Case: 1:18-cv-6859 As of: 05/20/2020 11:40 AM CDT 1 of 11
APPEAL,CUMMINGS
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.3.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:18−cv−06859

The City of Chicago v. William P. Barr Assigned to: Honorable Harry D. Leinenweber Case in other court: 19−03290 Cause: 05:702 Administrative Procedure Act
Plaintiff The City of Chicago

Date Filed: 10/12/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant
represented by Scott Douglas Spears City of Chicago Department of Law Legal Counsel Division 121 N. LaSalle St., 6th Floor Chicago, IL 60602 3127448698 Email: scott.spears@cityofchicago.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew W Worseck City of Chicago, Department of Law 30 North LaSalle Street Suite 1230 Chicago, IL 60602 (312) 744−7129 Email: aworseck@cityofchicago.org ATTORNEY TO BE NOTICED

Ari D. Evans Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663−6776 Email: ari.evans@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Ari Holtzblatt Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663−6964 Email: Ari.Holtzblatt@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Ari J Savitzky Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663−6232 Email: Ari.Savitzky@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

David W. Ogden

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Wilmer Cutler Pickering Hale & Dorr LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 (202) 663−6440 Email: David.Ogden@wilmerhale.com ATTORNEY TO BE NOTICED
Debo P. Adegbile Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich Street New York, NY 10013 (212) 295−6717 Email: Debo.Adegbile@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Edward N Siskel City of Chicago Department of Law 121 N. LaSalle Room 600 Chicago, IL 60602 (312) 744−0220 Email: edward.siskel@cityofchicago.org TERMINATED: 07/17/2019
Harnaik Singh Kahlon Riley Safer Holmes & Cancila, LLP 70 West Madison Avenue Suite 2900 Chicago, IL 60602 (312) 471−8751 Email: nkahlon@rshc−law.com ATTORNEY TO BE NOTICED
Jamie S Gorelick Wilmer Cutler Pickering Hale and Dorr LLP Washington, DC 20006 Washington, DC, DC 20006 (202) 663−6500 Email: Jamie.Gorelick@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Baxenberg Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave NW Washington, DC 20006 (202) 663−6151 Email: justin.baxenberg@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Anthony Houppert City of Chicago − Department of Law 30 N. LaSalle St. − Suite 800 Chicago, IL 60602 312−744−0468 Email: justin.houppert@cityofchicago.org ATTORNEY TO BE NOTICED

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Laura A Kleinman Riley Safer Holmes & Cancila, LLP Three First National Plaza 70 W. Madison Street, Suite 2900 Chicago, IL 60602 (312) 258−5543 Email: lkleinman@rshc−law.com TERMINATED: 05/31/2019
Matthew Charles Crowl Riley Safer Holmes & Cancila LLP 70 West Madison Street Suite 2900 Chicago, IL 60602 312−471−8720 Email: mcrowl@rshc−law.com ATTORNEY TO BE NOTICED
Molly Jennings Wilmer Cutler Pickering Hale and Dorr LLP 1801 Pennsylvania Avenue NW Washington, DC 20006 (202) 663−6947 Email: Molly.Jennings@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald S. Safer Riley Safer Holmes & Cancila LLP 70 West Madison St Suite 2900 Chicago, IL 60602 (312) 471−8736 Email: rsafer@rshc−law.com ATTORNEY TO BE NOTICED
Tal Cohen Chaiken Riley Safer Holmes & Cancila LLP Three First National Plaza 70 West Madison Street Suite 2900 Chicago, IL 60602 Email: tchaiken@rshc−law.com TERMINATED: 09/26/2019

V.
Defendant
Jefferson Beauregard Sessions III Attorney General of the United States TERMINATED: 09/19/2019

represented by AUSA − Chicago United States Attorney's Office (NDIL − Chicago) 219 South Dearborn Street Chicago, IL 60604 Email: USAILN.ECFAUSA@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad P. Rosenberg U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Washington, DC 20005 (202) 514−3374

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Defendant Attorney General of the United States
Defendant William P. Barr
Movant State of Illinois

Email: brad.rosenberg@usdoj.gov TERMINATED: 02/19/2019 LEAD ATTORNEY
Daniel Duane Mauler U.S. Department of Justice 1100 L Street, NW Washington, DC 20005 (202) 616−0773 Email: dan.mauler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles E.T. Roberts U.S. Department of Justice, Civil Division, Federal Programs 1100 L Street NW Washington, DC 20005 (202) 305−8628 Email: charles.e.roberts@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Duane Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson U.S. Department of Justice, Civil Division 318 South Sixth Street, Room 244 Springfield, IL 62701 (202) 514−3495 Email: scott.simpson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles E.T. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Duane Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Darren Bernens Kinkead Office of the Attorney General State of Illinois 100 West Randolph Street, 11th Floor Chicago, IL 60601 312−814−5700 Email: dkinkead@atg.state.il.us ATTORNEY TO BE NOTICED

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Jeffrey J Vandam Office of the Attorney General of Illinois Public Interest Counsel 100 W. Randolph 11th Floor Chicago, IL 60601 (312) 814−1188 Email: JVanDam@atg.state.il.us ATTORNEY TO BE NOTICED

Date Filed 10/12/2018
10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018

# Docket Text
1 COMPLAINT filed by The City of Chicago; Filing fee $ 400, receipt number 0752−15052376. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Siskel, Edward) (Entered: 10/12/2018)
2 CIVIL Cover Sheet (Siskel, Edward) (Entered: 10/12/2018)
3 NOTICE by The City of Chicago of Claims of Unconstitutionality (Siskel, Edward) (Entered: 10/12/2018)
4 CIVIL Cover Sheet (Siskel, Edward) (Entered: 10/12/2018)
5 ATTORNEY Appearance for Plaintiff The City of Chicago by Edward N Siskel (Siskel, Edward) (Entered: 10/12/2018)
6 ATTORNEY Appearance for Plaintiff The City of Chicago by Justin Anthony Houppert (Houppert, Justin) (Entered: 10/12/2018)
CASE ASSIGNED to the Honorable Elaine E. Bucklo. Designated as Magistrate Judge the Honorable Maria Valdez. (pj, ) (Entered: 10/12/2018)
7 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−15053933. (Ogden, David) (Entered: 10/12/2018)
8 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−15054037. (Gorelick, Jamie) (Entered: 10/12/2018)
9 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−15054293. (Adegbile, Debo) (Entered: 10/12/2018)
10 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−15054436. (Holtzblatt, Ari) (Entered: 10/12/2018)
11 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−15054481. (Savitzky, Ari) (Entered: 10/12/2018)
12 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−15054641. (Jennings, Molly) (Entered: 10/12/2018)
13 ATTORNEY Appearance for Plaintiff The City of Chicago by Ronald S. Safer (Safer, Ronald) (Entered: 10/12/2018)
14 ATTORNEY Appearance for Plaintiff The City of Chicago by Matthew Charles Crowl (Crowl, Matthew) (Entered: 10/12/2018)
15 ATTORNEY Appearance for Plaintiff The City of Chicago by Harnaik Singh Kahlon (Kahlon, Harnaik) (Entered: 10/12/2018)
16 ATTORNEY Appearance for Plaintiff The City of Chicago by Laura A Kleinman (Kleinman, Laura) (Entered: 10/12/2018)
17 ATTORNEY Appearance for Plaintiff The City of Chicago by Scott Douglas Spears (Spears, Scott) (Entered: 10/12/2018)
SUMMONS Issued as to Jefferson Beauregard Sessions III, and U.S. Attorney(pj, ) (Entered: 10/12/2018)

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10/15/2018
10/15/2018 10/16/2018 10/16/2018
10/16/2018 10/17/2018
10/17/2018 10/17/2018 10/17/2018 10/19/2018 10/31/2018
11/02/2018 12/07/2018 12/07/2018
12/07/2018
12/10/2018
12/17/2018

18 MINUTE entry before the Honorable Elaine E. Bucklo: Application to appear pro hac vice of Brian David Ogden 7 ; Jamie Gorelick 8 , Debo Adegbile 9 , Ari Holtzblatt 10 ; Ari Savitzky 11 and Molly Jennings 12 as counsel for Plaintiff, The City of Chicago are granted. Mailed notice. (mgh, ) (Entered: 10/15/2018)
19 ATTORNEY Appearance for Plaintiff The City of Chicago by Andrew W Worseck (Worseck, Andrew) (Entered: 10/15/2018)
20 ATTORNEY Appearance for Plaintiff The City of Chicago by Tal Cohen Chaiken (Chaiken, Tal) (Entered: 10/16/2018)
21 MINUTE entry before the Honorable Elaine E. Bucklo:Minute entry dated 10/15/2018, docket no. 18 is amended to correct the spelling of Plaintiff's counsel's name, David W. Ogden. Order stand in all other respects.Mailed notice. (mgh, ) (Entered: 10/16/2018)
22 AFFIDAVIT of Service filed by Plaintiff The City of Chicago regarding Summons in a Civil Action ; Complaint; Exhibits served on Jamia Williams, Mail Clerk & Authorized Agent on October 15, 2018 (Crowl, Matthew) (Entered: 10/16/2018)
23 MINUTE entry before the Honorable Elaine E. Bucklo: Scheduling conference set for 1/10/2019 at 9:30 a.m. Parties' Rule 26(f) planning report due 1/7/2019. The form of the report can be found on Judge Bucklo's page at www.ilnd.uscourts.gov. Mailed notice. (mgh, ) (Entered: 10/17/2018)
24 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−15072977. (Baxenberg, Justin) (Entered: 10/17/2018)
25 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−15073255. (Evans, Ari) (Entered: 10/17/2018)
26 REQUEST for Clerk of Court to refund filing fee in the amount of $150.00, receipt no. 0752−15054110, (Adegbile, Debo) (Entered: 10/17/2018)
27 MINUTE entry before the Honorable Elaine E. Bucklo: Motions to appear pro hac vice 24 and 25 are granted. Mailed notice (reg) (Entered: 10/19/2018)
28 EXECUTIVE COMMITTEE ORDER: Case reassigned to the Honorable Harry D. Leinenweber for all further proceedings. Honorable Elaine E. Bucklo no longer assigned to the case. Signed by Executive Committee on 10/31/2018. (mma, ) (Entered: 11/01/2018)
29 MINUTE entry before the Honorable Elaine E. Bucklo: In light of the reassignment the Scheduling Conference previously set before Judge Bucklo for 1/10/2019 is stricken. Mailed notice. (mgh, ) (Entered: 11/02/2018)
30 ATTORNEY Appearance for Defendant Jefferson Beauregard Sessions III by Brad P. Rosenberg (Rosenberg, Brad) (Entered: 12/07/2018)
31 MOTION by Defendant Jefferson Beauregard Sessions IIIConsent Motion to Stay Response to the Complaint and to Set Deadline to Respond to the Forthcoming Amended Complaint , MOTION by Defendant Jefferson Beauregard Sessions III for extension of time to file answer (Attachments: # 1 Text of Proposed Order)(Rosenberg, Brad) (Entered: 12/07/2018)
32 NOTICE of Motion by Brad P. Rosenberg for presentment of motion for miscellaneous relief,, motion for extension of time to file answer, 31 before Honorable Harry D. Leinenweber on 12/11/2018 at 09:30 AM. (Rosenberg, Brad) (Entered: 12/07/2018)
33 MINUTE entry before the Honorable Harry D. Leinenweber: Consent motion to stay and to set a response date to the amended complaint 31 is granted. Amended complaint to be filed by 12/17/18, response by 1/18/19. Status hearing set for 1/29/19 at 9:00 a.m. Mailed notice(maf) (Entered: 12/10/2018)
34 AMENDED complaint by The City of Chicago against Jefferson Beauregard Sessions III, Attorney General of the United States (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Siskel, Edward) (Entered: 12/17/2018)

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12/17/2018 12/26/2018
01/08/2019 01/23/2019 01/28/2019
02/19/2019 02/28/2019 03/01/2019 03/01/2019 03/01/2019 03/01/2019 03/04/2019 03/06/2019

35 NOTICE by The City of Chicago of Claims of Unconstitutionality (Siskel, Edward) (Entered: 12/17/2018)
36 GENERAL ORDER 18−0028 dated 12/26/18: IT IS HEREBY ORDERED, effective December 26, 2018, that all civil litigation involving as a party the United States of America, is immediately suspended, postponed and held in abeyance continuing for a period of fourteen (14) days from the date of entry of this General Order (For Further Details See Attached Order). Signed by the Honorable Ruben Castillo on 12/26/2018: Mailed notice. (sm, ) (Entered: 12/30/2018)
37 AMENDED GENERAL ORDER 18−0028 dated 01/08/2019: On December 26, 2018, General Order 18−0028 was entered. It appearing that the lapse of congressional appropriations funding the federal government continues, therefore General Order 18−0028 is now amended. (For Further Details See Attached Order). Signed by the Honorable Ruben Castillo on 1/8/2019: Mailed notice. (sm, ) (Entered: 01/08/2019)
38 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing set for 1/29/19 is re−set to 3/20/19 at 9:00 a.m. Mailed notice(maf) (Entered: 01/23/2019)
39 GENERAL ORDER 19−0004: RESETTING OF DEADLINES IN CIVIL MATTERS INVOLVING THE UNITED STATES AS A PARTY. IT APPEARING THAT as a result of the partial federal government shutdown, this Court amended General Order 18−0028 suspending as of December 21, 2018, all civil litigation in which the United States of America, its agencies, its officers, or employees were parties, with the stated intention of clarifying schedules in such cases upon the expiration of the lapse in appropriations; and IT FURTHER APPEARING THAT appropriations having been restored to fund the Department of Justice and other Executive Branch agencies, with employees beginning to report for work beginning on January 28, 2019; accordingly IT IS THEREFORE ORDERED that the stay entered by General Order 18−0028 is hereby lifted, and any and all deadlines in the affected civil litigation (whether established by order, rule, or agreement.), including but not limited to any scheduled discovery and pleading dates, are extended by 42 days. (For Further Details See Attached Order). Signed by the Honorable Ruben Castillo on 1/28/2019: Mailed notice. (mgw, ) (Entered: 01/28/2019)
40 WITHDRAWING Brad P. Rosenberg as counsel for Defendants Attorney General of the United States, William P. Barr and substituting W. Scott Simpson as counsel of record (Simpson, W.) (Entered: 02/19/2019)
41 NOTICE by Attorney General of the United States, William P. Barr Notice of Filing of Administrative Record (Attachments: # 1 Administrative Record, Part 1, # 2 Administrative Record, Part 2, # 3 Administrative Record, Part 3, # 4 Administrative Record, Part 4, # 5 Administrative Record, Part 5, # 6 Administrative Record, Part 6)(Simpson, W.) (Entered: 02/28/2019)
42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants William P. Barr, Attorney General of the United States , MOTION by Defendants William P. Barr, Attorney General of the United States to dismiss for lack of jurisdiction (Simpson, W.) (Entered: 03/01/2019)
43 NOTICE of Motion by W. Scott Simpson for presentment of Motion to Dismiss for Failure to State a Claim,, motion to dismiss/lack of jurisdiction, 42 before Honorable Harry D. Leinenweber on 3/19/2019 at 09:30 AM. (Simpson, W.) (Entered: 03/01/2019)
44 MEMORANDUM by Attorney General of the United States, William P. Barr in support of Motion to Dismiss for Failure to State a Claim,, motion to dismiss/lack of jurisdiction, 42 (Attachments: # 1 Defendant's Request for Judicial Notice)(Simpson, W.) (Entered: 03/01/2019)
45 MOTION by Defendants Attorney General of the United States, William P. Barr for leave to file excess pages (Simpson, W.) (Entered: 03/01/2019)
46 MINUTE entry before the Honorable Harry D. Leinenweber: Motion for leave to file excess pages 45 is granted. Mailed notice(maf) (Entered: 03/04/2019)
47 MINUTE entry before the Honorable Harry D. Leinenweber: Defendants' motion to dismiss 42 is entered and briefed as follows: response by 4/3/19, reply by 4/10/19.

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04/03/2019 04/03/2019 04/03/2019
04/03/2019 04/03/2019
04/03/2019 04/03/2019 04/03/2019
04/03/2019 04/04/2019 04/09/2019 04/09/2019
04/18/2019 05/03/2019
05/03/2019 05/24/2019

Status hearing set for 3/20/19 is vacated. Status hearing/ruling is set for 5/22/19 at 9:00 a.m. Mailed notice(maf) (Entered: 03/06/2019)
48 MOTION by Plaintiff The City of Chicago for partial summary judgment (Siskel, Edward) (Entered: 04/03/2019)
49 NOTICE of Motion by Edward N Siskel for presentment of motion for partial summary judgment 48 before Honorable Harry D. Leinenweber on 4/9/2019 at 09:30 AM. (Siskel, Edward) (Entered: 04/03/2019)
50 MEMORANDUM motion for partial summary judgment 48 , Motion to Dismiss for Failure to State a Claim,, motion to dismiss/lack of jurisdiction, 42 by The City of Chicago Combined Opposition to Defendant's Motion to Dismiss and Memorandum in Support of Chicago's Cross−Motion for Partial Summary Judgment (Siskel, Edward) (Entered: 04/03/2019)
51 RULE 56.1 Statement by The City of Chicago regarding motion for partial summary judgment 48 (Siskel, Edward) (Entered: 04/03/2019)
52 Request for Judicial Notice by The City of Chicago in Support of Motion for Partial Summary Judgment and Opposition to Defendant's Motion to Dismiss (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Siskel, Edward) (Entered: 04/03/2019)
53 DECLARATION of Larry Sachs regarding motion for partial summary judgment 48 (Siskel, Edward) (Entered: 04/03/2019)
54 DECLARATION of Lieutenant Kevin R. Hannigan regarding motion for partial summary judgment 48 (Siskel, Edward) (Entered: 04/03/2019)
55 DECLARATION of Ari Holtzblatt regarding motion for partial summary judgment 48 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Holtzblatt, Ari) (Entered: 04/03/2019)
56 MOTION by Plaintiff The City of Chicago for leave to file excess pages (Siskel, Edward) (Entered: 04/03/2019)
57 MINUTE entry before the Honorable Harry D. Leinenweber: Unopposed motion for leave to file a brief in excess pages 56 is granted. Mailed notice(maf) (Entered: 04/04/2019)
58 STIPULATION regarding memorandum, 50 and Proposed Order on Briefing Schedule (Simpson, W.) (Entered: 04/09/2019)
59 MINUTE entry before the Honorable Harry D. Leinenweber: The Government shall file its response to Plaintiff's motion for partial summary judgment 48 and its reply to the Government's motion to dismiss 42 on or before 5/3/19. Plaintiff shall file its reply in support of Plaintiff's motion for partial summary judgment on or before 5/31/19. Status hearing/ruling date set for 5/22/19 is re−set to 8/1/19 at 9:00 a.m. Mailed notice (maf) (Entered: 04/10/2019)
60 WITHDRAWING W. Scott Simpson as counsel for Defendants Attorney General of the United States, William P. Barr, Jefferson Beauregard Sessions III and substituting Daniel Duane Mauler as counsel of record (Mauler, Daniel) (Entered: 04/18/2019)
61 REPLY by Defendants Attorney General of the United States, William P. Barr, Jefferson Beauregard Sessions III to Motion to Dismiss for Failure to State a Claim,, motion to dismiss/lack of jurisdiction, 42 and Opposition to Plaintiff's Cross−Motion for Partial Summary Judgment (ECF No. 48) (Mauler, Daniel) (Entered: 05/03/2019)
62 RULE 56 Response to Plaintiff's LR 56.1 Statement Statement (Mauler, Daniel) (Entered: 05/03/2019)
63 MOTION by Attorney Laura Kleinman to withdraw as attorney for The City of Chicago. No party information provided (Kleinman, Laura) (Entered: 05/24/2019)

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05/31/2019 05/31/2019 06/03/2019 06/03/2019 06/03/2019 06/03/2019 06/04/2019 06/12/2019 07/15/2019
07/16/2019 07/17/2019 08/01/2019 08/01/2019 08/05/2019 08/06/2019 08/12/2019 09/19/2019

64 REPLY by Plaintiff The City of Chicago to motion for partial summary judgment 48 (Worseck, Andrew) (Entered: 05/31/2019)
65 MINUTE entry before the Honorable Harry D. Leinenweber: Motion to withdraw as attorney 63 is granted. Status hearing/ruling set for 8/1/19 is re−set to 8/22/19 at 9:00 a.m. Mailed notice(maf) (Entered: 05/31/2019)
66 MOTION by Movant State Of Illinois to reassign case (Unopposed) (Attachments: # 1 Exhibit 1)(Vandam, Jeffrey) (Entered: 06/03/2019)
67 NOTICE of Motion by Jeffrey J Vandam for presentment of motion to reassign case 66 before Honorable Harry D. Leinenweber on 6/11/2019 at 09:30 AM. (Vandam, Jeffrey) (Entered: 06/03/2019)
68 ATTORNEY Appearance for Movant State Of Illinois by Jeffrey J Vandam (Vandam, Jeffrey) (Entered: 06/03/2019)
69 ATTORNEY Appearance for Movant State Of Illinois by Darren Bernens Kinkead (Kinkead, Darren) (Entered: 06/03/2019)
70 MINUTE entry before the Honorable Harry D. Leinenweber: Unopposed motion to reassign case 66 is granted. Mailed notice(maf) (Entered: 06/04/2019)
71 MOTION by Attorney Edward N. Siskel to withdraw as attorney for The City of Chicago. No party information provided (Houppert, Justin) (Entered: 06/12/2019)
72 NOTICE of Motion by Justin Anthony Houppert for presentment of motion to withdraw as attorney 71 before Honorable Harry D. Leinenweber on 6/18/2019 at 09:30 AM. (Attachments: # 1 Motion to Withdraw Attorney Appearance of Edward N. Siskel)(Houppert, Justin) (Entered: 07/15/2019)
73 AMENDED NOTICE of Motion by Justin Anthony Houppert for presentment of motion to withdraw as attorney 71 before Honorable Harry D. Leinenweber on 7/18/2019 at 09:30 AM. (Houppert, Justin) (Entered: 07/16/2019)
74 MINUTE entry before the Honorable Harry D. Leinenweber: Motion to withdraw as attorney 71 is granted. Mailed notice(maf) (Entered: 07/17/2019)
75 MOTION by Plaintiff The City of Chicago for Leave to Cite Supplemental Authority (Attachments: # 1 Exhibit 1)(Worseck, Andrew) (Entered: 08/01/2019)
76 NOTICE of Motion by Andrew W Worseck for presentment of motion for miscellaneous relief 75 before Honorable Harry D. Leinenweber on 8/6/2019 at 09:30 AM. (Worseck, Andrew) (Entered: 08/01/2019)
77 RESPONSE by Attorney General of the United States, William P. Barr to MOTION by Plaintiff The City of Chicago for Leave to Cite Supplemental Authority 75 (Mauler, Daniel) (Entered: 08/05/2019)
78 MINUTE entry before the Honorable Harry D. Leinenweber: Ruling on motion hearing held. MOTION for Leave to Cite Supplemental Authority 75 is granted. Mailed notice(maf) (Entered: 08/06/2019)
79 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing/ruling set for 8/22/19 is vacated and no appearance is needed. The Court will rule by mail. Mailed notice(maf) (Entered: 08/12/2019)
80 MEMORANDUM Opinion and Order. For the reasons stated herein, the Attorney General's Motion to Dismiss 42 is granted in part and denied in part. Chicago's Motion for Summary Judgment 48 is granted in part and denied in part. The Court grants Chicago's Motion for Summary Judgment on Counts I, II, and IV. The Court grants the Attorney General's Motion to Dismiss Count VIII with prejudice. Counts III, V, and VII are dismissed as moot. Count VI remains pending in this case. Status hearing set for 10/1/19 at 9:00 a.m., at which time Chicago shall advise the Court of how it intends to proceed with Count VI, and the parties will discuss the final judgment and order in this case. Signed by the Honorable Harry D. Leinenweber on 9/19/2019: Mailed notice(maf) (Entered: 09/19/2019)

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09/25/2019 09/25/2019 09/26/2019 10/01/2019
10/08/2019 10/10/2019 11/18/2019 11/19/2019 11/19/2019 11/19/2019 12/18/2019 12/18/2019 12/19/2019 02/07/2020 02/07/2020 02/10/2020 02/11/2020

81 MOTION by Attorney Tal C. Chaiken to withdraw as attorney for The City of Chicago. No party information provided (Chaiken, Tal) (Entered: 09/25/2019)
82 NOTICE of Motion by Tal Cohen Chaiken for presentment of motion to withdraw as attorney 81 before Honorable Harry D. Leinenweber on 10/1/2019 at 09:30 AM. (Chaiken, Tal) (Entered: 09/25/2019)
83 MINUTE entry before the Honorable Harry D. Leinenweber: MOTION by Attorney Tal C. Chaiken to withdraw as attorney for The City of Chicago 81 is granted. Mailed notice(maf) (Entered: 09/26/2019)
84 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing held. The parties have advised the Court that they agree to dismiss Count VI without prejudice. Accordingly, Count VI is dismissed without prejudice. Parties have until 10/8/19 to submit either an agreed final order or competing final orders for the Court to consider. Parties are advised that their final order should follow the structure of the final order recently entered in Evanston et al v. Barr, No. 18−cv−4853 (Dkt. No. 94). The Court will set a briefing schedule for Plaintiffs fee petition once it enters a final judgment.Mailed notice(maf) (Entered: 10/01/2019)
85 STATEMENT by The City of Chicago Concerning Agreed Final Order (Attachments: # 1 Agreed Final Order)(Worseck, Andrew) (Entered: 10/08/2019)
86 ORDER: Enter Final Judgment and Order. Signed by the Honorable Harry D. Leinenweber on 10/10/2019:Mailed notice(maf) (Entered: 10/10/2019)
87 NOTICE of appeal by Attorney General of the United States, William P. Barr, Jefferson Beauregard Sessions III regarding orders 86 Receipt number: y (Mauler, Daniel) (Entered: 11/18/2019)
88 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 87 (mc, ) (Entered: 11/19/2019)
89 TRANSMITTED to the 7th Circuit the short record on notice of appeal 87 . Notified counsel (mc, ) (Entered: 11/19/2019)
90 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 87 ; USCA Case No. 19−3290 (mc, ) (Entered: 11/19/2019)
91 MOTION by Plaintiff The City of Chicago for extension of time to prepare joint statement and file motion for attorney's fees and expenses (joint) (Houppert, Justin) (Entered: 12/18/2019)
92 NOTICE of Motion by Justin Anthony Houppert for presentment of extension of time 91 before Honorable Harry D. Leinenweber on 12/24/2019 at 09:30 AM. (Houppert, Justin) (Entered: 12/18/2019)
93 MINUTE entry before the Honorable Harry D. Leinenweber: Joint motion for an extension of time to 2/21/20 to prepare joint statement and file motion for attorney's fees and expenses is granted 91 . Mailed notice(maf) (Entered: 12/19/2019)
94 MOTION by Plaintiff The City of Chicago for extension of time for briefing schedule and for enlargement of page limit (joint) (Houppert, Justin) (Entered: 02/07/2020)
95 NOTICE of Motion by Justin Anthony Houppert for presentment of extension of time 94 before Honorable Harry D. Leinenweber on 2/19/2020 at 09:30 AM. (Houppert, Justin) (Entered: 02/07/2020)
96 WITHDRAWING Daniel D. Mauler as counsel for Defendants Attorney General of the United States, William P. Barr and substituting Charles E.T. Roberts as counsel of record (Roberts, Charles) (Entered: 02/10/2020)
97 MINUTE entry before the Honorable Harry D. Leinenweber: Joint motion for extension of time 94 is granted as follows: Deadline to file Chicago's fee motion is extended until March 6, 2020, with any opposition from the Attorney General to be filed by April 6, 2020, and Chicago's reply due on April 27, 2020. The enlargement of the page limit is granted to 20 pages for both Chicago's opening brief in support of its fee motion and the Attorney General's opposition, and Chicago is permitted the standard 15 pages for its reply. The Court will rule by mail. Mailed notice (maf)

Case: 1:18-cv-6859 As of: 05/20/2020 11:40 AM CDT 11 of 11

03/02/2020 03/06/2020 03/16/2020 03/30/2020
04/24/2020
04/28/2020

(Entered: 02/11/2020)
98 MOTION by Attorney Ari J. Savitzky to withdraw as attorney for The City of Chicago. No party information provided (Holtzblatt, Ari) (Entered: 03/02/2020)
99 MOTION by Plaintiff The City of Chicago for attorney fees (Attachments: # 1 Joint Statement, # 2 Declaration of Ari Holtzblatt, # 3 Exhibits 1 Through 2 to Declaration of Ari Holtzblatt, # 4 Declaration of Matthew C. Crowl, # 5 Exhibit 1 to Declaration of Matthew C. Crowl)(Worseck, Andrew) (Entered: 03/06/2020)
100 ORDER Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 16, 2020. All open cases are impacted by this Amended General Order. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/16/2020: Mailed notice. (td, ) (Entered: 03/17/2020)
101 ORDER Seconded Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 30, 2020. All open cases are impacted by this Second Amended General Order. Amended General Order 20−0012, entered on March 17, 2020, and General Order 20−0014, entered on March 20, 2020, are vacated and superseded by this Second Amended General. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/30/2020: Mailed notice. (docket1, ) (Entered: 03/31/2020)
102 ORDER Third Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on April 24, 2020. All open cases are impacted by this Third Amended General Order. Parties are must carefully review all obligations under this Order, including the requirement listed in paragraph number 5 to file a joint written status report in most civil cases. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 4/24/2020: Mailed notice. (docket4, ) (Entered: 04/27/2020)
103 MINUTE entry before the Honorable Harry D. Leinenweber: Pursuant to the Third Amended General Order, the briefing schedule on the pending Motion for Attorney's Fees 99 is amended as follows: opposition by the Attorney General to be filed on or before 6/22/20 and Chicago's reply to be filed on or before 7/13/20. Parties may object to this amended briefing schedule in writing by 5/8/20. The Court will rule by mail. Mailed notice(maf) (Entered: 04/28/2020)

 
 Case: 1:18-cv-06859 Document #: 1 Filed: 10/12/18 Page 1 of 45 PageID #:1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO,
Plaintiff, v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
Defendant.

Civil Action No. 1:18-cv-6859

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Plaintiff the City of Chicago hereby alleges as follows:
INTRODUCTION 1. Chicago brings this action to enjoin the Attorney General of the United States from yet again imposing sweeping immigration policy conditions on the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program, a formula grant that has for years provided crucial support for law enforcement in Chicago and other cities. The challenged conditions are unauthorized by Congress and ultra vires, and violate federalism principles. They are an unlawful attempt to punish Chicago for prioritizing public safety for all Chicagoans instead of yielding to federal dictates. In fact, this Court struck down many of the conditions already, issuing a permanent injunction just months ago preventing the conditions from being applied to last year’s Byrne JAG grants. But now, despite the Court’s clear ruling that the conditions are unlawful, and its clear warning that re-issuing them could result in an award of attorney’s fees against the federal government, the Attorney General has imposed them again on
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the coming year’s grants. His renewed attempt to conscript Chicago’s police to serve federal policy rather than City policy contravenes the Constitution and federal statutes alike.
2. Since the 1980s, Chicago has adhered to a “Welcoming City” policy that prioritizes local crimefighting and community engagement, rather than federal civil immigration enforcement. That policy promotes cooperation between local law enforcement and the diverse immigrant communities that have long flourished in Chicago. For many years, Chicago’s Welcoming City policy has been no obstacle to its receipt of law enforcement funds under the Byrne JAG formula grant program.
3. Despite that long history, last year, the Attorney General tried to use the Byrne JAG program to gut Chicago’s Welcoming City policy and others like it. In July 2017, the Department of Justice released the FY2017 solicitation for Byrne JAG funding. The solicitation informed grant applicants that they would be expected to comply with three immigration-related grant conditions. Those conditions would have required Chicago (1) to detain its own residents and others at federal immigration officials’ request, in order to give the federal government a 48hour notice window prior to an arrestee’s release (the “notice condition”); (2) to give federal immigration officials unlimited access to local police stations and law enforcement facilities in order to interrogate any suspected non-citizen held there, effectively federalizing all of the City’s detention facilities (the “access condition”); and (3) to certify compliance with 8 U.S.C. § 1373, a federal statute that bars local governments from restricting their employees from sharing citizenship and immigration status information with federal immigration authorities (the “Section 1373 compliance condition”).
4. Chicago sued, and this Court (Leinenweber, J.) held the three conditions unconstitutional and ultra vires and set them aside. The Court first issued a preliminary
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injunction against the notice and access conditions that was affirmed by the Seventh Circuit. Then, in July 2018, the Court permanently enjoined all three conditions for FY2017. In its decision on the permanent injunction, the Court held that the notice and access conditions were unlawful because, consistent with the Seventh Circuit’s ruling, no statute authorized the Attorney General to impose discretionary policy conditions on the Byrne JAG formula grant program, and thus his attempt to do so anyway—to usurp Congress’s legislative authority by rewriting basic aspects the Byrne JAG program—violated the constitutional Separation of Powers. The Court also held that the Section 1373 compliance condition was unlawful because Section 1373 itself is facially unconstitutional under the Tenth Amendment anti-commandeering doctrine. The Court also made clear that it would not tolerate any attempt by the Attorney General to circumvent its ruling by re-imposing the conditions in FY2018. If the Attorney General re-imposed the conditions, the Court noted, Chicago’s “lawyers would get paid.”
5. In the face of those rulings, the Attorney General has once again attempted to press Chicago’s law enforcement officers into the service of the federal immigration authorities by imposing sweeping policy conditions on Byrne JAG formula grant funds—this time, as a condition on FY2018 funds. Those conditions are unlawful both facially and as applied to Chicago.
6. In the FY2018 Byrne JAG solicitation, the Department of Justice specifically noted that it would issue awards by September 30, 2018. In early October 2018, the Department began releasing FY2018 Byrne JAG award letters. To date, the Department has issued 752 FY2018 local awards, totaling almost $59 million; by contrast, the Department has issued 806 local awards, worth almost $71 million, for FY2017. Despite the release of a substantial portion of FY2018 funding, the Department has not yet issued Chicago’s award.
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7. Four of the conditions imposed on the FY2018 Byrne JAG grant are materially identical to the FY2017 Byrne JAG conditions this Court has already set aside as unlawful. Specifically, the Department has again required Byrne JAG recipients and their subgrantees to: (1) comply with 8 U.S.C. § 1373, which this Court already held facially unconstitutional; (2) comply with 8 U.S.C. § 1644, which prohibits the same conduct as Section 1373 and is thus unconstitutional under the same reasoning; (3) provide 48 hours’ advance notice to federal immigration authorities, “where feasible” and when requested, before releasing an alien from custody, just like the notice condition that was already set aside as unlawful by this Court; and (4) provide federal authorities with “access to any correctional facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his right to be or remain in the United States,” just like the access condition already set aside by this Court. Beyond attempting to resuscitate the conditions that this Court already held unlawful, the Attorney General has also added a new unlawful condition requiring Chicago and other cities to certify that they will not publicly disclose federal law enforcement information in an attempt to conceal, harbor, or shield from detection fugitives from justice or undocumented immigrants, even where such disclosure would not violate the law.
8. Neither the Byrne JAG statute nor any other statute empowers the Attorney General to condition formula grant funds in this manner. Indeed, most of the conditions the Attorney General seeks to impose were already held unlawful by this Court, and Chicago is entitled to attorney’s fees and costs because the Attorney General’s unreasonable decision to impose unlawful conditions has forced Chicago to prosecute this action to once again obtain an injunction against them.
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9. The law has not changed since this Court ruled: The Federal Executive may not arrogate power that the Constitution reserves to Congress on the one hand, or to state and local governments on the other. Yet the Attorney General does just that by again imposing on the Byrne JAG formula grant program policy conditions that were never approved by Congress and that would federalize local jails, mandate warrantless detentions for civil infractions, sow fear in local immigrant communities, undermine local law, and make the people of Chicago less safe.
10. The Attorney General’s new conditions are just as harmful as those struck down by this Court, and in precisely the same ways. The Attorney General once again seeks to countermand local policies that foster crucial trust between police and immigrant communities, on pain of denying Chicago crucial funds that provide lifesaving equipment to Chicago police officers and critical services to Chicago residents. Once again, his sole justification is his disagreement with Chicago’s policy choices. He does so in the face of this Court’s explicit ruling last year that his conditions are unlawful and that the harms to Chicago are irreparable and cannot be remedied by later payment of the funds at issue.
11. This Court should order injunctive and corresponding declaratory relief and should order the Attorney General to pay fees and costs to Chicago as well. In order to prevent an endless cycle of litigation, in which the Attorney General unlawfully withholds Chicago’s grant funds each year until Chicago sues and the Court intervenes, that relief should cover FY2018 and all future grant years.
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PARTIES 12. Plaintiff Chicago is a municipal corporation and home rule unit organized and existing under the constitution and laws of the State of Illinois. Chicago is the third largest city in the Nation, and is home to almost 3 million residents, including numerous immigrants. 13. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States. He is sued in his official capacity. He is the federal official in charge of the Department of Justice, which took and threatens to take the actions at issue in this lawsuit.
JURISDICTION AND VENUE 14. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1346. The Court is authorized to issue the relief sought here under the Administrative Procedure Act, 5 U.S.C. §§ 702, 705, 706, the All Writs Act, 28 U.S.C. § 1651, the mandamus statute, 28 U.S.C. § 1361, the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, and the United States Constitution. 15. Venue is proper in the Northern District of Illinois under 28 U.S.C. § 1391(e)(1) because substantial events giving rise to this action occurred therein and because Chicago resides therein and no real property is involved in this action.
FACTUAL ALLEGATIONS I. CHICAGO PRIORITIZES LOCAL CRIMEFIGHTING UNDER ITS
WELCOMING CITY POLICY 16. Chicago is a metropolis of almost 3 million that has attracted migrants and immigrants of every race, nationality, and creed for nearly two centuries. Chicago’s diverse population requires a public safety strategy that respects all the City’s residents. One aspect of that strategy—the Welcoming City Ordinance—has developed over the past few decades.
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17. The first formal iteration of the policy was announced by then-Mayor Harold Washington in a 1985 Executive Order that provided that City officials would not “request information about or otherwise investigate or assist in the investigation of the citizenship or residency status of any person” unless required by other law to do so. Mayor Richard M. Daley reiterated this policy upon taking office in April 1989.
18. In 2006, the Chicago City Council unanimously incorporated the policy into the City’s Municipal Code by enacting the Welcoming City Ordinance. Among other things, the Council cited its concern that local enforcement of federal immigration infractions would “cause a chilling effect on crime prevention and solving if both witnesses and victims are called upon to weigh a need to cooperate with local authorities against a fear of deportation, thereby undermining long-standing efforts to engender trust and cooperation between law enforcement officials and immigrant communities.” Like the executive orders that preceded it, the 2006 Ordinance prohibited City “agent[s]” and “agenc[ies]” from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or residency status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.” It also barred disclosure of “information regarding the citizenship or residency status of any person unless required to do so by legal process . . . .”
19. In 2012, Mayor Rahm Emmanuel and the Chicago City Council expanded the Welcoming City Ordinance to address increasing federal requests to detain individuals suspected of immigration-related offenses (also known as “immigration holds”) issued by U.S. Immigration and Customs Enforcement (“ICE”). The expanded Welcoming City Ordinance provides that Chicago will comply with an immigration hold only when it has an independent
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reason to believe that the subject poses a threat to public safety, such as if they have an outstanding criminal warrant, or have been identified as a gang member.
20. The 2012 Welcoming City Ordinance reflects the City Council’s findings that (1) “the cooperation of all persons, both documented citizens and those without documentation status, is essential to achieve the City’s goals of protecting life and property, preventing crime and resolving problems,” (2) “assistance from a person, whether documented or not, who is a victim of, or a witness to, a crime is important to promoting the safety of all [of the City’s] residents,” and (3) “[t]he cooperation of the City’s immigrant communities is essential to prevent and solve crimes and maintain public order, safety and security in the entire City.” Chicago Municipal Code § 2-173-005.
21. The current Welcoming City Ordinance, codified as Chapter 2-173 of the Chicago Municipal Code, and the Chicago Police Department’s implementing policy, Special Order S0614-03, contain several key prohibitions relevant to this lawsuit.
a. Subject to certain exceptions for certain criminal suspects and gang members,1 Section 2-173-042 prohibits City “agent[s]” or “agenc[ies]” from “arrest[ing], detain[ing] or continu[ing] to detain a person solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation,” or doing so “based upon an immigration detainer, when such immigration detainer is based solely on a violation of a civil immigration law.”

1

Specifically, and as noted above, the Section 2-173-042 restrictions do not apply if the

subject of the ICE investigation “(1) has an outstanding criminal warrant; (2) has been convicted

of a felony in any court of competent jurisdiction; (3) is a defendant in a criminal case in any

court of competent jurisdiction where a judgment has not been entered and a felony charge is

pending; or (4) has been identified as a known gang member.”

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b. Subject to the same exceptions, as well as an exception for “legitimate law enforcement purpose[s] . . . unrelated to the enforcement of a civil immigration law,” Section 2-173-042 also prohibits City “agent[s]” or “agenc[ies]” from, “while on duty, expend[ing] their time responding to ICE inquiries or communicating with ICE regarding a person’s custody status or release date,” or from “permit[ting] ICE agents access to a person being detained by, or in the custody of, the agency or agent” or “permit[ting] ICE agents use of agency facilities for investigative interviews or other investigative purpose.”
c. The prohibitions of Section 2-173-042 are implemented by Chicago Police Department (“CPD”) Special Order S06-14-03, which contains the same prohibitions, subject to the same exceptions, as Section 2-173-042.
d. Section 2-173-020 prohibits City “agent[s]” or “agenc[ies]” from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.”
e. Section 2-173-030 prohibits City “agent[s]” or “agenc[ies]” from “disclos[ing] information regarding the citizenship or immigration status of any person” unless “otherwise provided under applicable federal law,” the City is “required to do so by legal process,” or “such disclosure has been authorized in writing by the individual to whom such information pertains.”
22. Chicago’s official interpretation of the Welcoming City Ordinance—which was expressly communicated to all City Departments in October 2017—is that the Welcoming City
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Ordinance is not intended to prohibit or restrict any Chicago entity or official from sending to or receiving from federal immigration authorities information concerning an individual’s immigration status. Nor is it intended to enable the City to harbor undocumented individuals. It is instead intended to prevent Chicago and its police officers from themselves enforcing federal immigration law.
23. Chicago’s Welcoming City policy plays a vital role in strengthening the relationship between Chicago’s government, its police force, and its immigrant communities. This relationship is built city block by city block, and it is essential that Chicago’s police officers have the flexibility they need to engage the immigrant communities in their crime-fighting initiatives without projecting a constant threat of deportation. Social science research has consistently shown that policies like the City’s Welcoming City policy are sound means of building trust with immigrant communities and reducing crime. One recent review of relevant literature concluded that “existing evidence supports the expansion of limited cooperation policies” like Chicago’s Welcoming City Ordinance.2 Another recent study found that “crime is statistically significantly lower in sanctuary counties compared to nonsanctuary counties . . . controlling for population characteristics.”3 That conclusion is consistent with the lived experience of untold police officers; as a broad coalition of police chiefs explained, “build[ing] trusting and supportive relations with immigrant communities . . . is essential to reducing crime and helping victims.”4 By contrast, the idea that policies like Chicago’s encourage crime is a

2

Daniel E. Martinez, et al., Providing Sanctuary or Fostering Crime? A Review of the

Research on “Sanctuary Cities” and Crime, Sociology Compass (Oct. 7, 2017),

https://tinyurl.com/ybt2fyzv.

