; ELLEN ROSENBLUM, Attorney General; and THE CITY OF PORTLAND
Plaintiffs,
v.
DONALD J. TRUMP, President of the United States, in his official capacity; WILLIAM P. BARR, Attorney General of the United States, in his official capacity; and the UNITED STATES OF AMERICA

Case No. 6:18-cv-01959-MC ORDER

Defendants. _____________________________ MCSHANE, Judge:
Plaintiffs move for costs of $420.00. See ECF No. 39. Costs are generally allowed to the prevailing party. Fed. R. Civ. P. 54(d)(1). Plaintiffs seek recovery of $20.00 in costs for docket fees and $400.00 for a filing fee. Defendant does not object to any of the requested costs and the time to do so has passed. 1 – ORDER

Case 6:18-cv-01959-MC Document 42 Filed 10/24/19 Page 2 of 2 All the requested costs are recoverable by the prevailing party. See 28 U.S.C. § 1919; 1921; 1923. Plaintiffs’ motion for costs in the amount of $420.00 is GRANTED. IT IS SO ORDERED. DATED this 24th day of October, 2019.
_______/s/ Michael McShane______ Michael J. McShane
United States District Judge
2 – ORDER