3

E.g., Tom K. Wong, Center for American Progress, The Effects of Sanctuary Policies on

Crime and the Economy 6 (2017), http://tinyurl.com/y75lsykd (emphasis added).

4

Press Release, Major Cities Chiefs Ass’n, U.S. Mayors, Police Chiefs Concerned with

Sanctuary Cities Executive Order (Jan. 25, 2017), http://tinyurl.com/y8zqhypw.

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“[m]yth”: “[S]tudies have found no support for the idea that immigrants are responsible for more

crime” or that “sanctuary policies lead to increased crime.”5

24. Meanwhile, the perception that Chicago’s policies provide amnesty or

“sanctuary” to violent criminals is also false. As the Seventh Circuit recognized, Chicago’s

policy is designed to avoid local participation in federal immigration enforcement but “does not

interfere in any way with the federal government’s lawful pursuit of its civil immigration

activities, and presence in such localities will not immunize anyone to the reach of the federal

government. The federal government can and does freely operate in ‘sanctuary’ localities.” City

of Chicago v. Sessions, 888 F.3d 272, 281 (7th Cir. 2018). Moreover, Chicago makes exceptions

to this general non-participation policy for individuals most likely to present a threat to the

community, such as those with an outstanding criminal warrant and those who are known gang

members. MCC § 2-173-042 (enumerating exceptions); CPD Special Order S06-014-03 (same).

II. THE BYRNE JAG PROGRAM, A NON-DISCRETIONARY FORMULA GRANT PROGRAM, PROVIDES LAW ENFORCEMENT FUNDING FOR CHICAGO

25. Congress created the current Byrne JAG program in 2005 by merging two

funding programs for state and local criminal justice initiatives. H.R. Rep. No. 109-233, at 88-

89 (2005). Those predecessor programs afforded state and local governments significant

discretion over their use of program funds. In combining the programs, Congress sought to give

grantees even “more flexibility to spend money for programs that work for them rather than to

impose a ‘one size fits all’ solution” for local policing. Id.

26. The Byrne JAG program’s design promotes local discretion by circumscribing the

Attorney General’s authority to impose federal policy priorities on grantees. The program

requires that the Attorney General “shall allocate” funds, 34 U.S.C. § 10156(d)(2)(A), “in

5

Benjamin Gonzalez et al., The Politics of Refuge: Sanctuary Cities, Crime, and

Undocumented Immigration, 9-10, 18-24, Urb. Aff. Rev. (2017), http://tinyurl.com/y8hb9fnc.

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accordance with” a formula based on population and crime statistics, id. § 10152(a)(1). See id. § 10156(d)(2)(A).
27. Consistent with the nature of formula grants, the Byrne JAG statute limits the Attorney General’s discretion over the program. He does not decide the amount of each grant. Rather, the Attorney General must follow the statutory formula to determine allotments for each state and local government. 34 U.S.C. § 10156. As part of this process, the Attorney General is authorized to “reserve not more than 5 percent” of the funds allocated to the program for specific purposes after a finding that such reservation is “necessary” to address “extraordinary increases in crime” or to “mitigate significant programmatic harm” caused by the formula. Id. § 10157(b). The statute authorizes no other deviations from the prescribed formula.
28. The Attorney General’s authority to define or modify the components of the Byrne JAG application is similarly circumscribed. He may specify the “form” of the application. 34 U.S.C. § 10153(a). He may specify what “data, records, and information (programmatic and financial)” applicants can be “reasonably” required to provide to ensure programmatic and financial integrity. Id. § 10153(a)(4). He can “coordinat[e] with the National Institute of Justice” to develop a mandatory “program assessment component” to measure the success of funded programs. Id. § 10152(c). And he can require applicants to “comply with all provisions of this part and all other applicable Federal laws.” Id. § 10153(a)(5)(D). There is no provision authorizing him to alter the application’s components, or to add new policy requirements.
29. Byrne JAG applications have only one substantive component: A plan indicating how the applicant will use its funds within one or more of eight broadly defined programmatic areas, 34 U.S.C. § 10153(a)(6), ranging from “[l]aw enforcement” to “[d]rug treatment” to “crime victim” support, id. § 10152(a)(1)(A)-(H). An applicant is entitled to receive its Byrne
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JAG allotment so long as it uses funds to advance “any one” of those objectives. Id. §§ 10152(a)(1)-(2), 10153(a)(6)(B).
30. Indeed, federal law prohibits the Department of Justice from using the Byrne JAG program to “exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.” 28 U.S.C. § 10228.
31. Chicago has received Byrne JAG funds every fiscal year between 2005, the year the program began, and 2017. In FY2016, Chicago received $2.33 million through the Byrne JAG program. Chicago received its FY2017 award letter, awarding it $2.2 million, on August 20, 2018 (but, as explained herein, only after litigating for more than a year to enjoin the unlawful immigration-related conditions that the Attorney General imposed on the FY2017 funds).
32. Chicago has used Byrne JAG funds to support projects ranging from critical law enforcement equipment and overtime to community policing outreach and engagement. Since FY2005, for instance, Chicago has spent approximately $33 million in Byrne JAG funds to buy nearly 1,000 police vehicles. Several of those projects have extended across multiple grant years, including the Force for Good program, which began in 2011 and helps not-for-profit organizations meet community needs in neighborhoods experiencing high rates of violent crime, by providing services such as emergency shelter and clothing; youth mentoring and safe, structured activities; and job training and placement. Most recently, Chicago has used Byrne JAG funds to pay for ShotSpotter technology, which facilitates rapid police responses to shooting incidents. Without Byrne JAG funds, Chicago would have to restrict or shut down some or all of these programs, or else divert funds from other policing objectives to sustain them.
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33. Chicago plans to use its FY2018 Byrne JAG funds to increase its Bureau of Detectives’ capacity to clear violent cases and bring shooters to justice. Those capacity-building efforts include a planned investment in technology that will permit forensic analysis of mobile devices; an initiative to digitize hard-copy records and make them searchable; prioritized case and evidence review of homicides, nonfatal shootings, and cold cases to generate new investigative leads; and advanced interview and investigation training for detectives. An additional portion of the Byrne JAG funding will support the Force for Good program.
34. Eleven other local governments, including Cook County, the City of Evanston, and the Village of Skokie, depend on Chicago’s Byrne JAG application for the funds they receive through the program each year. Those subgrantees receive their own Byrne JAG funds through Chicago’s application. III. THE TRUMP ADMINISTRATION TARGETS CHICAGO’S BYRNE JAG
FUNDING A. The Trump Administration Targets So-Called Sanctuary Cities By Executive
Order 35. Despite the soundness of Chicago’s policies—and despite the City’s sovereign right to decide its own law enforcement priorities and strategies—the Trump Administration has singled out Chicago and other so-called “sanctuary” jurisdictions. In his first week in office, President Trump issued Executive Order 13768, which threatened to deny federal grants and take enforcement actions against such jurisdictions. President Trump ordered DHS to publish weekly lists of any municipalities that refused to comply with immigration hold requests, together with lists of any undocumented immigrants arrested—but not necessarily convicted—for any nonimmigration offenses.
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36. This executive order was later enjoined in large part—a ruling later affirmed by

the Ninth Circuit—for violating the constitutional Separation of Powers. City and County of San

Francisco v. Trump, 897 F.3d 1225, 1234-1235 (9th Cir. 2018).

B. The Trump Administration Targets The Byrne JAG Program

37. The Trump Administration next began targeting the Byrne JAG program. For the

FY2017 Byrne JAG application, the Attorney General imposed three conditions on a grantee’s

ability to receive their allotted Byrne JAG funds.

a.

The “notice” condition: The FY2017 awards contained a condition requiring

that, “when a local-government (or local-government-contracted) correctional

facility receives from DHS a formal written request . . . that seeks advance notice

of the scheduled release date and time for a particular alien in such facility, then

such facility will honor such request and—as early as practicable . . . —provide

the required notice to DHS.”

b.

The “access” condition: The FY 2017 awards also contained a condition

requiring that “agents of the United States acting under color of federal law in

fact are given access [to] a local-government (or local-government-contracted)

correctional facility for the purpose of permitting such agents to meet with

individuals who are (or are believed by such agents to be) aliens and to inquire as

to such individuals’ right to be or remain in the United States.”

c.

The “Section 1373 compliance” condition: In addition to the notice and access

conditions, the FY2017 awards contained a requirement that the recipient certify

its compliance with Section 1373.

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38. In August 2017, Chicago sought a preliminary injunction to prevent the Attorney General from imposing those conditions on FY2017 Byrne JAG funds, on grounds that the conditions were unconstitutional, ultra vires, and arbitrary and capricious.
39. The Attorney General defended the notice and access conditions by arguing that they were authorized by 34 U.S.C. § 10102(a)(6), which endows an Assistant Attorney General with the power to “exercise such other 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.” He defended the Section 1373 compliance condition under 34 U.S.C. § 10153(a)(5)(D), which permits the Attorney General to require a “certification” that “the applicant will comply with all provisions of this part and all other applicable Federal laws.” He defended all three conditions by suggesting they were meant to ensure that state and local law enforcement would not impair the law-enforcement activities of the federal government, including those federal activities contemplated by 8 U.S.C. §§ 1226(c), 1231(a)(1)(B), and 1231(a)(4).
40. This Court preliminarily enjoined the notice and access conditions, in large part because the Attorney General “fail[ed] to direct the Court to any textual authority within the Byrne JAG statute itself” to impose the notice and access conditions. City of Chicago v. Sessions, 264 F. Supp. 3d 933, 941 (N.D. Ill. 2017). The Court did not preliminarily enjoin the compliance condition. The Attorney General took an interlocutory appeal from the preliminary injunction order, and the Seventh Circuit affirmed, unanimously holding that the notice and access conditions were ultra vires and unlawful and that the Attorney General’s reading of Section 10102(a)(6) as authorizing those conditions was “contrary to the plain meaning of the statutory language.” City of Chicago v. Sessions, 888 F.3d 272, 284 (7th Cir. 2018).
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41. This Court ultimately granted summary judgment in Chicago’s favor on all three conditions, concluding in July 2018 that each of the notice, access, and Section 1373 compliance conditions was ultra vires and unconstitutional. See Mem. Op. and Order, City of Chicago v. Sessions, No. 1:17-cv-05720 (N.D. Ill.), ECF No. 198, at 58 (attached as Ex. A). On the notice and access conditions, the Court adopted “the same reasons stated in [its] preliminary injunction ruling and the Seventh Circuit’s opinion.” Id. at 36-37. On the Section 1373 compliance condition, the Court concluded that, particularly in light of the Supreme Court’s intervening decision in Murphy v. NCAA, 138 S. Ct. 1461 (2018), Section 1373 violated Tenth Amendment anti-commandeering principles by tying Chicago’s hands in managing city personnel and city policy. Id. at 32-34. Having held Section 1373 unconstitutional, the Court concluded that the Attorney General lacked authority to require compliance with Section 1373 as an “applicable federal law” under the Byrne JAG statute. Id. at 40.
42. This Court’s final judgment declared each of the notice, access, and Section 1373 compliance conditions ultra vires and a violation of the constitutional principle of separation of powers and set the conditions aside under the Administrative Procedure Act as unlawful. See Final Judgment and Order, City of Chicago v. Sessions, No. 1:17-cv-05720 (N.D. Ill.), ECF No. 211, at 2 (attached as Ex. B). It also permanently enjoined the Attorney General from “denying or delaying issuance of any FY 2017 Byrne JAG award insofar as that denial or delay” was based on the notice, access, or compliance condition, and prohibited the Attorney General from “using the Conditions in any FY 2017 Byrne JAG award document, delaying the processing or approval of a recipient’s requests to draw upon the FY 2017 Byrne JAG funds based on the Conditions, and enforcing the Conditions against FY 2017 Byrne JAG recipients, regardless of whether those Conditions appeared in FY 2017 Byrne JAG award documents.” Id. at 3.
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43. During the remedy phase, Chicago expressed concern that the FY2018 Byrne JAG grant would contain the same provisions, and asked the Court to issue an injunction covering future grant awards. The Court declined to do so, but warned that attorney’s fees would likely be appropriate if the Attorney General once again forced Chicago to sue to prevent imposition of the same unlawful conditions.
C. The Justice Department Expresses Concern That Chicago Does Not Comply With Section 1373 But Refuses To Make A Final Determination
44. Because this Court determined that Section 1373 was unconstitutional and thus that the Section 1373 compliance condition was not authorized in the first place, it did not take up the question whether Chicago actually complies with Section 1373. But Chicago has always maintained that it does comply.
45. The Justice Department began requiring Byrne JAG grantees to certify compliance with Section 1373 in FY2016, and Chicago did so at that time. In a May 2016 report by the Department of Justice’s Office of Inspector General, the Department suggested that the Welcoming City Ordinance, which prohibits city employees from sharing immigration status information with federal agents unless “otherwise provided under applicable federal law,” Chicago Municipal Code § 2-173-030, contains “a potential ambiguity” as to its “proper construction” such that the “saving clause” contained in the Ordinance might be unclear.
46. Since that report, Chicago has exchanged multiple letters with the Department of Justice concerning Chicago’s compliance with Section 1373. On April 21, 2017, the Department sent letters to Chicago and eight other jurisdictions, informing Chicago that it was “required to submit documentation … that validates that your jurisdiction is in compliance with 8 U.S.C. § 1373.” Chicago responded in July 2017, explaining that the Ordinance’s “saving clause” in fact “makes clear than an individual’s citizenship or immigration status information will not be
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kept confidential if federal law provides otherwise.” In October 2017, the Department of Justice sent another letter, stating among other things that it had “determined that [Chicago] appears to have laws, policies, or practices that violate 8 U.S.C. § 1373.” The letter was based on the premise that Section 1373 applies not only to the sharing of “information regarding immigration status,” but also information “regarding a person’s custody status or release date.” Chicago sent another response, disagreeing with the Department’s interpretation of the relevant statutory text, but reporting that, “[i]n the interest of resolving this issue,” it had sent written notice to City department heads “instructing them to share with their officers and employees Chicago’s interpretation of the [Welcoming City Ordinance] and explanation of its compliance with Section 1373.” See Letter from Edward Siskel, Corporation Counsel, City of Chicago, to Alan R. Hanson, Acting Assistant Attorney General, Office of Justice Programs, U.S. Dep’t of Justice (October 27, 2017) (attached as Ex. C).
47. The Department of Justice nevertheless sent Chicago another letter in January 2018, announcing that “the Department remains concerned that your jurisdiction’s laws, policies, or practices may violate section 1373, or, at a minimum, that they may be interpreted or applied in a manner consistent with section 1373.” The letter requested that Chicago produce “[a]ll documents reflecting any orders, directives, instructions, or guidance to your law enforcement employees …, that were distributed, produced, and/or in effect during the relevant timeframe, regarding whether and how these employees may, or may not, communicate” with federal agents. Chicago timely responded to the Department’s request on February 23, 2018 by voluntarily providing the Department with copies of responsive documents. In the spirit of transparency, Chicago accompanied that response with an expedited FOIA request for documents related to the Department’s interpretation of Section 1373.
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48. To date, Chicago has neither received a final determination of compliance with Section 1373 nor any documents in response to its FOIA request.
D. The Trump Administration Advances A Radical New Interpretation Of 8 U.S.C. § 1324
49. While the litigation over the FY2017 conditions on the Byrne JAG Program was pending, the Trump Administration sought to weaponize another provision of the U.S. Code against jurisdictions seeking to prioritize local law enforcement over enforcement of civil immigration law.
50. During a January 4, 2018, interview on Fox News, then-Acting Director of U.S. Immigrations and Customs Enforcement Thomas Homan said that he had asked the Department of Justice to “[l]ook into criminal charges for elected officials with sanctuary policies, as they are harboring illegal aliens, according to 8 U.S.C. § 1324.” Kirstjen Nielsen, the Secretary of Homeland Security, confirmed during testimony before the Senate Judiciary Committee on January 16, 2018, that “the Department of Justice is reviewing what avenues may be available” to charge elected officials in so-called sanctuary jurisdictions.
51. In the nearly seventy years since 8 U.S.C. § 1324 was enacted, the federal government has never attempted to prosecute an elected official acting in their official capacity for violation of that statute. For much of this time, cities such as Chicago declined to participate in federal immigration enforcement without any indication that doing so violated any criminal statute. This attempt by the Trump Administration to criminalize the policy choices of local governments represents a significant threat to the ability of cities such as Chicago to enact policies intended to foster public safety.
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E. The FY2018 Byrne JAG Award Documents Contain The Same Unlawful Conditions (Plus Two New Ones)
52. Notwithstanding over a year of litigation before this Court and this Court’s clear rulings invalidating its approach, the Department of Justice’s FY2018 Byrne JAG Local Solicitation and required certifications (attached as Exs. D-G) reflect the Attorney General’s decision to re-impose the FY2017 notice, access, and 1373 conditions, as well as several new conditions similarly designed to impress state and local officers into the service of federal immigration-enforcement priorities.
53. The conditions announced in the FY2018 Local Solicitation appear in FY2018 Byrne JAG award letters issued to date to jurisdictions other than Chicago.
54. Four of the immigration-related conditions announced in the FY2018 solicitation and carried over to each jurisdiction’s award letter are materially identical to the FY2017 Byrne JAG conditions this Court has already held unlawful and set aside. On that basis alone, the Attorney General is precluded from defending the conditions. Therefore, the conditions should be enjoined and Chicago should be awarded fees and costs.
55. The “Section 1373 compliance condition”: The FY2018 award letters issued by the Attorney General require that the “program or activity” funded under the Byrne JAG award comply with 8 U.S.C. § 1373(a) and (b) and that the Chief Legal Officer of the recipient execute a certification (attached as Ex. E) declaring the “program or activity” in compliance with those provisions. This condition is materially identical to the FY2017 Section 1373 compliance condition.
56. The “Section 1644 compliance condition”: The FY2018 award letters issued by the Attorney General require that the “program or activity” funded under the Byrne JAG award comply with 8 U.S.C. § 1644 and that the Chief Legal Officer of the recipient execute a
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certification declaring the “program or activity” in compliance with that provision (attached as Ex. E). This condition is materially identical to the FY2017 Section 1644 compliance condition, because 8 U.S.C. § 1644 proscribes the exact same conduct as 8 U.S.C. § 1373.
57. The “FY2018 notice condition”: The FY2018 award letters issued by the Attorney General require that Byrne JAG recipients “provide—as early as practicable…— advance notice to [federal immigration officials] of the scheduled release date and time for a particular alien, if a State or local government (or government-contracted) correctional facility receives from [a federal immigration authority] a formal written request pursuant to the INA that seeks such advance notice.” The conduct required by this condition is identical to the conduct the Attorney General attempted to require with the FY2017 notice condition.
58. The “FY2018 access condition”: The FY2018 award letters issued by the Attorney General require that Byrne JAG recipients permit “access to any State or local government (or government-contracted) correctional facility by such agents for the purpose [of] ‘interrogat[ing] any alien or person believed to be an alien as to his [or her] right to be or to remain in the United States.’” The conduct required by this condition is identical to the conduct the Attorney General attempted to require with the FY2017 access condition.
59. In addition to these revived conditions, the FY2018 Byrne JAG solicitation announced a new unlawful condition, and an additional mandatory certification, each of which is intended to deny funds from cities like Chicago that seek nothing more than to exercise their right to opt out of participation in federal immigration enforcement. The Attorney General has likewise carried these conditions over to FY2018 award documents.
60. The “harboring” condition: The FY2018 Byrne JAG award letters issued by the Attorney General prohibit grantees from attempting to conceal, harbor, or shield from detection
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any undocumented immigrant by publicly disclosing federal law enforcement information, even where doing so would not violate any statute. The Attorney General purported to justify this condition as being “[c]onsistent with the purposes and objectives of federal law enforcement statutes and federal criminal law.”
61. The “additional certification” condition: In addition to certifying compliance with Section 1373 and 1644, the FY2018 Byrne JAG Local Solicitation requires the Chief Legal Officer of a FY2018 Byrne JAG applicant to execute a “Certification Relating to 8 U.S.C. §§ 1226(a) & (c), 1231 (a), 1324(a), 1357(a), & 1366(1) & (3)” (attached as Ex. F). The award documents require the Chief Executive Officer to execute “Certifications and Assurances by the Chief Executive of the Applicant Government” (attached as Ex. G) that adopts this certification by the Chief Legal Officer. The Chief Legal Officer certification represents that “neither the jurisdiction nor any entity, agency, or official of the jurisdiction has in effect, purports to have in effect, or is subject to or bound by, any law, rule, policy, or practice that would apply to the ‘program or activity’ to be funded … that would (1) impede the exercise by federal officers of authority under 8 U.S.C. § 1357(a); or (2) impede the exercise by federal officers of authority relating to 8 U.S.C. § 1226(a) or (c), 8 U.S.C. § 1231(a), or 8 U.S.C. § 1366(1) or (3).” Ex. F. These conditions have no legal basis.
62. On information and belief, the same conditions are contained in all FY2018 Byrne JAG award documents. In the prior litigation, the Attorney General submitted a sworn declaration from the Acting Assistant Attorney General for the Office of Justice Programs explaining that the FY2017 conditions were “identical” for “each award document being generated within OJP . . . including any such award document that would be generated for the City of Chicago, Illinois.”
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IV. THE UNLAWFUL NEW CONDITIONS WILL INJURE CHICAGO 63. The Trump Administration’s unlawful actions pose a threat of imminent harm to
Chicago. By imposing the unlawful conditions on the Byrne JAG program, the Attorney General seeks to pressure Chicago into abandoning its longstanding public safety priorities, on pain of losing critical formula grant funds that would otherwise support officer safety, community empowerment, and innovative countermeasures in the fight against gun violence. Last year, Chicago had to wait more than a year before receiving its FY2017 Byrne JAG funds. Now, Chicago faces another interminable delay.
64. To date, the Department has refused to finally determine whether Chicago complies with Section 1373 (and therefore also Section 1644). Instead, it has expressed a vague concern that Chicago has some heretofore unidentified policy that contradicts its official interpretation of the Welcoming City Ordinance and put forth an unprincipled and overbroad definition of “immigration status information” that encompasses a detainee’s custody status and release date. Despite refusing to provide clear guidance on what Sections 1373 and 1644 require, the Department continues to insist that Byrne JAG applicants’ chief legal and executive officers execute certifications—under express penalty of “criminal prosecution,” or “civil penalties and administrative remedies for false claims”—that their jurisdictions comply with Sections 1373 and 1644. This uncertainty has clouded the City’s ability to apply for funds.
65. The uncertainty regarding the Department’s interpretation of Section 1373 and 1644 also has given rise to a fear of prosecution or other adverse legal action. In the first week following his inauguration, President Trump ordered the Attorney General to take “appropriate enforcement action against any entity that violates [Section] 1373,” Executive Order No. 13,768 § 9(a), which the Attorney General has interpreted to mean filing civil preemption actions against jurisdictions he believes violate Section 1373. See Opp. Mot. Prelim. Inj., Richmond v.
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Trump, No. 3:17-cv-01535 (N.D. Cal.), ECF No. 16, at 8-9, 22. Carrying out that threat, the Department of Justice sued the State of California based in part on Section 1373 to try to force California to abandon its immigration-related policies. See United States v. State of California, No. 2:18-cv-00490 (E.D. Cal.). Chicago reasonably believes that the Attorney General may pursue similar enforcement litigation against Chicago, particularly given that the Attorney General has singled out Chicago for special opprobrium: In a public speech given shortly after Chicago filed its FY2017 lawsuit against the same conditions, he declared that “requir[ing]” Chicago to “reorder[] [its] law enforcement practice is exactly the point!” of his policies.
66. The additional certification requirement poses the same problems. While Chicago is confident that it does not “impede” the federal government’s exercise of authority under 8 U.S.C. §§ 1226(a) or (c), 1231(a)(4), 1357(a) or 1366(1) or (3), it has well-founded concerns, based on the Trump Administration’s history of targeting Chicago, that the Administration may put forth a new, broad interpretation of those provisions, designed to ensnare Chicago or its officials in a dispute over the validity of those certifications.
67. More fundamentally, complying with the FY2018 conditions would undermine public safety in Chicago. The Welcoming City Ordinance assists effective policing by building trust between law enforcement officers and the immigrant community. Conversely, policing suffers when members of that community, whatever their immigration status, do not feel free to report crimes, assist in investigations, or testify as witnesses. The Attorney General’s insistence that Chicago abandon its existing policies, that Chicago give immigration enforcement agents on-demand access to its detention facilities to investigate potential civil immigration violations, and that Chicago detain individuals solely so that they can be investigated for possible civil
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immigration violations would undermine crucial public trust, cut local law enforcement efforts off at the knees, and make everyone in Chicago less safe.
68. Chicago now faces the prospect of a severe federal incursion on its sovereignty. Chicago could abandon its attempts to preserve the policymaking autonomy afforded it under our federal system, in hopes that the Attorney General award Chicago the funds promised it by Congress. Given the Attorney General’s dogged refusal to award Chicago funds to which it has a plain statutory entitlement, even such a dramatic reversal may not bring Chicago the law enforcement funds it needs. Or Chicago could continue its decades-long focus on policies that further the best interests of its residents and officers but lose out on funds it has long used to fund critical law-enforcement needs. The use of the federal government’s coercive power in this manner causes a deep and irreparable injury to Chicago’s sovereignty, and to our federal system.
69. Moreover, whichever decision Chicago ultimately makes, its residents and police force will be immediately and irreparably harmed. If Chicago submits to the Attorney General’s demands, it will forfeit decades’ worth of trust and goodwill that its police force has built in the communities it serves. And as those decades of experience show, that kind of trust, once lost, is lost forever. Alternatively, if Chicago asserts its right to determine its own policy and refuses to certify compliance with the Department’s new and unlawful conditions, it (and the eleven other jurisdictions that depend on Chicago’s application for their Byrne JAG funds) will forever forfeit the FY2018 Byrne JAG grant monies—monies that are critical to Chicago’s community policing operation and that purchase essential and life-saving equipment for Chicago and its neighboring jurisdictions. Even if Chicago and its neighbors could later obtain those funds, the damage would have already been done in the months or years their police forces and residents will have spent without crucial equipment and services.
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V. THE ATTORNEY GENERAL IS NOW PRECLUDED FROM DEFENDING MOST OF THE FY2018 BYRNE JAG CONDITIONS 70. The Attorney General is precluded from relitigating claims and issues that he lost
in the FY2017 litigation brought by Chicago—namely, the legality of the Section 1373 compliance, Section 1644 compliance, notice, and access conditions on the Byrne JAG program—with regard to the FY2018 Byrne JAG awards or any future Byrne JAG awards. All of the legal requirements for preclusion are met here.
71. The FY2018 versions of those conditions are materially identical to the FY2017 versions this Court has already enjoined as unlawful. The FY2018 Section 1373 and Section 1644 compliance conditions are no different than the FY2017 Section 1373 condition, because Section 1644 proscribes the same conduct as Section 1373. And the FY2018 notice and access conditions, though framed slightly differently, require the same conduct as the FY2017 notice and access conditions—providing 48 hours’ advance notice to federal immigration authorities of the scheduled release date and time of identified individuals and allowing federal officials ondemand access to individuals in Chicago’s custody for purposes of immigration-related interrogation.
72. The validity of the FY2017 Section 1373, notice, and access conditions was not just actually litigated in a prior lawsuit—it was the central issue in the FY2017 litigation.
73. This Court’s final judgment critically depended upon its determination that the FY2017 Section 1373, notice, and access conditions were unlawful. That order set aside each of the three FY2017 conditions based on this Court’s conclusion the Attorney General could not lawfully impose any of those conditions.
74. Finally, the Attorney General was fully represented in the FY2017 litigation by capable lawyers from the Department of Justice.
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COUNT ONE: VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706 (ULTRA VIRES)
75. Chicago incorporates by reference the allegations of the preceding paragraphs. 76. The Department of Justice may exercise only authority conferred by statute. See City of Arlington, Tex. v. FCC, 569 U.S. 290, 297 (2013); see also 5 U.S.C. § 706(2)(C). A. The FY2018 Notice And Access Conditions Are Ultra Vires 77. Notwithstanding this Court’s order setting aside the materially identical FY2017 notice and access conditions, the Attorney General continues to press FY2018 conditions requiring identical conduct. 78. The Court’s prior determination that the notice and access conditions are unlawful, in a lawsuit involving the same parties and the same underlying federal grant program, is conclusive here. The Attorney General is therefore precluded from relitigating the lawfulness of the notice and access conditions. 79. Even as an initial matter, the Attorney General lacks statutory authority to condition Byrne JAG funds on the FY2018 notice and access conditions. Indeed, such authority is at odds with the text, structure, and purpose of the Byrne JAG statute, as this Court and the Seventh Circuit have held. The FY2018 notice and access conditions cannot stand. 80. As a direct and proximate result of those unlawful conditions, Chicago will be forced to accept unlawful and unconstitutional grant conditions or forgo Byrne JAG funds and shut down the programs they support. 81. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that the Attorney General is without authority to impose the FY2018 notice and access conditions on Byrne JAG funds (or materially identical conditions in future grant years),
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an order that those conditions be set aside, and an injunction preventing those conditions from going into effect.
82. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 notice or access conditions).
83. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the FY2018 notice and access conditions on Chicago is not substantially justified given this Court’s order setting aside materially identical conditions the Attorney General attempted to impose on FY2017 Byrne JAG funds.
84. Pursuant to 28 U.S.C. § 2412(b), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the FY2018 notice and access conditions on Chicago notwithstanding this Court’s order setting aside materially identical conditions from FY2017 demonstrates bad faith and an attempt to undermine or avoid this Court’s permanent injunction in Chicago’s FY2017 suit.
B. The Section 1373 And Section 1644 Compliance Conditions Are Ultra Vires 85. The Attorney General also persists in his attempts to impose the Section 1373 and Section 1644 conditions, even in the face of this Court’s decision that Section 1373 is facially unconstitutional and therefore cannot be imposed as an “applicable law” on Byrne JAG applicants. 86. The Court’s prior determination that the Section 1373 compliance condition is unlawful, in a lawsuit involving the same parties and the same underlying federal grant program, is conclusive here as to both the Section 1373 compliance condition and the substantively
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identical Section 1644 compliance condition. The Attorney General is therefore precluded from relitigating the lawfulness of the notice and access conditions.
87. The Attorney General lacks statutory authority to condition Byrne JAG funds on compliance with Section 1373 or Section 1644. The Byrne JAG statute’s requirement that grantees comply with “all other applicable Federal laws” does not confer authority to condition Byrne JAG funding on Section 1373 or Section 1644 compliance, because neither provision is an “applicable” law here. The phrase “all other applicable Federal laws” in the Byrne JAG statute refers to the host of laws that regulate the conduct of federal grant recipients as grant recipients. It does not refer to every section of the U.S. Code that could possibly apply to a state or local government. Neither Section 1373 nor Section 1644 regulate grantees as grantees nor do its terms mention federal grants or funds.
88. Moreover, and as this Court already held with respect to a substantively identical condition in the FY2017 Byrne JAG grant, Section 1373 and Section 1644 are facially unconstitutional because they seek to commandeer state and local officials into the service of federal immigration-enforcement authorities. Because those laws are facially unconstitutional, they are not “applicable laws” available for incorporation into the Byrne JAG program.
89. The Section 1373 and Section 1644 compliance conditions on the FY2018 Byrne JAG grant cannot stand.
90. As a direct and proximate result of these unlawful conditions, Chicago will be forced to accept unlawful and unconstitutional grant conditions or forgo Byrne JAG funds and shut down the programs they support.
91. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that Attorney General is without authority to impose the FY 2018 Section 1373 and
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Section 1644 conditions on Byrne JAG funds (or materially identical conditions in future grant years), an order that those conditions be set aside, and an injunction preventing those conditions from going into effect.
92. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 Section 1373 or Section 1644 conditions).
93. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the FY2018 Section 1373 compliance and Section 1644 compliance conditions on Chicago is not substantially justified given this Court’s order setting aside materially identical conditions the Attorney General attempted to impose on FY2017 Byrne JAG funds.
94. Pursuant to 28 U.S.C. § 2412(b), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the FY2018 Section 1373 compliance and Section 1644 compliance conditions on Chicago notwithstanding this Court’s order setting aside materially identical conditions from FY2017 demonstrates bad faith and an attempt to undermine or avoid this Court’s permanent injunction in Chicago’s FY2017 suit.
C. The Harboring Condition Is Ultra Vires 95. The Attorney General also lacks statutory authority to condition FY2018 Byrne JAG funding on a commitment not to conceal, harbor, or shield from detection undocumented immigrants by disclosing federal law enforcement information.
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96. The Byrne JAG statute allows the Attorney General to require a certification of compliance only with applicable laws. The harboring condition specifically states that it applies even where disclosure of information would not violate federal anti-harboring laws.
97. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that Attorney General is without authority to impose the harboring condition on FY2018 Byrne JAG funds (or materially identical conditions in future grant years), an order that that condition be set aside, and an injunction preventing that condition from going into effect.
98. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the harboring condition).
D. The Additional Certification Requirement Is Ultra Vires 99. The Attorney General also lacks statutory authority to condition Byrne JAG funds on a certification that the applicant has no law that “impedes” the federal government’s exercise of authority under 8 U.S.C. §§ 1226(a) & (c), 1231 (a), 1357(a), or 1366(1) & (3). 100. The phrase “all applicable Federal laws” in the Byrne JAG statute refers to laws that regulate the conduct of federal grant recipients. Sections 1226(a) and (c), 1231(a), 1357(a), and 1366(1) and (3), by their terms, apply to the federal government, not individual cities and states. Those laws are therefore not “applicable” to individual grant recipients making the certifications required for participation in the Byrne JAG program. 101. As a direct and proximate result of these unlawful conditions, Chicago will be forced to accept unlawful and unconstitutional grant conditions or forgo Byrne JAG funds and shut down the programs they support. 102. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that the Attorney General is without authority to impose the additional certification
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requirement on Byrne JAG funds (in FY2018 or any future grant year), an order that the condition be set aside, and an injunction preventing the condition from going into effect.
103. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 additional certification condition).
COUNT TWO: VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706 (SEPARATION OF POWERS)
104. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 105. When an agency acts “contrary to constitutional right, power, privilege, or immunity,” a reviewing court must “hold unlawful and set aside” the challenged action. 5 U.S.C. § 706. 106. The Constitution vests the spending power in Congress, not the President. 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.” In re Aiken Cty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013). 107. Congress in the Byrne JAG statute required the Executive to distribute Byrne JAG funds based on a simple funding formula. Imposing a new condition on the program amounts to refusing to spend money appropriated by Congress unless that condition is satisfied. The FY2018 notice and access conditions, the Section 1373 and Section 1644 compliance conditions, the harboring condition, and the additional certification condition were not imposed by Congress, but rather by the Attorney General. Those conditions therefore amount to improper usurpation of Congress’s spending power by the Executive Branch.
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108. The Court’s prior determination that the Attorney General lacks the statutory authority to impose the notice and access conditions or the Section 1373 compliance condition, in a lawsuit involving the same parties and the same underlying federal grant program, is conclusive here. The Attorney General is therefore precluded from relitigating the issue of his authority to impose the notice and access conditions or the Section 1373 compliance condition and the substantively identical Section 1644 compliance condition.
109. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that the FY2018 notice and access conditions, the Section 1373 and Section 1644 compliance conditions, the harboring condition, and the additional certification condition (as well as any materially identical conditions the Attorney General may impose in future grant years) violate the constitutional separation of powers and arrogate to the Executive power that is reserved to the Legislature, as well as an injunction preventing those conditions from going into effect.
110. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 Section 1373 compliance, Section 1644 compliance, notice, access, harboring, or additional certification conditions).
111. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the FY2018 Section 1373 compliance, Section 1644 compliance, notice, and access conditions on Chicago is not substantially justified given this Court’s order setting aside
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materially identical conditions the Attorney General attempted to impose on FY2017 Byrne JAG funds.
112. Pursuant to 28 U.S.C. § 2412(b), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The Attorney General’s attempt to impose the FY2018 Section 1373 compliance, Section 1644 compliance, notice, and access conditions on Chicago notwithstanding this Court’s order setting aside materially identical conditions from FY2017 demonstrates bad faith and an attempt to undermine or avoid this Court’s permanent injunction in Chicago’s FY2017 suit.
COUNT THREE: VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706 (SPENDING CLAUSE)
113. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 114. In any event, Congress could not have authorized the conditions here because they do not satisfy the additional requirements of the Spending Clause. Accordingly, those requirements must be enjoined. A. The Conditions Are Unconstitutionally Ambiguous 115. Federal restrictions on grants provided to state and local governments must also be articulated “unambiguously” so that the recipient can “voluntarily and knowingly accept[]” Congress’s terms. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 16-17 (1981). 116. All of the FY2018 immigration-related conditions are ambiguous as to what is expected of grant recipients in Chicago’s position, particularly given Chicago’s Welcoming City Ordinance and other relevant policies and practices. The FY2018 notice and access conditions do not provide Chicago sufficient notice of what will be expected of it because they are entirely dependent on the future exercise of discretion by federal agents outside of the Department of Justice. The Section 1373 and Section 1644 compliance conditions are also ambiguous, and the
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Department’s guidance documents and other actions have only added to the confusion. Furthermore, many interpretations of Section 1373 and Section 1644 would raise serious constitutional concerns. The harboring condition is likewise ambiguous. The Trump Administration has offered no guidance on how a municipality’s disclosure of information could constitute “conceal[ing], harbor[ing], or shield[ing] from detection” any individual. Finally, the additional certification condition is also ambiguous. It imposes on the certifying jurisdiction an obligation not to “impede” the federal government’s exercise of its authority under 8 U.S.C. §§ 1226(a) & (c), 1231 (a), 1357(a), or 1366(1) & (3), but nowhere explains what the Department understands “impede” to mean.
B. The Conditions Are Not Germane To The Byrne JAG Program 117. Conditions on spending grants must be “relevant to [the] federal interest” in the particular grant program. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 295 (1958); accord South Dakota v. Dole, 483 U.S. 203, 207-208 & n.3 (1987). This nexus requirement ensures that the federal government does not use spending conditions to regulate state and local governments beyond the contours of the spending program itself. 118. The FY2018 notice and access conditions are not relevant to the federal interest in the Byrne JAG funds Chicago receives. Among other things, information concerning when detainees will be released from lockup and policies respecting access for federal immigration agents bear no relevance to improving the ability of Chicago’s Bureau of Detective to solve violent crimes, the Force for Good Program, or other uses to which Chicago puts Byrne JAG funds. Nor are they relevant to the Byrne JAG program’s larger purposes. 119. The Section 1373 and Section 1644 compliance conditions are also not relevant to the federal interest in the Byrne JAG funds Chicago receives, or to the program’s larger purposes. Information sharing with federal officials regarding an individual’s immigration status
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bears no connection to the replacement vehicles for worn-out police patrol cars, support for the Force for Good program, or the acquisition of new law enforcement equipment.
120. The additional certification condition is also not relevant to the federal interest in the Byrne JAG funds Chicago receives.
121. As a direct and proximate result of these unconstitutional conditions, Chicago will be forced to accept unlawful and unconstitutional grant conditions or forgo Byrne JAG funds and shut down or materially alter the programs they support.
122. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that the FY 2018 notice and access conditions, the Section 1373 and Section 1644 compliance conditions, the Section 1324 condition, and the additional certification condition (as well as any materially identical conditions the Attorney General may impose in future grant years) violate the Spending Clause, as well as an injunction preventing those conditions from going into effect.
123. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 Section 1373 compliance, Section 1644 compliance, notice, access, or additional certification conditions).
COUNT FOUR: COMMANDEERING 124. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 125. As this Court has already declared, in a lawsuit involving the same parties and the same underlying federal grant program, 8 U.S.C. § 1373 is facially unconstitutional. That determination is conclusive here. The Attorney General is therefore precluded from relitigating Section 1373’s constitutionality.
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126. 8 U.S.C. § 1644 is substantively identical to Section 1373. The Attorney General is therefore precluded from litigating Section 1644’s constitutionality as well.
127. And beyond the conclusive import of the prior litigation with regard to Section 1373 and Section 1644, they are plainly unconstitutional under the anticommandeering doctrine. The Tenth Amendment prohibits the federal government from “requir[ing]” state and local governments “to govern according to Congress’s instructions,” New York v. United States, 505 U.S. 144, 162 (1992), or “command[ing] the States’ officers . . . to administer or enforce a federal regulatory program,” Printz v. United States, 521 U.S. 898, 935 (1997). Congress has transgressed the limits of the Tenth Amendment when it “regulat[es] activities undertaken by government entities only,” Ex. A at 21, rather than “evenhandedly regulat[ing] an activity in which both States and private actors engage,” NCAA, 138 S. Ct. at 1478.
128. Sections 1373 and 1644 do just that, by prohibiting state and local governments from engaging in a core aspect of governing: controlling the actions of their own employees and retaining control over local law enforcement policy. Sections 1373 and 1644 are therefore facially unconstitutional and cannot be validly enforced against Chicago or imposed on Byrne JAG recipients as “applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D).
129. As a direct and proximate result of these unconstitutional conditions, Chicago will be forced to accept unlawful and unconstitutional grant conditions or forgo Byrne JAG funds and shut down or materially alter the programs they support.
130. Pursuant to 28 U.S.C. § 2201, Chicago is entitled to a declaration that 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment.
131. Pursuant to 28 U.S.C. § 2201, Chicago is further entitled to a declaration that 8 U.S.C. §§ 1373 and 1644 cannot validly be imposed as conditions on the Byrne JAG program as
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well as an injunction preventing the FY2018 Section 1373 and Section 1644 conditions (or any materially identical conditions the Attorney General may seek to impose in future grant years) from going into effect.
132. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 Section 1373 compliance or Section 1644 compliance conditions).
133. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. Any contention that the Section 1373 and Section 1644 are constitutional is not substantially justified given this Court’s order holding Section 1373 facially unconstitutional.
134. Pursuant to 28 U.S.C. § 2412(b), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. Any contention that that Section 1373 and Section 1644 are constitutional demonstrates bad faith and an attempt to undermine or avoid this Court’s permanent injunction in Chicago’s FY2017 suit.
COUNT FIVE: DECLARATORY JUDGMENT THAT CHICAGO’S WELCOMING CITY ORDINANCE AND IMPLEMENTING POLICIES COMPLY WITH SECTION 1373 AND SECTION 1644 135. Chicago incorporates by reference the allegations of the preceding paragraphs. 136. Where City officials or agents come to possess immigration status information,
Chicago has no policy restricting the sharing of such information contrary to Section 1373 or Section 1644.
137. Section 20 of the Welcoming City Ordinance permits Chicago’s agents and agencies to request or receive information about citizenship or immigration status (from ICE or elsewhere) whenever required by “federal regulation”—which, as Chicago’s Chief Legal Officer
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has explained, “do[es] not restrict the sharing of immigration status information with federal immigration officers.”
138. Section 30 of the Welcoming City Ordinance limits the disclosure of an individual’s citizenship or immigration status information “[e]xcept as otherwise provided by applicable federal law.” In the context of the Welcoming City Ordinance—and, again, as Chicago’s Chief Legal Office has explained—“applicable federal law” includes Sections 1373 and 1644 to whatever extent Sections 1373 and 1644, and any individual federal request made pursuant to those provisions, is a lawful and constitutional exercise of federal authority.
139. Section 42 of the Welcoming City Ordinance (and the Chicago Police Department’s implementing policy, CPD Special Order S06-14-03) does not violate Section 1373 or Section 1644 because the information Chicago’s agents or agencies may not share is information “regarding a person’s custody status or release date.” That information is not “information regarding . . . citizenship or immigration status” covered by Sections 1373 and 1644. See Steinle v. City and County of San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017).
140. Chicago has repeatedly certified its compliance with Section 1373 and explained its reasons for doing so. Those certifications necessarily extend to Section 1644, because Section 1373 and Section 1644 proscribe the same conduct.
141. To date, the Department has not stated whether it accepts Chicago’s prior certifications. While Chicago is confident it complies with both Section 1373 and Section 1644 for the reasons stated above, the Department’s conduct has sown confusion and created the impression that the federal government believes otherwise, notwithstanding Chicago’s legal analysis. Chicago is reluctant to certify compliance with Section 1373 and Section 1644 in its
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FY 2018 Byrne JAG application, which is due imminently, until the Department affirms that the City’s prior certifications are acceptable.
142. Chicago has a credible fear of prosecution or other enforcement action. The Attorney General has made clear that he considers so-called “sanctuary” cities like Chicago a “clear and ongoing threat to public safety” and that “OJP will rely upon this certification as a material representation in any decision to make an award to the applicant entity.” He has also taken the President’s directive to “enforce” Section 1373 as an instruction to file preemption lawsuits against jurisdictions with policies he believes violate Section 1373. See supra ¶ 65. That the Department has sued the State of California over its approach to federal immigration enforcement is a strong indication that the Department has taken the President’s instruction to heart and is willing to pursue legal action against “sanctuary” jurisdictions.
143. Pursuant to 28 U.S.C. § 2201, Chicago is entitled to a declaration that its Welcoming City Ordinance and implementing policies comply with Sections 1373 and 1644. COUNT SIX: DECLARATORY JUDGMENT THAT CHICAGO’S WELCOMING CITY
ORDINANCE AND IMPLEMENTING POLICIES COMPLY WITH 8 U.S.C. § 1324 144. Chicago incorporates by reference the allegations of the preceding paragraphs. 145. The Welcoming City Ordinance prohibits Chicago’s agents and agencies from
arresting, detaining, or continuing to detain an individual based solely on their immigration status unless required to do so by applicable law. These provisions expressly require compliance with federal laws and regulations, including 8 U.S.C. § 1324.
146. The Ordinance also restricts the extent to which local officials may be compelled to participate in federal immigration enforcement. Nothing in 8 U.S.C. § 1324 creates an affirmative requirement for local governments to enforce immigration law or to assist federal authorities in enforcing immigration law.
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147. While Chicago is confident it complies with Section 1324, the Attorney General’s conduct has sown confusion and created the impression that the federal government believes otherwise, notwithstanding Chicago’s own legal analysis.
148. High-ranking Trump Administration officials have threated to prosecute local officials and governments for violation of Section 1324, without providing any meaningful guidance on how to determine compliance.
149. Pursuant to 28 U.S.C. § 2201, Chicago is entitled to a declaration that it complies with Section 1324.
COUNT SEVEN: VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706 (FAILURE TO USE NOTICE AND COMMENT PROCEDURES; ARBITRARY
AND CAPRICIOUS) 150. Chicago incorporates by reference the allegations of the preceding paragraphs. 151. In addition to lacking statutory and constitutional authority to impose the immigration-related conditions on the Byrne JAG grant, the conditions are arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 706. 152. The FY 2018 immigration-related conditions are arbitrary and capricious because the Department failed to rely on reasoned decisionmaking and, to the extent it cited reasons at all, those reasons are contradicted by the evidence before the agency. “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider . . . .” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Here, among other things, the Department proposes to evaluate grant applicants on the basis of their immigration policies rather than on their compliance with expressly enumerated statutory application requirements. See 34 U.S.C. § 10153(a)(1)-(5). It also “entirely failed to consider an important aspect of the problem,” State Farm, 463 U.S. at 43, including but not limited to the policing challenges created by alienating and inducing fear in
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immigrant communities. It also “offered an explanation for its decision that runs counter to the evidence before the agency,” which likewise is arbitrary and capricious, id., including the evidence submitted by nine jurisdictions in their Section 1373 certification letters indicating that Welcoming City-style policies promote rather than detract from effective policing. Indeed, when the Attorney General referred to one study in the press that showed that such policies lead to higher crime, the study’s own authors said he was misrepresenting their work.
153. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. §§ 1651 and 2201, Chicago is entitled to a declaration that the immigration-related conditions for the FY2018 Byrne JAG funds are in violation of the APA as well as an injunction preventing those conditions from going into effect.
PRAYER FOR RELIEF WHEREFORE, Plaintiff prays this Court: a) Declare unlawful and set aside the immigration-related conditions included in the FY2018 Byrne JAG solicitation and awards on a program-wide basis; b) Declare that 8 U.S.C. §§ 1373 and 1644 violate anti-commandeering principles and are therefore facially unconstitutional under the Tenth Amendment; c) Declare that Chicago’s Welcoming City Ordinance and implementing policies comply with 8 U.S.C. § 1373, 8 U.S.C. § 1644, and 8 U.S.C. § 1324; d) Enjoin the Attorney General from enforcing his proposed immigration-related conditions on FY 2018 Byrne JAG funding on a program-wide basis; e) Enjoin the Attorney General from imposing substantively similar conditions in future grant years; f) Enjoin the Attorney General from denying or delaying issuance of any Byrne JAG award and from denying or delaying release of any Byrne JAG funds (in FY2018 or future grant years) insofar as the denial or delay is based on the challenged conditions;
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g) Order the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award immediately;
h) Award attorney’s fees and costs to Chicago to the fullest extent permissible by law;
i) Retain jurisdiction to monitor the Attorney General’s compliance with this Court’s judgment; and
j) Grant such other relief as this Court may deem proper.

October 12, 2018.

Respectfully Submitted,
By /s/ Edward N. Siskel EDWARD N. SISKEL Corporation Counsel of the City of Chicago

JAMIE S. GORELICK (pro hac vice pending) DAVID W. OGDEN (pro hac vice pending) ARI HOLTZBLATT (pro hac vice pending) ARI SAVITZKY (pro hac vice pending) MOLLY M. JENNINGS (pro hac vice pending) JUSTIN BAXENBERG (pro hac vice forthcoming) ARI EVANS (pro hac vice forthcoming) WILMER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
DEBO P. ADEGBILE (pro hac vice pending) WILMER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800

JUSTIN A. HOUPPERT Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 121 N. LaSalle Street, Suite 600 Chicago, IL 60602 (312) 744-0220
ANDREW W. WORSECK Chief Assistant Corporation Counsel 30 N. LaSalle Street, Suite 1230 Chicago, IL 60602 (312) 744-0220 andrew.worseck@cityofchicago.org
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON TAL CHAIKEN LAURA KLEINMAN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO, Plaintiff,
v. ATTORNEY GENERAL OF THE UNITED STATES,
Defendant.

Civil Action No. 1:18-cv-6859

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Plaintiff the City of Chicago hereby alleges as follows: INTRODUCTION 1. Chicago brings this action to enjoin the Attorney General of the United States
from yet again imposing sweeping immigration policy conditions on the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program, a formula grant that has for years provided crucial support for law enforcement in Chicago and other cities.
2. The challenged conditions are unauthorized by Congress and ultra vires, and violate federalism principles. They are an unlawful attempt to punish Chicago for prioritizing public safety for all Chicagoans instead of yielding to federal dictates. In fact, this Court struck down many of the conditions already, issuing a permanent injunction just months ago preventing the conditions from being applied to last year’s Byrne JAG grants. But despite the Court’s clear ruling that the conditions are unlawful, and its clear warning that re-issuing them could result in an award of attorney’s fees against the federal government, the Attorney General purports to
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impose them again on grants for FY2018. This renewed attempt to conscript local police to serve federal policy contravenes the Constitution and federal statutes alike. Just like the FY2017 conditions, the FY2018 conditions are unlawful on their face and should be set aside.
3. The conditions are also unlawful as applied to Chicago, because they were imposed on Chicago’s award by an official who is unlawfully occupying the Office of the Attorney General. Since former Attorney General Jefferson Beauregard Sessions III’s resignation on November 7, 2018, Matthew Whitaker, Mr. Sessions’ chief of staff, has purported to assume the duties of the office of the Attorney General at the direction of the President. Mr. Whitaker’s appointment as acting Attorney General violates federal law and the Appointments Clause. Chicago received an award letter for its FY2018 Byrne JAG grant on November 20, 2018—thirteen days after Mr. Whitaker began acting as Attorney General. The award notification—issued under the authority of the Attorney General—purported to impose the challenged conditions on Chicago’s receipt of Byrne JAG grant funds. In addition to the problem that the challenged conditions are not authorized by Congress and therefore ultra vires regardless of who heads the Department of Justice, Mr. Whitaker may not permissibly impose them on Chicago because he may not lawfully exercise the powers of the Office of the Attorney General.
BACKGROUND 4. Since the 1980s, Chicago has adhered to a “Welcoming City” policy that prioritizes local crimefighting and community engagement, rather than federal civil immigration enforcement. That policy promotes cooperation between local law enforcement and the diverse immigrant communities that have long flourished in Chicago. For many years, Chicago’s Welcoming City policy has been no obstacle to its receipt of law enforcement funds under the Byrne JAG formula grant program.
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5. Despite that long history, last year, Attorney General Sessions tried to use the Byrne JAG program to gut Chicago’s Welcoming City policy and others like it. In July 2017, the Department of Justice released the FY2017 solicitation for Byrne JAG funding. The solicitation informed grant applicants that they would be expected to comply with three immigration-related grant conditions. Those conditions would have required Chicago (1) to detain its own residents and others at federal immigration officials’ request, in order to give the federal government a 48-hour notice window prior to an arrestee’s release (the “notice condition”); (2) to give federal immigration officials unlimited access to local police stations and law enforcement facilities in order to interrogate any suspected non-citizen held there, effectively federalizing all of the City’s detention facilities (the “access condition”); and (3) to certify compliance with 8 U.S.C. § 1373, a federal statute that bars local governments from restricting their employees from sharing citizenship and immigration status information with federal immigration authorities (the “Section 1373 compliance condition”).
6. Chicago sued, and this Court (Leinenweber, J.) held the three conditions unconstitutional and ultra vires and set them aside. The Court first issued a preliminary injunction against the notice and access conditions that was affirmed by the Seventh Circuit. Then, in July 2018, the Court permanently enjoined all three conditions for FY2017. In its decision on the permanent injunction, the Court held that the notice and access conditions were unlawful because, consistent with the Seventh Circuit’s ruling, no statute authorized the Attorney General to impose discretionary policy conditions on the Byrne JAG formula grant program, and thus his attempt to do so anyway—to usurp Congress’s legislative authority by rewriting basic aspects of the Byrne JAG program—violated the constitutional Separation of Powers. The Court also held that the Section 1373 compliance condition was unlawful because Section 1373 itself is
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facially unconstitutional under the Tenth Amendment anti-commandeering doctrine. In addition, the Court ordered the Attorney General to issue Chicago’s FY2017 award and to release Chicago’s FY2017 award funds no later than when the Attorney General issued awards and released funds for any other grantee. The Court also made clear that it would not tolerate any attempt by the Attorney General to circumvent its ruling by re-imposing the conditions in FY2018. If the Attorney General re-imposed the conditions, the Court noted, Chicago’s “lawyers would get paid.”
7. In the face of those rulings, Attorney General Sessions once again attempted to press local law enforcement officers into the service of the federal immigration authorities by imposing sweeping policy conditions on Byrne JAG formula grant funds—this time, as a condition on FY2018 funds. Those conditions are unlawful both facially and as applied to Chicago.
8. In the FY2018 Byrne JAG solicitation, the Department of Justice specifically noted that it would issue awards by September 30, 2018. In early October 2018, the Department began releasing FY2018 Byrne JAG award letters. By the time Chicago filed its initial complaint on October 12, 2018, the Department had issued 752 FY2018 local awards, totaling almost $59 million—70% of the local funding available for FY2018, covering over 65% of the eligible jurisdictions. But notwithstanding this Court’s order not to delay Chicago’s FY2017 award, the Department did not issue Chicago’s FY2018 award at the same time as the awards for the other 752 jurisdictions.
9. Instead, Chicago was forced to file suit to prompt action on its FY2018 Byrne JAG application. Only after Chicago filed this lawsuit did the Department finally issue
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Chicago’s FY2018 award on November 20, 2018, two months after the Department began issuing awards to hundreds of other jurisdictions.
10. Four of the conditions announced in the FY2018 solicitation and included in Chicago’s FY2018 Byrne JAG award are materially identical to the FY2017 Byrne JAG conditions this Court has already set aside as unlawful. Specifically, the Department once again required Chicago and its subgrantees, as well as all other Byrne JAG recipients, to: (1) comply with 8 U.S.C. § 1373, which this Court already held facially unconstitutional; (2) comply with 8 U.S.C. § 1644, which prohibits the same conduct as Section 1373 and is thus unconstitutional for the same reason; (3) provide 48 hours’ advance notice to federal immigration authorities, “where feasible” and when requested, before releasing an alien from custody, just like the notice condition that was already set aside as unlawful by this Court; and (4) provide federal authorities with “access to any correctional facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his right to be or remain in the United States,” just like the access condition already set aside by this Court.
11. On or about November 2, 2018—weeks after Chicago filed this lawsuit—the Department posted a separate “Special Notice” on its website stating that the Department will not “use or enforce” these conditions against Chicago while this litigation is pending. The Notice, however, does not formally withdraw the conditions and expressly purports to reserve the Department’s right to impose the conditions at a later date.
12. Beyond attempting to resuscitate the conditions that this Court already held unlawful, the Attorney General also added a new unlawful condition requiring Chicago and other cities not to publicly disclose federal law enforcement information in an attempt to conceal, harbor, or shield from detection fugitives from justice or undocumented immigrants, even where
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such disclosure would not violate the law. This vague and sweeping new condition would chill City officials from publicly criticizing controversial federal immigration enforcement strategies, such as the targeting of noncitizens at courthouses or other sensitive locations.
13. Neither the Byrne JAG statute nor any other statute allows the Attorney General to impose conditions on Byrne JAG formula grant funds. Indeed, most of the conditions imposed on the FY2018 Byrne JAG program were already held unlawful by this Court in the litigation over the FY2017 Byrne JAG program, and Chicago is accordingly entitled to attorney’s fees and costs because the unreasonable decision to impose unlawful conditions has forced Chicago to prosecute this action to once again obtain an injunction against them.
14. The law has not changed since this Court last ruled: The Federal Executive may not arrogate power that the Constitution reserves to Congress on the one hand, or to state and local governments on the other. Yet the imposition on the Byrne JAG formula grant program of policy conditions that were never approved by Congress does just that. The conditions would also federalize local jails, mandate warrantless detentions for civil infractions, sow fear in local immigrant communities, undermine local law, and make the people of Chicago less safe.
15. The new conditions are just as harmful as those struck down by this Court, and in precisely the same ways. They threaten local policies that foster crucial trust between police and immigrant communities, on pain of denying Chicago crucial funds that provide lifesaving equipment to Chicago police officers and critical services to Chicago residents, in the face of this Court’s explicit ruling last year that these conditions are unlawful and that the harms to Chicago are irreparable and cannot be remedied by later payment of the funds at issue.
16. The conditions additionally are unlawful as applied to Chicago because during the period between the filing of the initial complaint and the issuance of Chicago’s Byrne JAG
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award, Attorney General Sessions resigned, and the President unlawfully directed Mr. Whitaker to assume the duties of the Attorney General. Mr. Whitaker lacks the statutory and constitutional authority to impose these conditions—or any other conditions—on Chicago’s Byrne JAG grant.
17. This Court should order declaratory and corresponding injunctive relief confirming that the challenged conditions are unlawful and ultra vires and setting those conditions aside pursuant to the Administrative Procedure Act (“APA”). In order to prevent an endless cycle of litigation, in which the Attorney General unlawfully withholds Chicago’s grant funds each year until Chicago sues and the Court intervenes, that relief should cover FY2018 and all future grant years. The Attorney General should be ordered to pay Chicago the City’s attorney’s fees and costs incurred in relitigating conditions previously enjoined by this Court.
18. This Court should also order declaratory and corresponding injunctive relief confirming that Mr. Whitaker cannot lawfully exercise the duties of the office of the Attorney General and that such duties instead must be exercised by Deputy Attorney General Rod J. Rosenstein unless and until another proper appointment is made.
PARTIES 19. Plaintiff Chicago is a municipal corporation and home rule unit organized and existing under the constitution and laws of the State of Illinois. Chicago is the third largest city in the Nation, and is home to almost 3 million residents, including numerous immigrants. 20. The Attorney General of the United States is the federal official in charge of the Department of Justice, which took and threatens to take the actions at issue in this lawsuit. The Attorney General of the United States is also the federal official that the Byrne JAG statute directs to administer the Byrne JAG program. At all relevant times prior to November 7, 2018, the Attorney General was Jefferson Beauregard Sessions III. Since November 7, 2018, Matthew Whitaker purports to exercise the duties of the office of the Attorney General of the United
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States and claims to be the federal official in charge of the Department of Justice, pursuant to an order of the President to that effect. At the time of that order, Mr. Whitaker was not serving in a Senate-confirmed role.1
JURISDICTION AND VENUE 21. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1346. The Court is authorized to issue the relief sought here under the Administrative Procedure Act, 5 U.S.C. §§ 702, 705, 706, the All Writs Act, 28 U.S.C. § 1651, the mandamus statute, 28 U.S.C. § 1361, the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, and the United States Constitution. 22. Venue is proper in the Northern District of Illinois under 28 U.S.C. § 1391(e)(1) because substantial events giving rise to this action occurred therein and because Chicago resides therein and no real property is involved in this action.
FACTUAL ALLEGATIONS I. CHICAGO PRIORITIZES LOCAL CRIMEFIGHTING UNDER ITS
WELCOMING CITY POLICY 23. Chicago is a metropolis of almost 3 million that has attracted migrants and immigrants of every race, nationality, and creed for nearly two centuries. Chicago’s diverse population requires a public safety strategy that respects all the City’s residents. One aspect of that strategy—the Welcoming City Ordinance—has developed over the past few decades.

1

In light of Attorney General Sessions’s departure from office, his successor is

automatically substituted in the caption of this official capacity action under the Federal Rules.

See Fed. R. Civ. P. 25 (d). However, the identity of Mr. Sessions’s successor—and more

specifically, the purported installation of Matthew Whitaker as Acting Attorney General—is

contested, for the reasons noted herein. For ease of reference, Chicago has restyled this action as

Chicago v. Attorney General of the United States. See Fed. R. Civ. P. 17(d) (“A public officer

who sues or is sued in an official capacity may be designated by official title rather than by

name.”).

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24. The first formal iteration of the policy was announced by then-Mayor Harold Washington in a 1985 Executive Order that provided that City officials would not “request information about or otherwise investigate or assist in the investigation of the citizenship or residency status of any person” unless required by other law to do so. Mayor Richard M. Daley reiterated this policy upon taking office in April 1989.
25. In 2006, the Chicago City Council unanimously incorporated the policy into the City’s Municipal Code by enacting the Welcoming City Ordinance. Among other things, the Council cited its concern that local enforcement of federal immigration infractions would “cause a chilling effect on crime prevention and solving if both witnesses and victims are called upon to weigh a need to cooperate with local authorities against a fear of deportation, thereby undermining long-standing efforts to engender trust and cooperation between law enforcement officials and immigrant communities.” Like the executive orders that preceded it, the 2006 Ordinance prohibited City “agent[s]” and “agenc[ies]” from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or residency status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.” It also barred disclosure of “information regarding the citizenship or residency status of any person unless required to do so by legal process . . . .”
26. In 2012, Mayor Rahm Emmanuel and the Chicago City Council expanded the Welcoming City Ordinance to address increasing federal requests to detain individuals suspected of immigration-related offenses (also known as “immigration holds”) issued by U.S. Immigration and Customs Enforcement (“ICE”). The expanded Welcoming City Ordinance provides that Chicago will comply with an immigration hold only when it has an independent
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reason to believe that the subject poses a threat to public safety, such as if they have an outstanding criminal warrant, or have been identified as a gang member.
27. The 2012 Welcoming City Ordinance reflects the City Council’s findings that (1) “the cooperation of all persons, both documented citizens and those without documentation status, is essential to achieve the City’s goals of protecting life and property, preventing crime and resolving problems,” (2) “assistance from a person, whether documented or not, who is a victim of, or a witness to, a crime is important to promoting the safety of all [of the City’s] residents,” and (3) “[t]he cooperation of the City’s immigrant communities is essential to prevent and solve crimes and maintain public order, safety and security in the entire City.” Chicago Municipal Code § 2-173-005.
28. The current Welcoming City Ordinance, codified as Chapter 2-173 of the Chicago Municipal Code, and the Chicago Police Department’s implementing policy, Special Order S0614-03, contain several key prohibitions relevant to this lawsuit.
a. Subject to certain exceptions for certain criminal suspects and gang members,2 Section 2-173-042 prohibits City “agent[s]” or “agenc[ies]” from “arrest[ing], detain[ing] or continu[ing] to detain a person solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation,” or doing so “based upon an immigration detainer, when such immigration detainer is based solely on a violation of a civil immigration law.”

2

Specifically, and as noted above, the Section 2-173-042 restrictions do not apply if the

subject of the ICE investigation “(1) has an outstanding criminal warrant; (2) has been convicted

of a felony in any court of competent jurisdiction; (3) is a defendant in a criminal case in any

court of competent jurisdiction where a judgment has not been entered and a felony charge is

pending; or (4) has been identified as a known gang member.”

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b. Subject to the same exceptions, as well as an exception for “legitimate law enforcement purpose[s] . . . unrelated to the enforcement of a civil immigration law,” Section 2-173-042 also prohibits City “agent[s]” or “agenc[ies]” from, “while on duty, expend[ing] their time responding to ICE inquiries or communicating with ICE regarding a person’s custody status or release date,” or from “permit[ting] ICE agents access to a person being detained by, or in the custody of, the agency or agent” or “permit[ting] ICE agents use of agency facilities for investigative interviews or other investigative purpose.”
c. The prohibitions of Section 2-173-042 are implemented by Chicago Police Department (“CPD”) Special Order S06-14-03, which contains the same prohibitions, subject to the same exceptions, as Section 2-173-042.
d. Section 2-173-020 prohibits City “agent[s]” or “agenc[ies]” from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.”
e. Section 2-173-030 prohibits City “agent[s]” or “agenc[ies]” from “disclos[ing] information regarding the citizenship or immigration status of any person” unless “otherwise provided under applicable federal law,” the City is “required to do so by legal process,” or “such disclosure has been authorized in writing by the individual to whom such information pertains.”
29. Chicago’s official interpretation of the Welcoming City Ordinance—which was expressly communicated to all City Departments in October 2017—is that the Welcoming City
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Ordinance is not intended to prohibit or restrict any Chicago entity or official from sending to or receiving from federal immigration authorities information concerning an individual’s immigration status. Nor is it intended to enable the City to harbor undocumented individuals. It is instead intended to prevent Chicago and its police officers from themselves enforcing federal immigration law.
30. Chicago’s Welcoming City policy plays a vital role in strengthening the relationship between Chicago’s government, its police force, and its immigrant communities. This relationship is built city block by city block, and it is essential that Chicago’s police officers have the flexibility they need to engage the immigrant communities in their crime-fighting initiatives without projecting a constant threat of deportation. Social science research has consistently shown that policies like the City’s Welcoming City policy are sound means of building trust with immigrant communities and reducing crime. One recent review of relevant literature concluded that “existing evidence supports the expansion of limited cooperation policies” like Chicago’s Welcoming City Ordinance.3 Another recent study found that “crime is statistically significantly lower in sanctuary counties compared to nonsanctuary counties . . . controlling for population characteristics.”4 That conclusion is consistent with the lived experience of untold police officers; as a broad coalition of police chiefs explained, “build[ing] trusting and supportive relations with immigrant communities . . . is essential to reducing crime and helping victims.”5 By contrast, the idea that policies like Chicago’s encourage crime is a

3

Daniel E. Martinez, et al., Providing Sanctuary or Fostering Crime? A Review of the

Research on “Sanctuary Cities” and Crime, Sociology Compass (Oct. 7, 2017),

https://tinyurl.com/ybt2fyzv.

4

E.g., Tom K. Wong, Center for American Progress, The Effects of Sanctuary Policies on

Crime and the Economy 6 (2017), http://tinyurl.com/y75lsykd (emphasis added).

5

Press Release, Major Cities Chiefs Ass’n, U.S. Mayors, Police Chiefs Concerned with

Sanctuary Cities Executive Order (Jan. 25, 2017), http://tinyurl.com/y8zqhypw.

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“[m]yth”: “[S]tudies have found no support for the idea that immigrants are responsible for more crime” or that “sanctuary policies lead to increased crime.”6
31. Meanwhile, the perception that Chicago’s policies provide amnesty or “sanctuary” to violent criminals is also false. As the Seventh Circuit recognized, Chicago’s policy is designed to avoid local participation in federal immigration enforcement but “does not interfere in any way with the federal government’s lawful pursuit of its civil immigration activities, and presence in such localities will not immunize anyone to the reach of the federal government. The federal government can and does freely operate in ‘sanctuary’ localities.” City of Chicago v. Sessions, 888 F.3d 272, 281 (7th Cir. 2018). Moreover, Chicago makes exceptions to this general non-participation policy for individuals most likely to present a threat to the community, such as those with an outstanding criminal warrant and those who are known gang members. MCC § 2-173-042 (enumerating exceptions); CPD Special Order S06-014-03 (same). II. THE BYRNE JAG PROGRAM, A NON-DISCRETIONARY FORMULA GRANT
PROGRAM, PROVIDES LAW ENFORCEMENT FUNDING FOR CHICAGO 32. Congress created the current Byrne JAG program in 2005 by merging two funding programs for state and local criminal justice initiatives. H.R. Rep. No. 109-233, at 8889 (2005). Those predecessor programs afforded state and local governments significant discretion over their use of program funds. In combining the programs, Congress sought to give grantees even “more flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution” for local policing. Id. 33. The Byrne JAG program’s design promotes local discretion by circumscribing the Attorney General’s authority to impose federal policy priorities on grantees. The program

6

Benjamin Gonzalez et al., The Politics of Refuge: Sanctuary Cities, Crime, and

Undocumented Immigration, 9-10, 18-24, Urb. Aff. Rev. (2017), http://tinyurl.com/y8hb9fnc.

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requires that the Attorney General “shall allocate” funds, 34 U.S.C. § 10156(d)(2)(A), “in accordance with” a formula based on population and crime statistics, id. § 10152(a)(1). See id. § 10156(d)(2)(A).
34. Consistent with the nature of formula grants, the Byrne JAG statute limits the Attorney General’s discretion over the program. He does not decide the amount of each grant. Rather, the Attorney General must follow the statutory formula to determine allotments for each state and local government. 34 U.S.C. § 10156. As part of this process, the Attorney General is authorized to “reserve not more than 5 percent” of the funds allocated to the program for specific purposes after a finding that such reservation is “necessary” to address “extraordinary increases in crime” or to “mitigate significant programmatic harm” caused by the formula. Id. § 10157(b). The statute authorizes no other deviations from the prescribed formula.
35. The Attorney General’s authority to define or modify the components of the Byrne JAG application is similarly circumscribed. He may specify the “form” of the application. 34 U.S.C. § 10153(a). He may specify what “data, records, and information (programmatic and financial)” applicants can be “reasonably” required to provide to ensure programmatic and financial integrity. Id. § 10153(a)(4). He can “coordinat[e] with the National Institute of Justice” to develop a mandatory “program assessment component” to measure the success of funded programs. Id. § 10152(c). And he can require applicants to “comply with all provisions of this part and all other applicable Federal laws.” Id. § 10153(a)(5)(D). There is no provision authorizing him to alter the application’s components, or to add new policy requirements.
36. Byrne JAG applications have only one substantive component: A plan indicating how the applicant will use its funds within one or more of eight broadly defined programmatic areas, 34 U.S.C. § 10153(a)(6), ranging from “[l]aw enforcement” to “[d]rug treatment” to
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“crime victim” support, id. § 10152(a)(1)(A)-(H). An applicant is entitled to receive its Byrne JAG allotment so long as it uses funds to advance “any one” of those objectives. Id. §§ 10152(a)(1)-(2), 10153(a)(6)(B).
37. Indeed, federal law prohibits the Department of Justice from using the Byrne JAG program to “exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.” 28 U.S.C. § 10228.
38. Chicago has received Byrne JAG funds every fiscal year between 2005, the year the program began, and 2017. In FY2016, Chicago received $2.33 million through the Byrne JAG program. Chicago received its FY2017 award letter, awarding it $2.2 million, on August 20, 2018 (but, as explained herein, only after litigating for more than a year to enjoin the immigration-related conditions that Attorney General Sessions unlawfully sought to impose on the FY2017 funds).
39. Chicago has used Byrne JAG funds to support projects ranging from critical law enforcement equipment and overtime to community policing outreach and engagement. Since FY2005, for instance, Chicago has spent approximately $33 million in Byrne JAG funds to buy nearly 1,000 police vehicles. Several of those projects have extended across multiple grant years, including the Force for Good program, which began in 2011 and helps not-for-profit organizations meet community needs in neighborhoods experiencing high rates of violent crime, by providing services such as emergency shelter and clothing; youth mentoring and safe, structured activities; and job training and placement. Most recently, Chicago has used Byrne JAG funds to pay for ShotSpotter technology, which facilitates rapid police responses to shooting incidents. Without Byrne JAG funds, Chicago would have to restrict or shut down some or all of these programs, or else divert funds from other policing objectives to sustain them.
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40. Chicago plans to use its FY2018 Byrne JAG funds to increase its Bureau of Detectives’ capacity to clear violent cases and bring shooters to justice. Those capacity-building efforts include a planned investment in technology that will permit forensic analysis of mobile devices; an initiative to digitize hard-copy records and make them searchable; prioritized case and evidence review of homicides, nonfatal shootings, and cold cases to generate new investigative leads; and advanced interview and investigation training for detectives. An additional portion of the Byrne JAG funding will support the Force for Good program.
41. Eleven other local governments, including Cook County, the City of Evanston, and the Village of Skokie, depend on Chicago’s Byrne JAG application for the funds they receive through the program each year. Those subgrantees receive their own Byrne JAG funds through Chicago’s application. III. THE ATTORNEY GENERAL TARGETS CHICAGO’S BYRNE JAG FUNDING
A. The Trump Administration And Attorne y Ge ne ral Se ssions Targe t So-Called Sanctuary Cities
42. Despite the soundness of Chicago’s policies—and despite the City’s sovereign right to decide its own law enforcement priorities and strategies—the Trump Administration has singled out Chicago and other so-called “sanctuary” jurisdictions. In his first week in office, President Trump issued Executive Order 13768, which threatened to deny federal grants and take enforcement actions against such jurisdictions. President Trump ordered DHS to publish weekly lists of any municipalities that refused to comply with immigration hold requests, together with lists of any undocumented immigrants arrested—but not necessarily convicted—for any nonimmigration offenses.
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43. This executive order was later enjoined in large part—a ruling later affirmed by the Ninth Circuit—for violating the constitutional Separation of Powers. City and County of San Francisco v. Trump, 897 F.3d 1225, 1234-1235 (9th Cir. 2018).
44. From the early days of the Trump Administration, former Attorney General Sessions personally led the charge against so-called “sanctuary” cities and focused special attention and ire on Chicago. Less than two months into his tenure, Attorney General Sessions, without any factual basis, labeled so-called sanctuary jurisdictions a “clear and ongoing threat to public safety.”7 He continued with this rhetoric in subsequent months, asserting that “[s]anctuary cities put the lives and well-being of their residents at risk” and “give sanctuary to criminals, not to law-abiding Americans.”8 And over the objection of career attorneys, he personally pushed the Department of Justice to develop policies that would target so-called sanctuary cities.9
45. Attorney General Sessions singled out Chicago for special opprobrium. The very same day that Chicago filed suit to challenge the unlawful FY2017 conditions, Attorney General Sessions declared that “[t]o a degree perhaps unsurpassed by any other jurisdiction, the political leadership of Chicago has chosen deliberately and intentionally to adopt a policy that obstructs

7

Press Release, U.S. Dep’t of Justice, Statement by Attorney General Jeff Sessions on the

U.S. Immigration and Customs Enforcement Declined Detainer Outcome Report (Mar. 20,

2017), http://tinyurl.com/ybrrnf8g.

8

Press Release, U.S. Dep’t of Justice, Department of Justice Reviewing Letters from Ten

Potential Sanctuary Jurisdictions (July 6, 2017), http://tinyurl.com/ybdhf7vy.

9

See Katie Benner, Justice Dept. Rank-and-File Tell of Discontent Over Sessions’s

Approach, NY Times (October 19, 2018), https://tinyurl.com/yd6trvzv (describing one instance

in which former Attorney General Sessions “directly questioned a career lawyer” at the

Department of Justice who expressed concern about the legal grounds for pursuing a particular

anti-sanctuary city policy).

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this country’s lawful immigration system.” 10 He vowed to deny Chicago grant dollars unless it complied with the conditions.11 And he returned to this same theme again and again in speeches across the country. In remarks in Miami in August 2017, he described Chicago’s “‘sanctuary’ policies” as a “sad example” of a supposed breakdown in the “respect for the rule of law.”12 And he asserted that “requir[ing]” Chicago to “reorder[] [its] law enforcement practice is exactly the point!” of his policies.13
46. Attorney General Sessions’ public criticism of so-called “sanctuary” cities continued even in the face of numerous setbacks in federal court. Even after this Court and others had enjoined his unlawful attempts to target those jurisdictions, his preoccupation with jurisdictions like Chicago remained unbroken. In June 2018, he declared that “[s]anctuary policies are terribly wrong” and vowed to “keep fighting” notwithstanding lawsuits from “sanctuary cities like … Chicago” that challenged the imposition of conditions on the Byrne JAG program.14 A few weeks later, in a speech in California, Attorney General Sessions even suggested (with no evidence whatsoever) that sanctuary policies may lead to the “release [of]

10 Press Release, U.S. Dep’t of Justice, Statement by Attorney General Sessions on the City of Chicago’s Lawsuit Against the U.S. Department of Justice (Aug. 7, 2017), https://tinyurl.com/yan8j9ca.

11

Id.

12 Press Release, U.S. Dep’t of Justice, Attorney General Sessions Delivers Remarks on Sanctuary Policies (Aug. 16, 2017), https://tinyurl.com/y7tyj3so.

13

Id.

14 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks at Lackawanna College on Immigration and Law Enforcement Actions (June 15, 2018), https://tinyurl.com/yac8f5nz.

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pedophiles, rapists, murderers, drug dealers, and arsonists back into the communities where they

had no right to be in the first place.”15

B. Attorney General Sessions Targets The Byrne JAG Program 47. Soon after taking office, Attorney General Sessions began to turn his rhetoric into

action by targeting the Byrne JAG program. On July 25, 2017, he claimed that “[s]o-called

‘sanctuary’ policies make all of us less safe because they intentionally undermine our laws and

protect illegal aliens” and announced that he therefore would impose three conditions on a

grantee’s ability to receive its allotted Byrne JAG funds in order to “encourage these ‘sanctuary’

jurisdictions to change their policies.”16

a.

The “notice” condition: The FY2017 awards contained a condition requiring

that, “when a local-government (or local-government-contracted) correctional

facility receives from DHS a formal written request . . . that seeks advance notice

of the scheduled release date and time for a particular alien in such facility, then

such facility will honor such request and—as early as practicable . . . —provide

the required notice to DHS.”

b.

The “access” condition: The FY2017 awards also contained a condition

requiring that “agents of the United States acting under color of federal law in

fact are given access [to] a local-government (or local-government-contracted)

correctional facility for the purpose of permitting such agents to meet with

15 Press Release, U.S. Dep’t of Justice, Attorney General Sessions Delivers Remarks to the Criminal Justice Legal Foundation (June 26, 2018), https://tinyurl.com/ydhx7ezm. 16 Attorney General Sessions, Statement Announcing Byrne JAG Conditions (July 25, 2017), https://tinyurl.com/y9ttqhsl.
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individuals who are (or are believed by such agents to be) aliens and to inquire as

to such individuals’ right to be or remain in the United States.”

c.

The “Section 1373 compliance” condition: In addition to the notice and access

conditions, the FY2017 awards contained a requirement that the recipient certify

its compliance with Section 1373.

48. In August 2017, Chicago sought a preliminary injunction to prevent Attorney

General Sessions from imposing those conditions on FY2017 Byrne JAG funds, on grounds that

the conditions were unconstitutional, ultra vires, and arbitrary and capricious.

49. Attorney General Sessions defended the notice and access conditions by arguing

that they were authorized by 34 U.S.C. § 10102(a)(6), which endows an Assistant Attorney

General with the power to “exercise such other 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.” He defended the Section 1373 compliance

condition by invoking 34 U.S.C. § 10153(a)(5)(D), which permits the Attorney General to

require a “certification” that “the applicant will comply with all provisions of this part and all

other applicable Federal laws.” He also suggested that all three conditions were meant to ensure

that state and local law enforcement would not impair the law-enforcement activities of the

federal government, including those federal activities contemplated by 8 U.S.C. §§ 1226(c),

1231(a)(1)(B), and 1231(a)(4).

50. This Court preliminarily enjoined the notice and access conditions, in large part

because Attorney General Sessions “fail[ed] to direct the Court to any textual authority within

the Byrne JAG statute itself” allowing him to impose the notice and access conditions. City of

Chicago v. Sessions, 264 F. Supp. 3d 933, 941 (N.D. Ill. 2017). The Court did not preliminarily

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enjoin the Section 1373 compliance condition. Attorney General Sessions took an interlocutory appeal from the preliminary injunction order, and the Seventh Circuit affirmed, unanimously holding that the notice and access conditions were ultra vires and unlawful and that Attorney General Sessions’ reading of Section 10102(a)(6) as authorizing those conditions was “contrary to the plain meaning of the statutory language.” City of Chicago v. Sessions, 888 F.3d 272, 284 (7th Cir. 2018).
51. This Court ultimately granted summary judgment in Chicago’s favor on all three conditions, concluding in July 2018 that each of the notice, access, and Section 1373 compliance conditions was ultra vires and unconstitutional. See Mem. Op. and Order, City of Chicago v. Sessions, No. 1:17-cv-05720 (N.D. Ill.), ECF No. 198, at 58 (attached as Ex. A). On the notice and access conditions, the Court adopted “the same reasons stated in [its] preliminary injunction ruling and the Seventh Circuit’s opinion.” Id. at 36-37. On the Section 1373 compliance condition, the Court concluded that, particularly in light of the Supreme Court’s intervening decision in Murphy v. NCAA, 138 S. Ct. 1461 (2018), Section 1373 violated Tenth Amendment anti-commandeering principles by tying Chicago’s hands in managing city personnel and city policy. Id. at 32-34. Having held Section 1373 unconstitutional, the Court concluded that the Attorney General lacked authority to require compliance with Section 1373 as an “applicable federal law” under the Byrne JAG statute. Id. at 40.
52. This Court’s final judgment declared each of the notice, access, and Section 1373 compliance conditions ultra vires and a violation of the constitutional principle of separation of powers and set the conditions aside under the Administrative Procedure Act as unlawful. See Final Judgment and Order, City of Chicago v. Sessions, No. 1:17-cv-05720 (N.D. Ill.), ECF No. 211, at 2 (attached as Ex. B). It also permanently enjoined the Attorney General from “denying
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or delaying issuance of any FY 2017 Byrne JAG award insofar as that denial or delay” was based on the notice, access, or compliance condition, and prohibited the Attorney General from “using the Conditions in any FY 2017 Byrne JAG award document, delaying the processing or approval of a recipient’s requests to draw upon the FY 2017 Byrne JAG funds based on the Conditions, and enforcing the Conditions against FY 2017 Byrne JAG recipients, regardless of whether those Conditions appeared in FY 2017 Byrne JAG award documents.” Id. at 3.
53. During the remedy phase, Chicago expressed concern that the FY2018 Byrne JAG grant would contain the same provisions and asked the Court to issue an injunction covering future grant awards. The Court declined to do so but warned that attorney’s fees would likely be appropriate if the Attorney General once again forced Chicago to sue to prevent imposition of the same unlawful conditions.
C. The Justice Department Expresses Concern That Chicago Does Not Comply With Section 1373 But Refuses To Make A Final Dete rmination
54. Because this Court determined that Section 1373 was unconstitutional and thus that the Section 1373 compliance condition was not authorized in the first place, it did not take up the question whether Chicago actually complies with Section 1373. But Chicago has always maintained that it does comply.
55. The Justice Department began requiring Byrne JAG grantees to certify compliance with Section 1373 in FY2016, and Chicago did so at that time. In a May 2016 report by the Department of Justice’s Office of Inspector General, the Department suggested that the Welcoming City Ordinance, which prohibits City employees from sharing immigration status information with federal agents unless “otherwise provided under applicable federal law,” Chicago Municipal Code § 2-173-030, contains “a potential ambiguity” as to its “proper construction” such that the “saving clause” contained in the Ordinance might be unclear.
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56. Since that report, Chicago has exchanged multiple letters with the Department of Justice concerning Chicago’s compliance with Section 1373. On April 21, 2017, the Department sent letters to Chicago and eight other jurisdictions, informing Chicago that it was “required to submit documentation … that validates that your jurisdiction is in compliance with 8 U.S.C. § 1373.” Chicago responded in July 2017, explaining that the Ordinance’s “saving clause” in fact “makes clear than an individual’s citizenship or immigration status information will not be kept confidential if federal law provides otherwise.” In October 2017, the Department of Justice sent another letter, stating among other things that it had “determined that [Chicago] appears to have laws, policies, or practices that violate 8 U.S.C. § 1373.” The letter was based on the premise that Section 1373 applies not only to the sharing of “information regarding immigration status,” but also information “regarding a person’s custody status or release date.” Chicago sent another response, disagreeing with the Department’s interpretation of the relevant statutory text, but reporting that, “[i]n the interest of resolving this issue,” it had sent written notice to City department heads “instructing them to share with their officers and employees Chicago’s interpretation of the [Welcoming City Ordinance] and explanation of its compliance with Section 1373.” See Letter from Edward Siskel, Corporation Counsel, City of Chicago, to Alan R. Hanson, Acting Assistant Attorney General, Office of Justice Programs, U.S. Dep’t of Justice (October 27, 2017) (attached as Ex. C).
57. The Department of Justice nevertheless sent Chicago another letter in January 2018, announcing that “the Department remains concerned that your jurisdiction’s laws, policies, or practices may violate section 1373, or, at a minimum, that they may be interpreted or applied in a manner consistent with section 1373.” The letter requested that Chicago produce “[a]ll documents reflecting any orders, directives, instructions, or guidance to your law enforcement
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employees …, that were distributed, produced, and/or in effect during the relevant timeframe, regarding whether and how these employees may, or may not, communicate” with federal agents. Chicago timely responded to the Department’s request on February 23, 2018 by voluntarily providing the Department with copies of responsive documents. In the spirit of transparency, Chicago accompanied that response with an expedited FOIA request for documents related to the Department’s interpretation of Section 1373.
58. To date, Chicago has neither received a final determination of compliance with Section 1373 nor any documents in response to its FOIA request.
D. The Trump Administration Adopts Controversial Immigration Enforcement Strategies That Prompt Public Criticism From Local Officials, Including In Chicago
59. Beyond the Byrne JAG program, the Trump Administration has adopted aggressive immigration enforcement tactics that target noncitizens in so-called “sanctuary” jurisdictions.
60. One especially controversial strategy deployed by the Trump Administration involves targeting noncitizens inside courthouses, including noncitizens on official business at the courthouse, to seek a protective order, testify as a witness, or other reasons.17 The prior Administration had allowed limited immigration enforcement at courthouses for noncitizens fitting within certain “enforcement priorities,” such as threats to national security, public safety,
17 E.g., Steve Coll, When a Day in Court Is a Trap for Immigrants, THE NEW YORKER (Nov. 8, 2017), https://tinyurl.com/ybv355d3; see also, e.g., Brittany Mejia and Jazmine Ulloa, ICE arrests in courtrooms escalate feud between California and Trump administration over immigration policy, L.A. TIMES (Aug. 29, 2018), https://tinyurl.com/y6v8bjvh; Maria Cramer, ICE Courthouse Arrests Worry Attorneys, Prosecutors, BOSTON GLOBE (June 16, 2017), https://tinyur l.com/ y9ws yyqq.
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and border security,18 but the Trump Administration does not observe these limitations on
enforcement in courthouses.19 The Trump Administration does not consider a courthouse to be a
“sensitive location.”
61. The Trump Administration has expressly linked this strategy of targeting people
in courthouses to its disagreement with Chicago’s Welcoming City ordinance and other similar
local policies. According to ICE, “courthouse arrests seem to be occurring more frequently”
because “some law enforcement agencies no longer honor ICE detainers or limit ICE’s access to
their detention facilities.”20
62. The Trump Administration has targeted other sensitive locations as well, arresting
noncitizens as they drop their children off for school or as they leave a hospital.21 Although the
Administration’s policy purportedly is to “generally . . . avoid[]” taking enforcement actions at
schools, medical facilities, places of worship, religious ceremonies, or public demonstrations,
ICE expressly permits such enforcement actions under certain circumstances.22
18 U.S. Immigration and Customs Enforcement, Fact Sheet: Frequently Asked Questions Existing Guidance on Enforcement Actions at or Focused on Sensitive Locations (July 15, 2016), https://www.dhs.gov/news/2016/07/15/fact-sheet-frequently-asked-questions-existing-guidanceenforcement-actions-or. 19 See U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests, https://www.ice.gov/ero/enforcement/sensitive-loc. 20 Id.; see also id. (“[T]he increasing unwillingness of some jurisdictions to cooperate with ICE in the safe and orderly transfer of targeted aliens inside their prisons and jails has necessitated additional at-large arrests.”). 21 E.g., Andrea Castillo, Immigrant arrested by ICE after dropping daughter off at school, sending shockwaves through neighborhood, L.A. TIMES (March 3, 2017), https://tinyurl.com/y76yn949; Scott Neuman and John Burnett, 10-Year-Old Girl Is Detained By Border Patrol After Emergency Surgery, NPR (Oct. 26, 2017), https://tinyurl.com/yd2ufsgj; Christie Duffy, 2 dads nabbed by ICE as they drop off k ids at NJ school; 3rd takes shelter in church, PIX11 (Jan. 25, 2018), https://tinyurl.com/ycjz7f4w. 22 U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests, https://www.ice.gov/ero/enforcement/sensitive-loc.
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63. Chicago Mayor Rahm Emanuel has stated unequivocally that it is City policy not to permit ICE to enforce federal immigration law in Chicago schools.23 It is essential to the values embodied in the Welcoming City Ordinance that Chicago and its officials remain free to speak out publicly and forcefully against attempts by the Trump Administration to arrest noncitizens at sensitive locations, including courthouses, schools, medical facilities, places of worship, religious ceremonies, and public demonstrations. The Board President of Cook County (which is a Byrne JAG sub-grantee of Chicago) has also issued a formal proclamation specifically opposing ICE’s courthouse arrests after a resident who has previously received protection from immigration enforcement activity under the Deferred Action for Childhood Arrivals (DACA) program was wrongfully detained in the Cook County courthouse in Skokie after appearing for a minor traffic violation.24 Chicago and its subgrantees will continue to speak out against wrong-headed immigration enforcement strategies that sow fear and chaos in local courthouses, schools, hospitals, and places of worship.
E. The Trump Administration Advances A Radical New Interpretation Of 8 U.S.C. § 1324
64. While the litigation over the FY2017 conditions on the Byrne JAG Program was pending, the Trump Administration sought to weaponize another provision of the U.S. Code against jurisdictions seeking to prioritize local law enforcement over enforcement of civil immigration law.
23 See Press Conference (September 6, 2017), https://livestream.com/chicagosmayor/press/videos/162377651 (“ICE will not go to our schools.”). 24 Carrie Frillman, Cook Co. President Urges Trump To Stop ICE Arrests In Courthouses, PATCH (Feb. 7, 2018), https://tinyurl.com/y8rdp8vb.
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65. During a January 4, 2018, interview on Fox News, then-Acting Director of U.S. Immigrations and Customs Enforcement Thomas Homan said that he had asked the Department of Justice to “[l]ook into criminal charges for elected officials with sanctuary policies, as they are harboring illegal aliens, according to 8 U.S.C. § 1324.” Kirstjen Nielsen, the Secretary of Homeland Security, confirmed during testimony before the Senate Judiciary Committee on January 16, 2018, that “the Department of Justice is reviewing what avenues may be available” to charge elected officials in so-called sanctuary jurisdictions.
66. In the nearly seventy years since 8 U.S.C. § 1324 was enacted, the federal government has never attempted to prosecute an elected official acting in their official capacity for violation of that statute. For much of this time, cities such as Chicago declined to participate in federal immigration enforcement without any indication that doing so violated any criminal statute. This attempt by the Trump Administration to criminalize the policy choices of local governments represents a significant threat to the ability of cities such as Chicago to enact policies intended to foster public safety.
F. Attorne y Ge ne ral Se ssions Se eks To Impose The Same Unlawful Conditions (Plus Two New Ones) On FY2018 Byrne JAG Grants
67. Notwithstanding over a year of litigation before this Court and this Court’s clear rulings invalidating its approach, the Department of Justice’s FY2018 Byrne JAG Local Solicitation and required certifications (attached as Exs. F-I) reflect Attorney General Sessions’ decision to re-impose the FY2017 notice, access, and 1373 conditions, as well as several new conditions similarly designed to impress state and local officers into the service of federal immigration-enforcement priorities. Those conditions are described in further detail below.
68. Chicago submitted an application for FY2018 Byrne JAG funding, but refused to certify it would comply with the unlawful conditions.
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69. Attorney General Sessions began issuing FY2018 Byrne JAG grants in early October 2018. The conditions announced in the FY2018 Local Solicitation appeared in FY2018 Byrne JAG award letters issued at this time.
70. By October 12, 2018, the Department had issued 752 FY2018 local awards, totaling almost $59 million—representing 70% of the local funding available for FY2018 and over 65% of the eligible jurisdictions. But Chicago still had not received notification of its FY2018 award or of when it might expect to receive its award. Chicago therefore commenced this action in an attempt to obtain the FY2018 Byrne JAG grant to which it is entitled.
G. Attorne y Ge ne ral Se ssions Resigns And The Pre sident Unlawfully Dire cts Matthew Whitaker To Act As Attorney General
71. Meanwhile, on November 7, 2018, Attorney General Sessions resigned at the request of the President.
72. Federal law directs that upon the Attorney General’s resignation the Deputy Attorney General is empowered to “exercise all the duties” of the office of the Attorney General. 5 U.S.C. § 508. Federal law further provides for other high-ranking, Senate-confirmed Justice Department officials to exercise such duties should the Deputy Attorney General be unavailable to do so.
73. Notwithstanding the clear requirements of federal law, the President directed Mr. Whitaker, Attorney General Sessions’ chief of staff, to act as the Attorney General. The Attorney General’s chief of staff is not in the statutory line of succession.
74. Nor was Mr. Whitaker appointed to his role as Attorney General Sessions’ chief of staff with the advice and consent of the Senate. The Appointments Clause of the U.S. Constitution requires that the appointment of principal officers of the United States, such as the Attorney General, be with the advice and consent of the Senate.
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75. There are no fewer than seven Department of Justice officials, including Deputy Attorney General Rosenstein and Solicitor General Noel Francisco, who were nominated by President Trump and appointed pursuant to the Appointments Clause to offices in the statutory line of succession for the office of the Attorney General. Numerous other officials currently serving in the Department of Justice have also been confirmed to their roles by the Senate. The President has not explained why none of these constitutionally appointed officers could fulfil the duties of the Attorney General. Nor has he claimed any exigency that would justify even temporarily installing an unconfirmed Department of Justice employee into a cabinet-level position.
H. The Department Imposes Unlawful Conditions On Chicago’s FY2018 Byrne JAG Award
76. On November 20, 2018—more than a month after Chicago commenced this action, and almost two weeks into Mr. Whitaker’s supposed tenure as Acting Attorney General—Chicago received notification of its FY2018 Byrne JAG grant award.
77. The notification confusingly states that it was issued “[o]n behalf of Attorney General Jefferson Sessions III,” who had resigned thirteen days before the notification was sent.
78. Four of the immigration-related conditions contained in Chicago’s FY2018 award are materially identical to the FY2017 Byrne JAG conditions this Court has already held unlawful and set aside. On that basis alone, the Attorney General—whoever that may be—is precluded from defending the conditions.
79. The Department of Justice—under the direction of Attorney General Sessions— announced on November 3, 2018 that it would not “use or enforce” those repeat conditions, but reserved the right to do so “[i]f the posture of the pending litigation changes (or if the pending litigation is resolved) in a manner such that DOJ decides to use or enforce any or all of [the
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repeat conditions].” Special Notice Re: FY 2018 Byrne JAG award conditions 41-43 and 45-47 (attached as Ex. E). This reservation of the right to impose the illegal conditions means that, despite this Court’s extremely clear admonition that the Attorney General should not reimpose those very conditions, Chicago did not obtain its FY2018 Byrne JAG award when other jurisdictions did and cannot obtain those funds free and clear. Accordingly, Chicago was forced to sue again on the same conditions and should receive its attorney’s fees and costs for having to do so.
80. The repeated conditions are, as mentioned, materially identical to those already enjoined and held unlawful by this Court:
81. The “Section 1373 compliance condition”: Chicago’s FY2018 award requires that the “program or activity” funded under Chicago’s Byrne JAG award comply with 8 U.S.C. § 1373(a) and (b) and that the Chief Legal Officer of the recipient execute a certification (attached as Ex. F) declaring the “program or activity” in compliance with those provisions. Ex. D ¶¶ 41-42. This condition is materially identical to the FY2017 Section 1373 compliance condition.
82. The “Section 1644 compliance condition”: Chicago’s FY2018 award requires that the “program or activity” funded under Chicago’s Byrne JAG award comply with 8 U.S.C. § 1644 and that the Chief Legal Officer of the recipient execute a certification declaring the “program or activity” in compliance with that provision (attached as Ex. F). Ex. D ¶¶ 41-42. This condition is materially identical to the FY2017 Section 1644 compliance condition, because 8 U.S.C. § 1644 proscribes the exact same conduct as 8 U.S.C. § 1373.
83. The “FY2018 notice condition”: Chicago’s FY2018 award requires Chicago to “provide—as early as practicable … —advance notice to [federal immigration officials] of the
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scheduled release date and time for a particular alien, if a State or local government (or government-contracted) correctional facility receives from [a federal immigration authority] a formal written request pursuant to the INA that seeks such advance notice.” Ex. D ¶ 46. The conduct required by this condition is identical to the conduct Attorney General Sessions attempted to require with the FY2017 notice condition.
84. The “FY2018 access condition”: Chicago’s FY2018 award requires Chicago to permit “access to any State or local government (or government-contracted) correctional facility by such agents for the purpose [of] ‘interrogat[ing] any alien or person believed to be an alien as to his [or her] right to be or to remain in the United States.’” Ex. D ¶ 45. The conduct required by this condition is identical to the conduct Attorney General Sessions attempted to require with the FY2017 access condition.
85. In addition to these revived conditions, Chicago’s FY2018 Byrne JAG award contains a new unlawful condition, and an additional mandatory certification, each of which is intended to deny funds to cities like Chicago that seek nothing more than to exercise their right to opt out of participation in federal immigration enforcement.
86. The “harboring” condition: Chicago’s FY2018 Byrne JAG award prohibits Chicago from “direct[ly] or indirect[ly]” attempting to “conceal, harbor, or shield from detection” any undocumented immigrant by publicly disclosing federal law enforcement information, even where doing so would not violate any statute. Ex. D ¶ 44. The award letter attempts to justify this condition as being “[c]onsistent with the purposes and objectives of federal law enforcement statutes and federal criminal law.” As written, this condition would appear to prohibit Chicago and its subgrantees from publicly criticizing ICE enforcement strategies that involve targeting City residents at courthouses, schools, and other sensitive
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locations, in violation of the City’s stated policies and in contravention of the spirit of the Welcoming City Ordinance and fundamental principles of decency and public order. The condition also would require Chicago to monitor its subgrantees to ensure their compliance with this condition. Ex. D ¶ 44(2).
87. The “additional certification” condition: In addition to certifying compliance with Section 1373 and 1644, the FY2018 Byrne JAG Local Solicitation requires the Chief Legal Officer of a FY2018 Byrne JAG applicant to execute a “Certification Relating to 8 U.S.C. §§ 1226(a) & (c), 1231 (a), 1324(a), 1357(a), & 1366(1) & (3)” (attached as Ex. G). The Chief Executive Officer, in turn, is required to execute “Certifications and Assurances by the Chief Executive of the Applicant Government” (attached as Ex. H) that adopts this certification by the Chief Legal Officer. Ex. D ¶ 61. The Chief Legal Officer certification represents that “neither the jurisdiction nor any entity, agency, or official of the jurisdiction has in effect, purports to have in effect, or is subject to or bound by, any law, rule, policy, or practice that would apply to the ‘program or activity’ to be funded … that would or does—(a) impede the exercise by federal officers of authority under 8 U.S.C. § 1357(a); or (b) impede the exercise by federal officers of authority relating to 8 U.S.C. § 1226(a) or (c), 8 U.S.C. § 1231(a), or 8 U.S.C. § 1366(1) or (3).” Ex. G. As with the repeat conditions, the Attorney General has temporarily withdrawn this condition, but reserved the right to reimpose it “[i]f the posture of the pending litigation changes (or if the pending litigation is resolved) in a manner such that DOJ decides to use or enforce any or all of [the repeat conditions].” Ex. E.
88. These conditions have no legal basis. Moreover, all the conditions are invalid because Mr. Whitaker lacked the authority to serve as Acting Attorney General when he imposed the conditions on Chicago.
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IV. THE UNLAWFUL NEW CONDITIONS HAVE INJURED AND CONTINUE TO INJURE CHICAGO 89. By imposing the unlawful conditions on the Byrne JAG program, Attorney
General Sessions sought to pressure cities into abandoning their longstanding public safety priorities, on pain of losing critical formula grant funds that would otherwise support officer safety, community empowerment, and innovative countermeasures in the fight against gun violence.
90. The Department of Justice under purported acting Attorney General Whitaker has continued this strategy, including by seeking to impose unlawful conditions on Chicago’s FY2018 Byrne JAG grant award.
91. The imposition of these unlawful conditions through the Byrne JAG program injures Chicago by hindering the City’s sovereign ability to develop and deploy effective policing policy without regard to the constraints imposed by the conditions. In addition, the conditions injure Chicago in myriad specific ways set forth below.
92. The Department’s delay in issuing Chicago its FY2018 award deprived Chicago and its sub-grantees of access to critically needed law enforcement funding and forced Chicago to file this lawsuit to obtain its funding. And, by continuing to reserve the right to reimpose the conditions already held unlawful and by insisting that Chicago acquiesce in an equally unlawful “harboring” condition, the Department continues to threaten Chicago and its sub-grantees with the loss of the award that was issued only as a result of this lawsuit. Finally, by forcing Chicago to sue to force the Department even to issue an award letter and temporarily withdraw the repeat unlawful conditions, the Department has demonstrated that it will continue to subject Chicago to such delays and deprivations in subsequent years unless this Court orders otherwise.
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93. Although the Department has declared that it will not “use or enforce” the unlawful FY2018 conditions carried over from FY2017, it has reserved the right to impose them at some unspecified point in the future. The voluntary and assertedly temporary decision not to enforce the repeat conditions does not redress Chicago’s injury. So long as the Attorney General reserves the right to impose these conditions, Chicago is in danger of the harms described below.
94. To date, the Department has refused to finally determine whether Chicago complies with Section 1373 (and therefore also Section 1644). Instead, it has expressed a vague concern that Chicago has some heretofore unidentified policy that contradicts its official interpretation of the Welcoming City Ordinance and put forth an unprincipled and overbroad definition of “immigration status information” that encompasses a detainee’s custody status and release date. Despite refusing to provide clear guidance on what Sections 1373 and 1644 require, the Department continues to insist that Byrne JAG applicants’ chief legal and executive officers execute certifications—under express penalty of “criminal prosecution,” or “civil penalties and administrative remedies for false claims”—that their jurisdictions comply with Sections 1373 and 1644. This uncertainty has clouded the City’s ability to apply for funds.
95. The uncertainty regarding the Department’s interpretation of Section 1373 and 1644 also has given rise to a fear of prosecution or other adverse legal action. In the first week following his inauguration, President Trump ordered the Attorney General to take “appropriate enforcement action against any entity that violates [Section] 1373,” Executive Order No. 13,768 § 9(a), which Attorney General Sessions interpreted to mean filing civil preemption actions against jurisdictions he believes violate Section 1373. See Opp. Mot. Prelim. Inj., Richmond v. Trump, No. 3:17-cv-01535 (N.D. Cal.), ECF No. 16, at 8-9, 22. Carrying out that threat, the Department of Justice sued the State of California based in part on Section 1373 to try to force
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California to abandon its immigration-related policies. See United States v. State of California, No. 2:18-cv-00490 (E.D. Cal.). Chicago reasonably believes that the Department may pursue similar enforcement litigation against Chicago.
96. The additional certification requirement poses the same problems. While Chicago is confident that it does not “impede” the federal government’s exercise of authority under 8 U.S.C. §§ 1226(a) or (c), 1231(a)(4), 1357(a) or 1366(1) or (3), it has well-founded concerns, based on the Trump Administration’s history of targeting Chicago, that the Administration may put forth a new, broad interpretation of those provisions, designed to ensnare Chicago or its officials in a dispute over the validity of those certifications.
97. The new “harboring” condition also threatens to chill the speech of City officials who disagree with the federal government’s controversial immigration enforcement strategies, such as targeting noncitizens at courthouses, schools, hospitals, or places of worship in so-called “sanctuary” jurisdictions. The City and its sub-grantees have publicly criticized such practices in the past and will publicly criticize them again in the future. But Chicago has well-founded concerns that the Department will consider such criticism a violation of the Department’s vague prohibition on “direct[ly] or indirect[ly]” attempting to “conceal, harbor, or shield from detection” any undocumented noncitizens by publicly disclosing federal law enforcement information. And those concerns are heightened by the suggestions from the former Acting Director of ICE and the current Secretary of Homeland Security that the Administration is considering criminally prosecuting elected officials in so-called sanctuary jurisdictions on the theory that Welcoming City-style policies violate the federal anti-harboring statute, 8 U.S.C. § 1324. This unauthorized attempt to silence City officials from commenting on the affairs of
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courthouses, schools, hospitals, and public spaces within the City strikes directly at the City’s right to self-government.
98. More fundamentally, complying with the FY2018 conditions would undermine public safety in Chicago. The Welcoming City Ordinance assists effective policing by building trust between law enforcement officers and the immigrant community. Conversely, policing suffers when members of that community, whatever their immigration status, do not feel free to report crimes, assist in investigations, or testify as witnesses. Purported acting Attorney General Mr. Whitaker’s insistence that Chicago abandon its existing policies, that Chicago give immigration enforcement agents on-demand access to its detention facilities to investigate potential civil immigration violations, and that Chicago detain individuals solely so that they can be investigated for possible civil immigration violations would undermine crucial public trust, cut local law enforcement efforts off at the knees, and make everyone in Chicago less safe.
99. Chicago now faces the prospect of a severe federal incursion on its sovereignty. Chicago could abandon its attempts to preserve the policymaking autonomy afforded it under our federal system, in hopes that the Attorney General award Chicago the funds promised it by Congress. Given the dogged refusal to award Chicago funds to which it has a plain statutory entitlement, even such a dramatic reversal may not bring Chicago the law enforcement funds it needs. Or Chicago could continue its decades-long focus on policies that further the best interests of its residents and officers but lose out on funds it has long used to fund critical lawenforcement needs. The use of the federal government’s coercive power in this manner causes a deep and irreparable injury to Chicago’s sovereignty, and to our federal system.
100. Moreover, whichever decision Chicago ultimately makes, its residents and police force will be immediately and irreparably harmed. If Chicago accepts the unlawful conditions, it
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will forfeit decades’ worth of trust and goodwill that its police force has built in the communities it serves. And as those decades of experience show, that kind of trust, once lost, is lost forever. Alternatively, if Chicago asserts its right to determine its own policy and refuses to certify compliance with the Department’s new and unlawful conditions, it (and the eleven other jurisdictions that depend on Chicago’s application for their Byrne JAG funds) will forever forfeit the FY2018 Byrne JAG grant monies—monies that are critical to Chicago’s community policing operation and that purchase essential and life-saving equipment for Chicago and its neighboring jurisdictions. Even if Chicago and its neighbors could later obtain those funds, the damage would have already been done in the months or years their police forces and residents will have spent without crucial equipment and services. V. THE ATTORNEY GENERAL IS NOW PRECLUDED FROM DEFENDING
MOST OF THE FY2018 BYRNE JAG CONDITIONS 101. The Attorney General is precluded from relitigating claims and issues resolved in the FY2017 litigation brought by Chicago—namely, the legality of the Section 1373 compliance, Section 1644 compliance, notice, and access conditions on the Byrne JAG program—with regard to the FY2018 Byrne JAG awards or any future Byrne JAG awards. All of the legal requirements for preclusion are met here. 102. The FY2018 versions of those conditions are materially identical to the FY2017 versions this Court has already enjoined as unlawful. The FY2018 Section 1373 and Section 1644 compliance conditions are no different than the FY2017 Section 1373 condition, because Section 1644 proscribes the same conduct as Section 1373. And the FY2018 notice and access conditions, though framed slightly differently, require the same conduct as the FY2017 notice and access conditions—providing 48 hours’ advance notice to federal immigration authorities of the scheduled release date and time of identified individuals and allowing federal officials on-
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demand access to individuals in Chicago’s custody for purposes of immigration-related interrogation.
103. The validity of the FY2017 Section 1373, notice, and access conditions was not just actually litigated in a prior lawsuit—it was the central issue in the FY2017 litigation.
104. This Court’s final judgment critically depended upon its determination that the FY2017 Section 1373, notice, and access conditions were unlawful. That order set aside each of the three FY2017 conditions based on this Court’s conclusion the Attorney General could not lawfully impose any of those conditions.
105. Finally, the Attorney General was fully represented in the FY2017 litigation by capable lawyers from the Department of Justice.
COUNT ONE: VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706 (ULTRA VIRES)
106. Chicago incorporates by reference the allegations of the preceding paragraphs. 107. The Department of Justice may exercise only authority conferred by statute. See City of Arlington, Tex. v. FCC, 569 U.S. 290, 297 (2013); see also 5 U.S.C. § 706(2)(C). A. The FY2018 Notice And Access Conditions Are Ultra Vires 108. Notwithstanding this Court’s order setting aside the materially identical FY2017 notice and access conditions, Attorney General Sessions sought to impose FY2018 conditions requiring identical conduct. Purported acting Attorney General Whitaker has continued this policy. 109. The Court’s prior determination that the notice and access conditions are unlawful, in a lawsuit involving the same parties and the same underlying federal grant program, is conclusive here. The Attorney General is therefore precluded from relitigating the lawfulness of the notice and access conditions.
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110. Even as an initial matter, the Attorney General lacks statutory authority to condition Byrne JAG funds on the FY2018 notice and access conditions. Indeed, such authority is at odds with the text, structure, and purpose of the Byrne JAG statute, as this Court and the Seventh Circuit have held. The FY2018 notice and access conditions cannot stand.
111. As a direct and proximate result of those unlawful conditions, Chicago will be forced to accept unlawful and unconstitutional grant conditions or forgo Byrne JAG funds and shut down the programs they support.
112. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that the Attorney General is without authority to impose the FY2018 notice and access conditions on Byrne JAG funds (or materially identical conditions in future grant years), an order that those conditions be set aside, and an injunction preventing those conditions from going into effect.
113. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 notice or access conditions).
114. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The attempt to impose the FY2018 notice and access conditions on Chicago is not substantially justified given this Court’s order setting aside materially identical conditions Attorney General Sessions attempted to impose on FY2017 Byrne JAG funds.
115. Pursuant to 28 U.S.C. § 2412(b), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The attempt to impose the FY2018
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notice and access conditions on Chicago notwithstanding this Court’s order setting aside materially identical conditions from FY2017 demonstrates bad faith and an attempt to undermine or avoid this Court’s permanent injunction in Chicago’s FY2017 suit.
B. The Section 1373 And Section 1644 Compliance Conditions Are Ultra Vires 116. The Court’s prior determination that the Section 1373 compliance condition is unlawful, in a lawsuit involving the same parties and the same underlying federal grant program, is conclusive here as to both the Section 1373 compliance condition and the substantively identical Section 1644 compliance condition. The Attorney General is therefore precluded from relitigating the lawfulness of the notice and access conditions. 117. The Attorney General lacks statutory authority to condition Byrne JAG funds on compliance with Section 1373 or Section 1644. The Byrne JAG statute’s requirement that grantees comply with “all other applicable Federal laws” does not confer authority to condition Byrne JAG funding on Section 1373 or Section 1644 compliance, because neither provision is an “applicable” law here. The phrase “all other applicable Federal laws” in the Byrne JAG statute refers to the host of laws that regulate the conduct of federal grant recipients as grant recipients. It does not refer to every section of the U.S. Code that could possibly apply to a state or local government. Neither Section 1373 nor Section 1644 regulate grantees as grantees nor do its terms mention federal grants or funds. 118. Moreover, and as this Court already held with respect to a substantively identical condition in the FY2017 Byrne JAG grant, Section 1373 and Section 1644 are facially unconstitutional because they seek to commandeer state and local officials into the service of federal immigration-enforcement authorities. Because those laws are facially unconstitutional, they are not “applicable laws” available for incorporation into the Byrne JAG program.
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119. The Section 1373 and Section 1644 compliance conditions on the FY2018 Byrne JAG grant cannot stand.
120. As a direct and proximate result of these unlawful conditions, Chicago will be forced to accept unlawful and unconstitutional grant conditions or forgo Byrne JAG funds and shut down the programs they support.
121. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that the Attorney General is without authority to impose the FY 2018 Section 1373 and Section 1644 conditions on Byrne JAG funds (or materially identical conditions in future grant years), an order that those conditions be set aside, and an injunction preventing those conditions from going into effect.
122. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 Section 1373 or Section 1644 conditions).
123. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The attempt to impose the FY2018 Section 1373 compliance and Section 1644 compliance conditions on Chicago is not substantially justified given this Court’s order setting aside materially identical conditions Attorney General Sessions attempted to impose on FY2017 Byrne JAG funds.
124. Pursuant to 28 U.S.C. § 2412(b), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The attempt to impose the FY2018 Section 1373 compliance and Section 1644 compliance conditions on Chicago notwithstanding this Court’s order setting aside materially identical conditions from FY2017 demonstrates bad
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faith and an attempt to undermine or avoid this Court’s permanent injunction in Chicago’s FY2017 suit.
C. The Harboring Condition Is Ultra Vires 125. The Attorney General also lacks statutory authority to condition FY2018 Byrne JAG funding on a commitment not to conceal, harbor, or shield from detection undocumented immigrants by disclosing federal law enforcement information. 126. The Byrne JAG statute allows the Attorney General to require a certification of compliance only with applicable laws. The harboring condition specifically states that it applies even where disclosure of information would not violate federal anti-harboring laws. 127. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that Attorney General is without authority to impose the harboring condition on FY2018 Byrne JAG funds (or materially identical conditions in future grant years), an order that that condition be set aside, and an injunction preventing that condition from going into effect. 128. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the harboring condition). 129. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The attempt to impose the harboring condition on Chicago is not substantially justified given that this Court has already held that the Attorney General lacks the authority to impose this sort of policy condition on Byrne JAG funds. 130. Pursuant to 28 U.S.C. § 2412(b), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The attempt to impose the harboring condition on Chicago notwithstanding this Court’s holding that the Attorney General lacks the
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authority to impose this sort of policy condition on Byrne JAG funds demonstrates bad faith and an attempt to undermine or avoid this Court’s permanent injunction in Chicago’s FY2017 suit.
D. The Additional Certification Requirement Is Ultra Vires 131. The Attorney General also lacks statutory authority to condition Byrne JAG funds on a certification that the applicant has no law that “impedes” the federal government’s exercise of authority under 8 U.S.C. §§ 1226(a) & (c), 1231 (a), 1357(a), or 1366(1) & (3). 132. The phrase “all applicable Federal laws” in the Byrne JAG statute refers to laws that regulate the conduct of federal grant recipients. Sections 1226(a) and (c), 1231(a), 1357(a), and 1366(1) and (3), by their terms, apply to the federal government, not individual cities and states. Those laws are therefore not “applicable” to individual grant recipients making the certifications required for participation in the Byrne JAG program. 133. As a direct and proximate result of these unlawful conditions, Chicago will be forced to accept unlawful and unconstitutional grant conditions or forgo Byrne JAG funds and shut down the programs they support. 134. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that the Attorney General is without authority to impose the additional certification requirement on Byrne JAG funds (in FY2018 or any future grant year), an order that the condition be set aside, and an injunction preventing the condition from going into effect. 135. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 additional certification condition). 136. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. Any attempt to impose the
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additional certification requirement on Chicago is not substantially justified given that this Court has already held that the Attorney General lacks the authority to impose this sort of condition on Byrne JAG funds.
137. Pursuant to 28 U.S.C. § 2412(b), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. Any attempt to impose the additional certification requirement on Chicago notwithstanding this Court’s holding that the Attorney General lacks the authority to impose this sort of condition on Byrne JAG funds demonstrates bad faith and an attempt to undermine or avoid this Court’s permanent injunction in Chicago’s FY2017 suit.
COUNT TWO: VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706 (SEPARATION OF POWERS)
138. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 139. When an agency acts “contrary to constitutional right, power, privilege, or immunity,” a reviewing court must “hold unlawful and set aside” the challenged action. 5 U.S.C. § 706. 140. The Constitution vests the spending power in Congress, not the President. 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.” In re Aiken Cty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013). 141. Congress in the Byrne JAG statute required the Executive to distribute Byrne JAG funds based on a simple funding formula. Imposing a new condition on the program amounts to refusing to spend money appropriated by Congress unless that condition is satisfied. The FY2018 notice and access conditions, the Section 1373 and Section 1644 compliance conditions, the harboring condition, and the additional certification condition were not imposed by Congress,
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but rather by the Attorney General. Those conditions therefore amount to improper usurpation of Congress’s spending power by the Executive Branch.
142. The Court’s prior determination that the Attorney General lacks the statutory authority to impose the notice and access conditions or the Section 1373 compliance condition, in a lawsuit involving the same parties and the same underlying federal grant program, is conclusive here. The Attorney General is therefore precluded from relitigating the issue of his authority to impose the notice and access conditions or the Section 1373 compliance condition and the substantively identical Section 1644 compliance condition.
143. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that the FY2018 notice and access conditions, the Section 1373 and Section 1644 compliance conditions, the harboring condition, and the additional certification condition (as well as any materially identical conditions the Attorney General may impose in future grant years) violate the constitutional separation of powers and arrogate to the Executive power that is reserved to the Legislature, as well as an injunction preventing those conditions from going into effect.
144. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 Section 1373 compliance, Section 1644 compliance, notice, access, harboring, or additional certification conditions).
145. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The attempt to impose the FY2018 Section 1373 compliance, Section 1644 compliance, notice, and access conditions on
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Chicago is not substantially justified given this Court’s order setting aside materially identical conditions Attorney General Sessions attempted to impose on FY2017 Byrne JAG funds. The attempt to impose the harboring condition and the additional certification condition on Chicago is not substantially justified given that this Court has already held that the Attorney General lacks the authority to impose these sorts of policy conditions on Byrne JAG funds.
146. Pursuant to 28 U.S.C. § 2412(b), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. The attempt to impose the FY2018 Section 1373 compliance, Section 1644 compliance, notice, and access conditions on Chicago notwithstanding this Court’s order setting aside materially identical conditions from FY2017 demonstrates bad faith and an attempt to undermine or avoid this Court’s permanent injunction in Chicago’s FY2017 suit. The attempt to impose the harboring condition and the additional certification condition on Chicago notwithstanding this Court’s holding that the Attorney General lacks the authority to impose these sorts of policy conditions on Byrne JAG funds demonstrates bad faith and an attempt to undermine or avoid this Court’s permanent injunction in Chicago’s FY2017 suit.
COUNT THREE: VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706 (SPENDING CLAUSE)
147. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 148. In any event, Congress could not have authorized the conditions here because they do not satisfy the additional requirements of the Spending Clause. Accordingly, those requirements must be enjoined.
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A. The Conditions Are Unconstitutionally Ambiguous 149. Federal restrictions on grants provided to state and local governments must also be articulated “unambiguously” so that the recipient can “voluntarily and knowingly accept[]” Congress’s terms. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 16-17 (1981). 150. All of the FY2018 immigration-related conditions are ambiguous as to what is expected of grant recipients in Chicago’s position, particularly given Chicago’s Welcoming City Ordinance and other relevant policies and practices. The FY2018 notice and access conditions do not provide Chicago sufficient notice of what will be expected of it because they are entirely dependent on the future exercise of discretion by federal agents outside of the Department of Justice. The Section 1373 and Section 1644 compliance conditions are also ambiguous, and the Department’s guidance documents and other actions have only added to the confusion. Furthermore, many interpretations of Section 1373 and Section 1644 would raise serious constitutional concerns. The harboring condition is likewise ambiguous. The Trump Administration has offered no guidance on how a municipality’s disclosure of information could constitute “conceal[ing], harbor[ing], or shield[ing] from detection” any individual. Finally, the additional certification condition is also ambiguous. It imposes on the certifying jurisdiction an obligation not to “impede” the federal government’s exercise of its authority under 8 U.S.C. §§ 1226(a) & (c), 1231 (a), 1357(a), or 1366(1) & (3), but nowhere explains what the Department understands “impede” to mean. B. The Conditions Are Not Germane To The Byrne JAG Program 151. Conditions on spending grants must be “relevant to [the] federal interest” in the particular grant program. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 295 (1958); accord South Dakota v. Dole, 483 U.S. 203, 207-208 & n.3 (1987). This nexus requirement ensures that
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the federal government does not use spending conditions to regulate state and local governments beyond the contours of the spending program itself.
152. The FY2018 notice and access conditions are not relevant to the federal interest in the Byrne JAG funds Chicago receives. Among other things, information concerning when detainees will be released from lockup and policies respecting access for federal immigration agents bear no relevance to improving the ability of Chicago’s Bureau of Detective to solve violent crimes, the Force for Good Program, or other uses to which Chicago puts Byrne JAG funds. Nor are they relevant to the Byrne JAG program’s larger purposes.
153. The Section 1373 and Section 1644 compliance conditions are also not relevant to the federal interest in the Byrne JAG funds Chicago receives, or to the program’s larger purposes. Information sharing with federal officials regarding an individual’s immigration status bears no connection to the replacement vehicles for worn-out police patrol cars, support for the Force for Good program, or the acquisition of new law enforcement equipment.
154. The additional certification condition is also not relevant to the federal interest in the Byrne JAG funds Chicago receives.
155. The harboring condition is also not relevant to the federal interest in the Byrne JAG funds Chicago receives.
156. As a direct and proximate result of these unconstitutional conditions, Chicago will be forced to accept unlawful and unconstitutional grant conditions or forgo Byrne JAG funds and shut down or materially alter the programs they support.
157. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that the FY 2018 notice and access conditions, the Section 1373 and Section 1644 compliance conditions, the Section 1324 condition, the harboring condition, and the additional
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certification condition (as well as any materially identical conditions the Attorney General may impose in future grant years) violate the Spending Clause, as well as an injunction preventing those conditions from going into effect.
158. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 Section 1373 compliance, Section 1644 compliance, notice, access, harboring or additional certification conditions).
COUNT FOUR: COMMANDEERING 159. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 160. As this Court has already declared, in a lawsuit involving the same parties and the same underlying federal grant program, 8 U.S.C. § 1373 is facially unconstitutional. That determination is conclusive here. The Attorney General is therefore precluded from relitigating Section 1373’s constitutionality. 161. 8 U.S.C. § 1644 is substantively identical to Section 1373. The Attorney General is therefore precluded from litigating Section 1644’s constitutionality as well. 162. And beyond the conclusive import of the prior litigation with regard to Section 1373 and Section 1644, they are plainly unconstitutional under the anticommandeering doctrine. The Tenth Amendment prohibits the federal government from “requir[ing]” state and local governments “to govern according to Congress’s instructions,” New York v. United States, 505 U.S. 144, 162 (1992), or “command[ing] the States’ officers . . . to administer or enforce a federal regulatory program,” Printz v. United States, 521 U.S. 898, 935 (1997). Congress has transgressed the limits of the Tenth Amendment when it “regulat[es] activities undertaken by
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government entities only,” Ex. A at 21, rather than “evenhandedly regulat[ing] an activity in which both States and private actors engage,” NCAA, 138 S. Ct. at 1478.
163. Sections 1373 and 1644 do just that, by prohibiting state and local governments from engaging in a core aspect of governing: controlling the actions of their own employees and retaining control over local law enforcement policy. Sections 1373 and 1644 are therefore facially unconstitutional and cannot be validly enforced against Chicago or imposed on Byrne JAG recipients as “applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D).
164. As a direct and proximate result of these unconstitutional conditions, Chicago will be forced to accept unlawful and unconstitutional grant conditions or forgo Byrne JAG funds and shut down or materially alter the programs they support.
165. Pursuant to 28 U.S.C. § 2201, Chicago is entitled to a declaration that 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment.
166. Pursuant to 28 U.S.C. § 2201, Chicago is further entitled to a declaration that 8 U.S.C. §§ 1373 and 1644 cannot validly be imposed as conditions on the Byrne JAG program as well as an injunction preventing the FY2018 Section 1373 and Section 1644 conditions (or any materially identical conditions the Attorney General may seek to impose in future grant years) from going into effect.
167. Pursuant to 28 U.S.C. §§ 1361 and 1651, Chicago is entitled to a writ of mandamus compelling the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award as contemplated by the Byrne JAG statute (i.e., without the FY2018 Section 1373 compliance or Section 1644 compliance conditions).
168. Pursuant to 28 U.S.C. § 2412(d)(1)(A), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. Any contention that the
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Section 1373 and Section 1644 are constitutional is not substantially justified given this Court’s order holding Section 1373 facially unconstitutional.
169. Pursuant to 28 U.S.C. § 2412(b), Chicago is entitled to an award of its costs, attorney’s fees, and expenses associated with this litigation. Any contention that that Section 1373 and Section 1644 are constitutional demonstrates bad faith and an attempt to undermine or avoid this Court’s permanent injunction in Chicago’s FY2017 suit.
COUNT FIVE: DECLARATORY JUDGMENT THAT CHICAGO’S WELCOMING CITY ORDINANCE AND IMPLEMENTING POLICIES COMPLY WITH SECTION 1373 AND SECTION 1644 170. Chicago incorporates by reference the allegations of the preceding paragraphs. 171. Where City officials or agents come to possess immigration status information,
Chicago has no policy restricting the sharing of such information contrary to Section 1373 or Section 1644.
172. Section 20 of the Welcoming City Ordinance permits Chicago’s agents and agencies to request or receive information about citizenship or immigration status (from ICE or elsewhere) whenever required by “federal regulation”—which, as Chicago’s Chief Legal Officer has explained, “do[es] not restrict the sharing of immigration status information with federal immigration officers.”
173. Section 30 of the Welcoming City Ordinance limits the disclosure of an individual’s citizenship or immigration status information “[e]xcept as otherwise provided by applicable federal law.” In the context of the Welcoming City Ordinance—and, again, as Chicago’s Chief Legal Office has explained—“applicable federal law” includes Sections 1373 and 1644 to whatever extent Sections 1373 and 1644, and any individual federal request made pursuant to those provisions, is a lawful and constitutional exercise of federal authority.
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174. Section 42 of the Welcoming City Ordinance (and the Chicago Police Department’s implementing policy, CPD Special Order S06-14-03) does not violate Section 1373 or Section 1644 because the information Chicago’s agents or agencies may not share is information “regarding a person’s custody status or release date.” That information is not “information regarding . . . citizenship or immigration status” covered by Sections 1373 and 1644. See Steinle v. City and County of San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017).
175. Chicago has repeatedly certified its compliance with Section 1373 and explained its reasons for doing so. Those certifications necessarily extend to Section 1644, because Section 1373 and Section 1644 proscribe the same conduct.
176. To date, the Department has not stated whether it accepts Chicago’s prior certifications. While Chicago is confident it complies with both Section 1373 and Section 1644 for the reasons stated above, the Department’s conduct has sown confusion and created the impression that the federal government believes otherwise, notwithstanding Chicago’s legal analysis. Chicago is reluctant to certify compliance with Section 1373 and Section 1644 in its FY 2018 Byrne JAG application, which is due imminently, until the Department affirms that the City’s prior certifications are acceptable.
177. Chicago has a credible fear of prosecution or other enforcement action. The Department has taken the President’s directive to “enforce” Section 1373 as an instruction to file preemption lawsuits against jurisdictions with policies it believes violate Section 1373. See supra ¶ 65. That the Department has sued the State of California over its approach to federal immigration enforcement is a strong indication that the Department has taken the President’s instruction to heart and is willing to pursue legal action against “sanctuary” jurisdictions.
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178. Pursuant to 28 U.S.C. § 2201, Chicago is entitled to a declaration that its Welcoming City Ordinance and implementing policies comply with Sections 1373 and 1644. COUNT SIX: DECLARATORY JUDGMENT THAT CHICAGO’S WELCOMING CITY
ORDINANCE AND IMPLEMENTING POLICIES COMPLY WITH 8 U.S.C. § 1324 179. Chicago incorporates by reference the allegations of the preceding paragraphs. 180. The Welcoming City Ordinance prohibits Chicago’s agents and agencies from
arresting, detaining, or continuing to detain an individual based solely on their immigration status unless required to do so by applicable law. These provisions expressly require compliance with federal laws and regulations, including 8 U.S.C. § 1324.
181. The Ordinance also restricts the extent to which local officials may be compelled to participate in federal immigration enforcement. Nothing in 8 U.S.C. § 1324 creates an affirmative requirement for local governments to enforce immigration law or to assist federal authorities in enforcing immigration law.
182. While Chicago is confident it complies with Section 1324, the Department has sown confusion and created the impression that the federal government believes otherwise, notwithstanding Chicago’s own legal analysis.
183. High-ranking Trump Administration officials have threated to prosecute local officials and governments for violation of Section 1324, without providing any meaningful guidance on how to determine compliance.
184. Pursuant to 28 U.S.C. § 2201, Chicago is entitled to a declaration that it complies with Section 1324.
COUNT SEVEN: VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706 (ARBITRARY AND CAPRICIOUS)
185. Chicago incorporates by reference the allegations of the preceding paragraphs.
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186. In addition to lacking statutory and constitutional authority to impose the immigration-related conditions on the Byrne JAG grant, the conditions are arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 706.
187. The FY 2018 immigration-related conditions are arbitrary and capricious because the Department failed to rely on reasoned decisionmaking and, to the extent it cited reasons at all, those reasons are contradicted by the evidence before the agency. “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider . . . .” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Here, among other things, the Department proposes to evaluate grant applicants on the basis of their immigration policies rather than on their compliance with expressly enumerated statutory application requirements. See 34 U.S.C. § 10153(a)(1)-(5). It also “entirely failed to consider an important aspect of the problem,” State Farm, 463 U.S. at 43, including but not limited to the policing challenges created by alienating and inducing fear in immigrant communities. It also “offered an explanation for its decision that runs counter to the evidence before the agency,” which likewise is arbitrary and capricious, id., including the evidence submitted by nine jurisdictions in their Section 1373 certification letters indicating that Welcoming City-style policies promote rather than detract from effective policing. Indeed, when Attorney General Sessions referred to one study in the press that showed that such policies lead to higher crime, the study’s own authors said he was misrepresenting their work .
188. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. §§ 1651 and 2201, Chicago is entitled to a declaration that the immigration-related conditions for the FY2018 Byrne JAG funds are in violation of the APA as well as an injunction preventing those conditions from going into effect.
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COUNT EIGHT: DECLARATORY JUDGMENT THAT MR. WHITAKER LACKS THE AUTHORITY TO IMPOSE THE CONDITIONS
189. Chicago incorporates by reference the allegations of the preceding paragraphs. 190. Upon Attorney General Sessions’ resignation, the Department of Justice’s succession statute required that Deputy Attorney General Rosenstein should exercise the duties of the office of the Attorney General until such time as a new Attorney General was appointed by and with the advice and consent of the Senate. There is no indication that Deputy Attorney General Rosenstein is not available to exercise the duties of the office of the Attorney General. And if Deputy Attorney General Rosenstein were for any reason unable to act in this capacity, the statutorily mandated line of succession would next run to Solicitor General Francisco. 191. The Department of Justice’s specific succession statute, 28 U.S.C. § 508, controls here, and the more general Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq. does not. The President accordingly lacked statutory authority to circumvent the succession statute by directing Mr. Whitaker to act as the Attorney General. 192. Moreover, if any provision of the Federal Vacancies Reform Act did allow a nonSenate-confirmed Justice Department employee to be installed as Acting Attorney General, that provision would be unconstitutional as applied here. Any authority the President has to appoint an Acting Attorney General from outside the line of succession set forth in the Department of Justice’s organic statute is still cabined by the Appointments Clause of the U.S. Constitution. The Appointments Clause requires that anyone acting as an officer of the United States be appointed by and with the advice and consent of the Senate, with a potential exception for exigencies. The office of the Attorney General is indisputably an office subject to the Appointments Clause, and no exigency existed sufficient to overcome the requirements of the Appointments Clause.
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193. The purported appointment of Mr. Whitaker as acting Attorney General is invalid and ineffective. Therefore, the conditions imposed on Chicago’s Byrne JAG grant award under his purported authority are invalid as applied to Chicago for that reason as well.
PRAYER FOR RELIEF WHEREFORE, Plaintiff prays this Court: a) Declare unlawful and set aside the immigration-related conditions included in the FY2018 Byrne JAG solicitation and awards on a program-wide basis; b) Declare that 8 U.S.C. §§ 1373 and 1644 violate anti-commandeering principles and are therefore facially unconstitutional under the Tenth Amendment; c) Declare that Chicago’s Welcoming City Ordinance and implementing policies comply with 8 U.S.C. § 1373, 8 U.S.C. § 1644, and 8 U.S.C. § 1324; d) Declare that Matthew Whitaker’s purported appointment as Acting Attorney General is unlawful and that the imposition of the challenged conditions on Chicago’s FY2018 Byrne JAG award is unlawful as applied for that reason as well; e) Enjoin the Attorney General from enforcing the proposed immigration-related conditions on FY2018 Byrne JAG funding on a program-wide basis; f) Enjoin the Attorney General from imposing substantively similar conditions in future grant years; g) Enjoin the Attorney General from denying or delaying issuance of any Byrne JAG award and from denying or delaying release of any Byrne JAG funds (in FY2018 or future grant years) insofar as the denial or delay is based on the challenged conditions; h) Order the Attorney General to issue and fund Chicago’s FY2018 Byrne JAG award immediately;
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i) Award attorney’s fees and costs to Chicago to the fullest extent permissible by law;
j) Retain jurisdiction to monitor the Attorney General’s compliance with this Court’s judgment; and
k) Grant such other relief as this Court may deem proper.

December 17, 2018.
JAMIE S. GORELICK (admitted pro hac vice) DAVID W. OGDEN (admitted pro hac vice) ARI HOLTZBLATT (admitted pro hac vice) ARI SAVITZKY (admitted pro hac vice) MOLLY M. JENNINGS (admitted pro hac vice) JUSTIN BAXENBERG (admitted pro hac vice) ARI EVANS (admitted pro hac vice) WILM ER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
DEBO P. ADEGBILE (admitted pro hac vice) WILM ER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800

Respectfully Submitted,
By /s/ Edward N. Siskel EDWARD N. SISKEL Corporation Counsel of the City of Chicago
ANDREW W. WORSECK Chief Assistant Corporation Counsel JUSTIN A. HOUPPERT Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 30 N. LaSalle Street, Suite 1230 Chicago, IL 60602 (312) 744-0220
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON TAL CHAIKEN LAURA KLEINM AN RILEY SAFER HOLM ES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700
Attorneys for the City of Chicago

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 Case: 1:18-cv-06859 Document #: 80 Filed: 09/19/19 Page 1 of 47 PageID #:2921

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

THE CITY OF CHICAGO,

Plaintiff,

v.

Case No. 18 C 6859

WILLIAM P. BARR, in his official capacity as the Attorney General of the United States,

Judge Harry D. Leinenweber

Defendant.

MEMORANDUM OPINION AND ORDER

This litigation concerns the Executive Branch’s ability to

attach conditions to money it offers to state and local

governments. In this case—the latest chapter of a dispute playing

out in district and appellate courts around the country—the City

of Chicago takes issue with the conditions that the U.S. Attorney

General placed on the FY 2018 Edward Byrne Memorial Justice

Assistance Grant (“Byrne JAG”) Program. The City contends that

certain conditions attached to Byrne JAG funds violate the

constitutional requirements of federalism and the separation of

powers. For the reasons stated herein, Defendant’s Motion to

Dismiss (Dkt. No. 42) is granted in part and denied in part.

Plaintiff’s Motion for Summary Judgment (Dkt. No. 48) is granted

in part and denied in part.

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I. BACKGROUND In addition to describing the most relevant facts here, the Court incorporates those facts previously described in its earlier ruling. See City of Chicago v. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018). The Byrne JAG program is the primary source of federal criminal justice funding available to state and local governments. (Def.’s Resp. to Pl.’s Stmt. of Facts (“PSOF”) ¶ 11, Dkt. No. 62.) This program is overseen by the Office of Justice Programs (OJP) within the U.S. Department of Justice (DOJ). (PSOF ¶ 11.) The Byrne JAG program distributes funds by a statutorily-defined formula based on a state’s population and the number of violent crimes reported within that jurisdiction in the past year. See 34 U.S.C. § 10156. To receive Byrne JAG funds, a state or local government must apply and comply with all conditions outlined in the Solicitation document that the Attorney General provides. See 34 U.S.C. § 10153. Chicago has received Byrne JAG funds every year since 2005. (PSOF ¶ 12.) But in 2017 the City ran into trouble when it came time to apply for and accept Byrne JAG funds. The Attorney General attached several new immigration-related conditions to the FY 2017 funds that conflicted with Chicago’s stated policy goals of promoting cooperation between local law enforcement and immigrant communities and ensuring access to essential city services for all
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city residents regardless of citizenship status. Therefore, in August of 2017, the City sued the Attorney General (then Jefferson Sessions) to enjoin his office from attaching those conditions to the FY 2017 Byrne JAG funds. See City of Chicago v. Sessions, No. 17-cv-5720 (N.D. Ill.).
In the 2017 case, Chicago challenged three conditions that the Court will explain in detail later and will refer to as the “notice, access, and Section 1373 compliance conditions.” In September of 2017, this Court issued a nationwide preliminary injunction as to the notice and access conditions. See City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017). The Court denied the Attorney General’s request to stay the nationwide application of the preliminary injunction. See City of Chicago v. Sessions, No. 17-cv-5720, 2017 WL 4572208 (N.D. Ill. Oct. 13, 2017). The Seventh Circuit affirmed the Court’s decision to grant the preliminary injunction, but later decided to take up the limited issue of the injunction’s nationwide scope en banc. See City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (affirming the preliminary injunction), reh’g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018) (granting en banc review as to the issue of whether a nationwide injunction was proper).
Then, in July 2018, this Court granted partial summary judgment for the City. See City of Chicago v. Sessions, 321 F.
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Supp. 3d 855 (N.D. Ill. 2018). The Court held the notice and access conditions unconstitutional because neither the Byrne JAG statute nor any other federal law gave the Attorney General statutory authority to impose them. Id. at 873-74. The Court further found that 8 U.S.C. § 1373 is unconstitutional as it violates the anticommandeering doctrine, and that therefore the Section 1373 compliance condition is unlawful because the Attorney General cannot demand compliance with an unconstitutional law. Id. at 87576. The Court entered a permanent nationwide injunction preventing the Attorney General from attaching the three aforementioned conditions to the FY 2017 Byrne JAG funds. Id. at 881; Final Judgment and Order, Chicago v. Sessions, No. 17-cv-5720 (N.D. Ill.), Dkt. No. 211. However, as the Seventh Circuit had at the time stayed the nationwide scope of the preliminary injunction pending an en banc rehearing, this Court stayed the nationwide scope of the permanent injunction in the same fashion. See City of Chicago, 321 F. Supp. 3d at 881-82. However, the Seventh Circuit vacated the en banc hearing after this Court issued its permanent injunction, as by that point the preliminary injunction “ha[d] all but evaporated.” City of Chicago, 2018 WL 4268814, at *2. Thus, the permanent injunction regarding the notice, access, and Section 1373 compliance conditions currently applies only to the FY 2017 funds and Chicago. See Final Judgment and Order. The Court’s 2018
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summary judgment opinion is on appeal before the Seventh Circuit. See City of Chicago v. William Barr, No. 18-2885 (7th Cir.).
The Attorney General began issuing FY 2018 Byrne JAG funds in October of 2018. (PSOF ¶ 34.) Chicago filed this suit on October 12, 2018, seeking to enjoin the Attorney General from again imposing certain immigration-related conditions on the FY 2018 funds. On November 20, 2018, DOJ notified Chicago that OJP had awarded the City $2,268,856 for its FY 2018 Byrne JAG award. (PSOF ¶ 35.) However, as before, to accept the money, Chicago had to agree to a variety of conditions. (See Chicago FY 2018 Byrne JAG Award, Ex. C to Def.’s Request for Judicial Notice (“RJN”), Dkt. No. 44-1.)
Several funding conditions are at issue in this case. Some this Court has already ruled upon, and others are new. The first four conditions, which have already been before this Court and therefore will be referred to as the “repeat conditions,” are as follows:
1. The notice condition. This condition requires the State or local government to “provide—as early as practicable… —advance notice to [the Department of Homeland Security (DHS)] of the scheduled release date and time for a particular alien, if a State or local government (or government-contracted) correctional facility receives from DHS a formal written request pursuant to the INA that seeks such advance notice.” (Chicago FY 2018 Byrne JAG Award ¶ 46.) 2. The access condition. This condition requires the State or local government to permit federal government agents “access to any State or local government (or
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government-contracted) correctional facility by such agents for the purpose” of “interrogat[ing] any alien or person believed to be an alien as to his [or her] right to be or to remain in the United States.” (Id. ¶ 45.)
3. The Section 1373 compliance condition. This condition requires the Chief Legal Officer of the recipient jurisdiction to certify that the “program or activity” funded under the Byrne JAG award complies with 8 U.S.C. §§ 1373 (a) and (b). (Id. ¶¶ 41-43.) 8 U.S.C. § 1373 provides: “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.” 8 U.S.C. § 1373.
4. The Section 1644 compliance condition. This condition requires the Chief Legal Officer to certify that the “program or activity” funded under the Byrne JAG award complies with 8 U.S.C. § 1644. (Chicago FY 2018 Byrne JAG Award ¶¶ 41-43.) 8 U.S.C. § 1644 provides: “Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or 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.
On November 2, 2018, DOJ announced that, “at this time” it would
not “use or enforce” the repeat conditions against Chicago, because
these conditions were the subject of pending litigation. (See
FY 2017 and FY 2018 JAG Award Special Notices at 2, Ex. D to Def.’s
RJN.) However, DOJ reserved the right to enforce the repeat
conditions against Chicago in the future if “the posture of the
pending litigation changes (or if the pending litigation is
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resolved) in a manner such that DOJ decides to use or enforce any
or all of [the repeat conditions.]” (Id.)
There are also two new conditions attached to the FY 2018
grants that are at issue in this case:
1. The harboring condition. This condition prohibits the recipient jurisdiction from making any “public disclosure… of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under 18 U.S.C. ch. 49, or any alien who has come to, entered, or remains in the United States in violation of 8 U.S.C. ch. 12—without regard to whether such disclosure would constitute (or could form a predicate for) a violation of 18 U.S.C. 1071 or 1072 or of 8 U.S.C. 1324(a).” (Chicago FY 2018 Byrne JAG Award.)
2. The additional certification requirement. This condition requires the recipient jurisdiction to submit a “Certifications and Assurances by the Chief Executive of the Applicant Government.” (Chicago FY 2018 Byrne JAG Award ¶ 61.) The condition incorporates a requirement that the City’s Chief Legal officer certify that “neither the jurisdiction nor any entity, agency, or official of the jurisdiction has in effect… any law, rule, policy, or practice that would apply to the ‘program or activity’ to be funded… that would or does— (a) impede the exercise by federal officers of authority under 8 U.S.C. § 1357(a); or (b) impede the exercise by federal officers of authority relating to 8 U.S.C. § 1226(a) or (c), 8 U.S.C. § 1231(a), or 8 U.S.C. § 1366(1) or (3).” (State or Local Government: FY 2018 Certification, Ex. M to Pl.’s RJN, Dkt. No. 52-13.)
The Court will refer to these two conditions as the “new
conditions.” As with the repeat conditions, DOJ announced that it
would not enforce the additional certification requirement against
Chicago. (See FY 2017 and FY 2018 JAG Award Special Notices at 2.)
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The Court will refer to all six funding conditions together as the “challenged conditions.”
The present motions concern Chicago’s Amended Complaint, which contains eight Counts. Count I charges that the challenged conditions are ultra vires, as the Attorney General does not have statutory authority to impose them. Count II alleges that the challenged conditions violate the separation of powers doctrine. Count III alleges that the challenged conditions violate the Spending Clause of the U.S. Constitution. Count IV alleges that 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment’s anticommandeering doctrine and thus the Attorney General cannot impose compliance with these laws as conditions on the Byrne JAG program. Count V asserts that, notwithstanding the unconstitutionality of §§ 1373 and 1644, Chicago’s Welcoming City Ordinance and implementing policies comply with §§ 1373 and 1644, and the City deserves declaratory judgment to that effect. In Count VI, Chicago seeks a declaratory judgment that its Welcoming City Ordinance and implementing policies comply with 8 U.S.C. § 1324. Count VII alleges that the challenged conditions are arbitrary and capricious in violation of the Administrative Procedure Act (“APA”). Finally, Count VIII asserts that the President lacked statutory authority under the DOJ’s succession statute, 28 U.S.C. § 508, to appoint Matthew Whitaker as acting Attorney General. Chicago seeks a permanent injunction preventing
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the challenged conditions from taking effect. The City further reserves its right, upon final judgment of the Court and pursuant to 28 U.S.C. § 2412, to seek reasonable attorneys’ fees, expenses, and costs.
Chicago now moves for summary judgment in its favor on Counts I, II, III, IV, and VII, seeking a declaration that the challenged conditions violate the U.S. Constitution and the APA, and a permanent injunction that prohibits the DOJ from imposing the challenged conditions on the FY 2018 funds or in any future program year. The Attorney General moves under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss various aspects of the Amended Complaint. Specifically, the Attorney General argues that Chicago lacks standing to challenge the additional certification requirement, seek a declaration regarding its compliance with 8 U.S.C. § 1324, and challenge the President’s appointment of former Acting Attorney General Whitaker; and Chicago fails to state a claim on its APA counts and its challenges to the harboring condition.
The Court will first address the standing and jurisdictional arguments for dismissal, and then turn to the merits of the Counts at issue in Plaintiff’s Motion for Summary Judgment.
II. MOTION TO DISMISS The Attorney General moves to dismiss Counts I, II, III, VI, VII and VIII of Chicago’s Amended Complaint under Rules 12(b)(1)
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and 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(1) tests the jurisdictional sufficiency of the complaint. See FED. R. CIV. PRO. 12(b)(1). Defendant asserts a facial challenge to Chicago’s Amended Complaint. See Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015) (noting that in evaluating a challenge to subject matter jurisdiction, a court must first determine whether a defendant has raised a factual or facial challenge). A facial challenge argues that the plaintiff has not sufficiently alleged a basis of subject matter jurisdiction. Id. In a facial challenge to subject matter jurisdiction, the court does not look beyond the allegations in the complaint, which are taken as true for purposes of the motion. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). The plaintiff bears the burden of establishing the elements necessary for jurisdiction. See Silha, 807 F.3d at 173.
Rule 12(b)(6) allows dismissal for “failure to state a claim upon which relief can be granted.” See FED. R. CIV. PRO. 12(b)(6). A court entertaining a Rule 12(b)(6) motion must construe the complaint in the light most favorable to the plaintiff and accept as true all well-pleaded facts alleged. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). To survive a motion to dismiss under Rule 12(b)(6), a complaint must “provide a short and plain statement of the claim showing that the pleader is entitled to relief, sufficient to provide the defendant with fair notice of the claim and its basis.” Id.; see also FED. R. CIV. P. 8(a)(2).
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A. Whitaker Appointment (Count VIII) The Court can dispense of the first issue quickly. In Count VIII, Plaintiff challenges the President’s 2018 appointment of Matthew Whitaker as Acting Attorney General. In February 2019, the President appointed, and the Senate confirmed, William Barr to serve as Attorney General. Accordingly, in its response to Defendant’s Motion to Dismiss, Plaintiff concedes that it is abandoning this claim. (See Pl.’s Memo. at 24, Dkt. No. 50 (“[T]he Court need not take up this weighty constitutional issue now.”).) Thus, Defendant’s Motion to Dismiss Count VIII with prejudice is granted. B. Welcoming City Ordinance Declaratory Judgment (Count VI) The Court turns to the Attorney General’s argument against Count VI, in which the City seeks a declaratory judgment that its Welcoming City Ordinance (the “Ordinance”) and its implementing policies comply with 8 U.S.C. § 1324. Section 1324 contains the federal prohibition against harboring illegal aliens. See 8 U.S.C. § 1324(a) (establishing criminal liability for any person who “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, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place”).
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This Ordinance, codified as Chapter 2-173 of the Chicago Municipal Code, reflects the City’s determination that, “as a City in which one out of five of its residents is an immigrant, ‘the cooperation of all persons, both documented citizens and those without documentation status, is essential to achieve the City’s goals of protecting life and property, preventing crime and resolving problems.’” City of Chicago, 888 F.3d at 279 (citing Chicago, Ill. Muni. Code § 2-173-005). The Ordinance prohibits City agents from arresting, detaining, or continuing to detain a person based upon an immigration detainer when such detainer is for a civil immigration law violation, or on the belief that the person is not present legally in the U.S. or has committed a civil immigration violation. Chicago, Ill. Muni. Code § 2-173-042(a). So too are City agents prohibited from allowing Immigrations and Customs Enforcement (ICE) agents access to a person in City custody, allowing ICE agents use of City facilities for investigative purposes, expending their time on duty responding to ICE inquiries, and informing ICE of a person’s custody status or release date. Chicago, Ill. Muni. Code § 2-173-042(b). The prohibitions in § 2-173-042 do not apply when the individual in question is a gang member, convicted felon, has a felony charge pending, or has an outstanding criminal warrant. Id. § 2-173042(c). There is also an exception for when City agents act
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pursuant to a “legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law.” Id. § 2-173-042(b).
In its Amended Complaint, Chicago alleges that high-ranking officials in President Trump’s administration have threatened to “weaponize” 8 U.S.C. § 1324 against Chicago and other jurisdictions seeking to prioritize local law enforcement over enforcement of federal immigration law. Chicago cites to two such incidents: (1) a January 4, 2018, interview on Fox News in which then-Acting Director of ICE Thomas Homan states that he had asked DOJ to “look into criminal charges for elected officials with sanctuary policies, as they are harboring illegal aliens, according to 8 U.S.C. § 1324.” (Am. Compl. ¶ 65, Dkt. No. 34.) And (2) a January 16, 2018, hearing before the Senate Judiciary Committee in which Kirstjen Nielsen, the then-Secretary of Homeland Security, stated during her testimony that “the Department of Justice is reviewing what avenues may be available” to charge elected officials in so-called sanctuary jurisdictions. (Id.) The City emphasizes that in the approximately 70 years of the law’s existence, the federal government has never attempted to prosecute an elected official acting in his or her official capacity for a violation of Section 1324. This, despite the fact that Chicago has had a version of a policy of prohibiting City officials from assisting in federal immigration investigations since 1984. (Am. Compl. ¶ 24.) Chicago contends that these comments
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from Trump Administration officials suggest that DOJ is considering criminally prosecuting elected officials in Chicago under Section 1324.
The Attorney General asserts that Chicago’s request for a declaration that its Ordinance complies with Section 1324 is unripe because the City does not allege that the federal government has taken any effort to charge the City or its leaders with violating that statute. Nor does the City allege that federal government officials have suggested future Section 1324 prosecutions against Chicago officials specifically.
To establish Article III standing, a plaintiff must show (1) an “injury in fact,” (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a “likelihood” that the injury “will be redressed by a favorable decision.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555 at 560-61 (1992)). The Attorney General’s argument concerns the injury in fact requirement, ensures that a plaintiff has a “personal stake in the outcome of the controversy.” Id. at 158, 157 n.5 (noting that standing and ripeness issues in a pre-enforcement challenge case “boil down to the same question”). An injury sufficient to satisfy Article III must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. (internal quotations omitted). An allegation of future injury may suffice if
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the threatened injury is “certainly impending,” or there is a “substantial risk that the harm will occur.” Id. (citation and internal quotations omitted).
Count VI raises a “pre-enforcement challenge.” When a plaintiff claims that the threatened enforcement of a law creates an injury sufficient to create Article III standing, an actual arrest, prosecution, or other enforcement action is “not a prerequisite to challenging the law.” Susan B. Anthony, 573 U.S. at 158-59. A court may undertake pre-enforcement when circumstances “render the threatened enforcement sufficiently imminent.” Id. at 159. Specifically, a plaintiff satisfies the injury-in-fact requirement if he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Id. (citing Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)).
Chicago has met the ripeness standard. The City has alleged an intention to engage in—or more accurately, declared that it is already engaging in—a course of conduct arguably affected with a constitutional interest but proscribed by 8 U.S.C. § 1324. See Driehaus, 573 U.S. at 159. The Attorney General has not raised an argument as to why Chicago’s constitutionally protected interests are not in play. Regardless, the City properly identifies two constitutional interests relevant to its desire to implement its
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Ordinance: (1) Chicago’s First Amendment free speech rights, see Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 833 (1995); and (2) the anticommandeering doctrine, which limits Congress’s ability to issue orders directly to State and local governments, see Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1475 (2018). Furthermore, Chicago alleged that the federal government made a credible threat of prosecution under Section 1324. Driehaus, 573 U.S. at 159; Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 625 n.1, (1986) (“[A] reasonable threat of prosecution creates a ripe controversy.”). No less than the Acting Director of ICE and the Secretary of Homeland Security advised the public that DOJ was considering charging elected officials in “sanctuary cities” with violating Section 1324. The high-ranking nature of these individuals’ roles in the executive branch renders their threats credible. The fact that these officials did not threaten Chicago or its elected officials by name does not doom the City’s claim. The federal government has “not disavowed any intention of invoking the criminal penalty” behind Section 1324, leaving the City “some reason in fearing prosecution” for violation of that statute. See Babbitt, 442 U.S. at 302. Thus, Chicago’s pre-enforcement challenge is ripe, and the Court denies Defendant’s Motion to Dismiss Count VI.
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However, the Court notes that while Chicago opposed the Motion to Dismiss Count VI, it did not move for summary judgment on this Count. Thus, Count VI remains in the case at this time.
C. Standing to Challenge the Additional Certification Requirement
The Attorney General argues that the Court lacks subject matter jurisdiction over Chicago’s challenges to the additional certification requirement (contained in Counts I, II, and III) because the City does not have Article III standing to pursue them. Specifically, the Attorney General argues that Chicago lacks an injury in fact sufficient to challenge the additional certification requirement because OJP has “publicly announced that it is not enforcing this requirement as to Chicago and several other jurisdictions.” (Def.’s Mot. at 22, Dkt. No. 44.) Further, the Attorney General asserts that if OJP were to decide to enforce the requirement, it would provide formal, written notice.
The City counters that DOJ’s announcement was issued three weeks after the filing of Chicago’s suit and, as a result, standing is not defeated. (Pl.’s Mot. at 20). The City is correct. Standing is measured at the commencement of an action. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (“The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).”). Chicago filed its
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Complaint on October 12, 2018, and DOJ issued its announcement on November 2, 2018. Because the City’s injury is measured at the time the complaint is filed, Defendant’s argument fails.
Instead, the question is one of mootness, and whether DOJ’s withdrawal of the additional compliance requirement moots the City’s complaint on this issue. Normally, under Article III, cases without “actual, ongoing controversies are moot and must be dismissed for lack of jurisdiction.” Fed’n of Adver. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924, 929 (7th Cir. 2003) (quoting Stotts v. Cmty. Unit Sch. Dist. No. 1, 230 F.3d 989, 990–91 (7th Cir. 2000)). One exception to this rule is when a defendant voluntary stops performing the challenged conduct after the commencement of a suit. Friends of the Earth, Inc., 528 U.S. at 173. Ordinarily, the “voluntary cessation of the allegedly unlawful conduct” is insufficient to render a claim moot. Id. But for this exception, courts would be left “compelled to leave the defendant… free to return to his old ways.” Id. at 189 (citing City of Mesquite v. Aladdin’s Castle, Inc., 484 U.S. 283, 289 (1982) (internal quotations omitted)). Finally, “[t]he heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Id. at 189.
The Attorney General does not specifically argue mootness, but cites Whitmore v. Arkansas, 495 U.S. 149, 157–58 (1990), for
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the proposition that for a court to have jurisdiction the injury alleged in the complaint must be “certainly impending.” To support this, Defendant notes that DOJ would need to give Chicago “specific, formal, written notice of DOJ’s intent” to re-start enforcement of the additional certification requirement and argues that such a development is “speculative” to begin with. (Def.’s Mot. at 22.) In Los Angeles v. Lyons, 461 U.S. 95 (1983), the Supreme Court held that a plaintiff lacked standing to seek an injunction against the enforcement of a police chokehold policy because he could not credibly allege that he faced a realistic threat from the policy. However, the Supreme Court explained that a citywide moratorium on police chokeholds would not moot “an otherwise valid claim for injunctive relief, because the moratorium by its terms was not permanent.” Friends of the Earth, Inc., 528 U.S. at 190 (citing Lyons, 461 U.S. at 101). Here, DOJ’s notice is by its own terms impermanent. Indeed, DOJ has not offered any evidence about what “specific, formal, written notice” entails, and there is no reason to believe that if the litigation were terminated today the DOJ could not reimpose the conditions tomorrow. As a result, the Attorney General has not met his heavy burden of persuading the Court that his voluntary cessation moots this issue.
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Accordingly, Defendant’s Motion to Dismiss Plaintiff’s challenge to the additional certification requirement on account of standing or mootness is denied.
D. APA Claims (Counts I, II, III, and VII) Next, the Attorney General moves to dismiss Counts I, II, III, and VII on the basis that they rely on the APA, but there is no final agency action for Chicago to challenge. As the Court explained in its summary judgment opinion, two things must be true for an agency action to be considered final. “First, the action must mark the ‘consummation’ of the agency’s decision making process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177–78 (1997). Chicago asserts, as this Court has held previously, that the Attorney General’s decision to impose the challenged conditions on the JAG funds constitutes final agency action that is ripe for judicial review. See City of Chicago, 321 F. Supp. 3d at 866. According to the Attorney General, imposing the challenged conditions on the FY 2018 grants is not a final agency action because “OJP has issued the City’s FY 2018 Byrne JAG award pursuant to court injunctions, [but] the Office has not yet determined to grant or deny the application administratively.” (Def.’s Mot. at
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19). This contention is particularly unsuitable because the Attorney General made this precise argument in its briefing before the Court’s last summary judgment decision, and the Court rejected it. See City of Chicago v. Sessions, No. 17-cv-5720 (N.D. Ill.), Def.’s Memo., Dkt. 139 (“As there is no dispute that the Department has not yet determined whether to grant FY 2017 Byrne JAG funds to the City, or to deny its pending application, it follows that there is, as of yet, no final agency action for this Court to review.”); City of Chicago, 321 F. Supp. 3d at 865-66. Although the Court has already ruled on these precise issues, nevertheless it will rule on them once again.
First, as before, the decision to impose conditions on the JAG program is the “end result of [the] decision-making process on this score.” City of Chicago, 321 F. Supp. 3d at 865. Accepting the grants requires compliance with the conditions, and as a result the “imposition of these Conditions by the Attorney General is far from ‘tentative.’” Id. As a result, the first requirement for finality under the APA is satisfied. See Bennett, 520 U.S. at 177– 78.
Moreover, nothing has changed the Court’s analysis with respect to the second condition. The conditions still “trigger important legal and practical consequences: They force Chicago to choose between accepting the award with the Conditions or forgoing the award in favor of maintaining the City’s policy preferences.”
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City of Chicago, 321 F. Supp. 3d at 866. See also Abbs v. Sullivan, 963 F.2d 918, 926 (7th Cir. 1992) (finding agency action final where plaintiff faced “a dilemma: comply with a rule that harms [it] and that [it] believe[s] to be invalid or violate the rule at the risk of incurring a heavy penalty”) (citation omitted). Thus, the second requirement is met. Accordingly, the Court again finds that the decision to require compliance with the challenged conditions as a condition of accepting Byrne JAG funds constitutes final agency action that is ripe for judicial review.
The number of courts that have concluded the same has grown since this Court’s last opinion on this subject. See, e.g., City of Los Angeles v. Sessions, 2018 WL 6071071 (C.D. Cal. 2018) (finding the Attorney General’s imposition of the challenged conditions on Byrne JAG funds was final); Oregon v. Trump, 2019 WL 3716932 (D. Or. 2019) (same); City and Cty. of San Francisco v. Sessions, 349 F. Supp. 3d 924 (N.D. Cal. 2018) (same); City of Philadelphia v. Sessions, 309 F. Supp. 3d 271, 281–84 (E.D. Pa. 2018) (same); California ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015, 1030-31 (N.D. Cal. 2018) (same).
III. SUMMARY JUDGMENT The Court turns to Chicago’s Motion for Summary Judgment on Counts I, II, III, IV, and VII. Summary judgment is appropriate when the movant shows that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter
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of law.” See FED. R. CIV. P. 56. A court must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Foley v. City of Lafayette, Ind., 359 F.3d 925, 928 (7th Cir. 2004). In ruling on summary judgment, courts do not determine the truth of disputed matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will begin its summary judgment analysis with the four repeat conditions the City is challenging, before turning to the two new conditions in the FY 2018 grants.
A. Four Repeat Conditions There four repeat conditions are virtually identical to conditions that this Court found unlawful in its summary judgment ruling on the FY 2017 grants. The similarities are evident: The FY 2018 notice condition, like the FY 2017 notice condition, requires local governments to provide “advance notice to [federal immigration authorities] of the scheduled release date and time of a particular alien” when federal authorities request it. (See Chicago FY 2018 Byrne JAG Award.)
The FY 2018 access condition, like the FY 2017 access condition, requires local governments to permit federal immigration agents “access to any State or local government (or government-contracted) correctional facility… for the purpose [of] interrogat[ing] any alien or person believed to be an alien as to his right to be or remain in the United States.” (See id.)
The FY 2018 Section 1373 compliance condition, like the FY 2017 Section 1373 compliance condition, requires that the recipient comply with 8 U.S.C. § 1373(a) and (b),
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and to execute a certification of “compliance” with those provisions. (See id.)
The FY 2018 Section 1644 compliance condition requires Chicago to certify compliance with 8 U.S.C. § 1644. This condition was not attached to the FY 2017 grants, but Section 1664 is materially identical to Section 1373(b). Compare 8 U.S.C. § 1644 with 8 U.S.C. § 1373(b); see also City & Cty. of San Francisco v. Sessions, 372 F. Supp. 3d 928, 938 (N.D. Cal. 2019) (noting that “Section 1644 contains nearly identical language as Section 1373”). Defendant recognizes that analysis regarding the constitutionality of § 1373 “appl[ies] equally to Section 1644.” (Def.’s Mot. at 2.) Accordingly, Defendant refers to these conditions jointly as the “Section 1373/1644 compliance conditions.” (Id.)
Moreover, the Attorney General concedes that the four repeat conditions are “very similar” to the FY 2017 notice, access, and Section 1373 compliance conditions. (Def.’s Mot. at 2.) Thus, the Court concludes that the repeat conditions are materially identical to the conditions that this Court has already enjoined. See City & Cty. of San Francisco, 372 F. Supp. 3d at 941 (finding that the FY 2018 “notice, access, and Section 1373/1644 certification conditions remain essentially the same” as their FY 2017 counterparts and holding that those repeat conditions are unlawful).
The Court has already ruled that each of the repeat conditions is unlawful. In its summary judgment opinion on the FY 2017 grants, this Court found that the Attorney General lacked statutory authority to impose the notice and access conditions, and
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consequently DOJ’s efforts to impose them violated the separation of powers doctrine and were ultra vires. See City of Chicago, 321 F. Supp. 3d at 874. That decision was bolstered by the Seventh Circuit’s holding, in the context of upholding the preliminary injunction, that this Court “did not err in determining that the City established a likelihood of success on the merits of its contention that the Attorney General lacked the authority to impose the notice and access conditions on receipt of the Byrne JAG grants.” City of Chicago, 888 F.3d at 287. It has been further bolstered by the Third Circuit’s recent holding that Congress did not empower the Attorney General to enact the notice and access provisions. See City of Philadelphia v. Attorney Gen. of United States, 916 F.3d 276, 291 (3d Cir. 2019). Finally, in its 2018 summary judgment ruling, this Court also found that 8 U.S.C. § 1373 is unconstitutional under the anticommandeering doctrine, and accordingly, the § 1373 compliance condition is ultra vires as the Authority General lacks authority to demand compliance with an unconstitutional statute. See City of Chicago, 321 F. Supp. 3d at 872, 875-76.
The Attorney General does not defend on the merits its decision to re-impose conditions in the FY 2018 grants that this Court found to be unlawful and enjoined. Instead, the Attorney General merely states that he “respectfully disagrees with those rulings,” and “incorporate[s] . . . the arguments made previously”
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in the FY 2017 case. (Def.’s Mot. at 10.) The Attorney General is presumably preserving his arguments on the repeat conditions as he awaits the Seventh Circuit’s decision in the appeal of this Court’s summary judgment opinion. See Chicago v. Barr, 18-2885 (7th Cir.).
Because the Attorney General agreed that the four repeat conditions are essentially identical as the condition this Court already declared unlawful and declined to present any new legal arguments to defend the four repeat conditions, the Court finds that Chicago is entitled to summary judgment on these conditions. As this Court already articulated, the notice and access conditions are ultra vires, and § 1373 is unconstitutional, rendering the § 1373 compliance condition ultra vires. See City of Chicago, 321 F. Supp. 3d at 876. The Court grants summary judgment in Plaintiff’s favor on Counts I and II with respect to the repeat conditions.
Additionally, the Court grants summary judgment in Chicago’s favor on Count IV, in which the City seeks a declaration that 8 U.S.C. § 1644 violates the Tenth Amendment’s anticommandeering doctrine and thus the Attorney General cannot impose the Section 1644 compliance condition as a condition of accepting Byrne JAG funds. The Attorney General concedes that 8 U.S.C. §§ 1373 and 1644 contain essentially identical language, and that therefore analysis regarding the constitutionality of § 1373 “appl[ies] equally to Section 1644.” (Def.’s Mot. at 2.) As such,
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the Court’s ruling that § 1373 violates the anticommandeering doctrine applies equally to § 1644. See City of Chicago, 321 F. Supp. 3d at 875-76. 8 U.S.C. § 1644 violates the Tenth Amendment’s anticommandeering doctrine and therefore compliance with § 1644 cannot be imposed as a condition of accepting Byrne JAG funds.
B. Two New Conditions 1. Additional certification requirement Chicago moves for summary judgment on its claim, contained in Count I, that the additional certification requirement is ultra vires. This condition requires the would-be grantee to certify that it is not subject to or bound by any “law, rule, policy, or practice” that would “impede the exercise by federal officers of authority” under 8 U.S.C. §§ 1357(a), 1226(a) or (c), 1231(a), or 1366(1) or (3). (State or Local Government: FY 2018 Certification.) The City argues that the Attorney General lacks authority to impose the additional certification requirement as a condition for receiving grant funding. It is well established that the “power of the purse does not belong to the Executive Branch.” City of Chicago v. Sessions, 888 F.3d 272, 283 (7th Cir. 2018). The Executive possesses “no inherent authority as to the grant at issue here to condition the payment of such federal funds on adherence to its political priorities.” Id. Spending is instead the domain of Congress. See U.S. Const. Art. I § 8. If the Executive has spending power, it is because
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Congress delegated that authority. Therefore, whether the additional certification requirement is proper depends on whether Congress delegated authority to the Attorney General through statute to impose it. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001); City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 297 (2013) (“[F]or agencies charged with administering congressional statutes … the power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly… what they do is ultra vires.”). Accordingly, the Court must look to federal statute to determine the Attorney General’s authority to impose the additional certification requirement.
Statutory interpretation begins with the plain language of the statute. United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008). A court must “assume that the legislative purpose [of the statute] is expressed by the ordinary meaning of the words used.” Id. (citations omitted). Absent clearly expressed Congressional intent to the contrary, the plain language should be conclusive. Id. The language and design of the statute as a whole may also provide guidance in determining the plain meaning of its provisions. Id.
In this round of briefing, DOJ presented no arguments regarding the source of its statutory authority to impose the additional certification requirement, and for that reason seems to have conceded the point. See Bloch v. Frischholz, 587 F.3d 771,
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784 (7th Cir. 2009) (arguments not developed during summary judgment are waived). Regardless, because of the importance of the constitutional principles at issue in this case, the Court will perform the relevant analysis to determine whether there is indeed a statutory basis for the Attorney General’s authority to impose the additional certification requirement.
The Byrne JAG statute itself, codified at 34 U.S.C. §§ 10151– 10158, does not grant the Attorney General authority to impose the additional certification requirement. The Seventh Circuit has held that the Byrne JAG statute does not grant the Attorney General “the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or local governments for the failure to comply with those conditions.” City of Chicago, 888 F.3d at 284. Indeed, the Attorney General’s ability to depart from the funding distribution formula mandated by 34 U.S.C. § 10156 is “strictly circumscribed.” City of Chicago, 888 F.3d at 286. Thus, the Byrne JAG statute cannot be the source of authority. The City has identified two potential statutory sources of authority based on the Attorney General’s briefing in earlier iterations of this case, and the Court will consider those sources in turn.
In the FY 2017 Byrne JAG case, the Attorney General argued that his authority to impose conditions on the Byrne JAG funds came from 34 U.S.C. § 10102(a)(6). 34 U.S.C. § 10102(a) sets forth
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the specific, delegated, and general powers of the Assistant Attorney General (“AAG”) for the Office of Justice Programs, including the authority to place “special conditions on all grants.” 34 U.S.C. § 10102(a). As the Court will detail in the next section, this is not a valid source of statutory authority to impose the additional certification requirement.
The other potential source of statutory authority is 34 U.S.C. § 10153(A)(5)(D), a section of the Byrne JAG statute that allows the Attorney General to require grant recipients certify compliance with “all other applicable Federal laws.” This Court has interpreted this statute to mean what it “literally says.” City of Chicago, 321 F. Supp. 3d at 875 (citing Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 228 (2008)). It declined to adopt Chicago’s narrow reading of the statute, which would limit the reach of “all other applicable Federal laws” to mean federal laws “applicable to federal grantees generally.” Id. Instead, the Court adopted Defendant’s plain-meaning interpretation of the statute and meant that “applicable Federal laws” meant “any federal law that applies to Chicago.” Id.; see also City of Chicago v. Sessions, 264 F. Supp. 3d 933, 945 (N.D. Ill. 2017) (“Congress could expect an entity receiving federal funds to certify its compliance with federal law… the entity is—independent of receiving federal funds—obligated to comply.”).
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Chicago argues that it is not obliged to comply with the statutes listed in the additional certification requirement (let alone be prohibited from having any laws or policies that “impede” enforcement of these statutes) because these statutes do not apply to cities and localities but instead are applicable only to the federal government. This argument is well taken. The statutes enumerated in the additional certification requirement—8 U.S.C. §§ 1226(a) and (c), 1231(a), 1357(a), and 1366(1) and (3)—deal with the federal government’s authority and obligation to arrest and detain criminal aliens, remove criminal aliens, interrogate aliens and perform other investigatory actions without a warrant, and submit reports to Congressional committees, respectively. None of these statutes require cities or localities to do anything—they apply only to the federal government and as a result, the Attorney General cannot require Chicago to “comply” with them. It is Congress’ job to attach such conditions to the receipt of federal grants, and the Executive cannot unilaterally attach conditions to the receipt of grant funding without express authorization from Congress. City of Chicago, 888 F.3d at 286. This power has not been delegated, and thus the additional certification requirement is ultra vires. The Court grants Chicago’s Motion for Summary Judgment as to the additional certification requirement.
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2. Harboring condition The Attorney General asserts that Chicago’s challenges to the harboring condition (contained in Counts I, II, III, and VII) should be dismissed for failure to state a claim, while the City moves for summary judgment on those same counts. The harboring condition prohibits grant recipients from making any “public disclosure… of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under 18 U.S.C. ch. 49, or any alien who has come to, entered, or remains in the United States in violation of 8 U.S.C. ch. 12—without regard to whether such disclosure would constitute (or could form a predicate for) a violation of 18 U.S.C. 1071 or 1072 or of 8 U.S.C. 1324(a).” (Chicago FY 2018 Byrne JAG Award.) Chicago contends that Congress did not authorize the Attorney General to impose the harboring condition, rendering it ultra vires and a violation of the separation of powers. The Attorney General contends that his authority to impose the harboring condition is found in 34 U.S.C. § 10102(a). First, the Attorney General asserts that 34 U.S.C. §§ 10102(a)(2) and (a)(4) provide authority to impose the harboring condition. These sections require the AAG to “maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice,” and “maintain liaison with public and private educational and
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research institutions, State and local governments, and governments of other nations relating to criminal justice.” 34 U.S.C. §§ 10102(a)(2), (a)(4). Citing to Merriam-Webster’s Dictionary, Defendant notes that “liaison” is defined as “a close bond or connection” or “a person who establishes and maintains communication for mutual understanding and cooperation.” From this definition, the Attorney General concludes that Congress charged the AAG with facilitating cooperation between federal and state criminal justice authorities—thus conferring a grant of authority that “encompasses… protecting the confidentiality of federal law enforcement information provided to state and local agencies.” (Def.’s Mot. at 12.)
The plain language of §§ 10102(a)(2) and (a)(4) simply does not support the Attorney General’s interpretation. The relevant language requires the AAG to “maintain liaison with… State governments in matters relating to criminal justice.” 34 U.S.C. § 10102(a)(2). Nothing in this language indicates a delegation of authority to place the harboring condition on Byrne JAG grantees. Sections 10102(a)(2) and (a)(4) are more plausibly read as an instruction for the AAG to maintain bilateral communications or act as a point of contact with state and local governments. See City & Cty. of San Francisco v. Sessions, 372 F. Supp. 3d 928, 944 (N.D. Cal. 2019). Here, the Court agrees with the Northern District of California’s analysis of this same argument—that court
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concluded that DOJ put “far more weight on ‘maintain liaison’ than it can hold.” See id. at 943-45 (holding that the AAG’s duty to “maintain liaison” in criminal justice matters does not confer authority for DOJ to impose the harboring condition). The duty to “maintain liaison… in matters relating to criminal justice” does not venture into the authority to impose funding conditions related to immigration enforcement. And the harboring condition goes far beyond the authority that the Attorney General claims to have derived from §§ 10102(a)(2) and (a)(4)—to protect the confidentiality of federal law enforcement information provided to state and local agencies. It prohibits disclosure of federal law enforcement information related to “a direct or indirect attempt” to harbor not just “fugitives of justice” but also “any alien.” The language seeks “the broadest coverage possible” by its use of the term “indirect attempt,” which “has no boundary” and would presumably up for interpretation by the AAG. City & Cty. of San Francisco, 372 F. Supp. 3d at 945. Such sweeping authority is hardly implicit in the AAG’s responsibility to communicate with and disseminate criminal justice information to various state and local entities.
Moreover, as the Seventh Circuit has noted, Sections 10102(a)(1)-(5) “address the communication and coordination duties of the Assistant Attorney General.” City of Chicago, 888 F.3d at 285. The Third Circuit joined in that assessment. See City of
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Philadelphia v. Attorney Gen. of United States, 916 F.3d 276, 288 (3d Cir. 2019) (Finding that 34 U.S.C. §§ 10102(a)(1)-(5) “all deal with the AAG’s power to disseminate criminal justice information and coordinate with various agencies and officials” and noting “the ministerial nature of the powers in” §§ 10102(a)(1)-(5).). Especially given the “strictly circumscribed” nature of the Byrne JAG program—the Byrne JAG statute “precisely describes the formula through which funds should be distributed to states and local governments, and imposes precise limits on the extent to which the Attorney General can deviate from that distribution”—it would be “inconceivable” that Congress would have anticipated that the AAG could abrogate that distribution scheme and deny funds to localities based on a new condition related to harboring aliens. See City of Chicago, 888 F.3d at 286. After all, Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” City of Chicago, 888 F.3d at 287 (citing Gonzales v. Oregon, 546 U.S. 243, 267 (2006)). Thus, the structure and design of the statute as a whole does not support the contention that “maintain liaison” provides authority for the Attorney General to impose the harboring condition. Accordingly, this argument fails.
Second, the Attorney General contends that § 10102(a)(6) supplies him with the requisite authority to impose the harboring
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condition. Section 10102(a)(6) states that the AAG shall “exercise
such other 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)(6) (emphasis added). The italicized language,
Defendant contends, confers the requisite authority.
The Seventh Circuit and this Court have already considered
and rejected this argument. As Defendant well knows, in holding
that Chicago had established a likelihood of success on the merits
of its contention that the Attorney General lacked the authority
to impose the FY 2017 notice and access conditions, the Seventh
Circuit characterized Section 10102(a)(6) as follows:
[Section] 10102(a)(6) is a catch-all provision, simply recognizing that the Assistant Attorney General can also exercise such other powers and functions as may be vested through other sources—either in that Chapter or by delegation from the Attorney General. … A clause in a catch-all provision at the end of a list of explicit powers would be an odd place indeed to put a sweeping power to impose any conditions on any grants—a power much more significant than all of the duties and powers that precede it in the listing, and a power granted to the Assistant Attorney General that was not granted to the Attorney General. … [T]he Attorney General’s argument is that the “including” clause itself is a stand-alone grant of authority to the Assistant Attorney General to attach any conditions to any grants in that subchapter or other subchapters even though that authority is not otherwise provided in the chapter and is not possessed by the Attorney General. Because that
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interpretation is so obviously belied by the plain meaning of the word “including,” the Attorney General’s position is untenable. City of Chicago, 888 F.3d at 285. The Attorney General does not explain why the Seventh Circuit’s analysis of § 10102(a)(6) in the context of the notice and access conditions should not equally apply to the harboring condition. Defendant is not free to disregard the Seventh Circuit’s rulings in its briefings before this Court. The Seventh Circuit has already held that the statutory text of § 10102, and the structure of relevant statutes, supports the conclusion that § 10102(a)(6) does not give the AG broad authority to impose even reasonable conditions on Byrne JAG grants. See City of Chicago, 888 F.3d at 287. Accordingly, the harboring condition exceeds DOJ’s statutory authority, and the Court grants summary judgment in Chicago’s favor on Counts I and II. The City proposes additional arguments as to why the harboring condition violates the Spending Clause and is arbitrary and capricious under the APA. However, as the Court found before, granting summary judgment on Counts I, II, and IV affects the balance of Chicago’s claims. City of Chicago, 321 F. Supp. 3d at 876. The Court need not delve into the arguments regarding the Spending Clause or whether this condition is arbitrary and capricious, as it has already held that Plaintiff is entitled to summary judgment on the basis of the harboring clause being ultra
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vires. Thus, Counts III and VII are dismissed as moot. Count V, in which Chicago requests a declaration that the City complies with 8 U.S.C. § 1644, is also moot because the Court has declared § 1644 unconstitutional. Id. at 876.
IV. INJUNCTION With the merits decided, the Court turns to Chicago’s request for a permanent injunction. As a reminder, in 2018 this Court issued a permanent national injunction prohibiting Defendant from imposing the notice, access, and Section 1373 compliance conditions on the FY 2017 Byrne JAG funds. (Final Judgment and Order, Chicago v. Sessions, No. 17-cv-5720 (N.D. Ill.), Dkt. No. 212.) However, at the time the Court issued the permanent injunction, the Seventh Circuit had stayed the nationwide scope of the preliminary injunction entered in this case pending an en banc rehearing. Accordingly, the Court stayed the nationwide scope of that injunction. Thus, the permanent injunction regarding the notice, access, and Section 1373 compliance conditions currently applies only to the FY 2017 funds and Chicago. The City now seeks a permanent injunction that prohibits the Attorney General from imposing the challenged conditions—the four repeat conditions as well as the harboring condition and additional certification requirement—in all future years of the Byrne JAG program. Chicago seeks a “program-wide” injunction—that is, one that is nationwide in scope. The Court will first consider whether
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the City is entitled to a permanent injunction and then turn to the scope of said injunction.
A. Permanent Injunction The Court may issue permanent injunctive relief if the moving party demonstrates: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). The Attorney General does not engage with these four requirements in its briefing. Instead, he only argues that any injunction the Court issues should be limited to Chicago—or, if the Court issues a national injunction, its application beyond Chicago should be stayed pending the Seventh Circuit’s decision in Chicago v. Barr. Thus, it appears to the Court that the Attorney General does not object to a permanent injunction of the challenged conditions. Regardless, Chicago carries the burden to demonstrate that it is entitled to a permanent injunction, so the Court will proceed with its analysis without any specific objections from the Attorney General. As for the first and second requirements, Chicago has demonstrated that it has suffered an irreparable injury for which no available remedies at law can compensate. The City has again
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submitted an affidavit from Chicago Police Department (“CPD”) Lieutenant Kevin Hannigan, who explains that if the City complies with the challenged conditions, undocumented immigrants will be less likely to interact and cooperate voluntarily with local police, believing that such contacts could put them or their families at risk of deportation. (See Hannigan Decl., Dkt. No. 54.) Lieutenant Hannigan, who has served in the CPD for thirty years, explains that trust between CPD and immigrant communities would be “badly damaged” if CPD was seen as “proactive enforcers of federal civil immigration rules, or volunteering to help ICE prosecute civil immigration enforcement actions against non-violent, lawabiding citizens.” (Id. ¶ 6.) As this Court has found before, this loss of trust is an irreparable harm for which no adequate remedy at law. See City of Chicago, 321 F. Supp. 3d at 877–78 (citing Gateway E. Ry. Co. v. Terminal R.R. Ass’n of St. Louis, 35 F.3d 1134, 1140 (7th Cir. 1994) (finding that loss of goodwill can qualify as an irreparable harm for which there is no adequate remedy at law)). Money damages cannot remedy a loss of trust. See City of Chicago, 888 F.3d at 291 (“Such trust, once destroyed by the mandated cooperation and communication with the federal immigration authorities, would not easily be restored.”). Moreover, a constitutional injury alone can constitute irreparable harm. See City of Chicago, 321 F. Supp. 3d at 878 (citing 11A Wright & Miller, Federal Practice & Procedure § 2948.1 (2d ed.
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1995) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”)). Chicago faces such an injury here, as the Attorney General subjects the City’s receipt of Byrne JAG funding on unconstitutionally imposed conditions. Accordingly, Chicago has demonstrated the first two required elements for a permanent injunction.
Third, the balance of hardships weighs in the City’s favor. As the Seventh Circuit explained, the harm the Attorney General suffers from an injunction is minimized because “the Attorney General can distribute the funds without mandating the conditions— as has been done for over a decade—and nothing in the injunction prevents any state or local government from coordinating its local law enforcement with the federal authorities.” City of Chicago, 888 F.3d at 291. Importantly, the Court has found the challenged conditions to be unlawful, and the Attorney General cannot plausibly argue that being prevented from imposing unlawful conditions would present a hardship. As this Court has already explained, the injunction “does not strip away any option [the Attorney General] could [lawfully] exercise.” City of Chicago, 321 F. Supp. 3d at 878–79. On the other hand, the impact on Chicago if forced to comply with the conditions would be “devastating.” City of Chicago, 888 F.3d at 291. Either Chicago would have to accept the funds with the unlawful conditions attached, damaging its
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relationship with its immigrant communities and its crime fighting capabilities, or Chicago would have to decline the funds entirely. The City intends to use the FY 2018 funds to increase its Bureau of Detectives’ capacity to clear violent cases and bring shooters to justice. (See Am. Compl. ¶ 40.) Without the FY 2018 Byrne JAG funds, Chicago will not be able to carry out that initiative as planned. Thus, the continued application of the challenged conditions would cause Chicago hardship by unlawfully blocking it from funds it could otherwise accept—as it has since 2005—without grievance.
Fourth and finally, the public interest is served by a permanent injunction in this case. As before, the Court has found that the Attorney General failed to administer the Byrne JAG program in conformance with the limited statutory authority Congress affords him. As the Seventh Circuit recently reminded in this case, the judiciary must act as a check on usurpation of power by the Executive Branch, and “jealously guard” the separation of powers. City of Chicago, 888 F.3d at 277. Enjoining the unlawful conditions and checking the Executive’s encroachment of congressional power undoubtedly serves the public interest. See 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.”).
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Thus, Chicago has demonstrated all four requirements for permanent injunctive relief. Accordingly, the Court finds that permanent injunctive relief is warranted as to DOJ’s imposition of the challenged conditions.
B. Scope of Injunction The Court turns to its assessment of the appropriate scope of the injunction. As the Third Circuit recently observed in a parallel case, “[w]hile there are tried and true standards for determining when equitable relief is warranted, there is less authority regarding the scope of equitable relief.” City of Philadelphia v. Attorney Gen. of United States, 916 F.3d 276, 291– 92 (3d Cir. 2019). This is because “when district courts are properly acting as courts of equity, they have discretion unless a statute clearly provides otherwise.” United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 496 (2001). The scope of injunctive relief is dictated by the extent of the violation established. Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Injunctive relief should be “no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Id. When a court believes the underlying right to be highly significant, “it may write injunctive relief as broad as the right itself.” Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874, 879 (7th Cir. 2011) (citing 1 Dan B. Dobbs, Law of Remedies § 2.4(6), p. 113 (2d ed. 1993)).
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The Court’s last injunction was limited to the FY 2017 Byrne JAG program in the hope that DOJ would not re-impose its unlawful conditions. It did. To this end, Chicago petitions the Court to enjoin the imposition of the challenged conditions not just in the FY 2018 Byrne JAG funds, but in all future years of the Byrne JAG program. The Attorney General offers no opinion on the subject.
Given the extent of the violation established, and DOJ’s track record in this litigation, an injunction that covers all future years of the Byrne JAG program is appropriate. The nature of injury here—a violation of the separation of powers doctrine—is highly significant. See City of Chicago v. Sessions, 888 F.3d 272, 277 (7th Cir. 2018) (“The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken.”). Unless the Seventh Circuit overturns this Court’s summary judgment opinion, it will never be permissible for the Attorney General to impose the challenged conditions on Chicago. And importantly in this equitable consideration, the Attorney General has shown a
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willingness to impose unlawful conditions in the next round of Byrne JAG program administration, despite an injunction prohibiting those same conditions in the previous year. This action has imposed a serious cost on the City, as it had to initiate new litigation after the Attorney General again imposed the four repeat conditions on the FY 2018 grants. Indeed, DOJ recently released the Byrne JAG Solicitation for FY 2019, which again contains several of the challenged conditions. (See Byrne JAG Grant FY 2019 Local Solicitation, Ex. 1 to Pl.’s Mot. to Cite Supp. Authority, Dkt. No. 75-1.) Thus, it is apparent to the Court that entering an injunction regarding all future JAG funds is the only way to prevent Chicago from being forced to litigate the Byrne JAG funding conditions every year. Enjoining the unlawful conditions for all future program years is an appropriate remedy based on the violation established.
Next, the Court must determine the only aspect of the injunction that the Attorney General actually contests: whether the injunction should be limited to Chicago and its sub-grantees, or nationwide in scope. The scope of the FY 2017 permanent injunction—national but stayed as to its application outside of Chicago—is currently on appeal before the Seventh Circuit. Yet district court proceedings do not freeze while an appeal is pending. See City of Chicago, 321 F. Supp. 3d at 879; City & Cty. of San Francisco v. Sessions, 372 F. Supp. 3d at 954 (issuing a
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permanent injunction as to FY 2018 Byrne JAG conditions while the court’s decision on 2017 Byrne JAG conditions was still on appeal). And there have been no changes in facts or law since the FY 2017 preliminary and permanent injunction rulings that would shift this Court’s understanding of the propriety of a nationwide injunction in this case. Unless the Seventh Circuit reverses, this Court will not depart from its earlier analysis, which will preserve the status quo and the integrity of the pending appeal.
Accordingly, the Court will again issue a permanent nationwide injunction as to all six challenged conditions. However, in deference to the Seventh Circuit’s pending decision on the issue of nationwide injunctions in this case, the Court will again stay the nationwide scope of the permanent injunction. Stays are “necessary to mitigate the damage that can be done during the interim period before a legal issue is finally resolved on its merits. The goal is to minimize the costs of error.” In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014); see also City & Cty. of San Francisco, 372 F. Supp. 3d at 954 (granting injunction in favor of plaintiffs but staying its nationwide scope while the FY 2017 permanent injunction is pending before the Ninth Circuit).
V. CONCLUSION For the reasons stated herein, the Attorney General’s Motion to Dismiss (Dkt. No. 42) is granted in part and denied in part and
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Chicago’s Motion for Summary Judgment (Dkt. No. 48) is granted in part and denied in part. The Court grants Chicago’s Motion for Summary Judgment on Counts I, II, and IV. The Court grants the Attorney General’s Motion to Dismiss Count VIII with prejudice. Counts III, V, and VII are dismissed as moot. Count VI remains pending in this case. Chicago shall advise the Court of how it intends to proceed with Count VI at the next status hearing in this case.
IT IS SO ORDERED.

Dated: 9/19/2019

Harry D. Leinenweber, Judge United States District Court

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 CITY OF CHICAGO, Plaintiff-Appellee, v.
WILLIAM P. BARR, Attorney General of the United States, DefendantAppellant.
Nos. 18-2885 & 19-3290.
United States Court of Appeals, Seventh Circuit.
Argued April 10, 2020. Decided April 30, 2020.
Appeals from the United States District Court for the, Northern District of Illinois, Eastern Division, Nos. 1:17-cv-05720 & 1:18-cv-06859 — Harry D. Leinenweber, Judge.
Before BAUER, MANION, AND ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
In this appeal from two consolidated cases, we consider for a second time the legality of conditions imposed by the Attorney General on the Edward Byrne Memorial Justice Assistance Grant Program ("Byrne JAG"). See 34 U.S.C. § 10151 et seq. (formerly 42 U.S.C. § 3750). Previously, the district court granted a preliminary injunction as to two conditions—known as the notice and access conditions —imposed by the Attorney General on the FY 2017 Byrne JAG grant applicants. We upheld the preliminary injunction and its nationwide scope in City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) ("Chicago I").
The Attorney General then took the rare step of seeking en banc review limited to only the nationwide scope of the injunction, excluding the determination that injunctive relief was proper as to the notice and access conditions, and we granted en banc review. During the pendency of that review, the district court granted a permanent injunction, and in light of that superseding relief we vacated the decision granting en banc review. City of Chicago v. Sessions, No. 17-2991, 2018 WL 4268814, at *2 (7th Cir. Aug. 10, 2018). The district court again determined that the notice and access conditions imposed by the Attorney General were unlawful and unconstitutional, but also determined that a third condition — the compliance condition — was unconstitutional as well. City of Chicago v. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018). The court extended the injunction to apply to all FY 2017 grant recipients program-wide, but in light of our prior grant of en banc review regarding the scope of the injunction, stayed the injunction to the extent that it applied beyond the City of Chicago.
The Attorney General appealed that determination, and while it was pending in this court, the district court granted a permanent injunction in a second case brought by the City of Chicago, this time challenging the Attorney General's imposition of conditions on the FY 2018 Byrne JAG grant. City of Chicago v. Barr, 405 F. Supp. 3d 748 (N.D. Ill. 2019). Those conditions included the same notice, access, and compliance conditions that the district court enjoined as to the FY 2017 grant, as well as some new conditions. The district court

enjoined the imposition of all of the challenged conditions as to the FY 2018 Byrne JAG grant and all future years, and once more stayed the injunction as to grantees other than the City of Chicago. Id. at 770. The Attorney General again appealed to this court, and we consolidated the two cases for the purposes of the appeal.
The stakes in this case are high. Chicago, like many local governments, has determined that: (1) effective law enforcement requires the cooperation of its undocumented residents; (2) such cooperation cannot be accomplished if those residents fear immigration consequences should they communicate with the police; and, therefore, (3) local law enforcement must remain independent from federal immigration enforcement. The Byrne JAG grant was enacted by Congress to support the needs of local law enforcement to help fight crime, yet it now is being used as a hammer to further a completely different policy of the executive branch—presenting a city such as Chicago with the stark choice of forfeiting the funds or undermining its own law enforcement effectiveness by damaging that cooperative relationship with its residents.
The Attorney General repeatedly expresses frustration that Chicago, or any other jurisdiction, can "simultaneously accept federal law enforcement grants, yet maintain local policies that frustrate federal immigration enforcement." Appellant's Brief 1-3-20 at 1. It is a sentiment echoed by the only circuit—of the five that have considered it—to uphold the challenged conditions thus far. See State of New York v. Dept. of Justice, 951 F.3d 84, 107 (2d Cir. 2020) ("there is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws, or worse, violating those laws.") But states do not forfeit all autonomy over their own police power merely by accepting federal grants. And the Attorney General's perception of the urgency of immigration enforcement does not corral for the executive branch the powers entrusted to the legislative branch. The executive branch has significant powers over immigration matters; the power of the purse is not one of them. This tendency to overlook the formalities of the separation of powers to address the issueof-the-day has been seen many times by the courts, and it is no more persuasive now than it was in those cases. As the Supreme Court has stated, repeatedly:
Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear `formalistic' in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.
Printz v. United States, 521 U.S. 898, 933 (1997), quoting New York v. United States, 505 U.S. 144, 187 (1992).
We conclude again today, as we did when presented with the preliminary injunction, that the Attorney General cannot pursue the policy objectives of the executive branch through the power of the purse or the arm of local law enforcement; that is not within its delegation. It is the prerogative of the legislative branch and the local governments, and the Attorney

General's assertion that Congress itself provided that authority in the language of the statutes cannot withstand scrutiny.
I. Facts and District Court Rulings.
In Chicago I, we discussed at length the Byrne JAG program and Chicago's Welcoming Ordinance, as well as their respective purposes. See Chicago I, 888 F.3d at 276-82. In short, the Byrne JAG grants are awarded annually to address the needs of state and local law enforcement. They are the primary source of federal criminal justice enforcement funding for state and local governments. This lawsuit stemmed initially from the Attorney General's decision to attach three conditions to those grants — the notice, access and compliance conditions, which as set forth by the district court provide respectively:
(1) A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and—as early as practicable—provide the requested notice to DHS. (2) A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given [] access [to] any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States. (3) The applicant local government must submit the required `Certification of Compliance with 8 U.S.C. § 1373' (executed by the chief legal officer of the local government).
City of Chicago v. Sessions, 264 F. Supp. 3d 933, 937-38 (N.D. Ill. 2017). In short:
• the notice condition requires that state or local officials honor requests to provide federal agents advance notice of the scheduled release date and time for aliens in custody; • the access condition requires state or local correctional facilities to give federal agents access to aliens in their custody; • and the compliance condition requires the state or local governments to certify their compliance with 8 U.S.C. § 1373 (hereinafter "§ 1373"), which prohibits state and local governments from restricting their own officials from communicating information regarding the citizenship or immigration status of any individual to the Immigration and Naturalization Service.[1]
All of those conditions were imposed on applicants for the FY 2018 Byrne JAG grant as well, but three new conditions were added. The first was virtually identical to the compliance condition, except that it referenced 8 U.S.C. § 1644 (hereinafter § 1644) rather than 8 U.S.C. § 1373 which contains essentially the same language:
• the § 1644 compliance condition requires certification that the "program or activity" funded under the Byrne JAG award complies with § 1644, which provides "[n]otwithstanding 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."
The Attorney General concedes that the two compliance conditions are equivalent and that our disposition as to one will control as to the other.
The Attorney General imposed two additional conditions on the FY 2018 Byrne JAG grant that were distinct from those imposed on the FY 2017 grant, which have been termed the "harboring" condition and the "additional certification" condition:
• The harboring condition prohibits the recipient jurisdiction from making any "public disclosure ... of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under 18 U.S.C. ch. 49, or any alien who has come to, entered, or remains in the United States in violation of 8 U.S.C. ch. 12—without regard to whether such disclosure would constitute (or could form a predicate for) a violation of 18 U.S.C. 1071 or 1072 or of 8 U.S.C. 1324(a)." • The additional certification condition requires the certification that "neither the jurisdiction nor any entity, agency, or official of the jurisdiction has in effect ... any law, rule, policy, or practice that would apply to the `program or activity' to be funded ... that would or does—(a) impede the exercise by federal officers of authority under 8 U.S.C. § 1357(a); or (b) impede the exercise by federal officers of authority relating to 8 U.S.C. § 1226(a) or (c), 8 U.S.C. § 1231(a), or 8 U.S.C. § 1366(1) or (3)."
Chicago, 405 F. Supp. 3d at 754-55.
Those conditions conflict with the Welcoming City Ordinance, which reflects Chicago's determination that the cooperation of all persons, whether documented or undocumented, "`is essential to achieve the City's goals of protecting life and property, preventing crime and resolving problems.'" Chicago I, 888 F.3d at 279 (quoting Chicago Municipal Code, Welcoming City Ordinance (the "Ordinance"), § 2-173-005 "Purpose and Intent"). Toward that end, the Ordinance sets forth standards which include prohibitions on requesting or disclosing information as to immigrant status, as well as a prohibition on detaining persons solely based on a belief as to their immigration status or on immigration detainers based solely on violations of civil immigration laws. Chicago I, 888 F.3d at 279; Ordinance, § 2173-020, -030, -042. The Ordinance further provides that "unless acting pursuant to law enforcement purposes unrelated to the enforcement of civil immigration law, no agency or agent shall permit Immigration and Customs Enforcement (ICE) agents access to a person being detained or permit the use of agency facilities for investigative interviews, nor can an agency or agent while on duty expend time responding to ICE inquiries or communicating with ICE as to a person's custody status or release date." Chicago I, 888 F.3d at 279; Ordinance § 2-173-042. Those restrictions in the Ordinance are inapplicable when the subject of the investigation "has an outstanding criminal warrant, ... has been convicted of a felony, ... is a defendant ... where ... a felony charge is pending, ... or has been identified as a known gang member either in a law enforcement agency's database or by his or her own admission." Ordinance, § 2-173-042(c); Chicago I, 888 F.3d at 279-80.
A. Challenge to FY 2017 grant

In the first of the two cases before us, Chicago challenges the conditions imposed on the FY 2017 grant, alleging: that the conditions were unconstitutional because the Byrne JAG statute does not provide the Attorney General with the statutory authority to impose the conditions, and that the imposition is therefore ultra vires and a violation of the separation of powers; that the conditions violate the Spending Clause of the Constitution; and that, independent of the Byrne JAG grant, § 1373 is an impermissible federal conscription of state power and is unconstitutional under the anticommandeering doctrine of the Tenth Amendment. Chicago also sought a declaratory judgment providing that even if § 1373 is constitutional, Chicago is in compliance with it. Finally, Chicago alleged that the imposition of the conditions was arbitrary and capricious in violation of the Administrative Procedures Act and violated the Paperwork Reduction Act.
The Attorney General sought dismissal of the complaint in its entirety, arguing that the complaint was insufficient to state a claim and that the court lacked subject matter jurisdiction. As to subject matter jurisdiction, the Attorney General asserted that the Department of Justice had not yet consummated any final agency action that was ripe for judicial review because it had not reached a final decision as to whether to award Chicago funds under the Byrne JAG grant. Chicago responded that its challenge was not to the Attorney General's pending decision as to whether to award the grant funds, but rather to the decision to attach the conditions to the grant in the first instance. The district court agreed with Chicago as to the nature of the challenge, noting that the complaint requested that the court "[d]eclare that all three immigration-related conditions for the FY 2017 Byrne JAG are unlawful." City of Chicago, 321 F. Supp. 3d at 865. The court noted that in order for an agency action to be final, two criteria must be satisfied: it must mark the consummation of the agency's decision-making process and not merely a tentative or interlocutory decision; and it must be one by which rights or obligations of the challenging party have been determined or from which legal consequences will flow. Id. at 865 (citing Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). The court held that the action was not merely tentative or interlocutory, because the Attorney General stated in his declaration that every FY 2017 award would include conditions identical to the ones in the grant already awarded, which included all of the challenged conditions. Id. at 865. In addition, the court noted that the FY 2017 grants were awarded based on a solicitation that clearly imposed the challenged conditions. Id. The court held that the second criteria was met as well, because the conditions force Chicago to choose between accepting the award with those conditions, or forgoing the grant and the corresponding law enforcement benefit in favor of maintaining the policies that it believed would maximize law enforcement goals. Id. at 866.
Chicago moved for partial summary judgment as to three counts, arguing that the Attorney General acted ultra vires in imposing the conditions, and in violation of the separation of powers, and contending that even if the compliance condition was valid, Chicago was not in violation of § 1373. The district court granted the motion and determined that § 1373 was facially unconstitutional under the Tenth Amendment's anti-commandeering principle, that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a)(6), and that the Attorney General violated the principle of the separation of powers in attaching conditions to the FY 2017 Byrne JAG grant. The court enjoined the imposition of the three conditions programwide, but stayed the injunction beyond the City of Chicago pending the appeal. Id. at 882. The Attorney General now appeals that decision as to all three of the conditions.

B. Challenge to FY 2018 grant
In the second of the two cases consolidated in this appeal, Chicago raises identical challenges to the notice, access and compliance conditions, and also challenges the harboring condition and the additional certification requirement.[2] The district court held that the notice, access, and compliance conditions were materially identical to the conditions it had already enjoined in the case challenging the FY 2017 grant conditions, and that the new compliance condition referencing § 1644 was indistinguishable from the § 1373 compliance condition and therefore unlawful under the same reasoning. As to the additional certification requirement, the court first recognized that the Executive possesses no inherent authority to impose conditions on the payment of federal funds authorized by the Legislature, and that the Attorney General had failed to identify any source of authority as to the imposition of the additional certification requirement. The district court nevertheless proceeded to analyze whether any statutory basis for the Attorney General's authority was apparent.
The court first noted that the Byrne JAG statute itself provided no such authority, and in fact strictly delineated the formula for the distribution of grant funds. The court then noted that it had already held, with respect to the notice and access conditions, that § 10102(a)(6) did not provide such authority. The court further held that the statutes enumerated in the additional certification requirement applied only to the federal government and did not require cities or localities to do anything, and therefore the Attorney General could not require compliance with those statutes as an "applicable federal law" under § 10153(A)(5)(D). Finally, the court addressed the harboring condition. After again noting that § 10102(a)(6) cannot provide a source of such authority, the court considered the Attorney General's argument that 34 U.S.C. §§ 10102(a)(2) and (4) authorize the imposition of the harboring condition. Those sections require the Assistant Attorney General to maintain liaison with the executive and judicial branches of the federal and state governments, public and private educational and research institutions, state and local governments, and governments of other nations, relating to criminal justice. The district court held that §§ 10102(a)(2) and (4) contain no delegation of authority to place a harboring condition on Byrne JAG grantees, but rather are more plausibly read as an instruction that the Assistant Attorney General maintain bilateral communications with state and local governments.
II. Analysis—Overview.
As we discussed in Chicago I, this appeal is not about optimal federal or state immigration policies. That is not for the court to discuss or decide. Rather, the issues before us to-day concern the spheres of power that reside in the state rather than in the federal government, and the critical balance of power between the executive, legislative, and judicial branches of the federal government. Chicago, in deciding that its law enforcement needs would be better met if its undocumented residents could report crimes and communicate with its police force without fear of immigration consequences, is exercising its police power—an area of power long recognized as resting with the states. The Attorney General now seeks to pursue the federal government's interest in enforcing its immigration laws. Regulating immigration into this country is a legitimate federal interest, and the executive branch including the Attorney General has authority to enforce the nation's immigration laws. But

the methods the executive employs in pursuit of those legitimate ends must be lawful and, in this case, the means the Attorney General has chosen are not lawful. The federal government cannot merely conscript the police forces of the state or local governments to achieve its ends; that would eviscerate the principles of federalism that rest at the very foundation of our government.
The Attorney General's use of extra-statutory conditions on federal grant awards as a tool to obtain compliance with his policy objectives strikes at the heart of another core value, which is the separation of powers among the branches of the federal government. The authority to pass laws and the power of the purse rest in the legislative not the executive branch. The composition of the legislature—with elected representatives and dual chambers—provides institutional protection from the abuse of such power. But no such institutional protection from abuse exists should such power be concentrated in the executive branch, where one individual—whether the President or the Attorney General or another official—determined to impose his or her policy preferences regardless of the will of Congress, could proceed unimpeded by the types of institutional checks present in the legislative body. Such a concentration of power would allow tyranny to flourish, and our system of government is wisely set up by the Founders to foreclose such a danger. The executive branch has significant powers of its own— particularly in matters such as immigration—but the power to wield the purse to alter behavior rests squarely with the legislative branch. Congress has thus far refused to pass legislation that would do precisely what the Attorney General seeks to do here. "Respecting the separation of powers forecloses no substantive outcomes. It only requires us to respect along the way one of the most vital of the procedural protections of individual liberty found in our Constitution." Gundy v. United States, 139 S. Ct. 2116, 2145 (2019)(Gorsuch, J., dissenting).
Article I of the Constitution vests the power to legislate with Congress, not the Executive. Id. at 2123. Therefore, "when Congress confers decisionmaking authority upon agencies Congress must `lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.'" (emphasis in original) Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001), quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
III. Notice, Access, Harboring and Additional Certification Conditions
For his authority to impose the conditions, the Attorney General points to 34 U.S.C. § 10102, which sets forth the duties and functions of the Assistant Attorney General as follows:
(a) Specific, general and delegated powers
The Assistant Attorney General shall—
(1) publish and disseminate information on the conditions and progress of the criminal justice systems;

(2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice; (3) provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice; (4) maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice; (5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention; and (6) exercise such other 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.
The Attorney General argues that §§ 10102(a)(2), (4), and
(6) provide authority for him to impose the substantive conditions on the Byrne JAG grant. Specifically, he points to § 10102(a)(6) as allowing virtually unlimited authority to place conditions on grants and therefore allowing the imposition of the notice, access, harboring and additional certification conditions. He further points to the provisions in §§ 10102(a)(2) and (4) empowering the Assistant Attorney General to "maintain liaison" as further authority for the harboring condition.
A. Section 10102(a)(6)
We turn first to the notice and access conditions, which we previously addressed in the appeal from the grant of a preliminary injunction. Chicago I, 888 F.3d 272. The district court imposed a preliminary injunction as to those notice and access conditions, and in Chicago I we upheld that preliminary injunction. The standard for preliminary injunctive relief requires only a showing of a likelihood of success on the merits, whereas permanent relief requires a determination on the merits. Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 546 n.12 (1987). As to the challenge to the notice and access conditions, however, this is a distinction without a difference.
Our reasoning in Chicago I established Chicago's entitlement to relief on the merits, not merely a likelihood of success. The Attorney General relied on 34 U.S.C. § 10102(a)(6) as providing the statutory authority to impose both of those conditions.
Subsection (a)(6) provides that the Assistant Attorney General shall "exercise such other 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." § 10102(a)(6) (emphasis added). During the first appeal, we held that the plain meaning of that language was to delineate the subcategory of powers and functions that the Assistant Attorney General could exercise when vested in the Assistant Attorney General either by the terms of this chapter or by delegation of the Attorney General. Chicago I, 888 F.3d at 285; accord New

York, 951 F.3d at 102, City of Philadelphia v. Atty. Gen. of United States, 916 F.3d 276, 287 (3d Cir. 2019), City & Cnty. of San Francisco v. Sessions, 372 F. Supp. 3d 928, 943 n.4 (N.D. Cal. 2019). The "inescapable problem" with the Attorney General's interpretation, however, was that he did not even claim that the power exercised here was authorized anywhere in the chapter, nor could he claim that the Attorney General possesses that authority and could delegate it to the Assistant Attorney General. Chicago I, 888 F.3d at 285. And the plain language of § 10102(a)(6) precludes an interpretation that it is a standalone grant of power unrelated to the authority granted in the chapter or the authority granted to the Attorney General. Id.
We further noted that our plain reading of the statute was consistent with the structure of § 10102 and the Byrne JAG program itself. Id. at 285-86. In contrast to discretionary grants, the Byrne JAG program was a formula grant program, with strictly-circumscribed provisions allocating award amounts and penalties. An interpretation of § 10102(a)(6) that would authorize the wholesale denial of all grant funds would be a radical departure from the otherwise carefully-de-lineated rules for the awarding and the withholding of funds, and one would expect such a significant power to be unmistakable in its language and to be connected to the Byrne JAG (or grant awards in general) by reference. We noted that
`[a] clause in a catch-all provision at the end of a list of explicit powers would be an odd place indeed to put a sweeping power to impose any conditions on any grants—a power much more significant than all of the duties and powers that precede it in the listing, and a power granted to the Assistant Attorney General that was not granted to the Attorney General.... As the Supreme Court has repeatedly held, `Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.'
Id. at 285-87, quoting Gonzales v. Oregon, 546 U.S. 243, 267 (2006); Philadelphia, 916 F.3d at 288. We will not repeat that analysis here, but it applies equally in the context of a permanent injunction. No new meritorious arguments have been raised by the Attorney General as to those conditions in this appeal. Accordingly, we adopt and incorporate the reasoning from Section III of that opinion in this appeal. Chicago I, 888 F.3d at 282-87. For the reasons stated in Chicago I, the district court did not err in granting permanent injunctive relief as to the notice and access conditions. The Attorney General relies on § 10102(a)(6) as the authority to impose the additional certification and harboring conditions as well, and our rejection of that argument in Chicago I forecloses the argument as to those conditions as well.[3]
B. Sections 10102(a)(2) and (4)
The Attorney General attempts to salvage the harboring condition by pointing to a different portion of § 10102—the subsections that instruct the Assistant Attorney General to maintain liaisons with other entities—in (a)(2), "with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice," and in (a)(4) "with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice." That language entrusts the Assistant Attorney General with maintaining lines of communication with other entities, and is sandwiched between a recitation of other relatively-ministerial duties of the Assistant

Attorney General including the power to: "publish and disseminate information on the conditions and progress of the criminal justice systems [in (a)(1)], ... provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice [in (a)(3),] ... [and] coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention [in (a)(5)]." 34 U.S.C. §§ 10102(a)(1), (3), (5); Chicago I, 888 F.3d at 287.
Nothing in that language even references, let alone authorizes, the Assistant Attorney General to impose conditions on the distribution of funds authorized by Congress. See State of Oregon v. Trump, 406 F. Supp. 3d 940, 969 (2019) (holding that the definition of liaison does not even hint at a punitive aspect, "let alone a discretionary authority to completely dissolve relations when one side does not abide by the wishes of the other," and that the structure of the statute also weighs against the Attorney General's interpretation); San Francisco, 372 F. Supp. 3d at 944 (noting that "[t]he structure of Section 10102 does not support the contention that `maintain liaison' in Section 10102(a)(2) provides more than a ministerial duty on the Attorney General to maintain communication with other Federal and State agencies."). It would strain statutory interpretation to the breaking point to interpret a provision that requires the fostering of communication as handing to the Assistant Attorney General the power to withhold the entire Byrne JAG award for the failure to comply with substantive conditions imposed by the Attorney General — particularly given that the language in the Byrne JAG grant sets forth highly detailed and precise circumstances that would justify the withholding of funds and the percentages that can be withheld. See Chicago I, 888 F.3d at 286-87.
Moreover, the language in subsections (a)(2) and (4) could not support the harboring condition even if we were to ignore the problem that the language itself does not authorize the imposition of conditions. Both subsections address the power to maintain liaisons relating to criminal justice matters. But the harboring condition that the Attorney General seeks to impose on the Byrne JAG grant is explicitly not targeted to criminal matters. The harboring condition prohibits the recipient jurisdiction from making any "public disclosure ... of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under 18 U.S.C. ch. 49, or any alien who has come to, entered, or remains in the United States in violation of 8 U.S.C. ch. 12—without regard to whether such disclosure would constitute (or could form a predicate for) a violation of [federal criminal law provisions] 18 U.S.C. 1071 or 1072 or of 8 U.S.C. 1324(a)." (emphasis added) Chicago, 405 F. Supp. 3d at 754-55. Thus, it would withhold funds even regarding disclosures that related only to civil immigration and not the more narrow category of criminal immigration matters. And it is being used by the Attorney General to target Chicago's Welcoming City Ordinance, which explicitly allows the City to cooperate in criminal, as opposed to civil, immigration matters. The Attorney General cannot rely on a provision encouraging communications as to criminal justice matters as authority to deny funds for disclosures related only to civil matters. See San Francisco, 372 F. Supp. 3d at 945 (holding that the scope of the harboring condition exceeds the ministerial duty to maintain liaison). For that reason as well, §§ 10102(a)(2) and (4) do not provide authority for the harboring condition.

IV. Compliance Condition.
We turn, then, to the compliance condition, which requires the state or local government to certify that it will not restrict its own officials from communicating information regarding the citizenship or immigration status of any individual. The burden of that requirement is not insignificant. For instance, in City & Cnty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 952 (N.D. Cal. 2018), considering only detainer requests, the district court noted that "California's law enforcement agencies experienced double the detainer requests from ICE in one year—from 15,000 in fiscal year 2016 to 30,000 in fiscal year 2017." Under the Attorney General's compliance condition, a state or local government could not instruct its own employees that they must devote their time to law enforcement tasks that it deems a higher priority rather than respond to those information requests from ICE.
The compliance condition was not before this court in the prior appeal. The district court had denied preliminary relief as to that condition and Chicago did not cross-appeal that issue to this court. At the permanent injunction stage, however, the court reversed course and granted injunctive relief as to that condition as well based on the Supreme Court's decision in Murphy v. Nat'l Collegiate Athletic Ass'n, 138 S. Ct. 1461 (2018), which had been issued in the interim.
A. District Court Analysis
In the "Overview of Legal Requirements Generally Applicable to OJP [Office of Justice Programs] Grants and Cooperative Agreements — FY 2017 Awards," (hereinafter "Overview of Legal Requirements"), the Attorney General declared that he was imposing the compliance condition "[c]onsistent with OJP's statutory authority to impose grant conditions, including 42 U.S.C. 3712 [now found at 34 U.S.C. § 10102]." See Dist. Ct. R. 26, Exh. M. As with the notice and access conditions, the Attorney General points to § 10102(a)(6) as authorizing the Assistant Attorney General to place special conditions on all grants and determine priority purposes for formula grants. We rejected that interpretation in Chicago I as to the notice and access provisions, and we have adopted that rationale in this appeal as well. The Attorney General's reliance on § 10102(a)(6) fails for the same reason when applied to the compliance condition.
Despite his declaration that the grant condition would be imposed pursuant to his power under § 10102, in the district court and on appeal the Attorney General primarily anchors the compliance condition to 34 U.S.C. § 10153(A)(5)(D) (hereinafter "§ 10153"). That provision states that in a request for a grant, the application "shall include ... [a] certification, made in a form acceptable to the Attorney General ... that ... the applicant will comply with all provisions of this part and all other applicable Federal laws." (emphasis added) The Attorney General argues that the italicized portion allows him to require that applicants certify compliance with 8 U.S.C. § 1373.
Section 1373 provides:
(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. (c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
Under the Attorney General's reasoning, Congress itself incorporated § 1373 into the Byrne JAG program by requiring compliance with "all other applicable federal laws." And the Attorney General interprets the requirements of § 1373 incredibly broadly, maintaining that the information as to "citizenship or immigration status" incorporates information beyond an individual's immigration status, including, for instance, an alien prisoner's release date.
The district court interpreted the term "all other applicable federal laws" as encompassing all federal law. City of Chicago, 321 F. Supp. 3d at 875. The court held that if Congress wanted to limit the term to include just a specific body of federal grant-making laws, it could have done so, but that the language "all other applicable federal law" includes any federal law that applies to Chicago. Id. Because § 1373 is a federal law, the court held that § 10153 would require applicants to certify compliance with it. Id.
But the district court then considered whether § 1373 was itself constitutional, reasoning that an unconstitutional law could not constitute an "applicable law" under § 10153. The court held that § 1373 violated the anticommandeering doctrine of the Tenth Amendment in light of the Supreme Court's decision in Murphy, 138 S. Ct. 1461. City of Chicago, 321 F. Supp. 3d at 866-73, 875. In Murphy, the Court made clear that regardless of whether a federal law commands state action or precludes it, Congress cannot issue direct orders to state legislatures. Murphy, 138 S. Ct. at 1478. Accordingly, the language in § 1373 could be problematic under the Tenth Amendment even if it merely operated to preclude the state from taking certain actions. The district court then considered the language of § 1373, which bars any government entity or official from prohibiting, or in any way restricting, any other government entity or official from exchanging information with federal immigration authorities, and also prohibits any person or agency from doing the same. The court held that Chicago had challenged § 1373 as an independent statute, and concluded that it was unconstitutional under the anti-commandeering doctrine of the Tenth Amendment. City of Chicago, 321 F. Supp. 3d at 867, 869. The court noted that a state's ability to control its

offices and employees is at the heart of state sovereignty and that § 1373 violates that in a number of ways: first, it supplants local control of officers, precluding Chicago and other localities from limiting the amount of paid time its employees use to communicate with federal immigration authorities; second, it indirectly constrains local rule-making by precluding local lawmakers from passing laws that implement the localities' preferred policies, such as the Welcoming City Ordinance, which run counter to § 1373—a concern squarely addressed in Murphy; third, it redistributes local decision-making power by transferring that power from local policymakers to line-level employees who are empowered to decide for themselves whether or not to communicate with immigration authorities; and finally, because it eliminates the ability of a locality such as Chicago to control its employees' communications with federal immigration authorities, § 1373 prevents that locality from extricating itself from federal immigration enforcement, thus foreclosing the "critical alternative" recognized in New York v. United States, 505 U.S. 144, 177 (1992), of the option of non-participation in a federal program. City of Chicago, 321 F. Supp. 3d at 869-70. The court concluded that § 1373 was unconstitutional on its face and, as an unconstitutional law, it could not be considered an "applicable federal law" for purposes of § 10153. Id. at 875-76. It rejected the Attorney General's baseless argument that even an unconstitutional law could be considered an "applicable federal law" under § 10153.
B. Section 10153
The Attorney General challenges those conclusions on appeal, but we need not address the district court's compelling analysis of that Tenth Amendment issue, because we hold that the term "all other applicable federal law" cannot be construed so broadly as to encompass § 1373. Pearson v. Callahan, 555 U.S. 223, 241 (2009) (noting the court's long-time practice of "constitutional avoidance," where courts do not pass on questions of constitutionality unless such adjudication is unavoidable). Our analysis begins with the plain language of § 10153, interpreted not in a vacuum, but in light of the context and the statutory structure as a whole. Gundy, 139 S. Ct. at 2126; Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 18-19 (1981). Proper interpretation considers not only the specific context in which the language is used, but the overall structure of the statute as a whole, as well as its history and purpose. Gundy, 139 S. Ct at 2126.
1. Plain Language
The Attorney General argues that the term "all other applicable federal law" incorporates all federal law that applies to states or localities. The immediate problem with that interpretation is that it renders the words "other applicable" superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)) ("[i]t is `a cardinal principle of statutory construction' that `a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'"); Philadelphia, 916 F.3d at 289 ("the canon against surplusage counsels us to read the term `applicable' in a way that gives it some independent heft.") If Congress meant to incorporate all law that applies to States or localities, that would be accomplished by requiring compliance with "all federal law." Any federal laws that did not apply to states or localities would simply be irrelevant in considering compliance, in that an entity could not fail to comply with a law that does not

impose any legal obligations on it, and therefore the term would not be overinclusive. By including only "applicable" federal laws, the provision encompasses only laws that apply by their terms to the award itself.
The natural reading of the phrase considers the language in the subsection as a whole:
(A) To request a grant ... the ... State or unit of local government shall submit an application to the Attorney General ... in such form as the Attorney General may require. Such application shall include the following: ... (5) A certification, made in a form acceptable to the Attorney General and executed by the chief executive officer of the applicant (or by another officer of the applicant, if qualified under regulations promulgated by the Attorney General), that— (A) the programs to be funded by the grant meet all the requirements of this part; (B) all the information contained in the application is correct; (C) there has been appropriate coordination with affected agencies; and (D) the applicant will comply with all provisions of this part and all other applicable Federal laws.
34 U.S.C. § 10153(A)(5). This provision relates to the grant application itself and conformance to all of its requirements. It provides for an assurance that the programs to be funded by the grant meet all the requirements, that the information in the grant application is correct, that appropriate coordination with agencies affected by the grant has occurred, and that the applicant will comply with all provisions of this part and "all other applicable Federal laws." The most natural reading of the last provision is that "all other applicable" laws refers to the many federal laws that apply specifically to grants or grantees. That is consistent with the structure of the provision as a whole which addresses requirements related to the grant and the application for the grant itself. See City of Providence v. Barr, 2020 WL 1429579 at *11 (1st Cir. March 24, 2020); Philadelphia, 916 F.3d at 289 (noting that those four subsections all relate to the programs that will be funded under the grant, thus counseling against a broader interpretation of the applicable laws clause); San Francisco, 349 F. Supp. 3d at 954 (noting that all of the conditions preceding it apply to the grant itself). This reading also tracks more closely to the language of § 10153(A)(5)(D) itself, which requires certification that the "applicant" will comply with all provisions of this part and all other applicable federal laws, thus signaling that the requirement is tethered to the status of the state and locality as a grant applicant and not merely as a governmental entity.
2. Consistency with Other Statutes Applied
The language at issue is mirrored in a subsequent subchapter that also applies on its terms to the Byrne JAG program, and provides:
Whenever, after reasonable notice and opportunity for a hearing on the record in accordance with section 554 of Title 5, the Bureau of Justice Assistance, the National Institute of Justice, and the Bureau of Justice Statistics finds that a recipient of assistance under this chapter has failed to comply substantially with— (1) any provisions of this chapter; (2) any regulations or guidelines promulgated under this chapter; or

(3) any application submitted in accordance with the provisions of this chapter, or the provisions of any other applicable Federal Act; the Director involved shall, until satisfied that there is no longer any such failure to comply, terminate payments to the recipient under this chapter, reduce payments to the recipient under this chapter by an amount equal to the amount of such payments which were not expended in accordance with this chapter, or limit the availability of payments under this chapter to programs, projects, or activities not affected by such failure to comply.
(emphasis added) 34 U.S.C. § 10222. Again, the statute speaks in terms of the "recipient of assistance under this chapter" complying with "the provisions of any other applicable Federal law," thus signaling that the laws that would be "applicable" are laws that refer specifically to grant recipients, not any laws that apply generally to states or localities. The reference to "other" applicable Federal law is a nod to the requirements that precede it, which all relate to the grant itself and regulations relating to it. Specifically, preceding the "all other applicable Federal law" provision are the requirements that the recipient of assistance comply substantially with provisions of that chapter, regulations or guidelines promulgated under that chapter, and applications submitted in accordance with the provisions of this chapter. All of those requirements directly relate to the requirements specific to the subject matter of the grants. The most natural reading of the phrase "all other applicable Federal law," then, is that it includes laws relating to grant recipients that appear outside this specific chapter of the United States Code.
And that is true of the same language in § 10153(A)(5)(D) as well. Because many federal laws explicitly apply to federal grantees, the most natural reading of § 10153 as a whole is that it requires the applicant to certify that it will comply with all of those federal laws that apply, by their terms, to successful grant applicants. That is consistent with the other listed provisions in § 10153(A)(5) which relate to the grant itself—either in assuring that it is awarded based on correct information, or that it is pursued in proper coordination with affected agencies, or, in the part at issue here, that it will be in compliance with all the grant requirements in this part or other parts of federal law. It is also reflected in the OJP's own explanation of grant requirements as set forth in its Overview of Legal Requirements, which explains that "[e]ach recipient of an OJP grant or cooperative agreements must comply with all federal statutes and regulations applicable to the award, as well as the particular award conditions included in the award document." (emphasis added) Dist. Ct. R. 26, Exh. M.; see also id. (providing applicant an overview of statutes and award conditions "that apply to many (or in some cases, all) OJP grants and cooperative agreements awarded in 2017") (emphasis added). As that language makes clear, the connection of the law to the award itself is what renders a particular federal law "applicable."[4]
Such statutes directly applying to grants and grant recipients are plentiful, and the Byrne JAG program explicitly identifies a number of them in its application. In fact, a review of the other federal laws referenced in the application reveals a clear pattern of laws that explicitly apply to those receiving federal funds. The Edward Byrne Memorial Justice Assistance Grant Program FY 2017 Local Solicitation directs applicants to the web pages accessible through the "Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative agreements — FY 2017 Awards" for a general overview of the important statutes and regulations that apply to the grant. Appellant's Appendix, No. 18-2885, at A175. That source identifies a number of federal laws that apply to the grant, and those

laws are identified in the grant award itself as well. See id. at A50-A69. Unlike § 1373, however, those laws by their very language apply expressly to grants and recipients of grants. For instance, the laws include:
18 U.S.C. § 1913—Lobbying with appropriated moneys, which provides that "[n]o part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, [etc.] ... intended or designed to influence in any manner a Member of Congress ...." 22 U.S.C. § 7104—Prevention of trafficking, which in § 1704(g) provides that "the President shall ensure that any grant ... provided or entered into by a Federal department or agency under which funds are to be provided to a private entity, in whole or in part, shall include a condition that authorizes the department or agency to terminate the grant ... if the grantee or any subgrantee ... engages in ... (1) severe forms of trafficking in persons ...." 41 U.S.C. § 4712(a)(1)—Enhancement of contractor protection from reprisal for disclosure of certain information, providing that "[a]n employee of a ... grantee, or subgrantee ... may not be discharged, demoted or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2) information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant ...." 28 C.F.R. § 54.100—Title IX regulation "designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution ...." 28 C.F.R. § 42.102-42.105—Title VI of the Civil Rights Act—prohibits discrimination on the ground of race, color, or national origin and "applies to any program for which Federal assistance is authorized under a law administered by the Department," with Federal financial assistance defined as including "grants and loans of Federal funds." It also requires that "[e]very application for Federal financial assistance to which this subpart applies ... shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this subpart." 31 U.S.C. § 1352—Limitation on use of appropriated funds to influence certain Federal contracting and financial transactions, providing that "[n]one of the funds appropriated by any Act may be expended by the recipient of a Federal... grant ... to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with [federal contracts]."
(emphasis added). Those statutes and regulations also provide specific remedies tailored to each provision for violations—ranging from civil penalties to abatement measures to grant termination—in contrast to §1373 for which the Attorney General himself has determined that wholesale withholding of the entire grant is the remedy for noncompliance. See, e.g., 31 U.S.C. § 1352(a)-(c) incorporated by reference in 18 U.S.C. § 1913, 22 U.S.C. § 7104(g), 41 U.S.C. § 4712(c). Section 1373, therefore, represents a departure from the other federal law incorporated into the grant. In fact, the Third Circuit in Philadelphia, 916 F.3d at 290, considered the history as to which laws the Justice Department included under the applicable laws clause, and noted that "[e]very condition that is authorized by the

Applicable Laws Clause applies specifically to programs funded under the grant, not more generally to the grantee."
C. Problems with AG's Interpretation
The Attorney General's interpretation of the compliance provision, in contrast, would expand that provision far beyond the context of the grant and its application, to encompass the broad, unrelated array of federal laws that apply to states or local governments regardless of their connection to this or any grant. Moreover, as we will explain, the Attorney General's interpretation would: (1) allow the executive to impose conditions that Congress repeatedly declined to institute itself; (2) allow the Attorney General in his discretion to impose a substantive qualifying condition on a grant that Congress explicitly established as a formula rather than a discretionary grant; (3) render irrelevant or illogical other provisions in the Byrne JAG statute and raise constitutional concerns; and (4) conflict with another statutory provision. As such, it is inconsistent with the bedrock principles of separation of powers and federalism, and the district court properly granted injunctive and declaratory relief.
1.
Although the Attorney General interprets § 10153 as requiring compliance with § 1373, Congress has repeatedly refused to pass legislation that would do precisely that, as we recognized in Chicago I:
In the past few years, numerous pieces of legislation were introduced in the House and Senate seeking to condition federal funding on compliance with 8 U.S.C. § 1373—which was intended to address "sanctuary cities" and prohibit federal, state or local government officials or entities from restricting the exchange of information with the immigration authorities regarding citizenship or immigration status. None of those efforts were passed by Congress. See, e.g., Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. § 4 (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. § 4 (2016); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. § 3 (2015); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2 (2015); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. § 3(a) (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 2 (2015) (all available at https://www.congress.gov). see also Annie Lai & Christopher N. Lasch, Crimmigration Resistance and the Case of Sanctuary City Defunding, 57 Santa Clara L. Rev. 539, 553 n. 87 (2017) (listing eight pieces of legislation introduced during that time, all of which were unsuccessful).
Chicago I, 888 F.3d at 277-78. The Attorney General's reading would thus allow the Executive Branch to override Congress' refusal to endorse § 1373 compliance and would effectively "legislate" a different result.
2.
Second, the Attorney General's interpretation would vest the executive branch with unbridled power to identify select federal laws and impose them as a precondition for the

receipt of federal grant money allocated by Congress. That discretionary authority is fundamentally inconsistent with the nature of the Byrne JAG grant as a formula grant, located in a separate section of the Act than the discretionary grants. See generally Bureau of Justice Assistance Grant Program, 34 U.S.C. § 10151 et seq. As a formula grant rather than a discretionary grant, the grant awarded is a function of the state or local government's proportionate crime rate and population, and is incompatible with the sort of unbridled discretion that the Attorney General's interpretation would yield. See Philadelphia, 916 F.3d at 290 (noting that Congress structured the Byrne JAG program as a formula grant, and that allowing the withholding of funds "because a jurisdiction does not certify compliance with any federal law of the Attorney General's choosing undermines the predictability and consistency embedded in the program's design, thus turning the formula grant into a discretionary one.").[5]
The Attorney General dismisses this as a non-issue, declaring that the States and local governments were already subject to those laws and therefore the certification of compliance imposes no burden or barrier. He disclaims any role in determining which laws will be applied, stating that his interpretation "does not require compliance with laws `selected at the Attorney General's uncabined discretion.'" Reply Brief, No. 18-2885, at 5. Instead, he declares that he is "not urging that the Attorney General has discretion to select applicable laws; rather, Congress has made laws applicable to Chicago, and Chicago must comply with them." Id. at 5-6. But that argument is utterly inconsistent with the application process that the Attorney General has actually implemented and is meritless.
First, the grant application does not purport to track compliance with the entire universe of federal law. Instead, the Attorney General has singled out particular federal laws which act as a gatekeeper to control and limit access to the grant. That is apparent in the language of the application— which identifies specific statutes—and also in the Attorney General's apparent absence of concern with the multitudes of other federal laws that apply by their terms to states and cities, such as OSHA requirements or EPA regulations or any other federal constitutional, statutory or regulatory law. In fact, the Attorney General has singled out § 1373 and required a separate certification of compliance for that statute alone, with penalties for false statements or omissions ranging from civil penalties to criminal prosecution. Rather than conditioning the award of the grant on evidence that the state or local government is in compliance with all federal laws that by their terms apply to states or local governments, the Attorney General conditions the award on a certification that the state or locality is in compliance with one specific law—§ 1373—as is trumpeted in the following notice to grant applicants:
Alert: New Requirements for Certain FY 2017 Programs Consistent with OJP's statutory authority to impose grant conditions, including 42 U.S.C. 3712, OJP will include—in an award document sent to a prospective FY 2017 Edward Byrne Justice Assistance Grant ("Byrne JAG") recipient for acceptance—express award conditions concerning ongoing compliance with 8 U.S.C. 1373, throughout the award period, in the "program or activity" funded by the award. (In general, section 1373 bars restrictions on communication between State and local agencies and officials and the Department of Homeland Security (and certain other entities) with respect to information regarding the citizenship or immigration status of any individual.) States and units of local government that apply for awards under the FY 2017 Byrne JAG Program will be required—

prior to award acceptance—to submit a specific certification from the chief legal officer of the jurisdiction regarding the applicant's compliance with 8 U.S.C. 1373(a) and (b). Interested applicants may view a sample certification document at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm. In addition, consistent with OJP's statutory authority, OJP will include in any FY 2017 Byrne JAG award (as part of the award document) additional express conditions that, with respect to the "program or activity" that would be funded by the FY 2017 award, are designed to ensure that States and units of local government that receive funds from the FY 2017 Byrne JAG award: (1) 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; and (2) 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.
Overview of Legal Requirements, Dist. Ct. R. 26, Exh. M. That alert to future grant applicants expressly recognizes that the OJP has selected one federal statute to impose as a grant condition with requirements of certification that are specific to that statute. Its contention that Congress, rather than the Attorney General, has selected the laws that will constitute conditions of the grant is patently false.
The argument that the certificate of compliance imposes no burden because government entities were already required to follow the law fails for an additional reason. The identification of a federal law as an "other applicable law" for receipt of the grant imposes a penalty on the violation of that law that would otherwise not exist. It transforms every federal legal obligation into a potential basis to withhold funding that has been designated by Congress for disbursement to state and local governments for law enforcement. Yet that penalty for non-compliance is not a penalty set forth by Congress in those other statutes. Therefore, the interpretation by the Attorney General which could transform any federal law into a condition of the grant would indeed impose a burden not already provided by the federal law itself, in the form of a steep financial penalty. In fact, that "penalty" could extend well beyond the denial of the Byrne JAG grant if the Attorney General's interpretation of "all other applicable federal law" is adopted. It would allow the Attorney General to withhold myriad other grants that have been authorized by Congress because that precise term is used in numerous other statutes—often as part of a statutory section that mirrors the one in the Byrne JAG grant at issue here—including statutes providing grants under: the Comprehensive Opioid Abuse Grant Program, 34 U.S.C. § 10702; Matching Grant Program for School Security, 34 U.S.C. § 10552; Career and Technical Education Assistance to the States, 20 U.S.C. § 2322; and the Bureau of Justice Assistance Discretionary Grants, 34 U.S.C. § 10181.
Interpreting that language as potentially incorporating any federal law would vest the Attorney General with the power to deprive state or local governments of a wide variety of grants, based on those entities' failure to comply with whatever federal law the Attorney General deems critical. Yet there is nothing in those statutes that even hints that Congress intended to make those grants dependent on the Attorney General's whim as to which laws to apply, cabined only by the requirement that the laws apply generally to states or localities. That anomalous result is avoided if we interpret the term "all other applicable

federal law" to incorporate federal laws that explicitly apply to grants or grant recipients. As to those federal laws, Congress clearly intended them to apply to states and local governments applying for federal grants, and to impact those grants.
The potential for abuse is apparent. Here, the Attorney General has used the broad interpretation of "other applicable law" as a means of hijacking the legislatively-established Byrne JAG program to further particular policy goals of the Executive, despite the repeated refusal of Congress to impose such a prerequisite itself. The open-ended ability to choose federal laws at will would allow the targeting of states or policy issues if the Attorney General chose to do so. For instance, the Attorney General could effectively isolate specific states by requiring certification of compliance with federal law regarding controlled substances, thus disqualifying states or local governments that have legalized or decriminalized marijuana, or by requiring a certification of compliance with federal constitutional law such as Roe v. Wade, 410 U.S. 113 (1973), thus eliminating grant funding for states that recently have passed "heartbeat bills" and other legislation designed to challenge Roe. That would transform the highly-structured formula grant into one that vested total in the Attorney General to impose barriers to the grant through his choice as to which other federal laws to target as grant conditions.[6]
3.
The Attorney General's identification of a specific law— and the conditioning of the grant on compliance with it—falls far astray from the language, context and structure of the statute itself. And a reading of the statutory language in a manner promoted by the Attorney General would raise potential constitutional and statutory concerns. First, as we have already discussed, the statute cited as providing the authority for the imposition of the condition grants no such power to the Attorney General. Moreover, the vesting of such discretionary authority in the hands of the Attorney General would render irrelevant or illogical the statute's exacting delineation of the formula for grant awards and the precise limits on the extent to which the Attorney General can deviate from that distribution, as we discussed in Chicago I, 888 F.3d at 286:
The ability of the Attorney General to depart from the distribution mandated by the formula is strictly circumscribed. For instance, of the total amount available in a given fiscal year, the Attorney General is authorized to reserve "not more than 5 percent, to be granted to 1 or more States or units of local government" for one or more of the allowed statutory purposes, "pursuant to his determination that the same is necessary (1) to combat, address, or otherwise respond to precipitous or extraordinary increases in crime, or in a type or types of crime; or (2) to prevent, compensate for, or mitigate significant programmatic harm resulting from operation of the formula ...." 34 U.S.C. § 10157(b). Moreover, the Attorney General is authorized by other statutes to reduce the funding in certain circumstances, but even then the amount of the reduction is set by statute. For example, the Sex Offender Registration and Notification Act mandates a 10 percent reduction in JAG funding if a state fails to substantially implement its provisions. 34 U.S.C. § 20927(a). And the Prison Rape Elimination Act of 2003 stipulates that a state that does not certify full compliance with its national standards can forfeit 5 percent of JAG funds unless it certifies that no less than 5 percent of such funds will be used solely to achieve compliance. 34 U.S.C. § 30307(e)(2)(A).

In contrast to those carefully delineated reductions for specific circumstances, the Attorney General's interpretation would allow the Attorney General to withhold 100% of funds based on his determination as to which federal law to target.
In addition to the dissonance with the statutory structure, the selective targeting of specific statutes without regard to the statute's relation to the grant or its purposes could present constitutional concerns. First, we note that as the Supreme Court reaffirmed in Gundy, 139 S. Ct. at 2129, a statutory delegation of authority "is constitutional so long as Congress has set out an `intelligible principle' to guide the delegee's exercise of authority ... [o]r in a related formulation, the Court has stated that a delegation is permissible if Congress has made clear to the delegee `the general policy' he must pursue and the `boundaries of [his] authority.'" Although courts rarely second-guess the degree of policy judgment left by Congress to those responsible for executing the law, the term "applicable" by itself is so devoid of any definition or guidance that, if the Attorney General were relying on that provision as a delegation of authority to impose the conditions, it would vest discretion unmoored by any legislative general policy or boundaries of authority.
In fact, the Supreme Court in Gundy recognized the constitutional issues presented by statutory provisions vesting such broad discretion, in considering the Sex Offender Registry Notification Act ("SORNA") which provided that "[t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter ... and to prescribe rules for the registration of any such sex offender." Id. at 2122. Although the Justices in the plurality decision in Gundy could not agree as to the outcome, a majority recognized that such a provision, if read as granting the Attorney General discretion to determine whether to apply SORNA to offenders rather than the mechanics of how to apply it, would present constitutional nondelegation problems. See Gundy, 139 S. Ct. at 2123, 2128 (plurality) (discussing the whether/how distinction and noting that it would present a nondelegation question if, as Gundy argued, the provision in the SORNA statute "grants the Attorney General plenary power to determine SORNA's applicability to pre-Act offenders—to require them to register, or not, as she sees fit, and to change her policy for any reason and at any time") and 139 S. Ct. at 2143, 2145 (dissenting) (noting that the provision "gave the Attorney General unfettered discretion to decide which requirements to impose on which pre-Act offenders" and that "[m]ost everyone, the plurality included, concedes that if SORNA allows the Attorney General as much authority as we have outlined, it would present `a nondelegation question.'").
Here, the Attorney General's interpretation of the "other applicable federal law" language would grant the type of unfettered discretion to determine whether a particular federal law will be a precondition of the grant that seven Justices of the Grundy Court recognized presents a constitutional nondelegation issue. Accordingly, the language of the statute, if read as delegating the authority to the Attorney General to choose which federal laws would constitute conditions of the grant, would raise grave constitutional concerns.
But the Attorney General has not relied on that language in that manner. Instead, the Attorney General asserts that Congress, with the "other applicable law" provision, itself imposed the condition on the grant under its Spending Clause power because Congress thereby incorporated all federal laws as grant conditions. Yet among the requirements for

the constitutional exercise of such spending power, is the requirement that Congress, if it desires to condition the receipt of federal funds, "`must do so unambiguously ..., enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.'" South Dakota v. Dole, 483 U.S. 203, 207 (1987), quoting Pennhurst, 451 U.S. at 17. A state cannot knowingly accept the conditions of the federal funding if that state is unaware in advance of the conditions or unable to ascertain what is expected of it, and therefore we insist that Congress must speak with a clear voice. Pennhurst, 451 U.S. at 17. An interpretation of "other applicable federal laws" that is limited to laws that expressly apply to grantees is clearly ascertainable, in contrast to the broader interpretation of the Attorney General which is unbounded—which would literally include thousands of federal statutes and regulations.
The Second Circuit, in adopting the broad interpretation of the language that the Attorney General seeks, acknowledges —even celebrates—the unbounded authority that such an interpretation would provide, and makes clear that the interpretation will allow denial of the grant for federal laws entirely unrelated to the purposes of the grant such as environmental laws:
Indeed, whether a grant is awarded by formula or by discretion, there is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws, or worse, violating those laws. One has only to imagine millions of dollars in Byrne funding being sought by a locality that is simultaneously engaged in persistent, serious violations of federal environmental laws. The formula nature of the Byrne Program does not dictate that such an applicant must be given federal money even as it continues to flout federal law. To the contrary, § 10153(a)(5)(D) authorizes the Attorney General to condition the locality's receipt of a Byrne grant on its certified willingness to comply with all federal laws applicable to that locality, which includes environmental laws.
New York, 951 F.3d at 107-08.
We do not agree with that interpretation of the language. Congress, under its spending power, can attach only conditions that "bear some relationship to the purpose of the federal spending," and the universe of all federal laws as promoted by the Attorney General would necessarily include many laws that fail to meet that standard—once again rendering the conditions ambiguous. New York v. United States, 505 U.S. 144, 167 (1992), citing South Dakota, 483 U.S. at 207-08 and n.3. Thus, the more narrow reading of the language is not only more consistent with the structure of the statute, but it avoids potential constitutional questions.
4.
Moreover, the narrower interpretation that we adopt to-day also avoids a conflict with 34 U.S.C. § 10228, which applies to the chapter that includes the Byrne JAG grant provisions. Section 10228 provides:
(a) General rule

Nothing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.
The incorporation of § 1373 as a condition of the Byrne JAG grant directly conflicts with § 10228. Through § 1373, the Attorney General seeks to prohibit the state or political subdivision from providing certain instructions and limitations on the actions of its own police force, thus exercising "direction, supervision, or control" over that police force. Nor does it matter that § 1373 prohibits the state from taking an action, as opposed to requiring an action. As the Supreme Court recognized in Murphy (in considering a claim under the anticommandeering doctrine of the Tenth Amendment), it does not matter whether a law commands a state to take an affirmative action or prohibits a state from taking an action— either situation involves the exercise of control over the state. Murphy, 138 S. Ct. at 1478. Section 1373 declares that a state or local government may not prohibit or restrict its own officials from communicating information regarding the citizenship or immigration status of any individual to the INS. That restriction of the state or local government would constitute direction or control over the communications by the state or local police force. Because § 10228 declares that "[n]othing in this chapter or any other Act shall be construed to authorize" such direction or control, we should not construe § 10153 in a manner that would incorporate § 1373 as a condition of the grant. See Philadelphia, 916 F.3d at 291 (noting that § 10228 may be a statutory limit to which laws are "applicable").
Accordingly, based on the language, structure, and purpose of the Act, the reference to "all other applicable federal laws" in § 10153 should be read as referencing any federal law that by its terms applies to federal grants or grantees in that capacity. Accord Providence, 2020 WL 1429579 at *12. Because we so hold, we need not consider the alternative argument that § 1373 cannot be considered an "applicable federal law" even under the broader reading by the Attorney General because it is unconstitutional under the anticommandeering doctrine of the Tenth Amendment. See Pearson, 555 U.S. at 241 (noting that we generally should avoid constitutional questions if possible). The holding that § 1373 is not an "applicable federal law" equally dooms the argument that § 1644 provides authority for the compliance condition, as the parties concede that § 1644 is identical to § 1373.
V. Relief.
We turn, then, to the final issue in this case, which is whether the district court erred in extending the injunction beyond the City of Chicago. In its Final Judgment and Order in the FY 2017 litigation, the district court granted declaratory and injunctive relief to Chicago. The district court ordered that "the Attorney General's decision to attach the Conditions to the FY 2017 Byrne JAG grant is set aside and shall have no legal effect" and enjoined the Attorney General from "denying or delaying issuance of any FY 2017 Byrne JAG award insofar as that denial or delay is based on the Conditions." Dist. Ct. Final Judgment and Order, R. 211 at 3. The court further held that "[t]his Order applies to the Attorney General's imposition of the Challenged Conditions on the Byrne JAG grant program as a whole. Its effects run to the benefit of all Byrne JAG applicants and recipients are not limited to the City of Chicago and its sub-grantees." Id. at 4. The court stayed the order as to all areas of the country

beyond Chicago in light of the stay our court had granted pending the since-vacated grant of an en banc rehearing.
The court declared that § 1373 violated the Tenth Amendment's anticommandeering principle and was therefore facially unconstitutional, that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a)(6), and that the Attorney General's decision to attach the conditions to the FY 2017 Byrne JAG grant violated the constitutional principle of separation of powers. Dist. Ct. Final Judgment and Order, R.211 at 2. In the subsequent challenge to the FY 2018 grant conditions, the district court held that §§ 1373 and 1644 violate the Tenth Amendment's anti-commandeering principles and are therefore facially unconstitutional, that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute and in § 10102(a) in attaching the challenged conditions to the FY 2018 Byrne JAG grant, and that the decision to attach those conditions to the grant violated the constitutional principle of separation of powers. The district court extended the permanent injunction it had imposed as to the FY 2017 Byrne JAG grant to include FY 2018 and all future years, enjoining the Attorney General from denying or delaying issuance of the Byrne JAG award insofar as that denial or delay is based on the challenged conditions or materially identical conditions. Dist. Ct. Final Judgment and Order, Appellant Appendix, No. 19-3290, at SA50. The court stayed the injunction to the extent that it applied to grantees other than the City of Chicago.
The district court's decision to extend the injunctive relief to include future years reflected the history of litigation and the positions taken by the Attorney General. In the litigation challenging the FY 2017 injunction, the Department of Justice attorney representing the Attorney General [hereinafter "DOJ attorney"], asserted that it would be premature to enjoin conditions in FY 2018 or the years to follow because those conditions were "still in formation and ... will be different in some respects from the 2017 conditions." Dist. Ct. Transcript of Proceedings, Doc. 213 at 5. The DOJ attorney then stated that although disagreeing with the district court's analysis, "we've certainly taken it to heart. And so we are looking at the conditions for next year against the backdrop of your prior decision." Id. He argued to the district court that relief beyond the specific year was improper because the issue was not yet ripe, arguing:
[DOJ attorney]: Your Honor, two things. One, the solicitation is not — are not the actual conditions. This is an invitation to seek a grant. It doesn't expressly state what the conditions are. Two, I've told you that we're looking at those conditions and that we are taking to heart your prior decision. And three, I think your point about, if we impose the exact same conditions without notice and force them to affirmatively file a case, there might be other remedies available to the plaintiffs in that context. [District court]: That would mean their lawyers would get paid.
Id. at 5-6. Despite these assurances made by the DOJ attorney to Judge Leinenweber, the Attorney General nevertheless imposed the very same conditions again in the FY 2018 grant application, and indeed also added yet another condition that was identical to the § 1373 compliance condition as well as two more conditions that relied on the same statutory authority that the district court and this court rejected. In its FY 2018 Byrne JAG application,

Chicago included an addendum indicating that it would not comply with those conditions. The Department of Justice began announcing grant recipients in the fall of 2018, issuing 752 Byrne JAG local awards by October 12, but still had not granted Chicago's application; at that time Chicago filed a complaint challenging the FY 2018 conditions. About a month after Chicago filed suit, on November 20, the Department of Justice informed Chicago that it was awarded the grant. The Department of Justice subsequently announced that in light of the ongoing litigation, it would not enforce the notice, access, compliance, and additional certification conditions against Chicago, but that it retained the right to enforce the harboring condition.
The temporal scope of the injunctive relief in this case is proper. Injunctive relief is forwardlooking, and a plaintiff injured by an unconstitutional or unlawful action in one year does not need to suffer injuries repeatedly in each ensuing year—and separately sue after each injury—to obtain relief from the unlawful actions. See United States v. Oregon State Med. Soc., 343 U.S. 326, 333 (1952) ("[t]he sole function of an action for injunction is to forestall future violations"); see generally § 2942 Availability of Injunctive Relief—In General, 11A Fed. Prac. & Proc. Civ. § 2942 (3d ed.) (noting that injunctive relief looks to the future and is designed to deter rather than punish, and that even if the defendant claims the conduct has been discontinued, the court will deny injunctive relief only if there is no reasonable expectation of future injurious conduct). Injunctive relief is designed to prevent precisely that scenario. Once an injury is shown in the imposition of the grant conditions sufficient to demonstrate standing, Chicago can challenge the imposition of those conditions in the Byrne JAG grant, and that challenge is not temporally limited—at least where, as here, the challenge is not in any way related to the timing of the conditions. And of course, the Attorney General's indication to the district court that it would alter the conditions in future grants proved false. See Oregon State Med. Soc., 343 U.S. at 333 ("It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption."). The district court need not await yet another round of the same conditions and the same rejected justifications before enjoining the future conduct.
A. Injunctive Relief Beyond City of Chicago
The Attorney General argues that, even if we agree with the district court on the merits, the court erred in extending injunctive relief beyond the City of Chicago. In Chicago I, 888 F.3d 272, the panel addressed a similar issue as to the preliminary injunctive relief, with the majority holding that nationwide injunctive relief was proper and with one panel member dissenting. Our court granted rehearing en banc to consider only the issue of the proper scope of the injunction, but that rehearing was vacated when the district court's grant of the permanent injunction superseded the preliminary injunction. We now are presented again with the issue of the proper scope, although in the different context of a permanent rather than a preliminary injunction.
At the outset, we note that a remand is necessary for the district court to consider whether any additional injunctive relief is appropriate as to the unlawful imposition of the compliance condition. The court imposed declaratory relief as to the constitutionality of § 1373, and injunctive relief as to the imposition of that condition. But because we have determined that the term "all other applicable Federal law" encompasses only law that by its terms applies to

federal grants or grantees in that capacity, we have not reached that Tenth Amendment issue. A remand is required to allow the district court to determine whether any additional injunctive relief is appropriate for the violation as we have framed it. For instance, the declaratory relief would no longer be necessary because § 1373 is inapplicable here, but other injunctive relief might be proper, such as enjoining the Attorney General from interpreting the phrase "all other applicable federal law" to include laws that do not explicitly apply by their terms to the grant or grantees. The Attorney General relied on that misuse of § 10153 to impose the § 1373 compliance condition on Chicago. In the FY 2018 grant, the government continues to require a certification of compliance with § 1373, but perhaps anticipating the foreclosure of that option, added the requirement of certification of compliance with the parallel provision in § 1644.
That FY 2018 condition leaves no doubt that the Attorney General intends to continue to interpret § 10153 as allowing the incorporation of federal laws unrelated to the grant or grantees. Because the injury to Chicago in this case, in relation to the compliance conditions in both § 1373 and § 1644, is caused by the Attorney General's unsupportable interpretation of § 10153 as allowing the incorporation of all federal law as a condition of the grant, proper relief in this case could include an injunction preventing the Attorney General from incorporating federal law unrelated to grants or grantees as a condition of the grant under § 10153. The proper scope of any additional relief, however, is for the district court, not this court, to determine as an initial matter, and we remand for the district court to consider whether to order any other relief as to the unlawful imposition of the compliance condition in light of our decision. We review such decisions only for an abuse of discretion. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). We may consider, however, the propriety of the injunctive relief that has already been granted as to all of the challenged conditions
1. Authority of the Court
Courts and commentators, particularly recently, have recognized serious concerns with imposing injunctive relief that extends beyond the parties before the court to include third parties. In fact, the question as to the authority of a court to issue such nationwide, or universal, injunctions, as well as the propriety of such injunctions, has spawned a veritable cottage industry of scholarly articles in the past few years. See e.g. Mila Sohoni, The Lost History of the "Universal" Injunction, 133 HARV. L. REV. 920, 924-25 N. 16 (2020) [hereinafter Sohoni, Lost History], citing: Spencer E. Amdur & David Hausman, Response, Nationwide Injunctions and Nationwide Harm, 131 HARV. L. REV. F. 49 (2017) [hereinafter Amdur & Hausman, Nationwide Injunctions]; Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 HARV. L. REV. 417, 419 (2017) [hereinafter Bray, Multiple Chancellors]; Zachary D. Clopton, National Injunctions and Preclusion, 118 MICH. L. REV. 1 (2019); Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. REV. 1065 (2018) [hereinafter Frost, In Defense]; Suzette M. Malveaux, Class Actions, Civil Rights, and the National Injunction, 131 HARV. L. REV. F. 56 (2017) [hereinafter Malveaux, Class Actions]; Michael T. Morley, De Facto Class Actions?: Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 HARV. J.L. & PUB. POL'Y 487 (2016); Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. REV. 615 (2017); Zayn Siddique, Nationwide Injunctions, 117 COLUM. L.

REV. 2095 (2017); Alan M. Trammell, Demystifying Nationwide Injunctions, 98 TEX. L. REV. 67 (2019); Howard M. Wasserman, "Nationwide" Injunctions Are Really "Universal" Injunctions and They Are Never Appropriate, 22 LEWIS & CLARK L. REV. 335 (2018) [hereinafter Wasserman, Nationwide Injunctions].[7] Those articles are a response to the perceived increase in the utilization of universal injunctions in the past few decades. It is a question for another forum whether any such increase signals an expanding judicial overreach or an increasing executive autocracy.
As to the authority to issue such injunctions, some urge that injunctions extending beyond the parties before the court are a recent invention, first appearing in the 1960s, and that the absence of such equitable relief before that time should cause us to question the legitimacy of that remedy. See e.g. Trump v. Hawaii, 138 S. Ct. 2392, 2425 & 2428 (2018) (Thomas, J. concurring) (indicating that the first universal injunction emerged "a century and a half after the founding," in 1963, and "appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts"); see also Bray, Multiple Chancellors at 437-38; Wasserman, Nationwide Injunctions at 353.
But recent scholarship casts doubt on that constricted window of universal injunctions, exhaustively documenting the use of injunctions that extend beyond the plaintiff going back over a century, from a Supreme Court decision in 1913 to the present. See Sohoni, Lost History, 133 Harv. L. Rev. 920, 924 (2020); see also Samuel Bray, A Response to The Lost History of the "Universal" Injunction, 36 Yale J. on Reg.: Notice & Comment (Oct. 6, 2019) available at: https://www.yalejreg.com/nc/a-response-to-the-lost-history-of-the-universalinjunction-by-samuel-bray/ (last visited 4/7/2020) (discussing "four serious problems" with Sohoni's analysis), and Mila Sohoni, A Reply to Bray's Response to The Lost History of the "Universal" Injunction, 36 Yale J. on Reg.: Notice & Comment (October 10, 2019) (http://perma.cc/P8BA-2UJ6 (last visited 4/7/2020) (refuting Bray's concerns). Sohoni meticulously examines equitable remedies in the past century, documenting the equitable relief that extended to non-parties throughout that history, and reaching the conclusion that universal injunctions are consistent with those traditional equitable remedies. Id.
That conclusion has found support as well in an amicus brief submitted to this court by a group of legal historians, professors at Stanford and Columbia Law Schools and Princeton University, who concluded that "[n]ot only did equity courts have the equitable power to grant injunctions that look like modern nationwide injunctions (save they did not run against the federal government itself),[8] but they in fact issued injunctions of astonishing scope." Brief of Amici Curiae Legal Historians In Support of Plaintiff and Appellee the City of Chicago [hereinafter "Amicus"], No. 18-2885, at 6. That wide scope included even exercising "their equity powers at nationwide scale in the 19th and early 20th centuries, to enjoin the activities of hundreds of thousands of individuals, including thousands of nonparties." Amicus at 18. Bray, a leading opponent of universal injunctions, disagreed with their conclusions, but nevertheless acknowledged the gravitas of the authors of that amicus brief, characterizing the authors as "an all-star cast of legal historians and historians of the early Republic" and recognizing that "[t]hese historians have written some of the leading scholarship on American equity." Bray, National Injunctions: Historians Enter the Lists, THE VOLOKH CONSPIRACY (Nov. 17, 2018, 2:21 PM), https://reason.com/2018/11/17/nationalinjunctions-historians-enter-th/ (last visited 4-7-2020). Those historians examined the relief provided in equity from the 18th century onward, such as bills of peace as well as ordinary

bills for injunctions including injunctions to abate nuisances, and concluded that "equity courts had the equitable powers to issue nationwide injunctions in the early republic," and "have long issued injunctions that protect the interests of non-parties." Amicus at 6, 8. In fact, the historians noted periods of time in which the equitable remedies were much more drastic, extending as far as enjoining non-parties (which it noted would not be accepted today) and including a period of time in which injunctions were so broad they were called "omnibus injunctions" and "Gatling-gun injunctions." Amicus at 16-17. They noted that those omnibus injunctions were repeatedly upheld by the Supreme Court, and ultimately Congress used its power to restrain their issuance. Amicus at 17. Although concluding that nationwide injunctions are historically grounded, the legal historians cautioned against an approach that would anchor equitable remedies too closely to the "notoriously difficult subject" of history, noting that the continuity of some traditional equity practices should not foreclose adapting equitable remedies to modern circumstances. Amicus at 25; see also Frost, In Defense at 1081.
2. Consistency with Supreme Court Law
Therefore, there is a substantial historical basis for the concept of injunctive relief that extends to the benefit of non-parties. The Attorney General and the dissent in this case nevertheless argue that universal injunctions are inconsistent with the Supreme Court's decision in United States v. Mendoz a, 464 U.S. 154 (1984). The Mendoza Court held that the government in that case should not be subjected to nonmutual offensive collateral estoppel because the "economy interests underlying a broad application of nonmutual collateral estoppel are outweighed by the constraints which peculiarly affect the government." Id. at 162-63. The Court was concerned with the impact on the government if one decision could bind the government as to that legal issue in any subsequent cases brought by other litigants. The Attorney General and the dissent argue that the same danger is presented in a universal injunction.
There are, however, important distinctions between nonmutual offensive collateral estoppel and a universal injunction. First, as is obvious, the legal concepts at issue here are not identical, so the Court's decision as to an estoppel issue is in no way dispositive of the question as to the availability of universal injunctions. The significance of Mendoza must come from its reasoning, then. But the very different contexts make Mendoza of less relevance to this question. As to collateral estoppel, "once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation." Id. at 158. The principle would apply to litigation remote in time, involving different underlying causes of actions, and regardless of whether the litigant in the subsequent suit was similarly situated to the one in the past case.
That expansive reach presented issues uniquely problematic for the government. Whereas in disputes over private rights between private litigants, there was "`no sound reason for burdening the courts with repetitive litigation,'" the position of the government is not identical to that of the private litigant. Id. at 159-60., quoting Standefer v. United States, 447 U.S. 10, 24 (1980). The government is more likely to be involved in cases with significant legal issues and is likely to be sued more often than a private party, thus increasing the potential for estoppel to be invoked. Id. at 160. In addition to depriving the government of the benefit

of multiple courts of appeal weighing in on the issue, the application of estoppel would force the government to appeal every time it disagreed with a legal issue regardless of the significance of the case in which it was presented, or risk being bound by that holding in a later case of more importance to the government. Id. at 160-61. Finally, the use of estoppel would prevent subsequent Administrations from altering the government's position on a legal issue, thus upsetting the ability of the Executive Branch to adapt to the changing philosophies of subsequent political leaders. Id. at 161-62. In light of those concerns unique to the government as a litigant, the Court held that "[t]he conduct of government litigation in the courts of the United States is sufficiently different from the conduct of private civil litigation in those courts so that what might otherwise be economy interests underlying a broad application of collateral estoppel are outweighed by the constraints which peculiarly affect the government." Id. at 162-63.
The concerns expressed by the Court as to the use of estoppel against the government are not equally present in the context of the universal injunction. Of course, both situations present the concern with one court's decision preventing the percolation of the issue in different courts. But unlike the collateral estoppel context, the universal injunction by its nature will concern an issue that is common to all parties bound by it who will be similarlysituated, will involve an issue of obvious and significant impact (thus not presenting the government with the need to appeal every adverse legal decision in even minor cases), and will not interfere with the ability of future Administrations to change policies (because the impact of the universal injunction will be felt in one ongoing case that would be appealed, not in unlimited, unforeseeable cases in the future). Its restriction on the government's ability to relitigate an issue will be limited to that case and will not raise the prospect of impacting future unforeseeable situations remote in time. Therefore, the reasoning of Mendoza counsels an outcome as applied to universal injunctions. See Frost, In Defense at 1113. To the extent that Mendoza identifies factors relevant to both estoppel and universal injunctions, the weighing of the factors should occur—as it routinely does—in the district court's discretionary determination as to the appropriate equitable relief. The situations are not similar enough to support a blanket prohibition of universal injunctions under the reasoning of Mendoza.
And the decisions of numerous courts post-Mendoza, including the Supreme Court itself, support that conclusion. The historical underpinning for the argument that courts have the power to issue universal injunctions is complemented by the actual allowance of injunctions benefitting non-parties more recently. As we noted in Chicago I, the Supreme Court in Trump v. Intern. Refugee Assistance Project, 137 S. Ct. 2080 (2017) ("IRAP"), allowed an injunction to remain in place that applied to non-parties. 888 F.3d at 289. In IRAP, the Court denied in part a request for a stay of a nationwide injunction in a challenge to an Executive Order that suspended entry of foreign nationals from seven countries. The Court recognized that "[c]rafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents." IRAP, 137 S. Ct. at 2087. The Court granted the government's request to stay the injunction as to foreign nationals who lacked any bona fide relationship with a person or entity in the United States, but refused to stay the injunction not only as to the respondents in the case, but also as to persons not parties to the case who were similarly situated. Id. at 2088. If the lower court was without the power to impose an injunction that provided relief to non-parties, and thus relief greater than that necessary for the parties before the court, then

the Supreme Court's decision to allow the injunction to remain in place as to those nonparties would be inexplicable.
The concurring and dissenting justices in IRAP would have stayed the injunction entirely, but particularly argued that the injunctions should not have remained in place as to "an unidentified, unnamed group of foreign nationals abroad" for whom no class had been certified and in a case in which neither party had asked for the scope of relief applied by the Court. Id. at 2090 (Thomas, J. concurring in part, dissenting in part). They further asserted that the role of courts was to provide complete relief only to the plaintiffs, and not to nonparties. Id. The IRAP Court's refusal to stay the injunction as to similarly-situated individuals, in light of those arguments in the dissent, should put to rest any argument that the courts lack the authority to provide injunctive relief that extends to nonparties. See Frost, In Defense at 1086.
3. Propriety of Injunctive Relief
Therefore, both historical and current practice lends support to a determination that the courts possess the authority to impose injunctions that extend beyond the parties before the court. The propriety of such an injunction, in a given case, is another matter.
Such injunctions present real dangers, and will be appropriate only in rare circumstances. For instance, a nationwide injunction can truncate the process of judicial review, elevating the judgment of a single district court. That effect, however, is not absolute. As a practical matter, the issuance of such an injunction is unlikely to dramatically foreclose all other review, because the possibility of a stay while seeking review in the court of appeals—as happened here—limits the immediate impact on litigation in other jurisdictions, and ensures review by multiple judges in short order. See Amdur & Hausman, Nationwide Injunctions at 53 n.27 (providing examples in which nationwide injunctions did not foreclose percolation). But even if the impact is not absolute, it is nonetheless a concern and has the clear potential to narrow the input from different judicial panels. Moreover, the potential for forum shopping is a real hazard and alone should caution against such broad injunctive relief. See e.g. Bray, Multiple Chancellors at 457; Frost, In Defense at 1104.
That does not, however, mandate a conclusion that universal injunctions are never proper. See Frost, In Defense at 1105 (noting that "[a]bolishing nationwide injunctions is both an over- and under-inclusive response to that problem"). In some circumstances, universal injunctions can be necessary "to provide complete relief to plaintiffs, to protect similarly-situated nonparties, and to avoid the chaos and confusion that comes from a patchwork of injunctions." Id. at 1101. Just as the percolation through the courts is a valid consideration, so too the desire to avoid a multiplicity of suits has long been a consideration in equity, which even the opponents of universal injunctions acknowledge. See Bray, Multiple Chancellors at 426; Hawaii, 138 S. Ct. at 2427 (Thomas, J, concurring).
An outright prohibition of such injunctions, however, would handcuff the ability of courts to determine the relief that is proper in exceptional circumstances. Any number of factors could influence a court's determination as to the proper scope of an injunction, including the nature of the violation, the extent of the impact, the urgency of the situation, the multiplicity

of litigation, and the ability of others to even access the courts. IRAP presented the type of situation in which the remedy of a universal injunction can be particularly crucial. 137 S. Ct. 2080. As we stated above, in that case, the Supreme Court denied in part a request for a stay of a nationwide injunction in a challenge to an Executive Order that suspended entry of foreign nationals from seven countries. The travel ban was imposed suddenly, impacting an immense number of people immediately—including people who were already on planes to the United States—and the ability of persons affected by the ban to access the courts individually for redress was extremely limited. In such a circumstance, a court that in its discretion determines that the equities of the case and the substance of the legal issues justifies an injunction, should not be limited to imposing that relief only as to those few persons who could obtain attorneys or present themselves in court.
Nor is the presence of the vehicle of a class action a realistic alternative in such a case. The difficulties, expense and delay inherent in pursuing a class action would render it inadequate for the type of situation presented in IRAP. As noted by Frost,
[d]emonstrating these prerequisites [of numerosity, commonality and typicality and the adequacy of the named plaintiff to represent the class] is difficult and time consuming and has been getting harder as a result of recent court decisions and federal legislation. Courts have heightened the evidentiary standard for class certification, requiring hearings and sometimes significant amounts of evidence on the merits of the case before certifying the class. In recent years, courts have started to deny class certification if they think there has been a flaw in class definition. These courts typically deny certification without first allowing the plaintiffs to amend that definition in response to the court's concerns. Under Federal Rule of Civil Procedure 23(f), defendants can seek interlocutory review of a court's decision to certify a class, adding further delay and expense to the certification process. Noting these difficulties, one commentator has described the class certification process as a "drawn-out procedural bog," which comes with significant expense and delay for the would be class member.
(footnotes omitted) Frost, In Defense at 1096-97, quoting Samuel Issacharoff, Private Claims, Aggregate Rights, 2008 SUP. CT. REV. 183, 208; see also Malveaux, Class Actions at 59 (describing the increasing hurdles to class actions and arguing that "Bray's concession that `the requirements for a class action will not always be easy to meet' understates the significant hurdles erected over the last fifty years"). The class action mechanism is not an adequate substitute for a universal injunction in the proper case.
Absent the ability to grant injunctive relief that extends beyond the particular party, courts will have little ability to check the abuse of power that presents the most serious threat to the rule of law — such as that which is swift in implementation, widespread in impact, and targeted toward those with the least ability to seek redress. Although circumspection is appropriate in ascertaining whether such relief is appropriate, an outright ban of such injunctions is neither required by history nor desirable in light of the range of situations— some as unpredictable and impactful as the sudden travel ban—that courts may confront.
That said, it is a more difficult question as to whether the nationwide injunction is proper in this case. In exercising its discretion to impose the permanent injunction nationwide, the district court identified a number of factors that strongly weighed in favor of an injunction

that included more comprehensive relief. The court first noted that compliance with the Attorney General's conditions would damage the relationship between local law enforcement and immigrant communities, and would decrease the cooperation with those communities that is critical to preventing and to solving crimes. The court held that the loss of trust, which once lost is not easily restored, would cause irreparable harm that could not be remedied with money damages. Moreover, the court held that the balance of hardships favored Chicago, noting that the Attorney General could distribute the funds without imposing the conditions, and nothing in the injunction would prevent any state or local government from coordinating its local law enforcement with the federal authorities absent those unlawful conditions. Finally, the court recognized that the public interest was served by an injunction in that it acts as a check on the executive's encroachment of congressional power that violates the separation of powers.
The Attorney General does not address those factors and does not question the court's determination that injunctive relief is proper. Instead, the Attorney General focuses his challenge on the scope of the injunction, asserting injunctive relief must be limited to that necessary to provide complete relief to the plaintiff and cannot extend to non-parties. But as we have already discussed, courts have the authority to extend injunctive relief to nonparties, and therefore those arguments fail.
The district court identified a number of considerations that supported extending injunctive relief in this case program-wide and to include future years. Among those considerations was the Attorney General's repeated imposition of the conditions despite adverse court rulings. Upon our decision affirming the grant of the preliminary injunction in this case, the Attorney General took the highly unusual step of seeking en banc review only as to the scope of the injunction, declining to present for en banc consideration our holding that the Attorney General's claim to lawful authority was unfounded. And despite his failure to seek rehearing as to the preliminary injunctive relief to Chicago itself, the Attorney General continued to refuse to release the grant funds to Chicago, choosing instead to withhold the grant of all funds to all recipients. See U.S. Department of Justice FY 2020 Performance Budget Office of Justice Programs March 2019, https://www.justice.gov/file/1144566/download, at 99-100 (last visited 4-8-20) (noting that of the $403 million available for Byrne JAG grants in FY 2017, only $254.4 million had been awarded and similarly only $256 million of the $415.5 million available had been awarded in FY 2018, and explaining in a footnote that some FY 2017 and FY 2018 formula grants had not been released to grantees as a result of "concerns regarding compliance with federal immigration laws and ongoing litigation related to those matters.") Because of that conduct, the district court explicitly enjoined the Attorney General from denying or delaying the issuance of the grant funds in the permanent injunction.
Moreover, as described earlier, the Attorney General assured the district court that the permanent injunction need not cover future years, because the conditions imposed in future years would reflect a careful consideration of the court's holdings as to their legality. The court accepted that assurance, and yet the Attorney General proceeded to impose the identical conditions on the grants for the next year, issuing an award to Chicago that was not dependent on satisfaction of the unlawful conditions only after Chicago filed suit yet again. See City & Cty. of San Francisco, 372 F. Supp. 3d at 940-41 ("There is no dispute that certain challenged conditions in the fiscal year 2018 Byrne JAG Program are

functionally the same as the notice, access, and Section 1373 certification conditions in the fiscal year 2017 Byrne JAG program at issue in the previous related litigation."). Despite choosing to forgo en banc review as to the unlawfulness of the grant conditions, and with no change in the legal basis for those conditions, the Attorney General persists in his determination to impose conditions on the Byrne JAG grant that we held unlawful and that Congress itself has failed to impose. Those actions make manifest that each and every state and local government will have to bring its own suit in order to obtain relief (and possibly for each new grant year, given the Attorney General's penchant for adding new statutory authorizations — even ones identical in language to rejected ones), leaving behind those who cannot afford such litigation. The concern with multiplicity of litigation is a valid factor in assessing the appropriate scope of injunctive relief.
As the district court held, the nature of the violation also supports the scope of the injunction here, in that it involves a violation of the separation of powers doctrine. The nature of the injury is a valid consideration in determining the proper scope of injunctive relief. Whether deemed a statutory or a constitutional violation, the executive's usurpation of the legislature's power of the purse implicates an interest that is fundamental to our government and essential to the protection against tyranny. See Dalton v. Spector, 511 U.S. 462, 472 (1994) (distinguishing ultra vires claims, alleging an action that exceeded the authority, from constitutional claims, alleging an absence of any authority).
At its core, this case implicates principles of federalism— involving federal intrusion into spheres of power possessed by states—and, more directly, principles of the separation of powers between the executive, the legislative, and the judicial branches.
Why did the framers insist on this particular arrangement? They believed the new federal government's most dangerous power was the power to enact laws restricting the people's liberty..... Some occasionally complain about Article I's detailed and arduous processes for new legislation, but to the framers these were bulwarks of liberty. ... If Congress could pass off its legislative power to the executive branch, the "[v]esting [c]lauses, and indeed the entire structure of the Constitution," would "make no sense." Without the involvement of representatives from across the country or the demands of bicameralism and presentment, legislation would risk becoming nothing more than the will of the current President. And if laws could be simply declared by a single person, they would not be few in number, the product of widespread social consensus, likely to protect minority interests, or apt to provide stability and fair notice. Accountability would suffer too. ... [E]nforcing the separation of powers isn't about protecting institutional prerogatives or governmental turf. It's about respecting the people's sovereign choice to vest the legislative power in Congress alone. And it's about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of "fortitude... to do [our] duty as faithful guardians of the Constitution."

Gundy, 139 S. Ct. at 2134-35 (Gorsuch, J., joined by the Chief Justice and Thomas, J., dissenting). In our case, the executive branch has usurped the power of the legislature to determine spending and to set conditions on that spending. It has done so to conscript the police power of the states to serve the civil immigration goals of the federal government. The challenged actions strike at the heart of the vital principles of separation of powers and federalism and comity for state's rights.
That is particularly true in this case where the revolving door of statutory provisions relied upon by the Attorney General as authorization for the withholding of funds upends the process. Like a whack-a-mole game at a carnival, the Attorney General has presented the courts with one statutory "authorization" after another for the decision to withhold all Byrne JAG funding from sanctuary cities—from § 10102(a)(6) initially to §§ 10153(A)(4), 10153(A)(5)(C), and 10155 before the First and Second Circuits for the notice and access conditions; from § 1373 to § 1644 for the federal law supporting the compliance condition; and from § 10102(a)(6) to § 10153(A)(5)(D) as the catch-all for the conditions. See e.g. City of Providence, 2020 WL 1429579 at *6-9. By relying on a moving target of statutory provisions, the Attorney General undermines his own argument that the conditions were a response to a legislative grant of authority rather than an executive policy in search of a legislative "hook." The nature of the violation in this case strongly weighs in favor of more comprehensive relief, both because respect for the separation of powers is fundamental to our government, and because the willingness to add new "statutory authorizations" every time a court strikes one down—and to reimpose conditions on jurisdictions in ensuing years that have already been rejected—portends a multiplicity of litigation that would be a drain on the resources of the courts. At this point in time, five circuits have weighed in on the issues, diluting the benefit of any additional "percolation" through the courts. Those factors provide strong support for the district court's determination that program-wide relief extending to non-parties is proper.
B. Injunction as Providing Complete Relief to Plaintiff
But we should avoid deciding that more expansive issue if a more narrow approach is available, and it is available here. It is widely accepted—even by self-professed opponents of universal injunctions—that a court may impose the equitable relief necessary to render complete relief to the plaintiff, even if that relief extends incidentally to nonparties. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Wasserman, Nationwide Injunctions at 360-61; see, e.g., McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997) (noting that "in reapportionment and school desegregation cases, for example, it is not possible to award effective relief to the plaintiffs without altering the rights of third parties"); Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018) (recognizing, for instance, in two malapportionment cases, that "the only way to vindicate an individual plaintiff's right to an equally weighted vote was through a wholesale `restructuring of the geographical distribution of seats in a state legislature'").
The Byrne JAG grant is a formula grant, not a discretionary grant. The determination of the funds that will be provided to a grantee is based upon a very structured, precise calculation that is set forth by Congress at 34 U.S.C. § 10156 (formerly 42 U.S.C. § 3755), and the amount received by a specific state or locality is dependent on the calculations related to the other states and localities. Therefore, to provide complete and accurate relief to Chicago

now and in the future, and ensure that it receives the allocation that it would receive if the Attorney General did not apply the unlawful conditions, the allocations as a whole must be lawfully determined. In this formula grant, the relief from the unlawfully-imposed conditions must be applied program-wide in order for the grant amounts to be properly calculated for the plaintiff itself.
Before delving into the minutia as to the structure of the Byrne JAG awards and the interrelationship of the grants, it might be helpful to provide a brief overview. If every grantee was allocated a set grant amount, independent from each other, then relief for Chicago could be calculated and awarded in a vacuum. There would be no need to enjoin the conditions beyond Chicago to redress the monetary injury, because the imposition of the conditions beyond Chicago would not impact Chicago's grant award. But that is not the case. The slice of the Byrne JAG pie that Chicago receives is related to the slices received by Illinois and other states, and if the imposition of the unlawful conditions eliminates Illinois or other states from receiving their own awards, then that can impact Chicago's award as well. The grant awards are statutorily interrelated.
The Byrne JAG program allocates grant amounts to some localities directly, and also allocates grant amounts to each state, which then must pass on a certain percentage to other localities. If a state is unable to qualify to receive funds under the program, that state's award is redistributed to the localities. In that way, the amount a locality can receive is connected to the amount the state is awarded and to the ability of the state to participate in the program. And the amount that the state is awarded is itself impacted by the amounts awarded to other states. In a number of ways, Byrne JAG funds can be redistributed from some states to other states, thus decreasing some states' awards and increasing the award for the other states.
The Byrne JAG conditions challenged here disrupt the entire distribution plan, because they can prevent the states from even applying for an award—and clearly prevent the states from receiving a Byrne JAG award—if they cannot comply with the unlawful conditions at issue in this case. Because the awards to states are interrelated, and the award for localities is also related to the award to states, the imposition of the unlawful conditions impacts the proper calculation of all awards, including awards to localities such as Chicago.
As we will see, the Attorney General does not really contest that Chicago's award could be impacted by the imposition of conditions on states. Instead, the Attorney General argues that we need not be concerned with that because the imposition of the unlawful conditions on other grant applicants would be a windfall to Chicago, resulting in a higher grant amount than it would otherwise receive, and Chicago cannot complain of receiving a higher amount. As we will discuss, the impact on Chicago if the unlawful conditions are applied to the states would not necessarily be an increase in its grant amount; it could operate to decrease the grant to Chicago as well. Moreover, even an improper increase in its award would be problematic. Once we have concluded that the Attorney General is without the authority to impose the challenged conditions, the court's role should be to ensure that Chicago receives the grant it would have been entitled to absent the unlawful conditions. Courts should not impose relief that makes Chicago an involuntary beneficiary of the very conduct that it seeks to enjoin. That can only be assured if the Byrne JAG awards as a whole are

calculated absent the imposition of the conditions, and therefore program-wide injunctive relief was appropriate.
1. Statutory Formula for Allocation
That is the overview. We turn, now, to the details. As an initial matter, it is important to understand the statutory formula for calculating grants, with its awards to states and localities. In this subpart, we describe the statutory formula for the initial allocations of funds as to states and localities. That is the base, from which subsequent redistributions will occur, which we discuss in subsections 2 and 3. The dissent argues that we misunderstand § 10156(d) and (e) as making Chicago's award contingent on any governing body's compliance with the unlawful conditions. We do not argue that § 10156(d)-(e) has any such effect. Those provisions set forth the formula for the allocation of funds at the outset, which is determined proportionally and therefore will inform redistributions of funds as well. Subsections 2 and 3 demonstrate the redistributions of funds that are provided in the statute, and explain how the imposition of the unlawful conditions on states can alter that redistribution and thereby impact Chicago's Byrne JAG grant award.
Consideration of the precise formula delineated by Congress in § 10156 makes clear the need for program-wide relief. Under that statute, the Attorney General first determines the initial allocations to states and U.S. territories (hereinafter collectively referred to as "states"), allocating half of the available funds based on the ratio of a state's population to the national population, and half allocated based on the ratio of a state's share of violent crime to that of the nation. 34 U.S.C. § 10156(a)(1). If that number falls below the minimum allocation provided in § 10156(a)(2), reflecting 0.25% of the total Byrne JAG allocation, the state is awarded that minimum allocation. The population and crime data from those states receiving the minimum allocation is excluded in calculating the ratios in § 10156(a)(1). With the exception of the U.S. territories and the District of Columbia, 60% of the total allocation to a state is retained by the state, with 40% set aside for local governments. § 10156(b). The amounts allocated to local governments are calculated based on their share of all violent crimes reported in the state. §10156(d). If the local government is entitled to an award greater than or equal to $10,000, then that unit of local government is eligible to receive the award directly. § 10156(c)-(e). If the amount allocated to a unit of local government is less than $10,000, that amount is returned to the state governments for redistribution to state law enforcement agencies and local governments. Id. Moreover, units of local government may not receive a Byrne JAG award that exceeds that local government's total expenditures on criminal justice services for the most recently completed fiscal year, and therefore award amounts in excess of that total expenditure are reallocated proportionally among other units of local government. § 10156(e)(1).
The formula for grant distribution also recognizes that, in some circumstances, a disparity can exist between the funding eligibility of a county and its associated municipalities. The three types of disparity include: a zero-county disparity, when one or more municipalities within a county are eligible for a direct award but the county is not, yet the county is responsible for providing criminal justice services for the municipality and therefore should be entitled to part of the municipality's award; a disparity in which both a county and a municipality within it qualify for a direct award, but the award amount for the municipality exceeds 150% of the county's award amount; and a disparity in which a county and multiple

municipalities within that county are all eligible for direct awards, but the sum of those awards exceeds 400% of the county's award amount. § 10156(d)(4); see also BJA Technical Report, Justice Assistance Grant Program, 2016, https://www.bja.gov/JAG/pdfs/JAG-Technical-Report.pdf at 2-6 ("BJA Technical report") (last visited 4-8-2020); BJA Edward Byrne Memorial Justice Assistance Grant Program Frequently Asked Questions https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/JAGFAQ.pdf at 23-24 (last visited 4-8-2020). Jurisdictions subject to such disparity must identify a fiscal agent to submit a joint application for the aggregate of funds to which the units of local government are eligible, and that joint application must specify the amount of funds to be distributed to each of the units of local government and the purposes for which the funds will be used. Id.
Accordingly, the statutory formula for distribution of Byrne JAG funding includes both direct and indirect distributions to states and units of local government, and in some circumstances requires a unit of local government to submit a joint application on behalf of itself and specified geographically constituent units of local government. Chicago falls within those provisions, and therefore it files its application for Byrne JAG funding on behalf of itself but also on behalf of eleven other neighboring units of local government. Chicago I, 888 F.3d at 292. For instance, the City of Evanston, which is currently pursuing its own challenge to the Byrne JAG conditions along with the United States Conference of Mayors, receives its funds indirectly through an application submitted by the City of Chicago.
The statute therefore employs a precise formula for determining the amounts to be awarded to applicants, including states and units of local governments. Because the amounts allocated are based on percentages, the actual amount that a unit of local government such as Chicago will receive is dependent on the number of applicants and the local government's share of all violent crimes reported in the state relative to those other applicants. Nor is the award a static one that, once awarded, is automatically and permanently distributed to the applicants. The awards themselves are for a four-year period of time. During that time, the award requires of each applicant ongoing compliance with the terms of the award, which according to the Attorney General, includes the requirement of compliance with § 1373. An inability to comply with § 1373 during that time can result in the loss of the award. As we will explain, when a state is forced to relinquish its award or cannot qualify for an award in the first place for any reason including the unlawful conditions, that situation can impact the award amount provided both to localities and to other states.
Essentially, application of the unlawful conditions to the Byrne JAG program can impact Chicago's grant in any of three different ways: (1) if applied to Chicago, it will eliminate its grant entirely; (2) if applied to Illinois, it could disqualify Illinois from receiving a grant and increase Chicago's grant award as described in subsection 2; (3) if applied to other states, it can impact Illinois' award either by increasing or decreasing the award that Illinois otherwise would get as described in subsection 3. And again, that altered amount can impact Chicago's award as described in subsection 2—even if the unlawful conditions were not applied to Illinois.
2. Redistribution from State to Locality

First, a state's inability to participate in the Byrne JAG program for any reason, including the inability to comply with the unlawful conditions, can result in an increase in the grant received by the locality. In that way, the grant for the locality is interconnected with the grant to the state.
Section 10156(f) explicitly provides for additional funding to units of local government, where a state is unable or unwilling to comply with the program's requirements during that time, as follows:
(f) Funds not used by the State If the Attorney General determines, on the basis of information available during any grant period, that any allocation (or portion thereof) under this section to a State for such grant period will not be required, or that a State will be unable to qualify or receive funds under this part, or that a State chooses not to participate in the program established under this part, then such State's allocation (or portion thereof) shall be awarded by the Attorney General to units of local government, or combinations thereof, within such State, giving priority to those jurisdictions with the highest annual number of part 1 violent crimes of the Uniform Crime Reports reported by the unit of local government to the Federal Bureau of Investigation for the three most recent calendar years for which such data are available.
(emphasis added). Thus, even after the initial award, during that four-year period of the grant the Attorney General could determine that a State no longer qualifies to receive funds, and those funds will be redistributed to the units of local government, as long as that allocation does not exceed the local government unit's total expenditure on criminal justice services for the most recently completed fiscal year for which such data is available. § 10156(e)(1). That can result in a redistribution of funds from Illinois to its localities for any of a number of reasons; one of those possible reasons is if the unlawful conditions were applied to Illinois and it was unable to comply with those conditions.
The possibility of that provision impacting Chicago's grant amount is far from negligible. The State of Illinois, for instance, recently passed the Keep Illinois Families Together Act, 5 ILCS § 835/1, which forbids local law enforcement agencies or officials from participating in the federal 287(g) program, an ICE program that allows local law enforcement officials to identify and remove undocumented residents from the United States. Id. at § 835/5. If the Attorney General were to determine that the law operated to restrict a local government official's ability to send or receive information regarding immigration status in violation of § 1373, or if Illinois were to extend its protections of its families to prevent all communications regarding immigration status, then under § 10156(f) the funds awarded to the State of Illinois could be redistributed to units of local government.
Regardless of whether the State of Illinois is in compliance with the unlawful conditions, the point here is that the award to a unit of local government such as the City of Chicago can be impacted by the award and compliance status of the state and the other units of local government, not just in the grant year but in the three years following it. That would require, at a minimum, that injunctive relief extend to the state level. But an injunction prohibiting the application of the unlawful conditions to Illinois would not itself ensure that Chicago receives the proper grant amount because, under § 10156(f), any number of scenarios can result in the redistribution of Illinois' grant award to its localities. And the grant that Illinois receives,

which can then be redistributed to its localities, is itself impacted by the enforcement of the unlawful conditions as to the other states. That is because the structure of the Byrne JAG program renders the grants at the state level interrelated as well. See City and County of San Francisco v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018); Wasserman, Nationwide Injunctions at 387-88 (acknowledging that the Ninth Circuit properly allowed the injunction to run to non-party California because the state grant could impact San Francisco's grant).
3. Redistribution from State to State
Byrne JAG grant awards to each state are not determined in isolation from each other. First, the awards are based on the statistics of each state relative to that of the others. If states are no longer eligible for the grant program based on the unlawful conditions, the allocations could be calculated excluding those states, resulting in a higher amount for the remaining states. That is a hypothetical possibility, not a certainty, because it is possible that the initial allocations would still be calculated as to all states — even those rendered ineligible for funds — and the states would be excluded only at the award stage. If that was the only redistribution, we would remand to the district court for further fact-finding to determine whether the initial grant allocations will be impacted by the ineligibility of states due to the unlawful conditions. But we need not remand here because the state Byrne JAG awards are interrelated in other ways that do not require factual development.
What is clear, even without factfinding, is that other statutorily-mandated redistributions of Byrne JAG funds among states will be upended by the imposition of the unlawful Byrne JAG conditions. Just as recipients of Byrne JAG grants have to certify compliance with antilobbying statutes and other grant-related requirements in order to be eligible for their grant award, grantees also can have their grant award reduced or increased based on their compliance with the Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20927(a), and the Prison Rape Elimination Act (PREA), 34 U.S.C. § 30307(e)(2)(A). In contrast to the award conditions imposed in this case by executive fiat, the conditions of compliance with SORNA and PREA are legislatively-authorized, in explicit statutory language. See 34 U.S.C. § 20927(a),(c), and § 30307(e)(2)(A), (E).
As described above, in the Byrne JAG program, initial allocations of Byrne JAG funds are made to states and, after the states submit their applications with the required certifications, awards of the grant are issued. If a state seeking a Byrne JAG grant is non-compliant with the requirements of SORNA, then its Byrne JAG grant award is reduced by 10 percent. Those funds are then reallocated as an addition to the Byrne JAG grant award to other, SORNA-compliant states in the following fiscal year unless the non-compliant state seeks reallocation of those funds to its own Byrne JAG grant award by certifying that the funds will be used solely to obtain SORNA compliance and that request is approved. 34 U.S.C. § 20927(c). The amounts at stake in that redistribution can be significant. For FY 2016, the 10% penalty applied to SORNA-non-compliant states reduced Byrne JAG grants by more than $6 million, with approximately $5 million reallocated to the SORNA-non-compliant states that applied for the funds to promote SORNA implementation, and over a million dollars reallocated as a bonus award to SORNA-compliant states. See Justice Assistance Grant Program, 2016 Technical Report at 7, at https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/jag-technical-report.pdf (last visited 4-8-2020).

Accordingly, a state's Byrne JAG award can be increased or decreased based on that state's own compliance with SORNA and based on whether other states are non-compliant. Because the penalty is assessed when the Byrne JAG grant is awarded, it will not be assessed as to states that either cannot even apply for the award because they cannot certify that they are in compliance with the unlawful conditions, or that apply and are denied an award because they are not in compliance with those conditions. See Office of Justice Programs SMART, Byrne JAG Grant Reductions Under SORNA at https://smart.gov/byrneJAG_grant_reductions.htm (last visited 4-8-2020)(noting that the 10 percent reduction is imposed when the awards are made).
That is a real problem if the unlawful Byrne JAG conditions challenged in this case are imposed upon the states. States that cannot or will not comply with those unlawful conditions will not be able to receive any award under the Byrne JAG grant. In fact, even filing an application for the Byrne JAG grant is problematic for such states. The application requirements and penalties leave potential applicants in "sanctuary" or "welcoming" jurisdictions with few options. The chief executive of each state or unit of local government must certify that the unit of government will comply with all Byrne JAG provisions and all applicable federal laws, and must include the certification of compliance with § 1373. The solicitation for Byrne JAG applications makes clear that the certification is subject to review by DOJ, and that a false statement or concealment or omission of a material fact may result in criminal prosecution, and also may trigger civil penalties and administrative remedies including suspension or termination of the award, placement on the DOJ high risk grantee list (with attendant consequences), disallowance of costs, and suspension or debarment of the recipient. See Edward Byrne Memorial Justice Assistance Grant Program FY 2017 Local Solicitation CFDA # 16.738 at 8-9, Appellant's Appendix, No. 18-2885, at A153-54. In the amicus briefs in this case alone, fourteen states have challenged the conditions, which indicates that the number of states that could be impacted by the imposition is significant. That likelihood is apparent as well in the Department of Justice's Byrne JAG Application and Award History, which as of March 2019 indicated that approximately $150 million of the $400 million in Byrne JAG funds each year for FY 2017 and FY 2018 still had not been released to grantees "as a result [of] concerns regarding compliance with federal immigration laws and ongoing litigation related to these matters." U.S. Dept. of Justice, FY 2020 Performance Budget, OJP March 2019, https://www.justice.gov/file/1144566/download at 100 (last visited 4-8-2020).
If states cannot apply for or receive Byrne JAG awards, then that impacts the SORNA penalties collected from and redistributed to the remaining states in the Byrne JAG grants. For instance, if SORNA-non-compliant states can no longer qualify for Byrne JAG funds because of the unlawful conditions challenged here, then the 10 percent SORNA penalty will not be assessed as to them because they will have no award. Therefore the penalty amounts will not be redistributed to the Byrne JAG grant the following year to SORNAcompliant states, thus lowering the Byrne JAG grant awards that the remaining states would have received. Those SORNA-compliant states will not receive the additional funds that would have been reallocated from the award of those non-compliant states. Similarly, if SORNA-compliant states are unable to participate in the Byrne JAG program because they cannot comply with the unlawful conditions, then the remaining SORNA-compliant states will receive a larger share of the SORNA penalty funds solely because the unlawful conditions forced the exclusion of those states and impacted the number of SORNA-

compliant states left in the redistribution mix. The inability of SORNA-non-compliant states to seek reallocation of the penalty to their own Byrne JAG award, in years for which the unlawful conditions deprive them of any award, will also skew the calculations.
Whether states experience a loss or a windfall, the result is that the imposition of the unlawful Byrne JAG conditions, by precluding states from eligibility for Byrne JAG awards, will alter the Byrne JAG grant amounts for other states, and therefore can alter amounts for localities as well. In other words, if the unlawful conditions are imposed upon the states so as to render some of them ineligible for the Byrne JAG award, the Byrne JAG award for other states will be impacted because the Byrne JAG award for each state is impacted by the amounts redistributed from other states.
A similar redistribution of funds between states occurs based on compliance with the PREA. The PREA stipulates that a state that does not certify full compliance with its national standards can forfeit 5 percent of Byrne JAG funds unless it certifies that no less than 5 percent of such funds will be used solely to achieve compliance. See 34 U.S.C. § 30307(e)(2)(A). In FY 2019, as a result of the PREA compliance requirement, nearly $3 million in Byrne JAG grant funds were reallocated, held in abeyance, or reduced. See Impact of PREA on Justice Grants, FY 2019 at https://bja.ojp.gov/ sites/g/files/xyckuh186/files/media/document/FY2019-PREA-Grant-Impact.pdf (last visited 4-8-2020). If states are unable to comply with certain PREA requirements, the PREA provides that "the Attorney General shall redistribute the funds of the State held in abeyance to other States to be used in accordance with the conditions of the grant program for which the funds were provided." 34 U.S.C. § 30307(e)(2)(E)(iii).
States that are ineligible for Byrne JAG funds because they cannot comply with the challenged conditions will not be awarded Byrne JAG funds, and therefore the redistribution of Byrne JAG funds that would occur for non-compliance with the PREA will be disrupted. Once again, the impact of the challenged conditions will impact not only the individual state's Byrne JAG grant amount, but will impact the grant amount of other states as well. Just as the Byrne JAG grants for localities are impacted by the grants for states and each state's ability to comply with the challenged Byrne JAG conditions, so too the grants for states are impacted by the ability of each other state to comply with those Byrne JAG conditions.
4. Complete Relief to Plaintiff
The only way to ensure that the plaintiff receives, now and in the future, the Byrne JAG grant amount that it would be entitled to in the absence of the unlawful conditions, is to calculate the amounts for grant recipients as a whole absent the unlawful conditions. Like a river that flows throughout an entire region, in which an impact on one part cannot be separated from the whole and relief for injury to the part must target the whole, relief for one grantee in the Byrne JAG program must target the whole program. Complete relief to Chicago requires that the unlawful grant conditions are not applied to the program at all. In that context, a program-wide injunction is appropriate.
The dissent asserts that SORNA and PREA are irrelevant to a claim involving the Byrne JAG grant. But the focus here is not on the source of the redistribution of Byrne JAG funds;

rather, the relevant question is whether that required redistribution renders Byrne JAG funding intertwined, such that the elimination of some states from the Byrne JAG program as a result of the unlawful conditions can impact the funds received by other states and localities in that program. The relevant question is whether the formula for calculating the Byrne JAG award renders one state's and one locality's award dependent on the award for other states, and whether the imposition of the unlawful conditions challenged in this lawsuit disrupts that calculation. If the imposition of the unlawful Byrne JAG conditions on the states as a whole could alter the award that a state (and therefore a locality) would receive, then a program-wide injunction is necessary in order for Chicago to receive the award that it would be entitled to in the absence of the unlawful conditions. Chicago's award is impacted not only if the unlawful conditions are applied to its own Byrne JAG application, but if they are applied to deny Byrne JAG awards to Illinois or to other states. Accordingly, the relief that would eliminate the impact of those unlawful conditions on Chicago's Byrne JAG grant is an injunction preventing the consideration of those unlawful conditions in the awarding of the Byrne JAG grant program-wide. A program-wide injunction is necessary to provide complete relief to the plaintiff, and therefore is proper.
Notably, the Attorney General has never tried to establish that the grant awards are not interdependent. In his brief, the Attorney General addressed "the panel majority's belief that `the structure of the Byrne JAG program itself' supports entry of nationwide injunction." Appellant's Brief, No. 18-2885, at 54. But rather than challenge the assumption that the Byrne JAG funds would be redistributed from jurisdictions that lost funding, the Attorney General declared that the panel majority "failed to explain how that redistribution required a nationwide injunction to protect Chicago's interests," because such redistribution would benefit Chicago by increasing its grant. Id. at 54-55. At oral argument, the Attorney General again declared only that it is "unclear" whether funds from another applicant could increase Chicago's award if the conditions rendered that applicant unable to retain or obtain a Byrne JAG award, but again argued that such redistribution would be a windfall of which Chicago could not complain. Under the Attorney General's theory, then, even if Chicago would receive more funds if the unlawful conditions are applied to other Byrne JAG applicants, that would constitute a surplus and Chicago could not complain that it failed to obtain all relief to which it is entitled. The notion that a plaintiff cannot complain if it becomes a beneficiary of the unlawful actions it is challenging is an odd one. It is the equivalent of arguing that a victim of an unlawful pyramid scheme can receive proper relief from the illegal conduct if that victim is given a cut of the profits of that very same ongoing unlawful scheme. Chicago seeks a remedy that provides redress for the unlawful conduct, not one that allows it to profit from the continued imposition of that unlawful conduct as to others. A remedy that essentially makes the City complicit in the action it seeks to prohibit is no remedy at all, and certainly not one that can, by any measure, constitute a remedy grounded in equity.
Courts have an obligation to award proper relief, and a windfall achieved by the imposition of unlawful conditions on other applicants is not proper relief. This is not a situation in which it is impossible to ensure that Chicago receives the award it would be entitled to without the unlawful conditions; it requires only that the unlawful conditions not be applied to the Byrne JAG awards at all. That relief is the proper and complete relief here, and it does not cease to be proper merely because other, non-plaintiffs, will thereby be relieved of the unlawful conditions that would otherwise be applied to their grant awards. In fact, relief that requires consistency in the application of conditions to all Byrne JAG grants is truer to the statutory

structure. Particularly where, as discussed above, the other equitable factors also weigh in favor of broad relief, there is no reason in equity to deny the remedy that will provide complete relief to Chicago.
Moreover, as discussed above, the impact of the unlawful conditions on the other states would not necessarily result in a windfall. It could also result in a lower grant award than would be proper absent the impact of those unlawful conditions. If, for example, SORNAnon-compliant states cannot receive a grant award, then the 10 percent penalty cannot be imposed on their award and redistributed to other states. That will decrease the awards to other SORNA-compliant states, and as set forth above, the state award can impact the local award. The assumption, then, that Chicago could only experience a windfall is unsupported as the statutory formula is structured.
We have determined that the Attorney General lacked the authority to impose the challenged conditions. The proper relief to Chicago is to enjoin the imposition of the conditions to the extent necessary to ensure that Chicago receives the grant award that it would be entitled to if the unlawful conditions were not imposed. In a formula grant structure such as the one presented here, in which grant amounts are based on percentages and the award amounts are interrelated and interdependent, a program-wide injunction is necessary to ensure that Chicago itself receives proper relief. Therefore, even considering only the relief necessary to the plaintiff itself, the district court did not abuse its discretion in imposing a program-wide injunction. Because we so hold, we need not consider Chicago's argument that program-wide relief is proper under the Administrative Procedure Act's authorization that unlawful agency actions should be "set aside." See D.C. v. U.S. Dep't of Agric., ___ F.3d ___, 2020 WL 1236657, at *34 (D.D.C. Mar. 13, 2020) and cases cited therein (discussing a line of cases all holding that "the APA's instruction that unlawful agency actions be `set aside' is ordinarily read as an instruction to vacate, wherever applicable, unlawful agency rules"); see also Sohoni, Lost History at 991 n.466.
VI. Conclusion.
Once again, we address the need to preserve the separation of powers between the legislative and executive branch. The separation of powers is a foundation of our government, not a formality to be swept aside on the path to achieving goals that the executive branch deems worthy. The Attorney General's nod to checks and balances rings hollow in light of the changing justifications provided here for the conditions, with a new purported legislative "authorization" whenever another is deemed baseless by the court. Rather than an exercise of authority granted to it by the legislature, the conditions imposed here are an executive usurpation of the power of the purse. See Providence, 2020 WL 1429579 at *8 ("[i]t is nose-on-the-face plain that [C]ongress intended Byrne JAG to operate as a formula grant program .... Congress did not make an allowance for any deviation that would justify the actions undertaken by the DOJ in this case.")
The imposition of the challenged conditions in this manner is an abrogation of the legislative process. Preservation of the separation of powers is paramount if our democracy is to survive.

Accordingly, we affirm the grants of declaratory relief as to the declarations that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a), in attaching the challenged conditions to the FY 2017 and FY 2018 grants, and that the Attorney General's decision to attach the conditions to the FY 2017 and FY 2018 Byrne JAG grants violated the constitutional principle of separation of powers. In light of our determination as to the language in § 10153, it is unnecessary to reach the constitutionality of § 1373 under the anticommandeering doctrine of the Tenth Amendment. We affirm the district court's grant of injunctive relief as to the application of the challenged conditions to the Byrne JAG grant program-wide now and in the future, which included enjoining the Attorney General from denying or delaying issuance of the Byrne JAG award to grants in FY 2017, FY 2018, FY 2019 and any other future program year insofar as that denial or delay is based on the challenged conditions or materially identical conditions. We remand for the district court to determine if any other injunctive relief is appropriate in light of our determination that § 10153 cannot be used to incorporate laws unrelated to the grants or grantees. Finally, because the injunctive relief is necessary to provide complete relief to Chicago itself, the concern with improperly extending relief beyond the particular plaintiff does not apply, and therefore there is no reason to stay the application of the injunctive relief.
MANION, Circuit Judge, concurring in the judgment in part and dissenting in part.
Today's opinion holds unlawful several conditions attached to the Byrne JAG program and affirms the imposition of a nationwide injunction with respect to those conditions. My concurrence addresses all parts except the court's approval of a nationwide injunction. Broad, sweeping relief of such nature is rarely appropriate, and nothing indicates Chicago needs a nationwide injunction to preserve its Byrne JAG award.
I.
The Attorney General challenges the district court's conclusion that the notice, access, and § 1373 compliance conditions required of FY 2017 and FY 2018 Byrne JAG applicants are unlawful. He also challenges the same finding regarding three new conditions placed on FY 2018 grant applicants: the § 1644 compliance condition; the harboring condition; and the additional certification condition. These requirements all conflict with Chicago's "Welcoming City Ordinance,"[1] which, broadly speaking, forbids the city's agencies or agents from cooperating with federal immigration authorities unless the individual subject to federal inquiry has an outstanding criminal warrant, a pending felony charge, or gang affiliations. Chicago, Ill., Mun. Code § 2-173-042. This ordinance, in my opinion, spoils the many inherent values gained when local and federal law enforcement agencies collaborate, yet the city claims this measure is necessary to foster cooperation between local law enforcement and "undocumented" immigrants, i.e., those here illegally, who might otherwise fear detention and removal (legal consequences) after coming forward as criminal witnesses. The city further insists the cooperation of illegal aliens "is essential to achieve the City's goals of protecting life and property, preventing crime and resolving problems." § 2-173-005. I find this logic unconvincing when, in 2018, Chicago's self-reported clearance rates (cases in which a suspect was arrested, charged, and prosecuted) for murder (44.42 percent) and aggravated assault (38.42 percent) fell substantially below the national

clearance average for those crimes (62.3 and 52.5 percent, respectively).[2] Clearly, willing witnesses are lacking in Chicago despite its "welcoming" policies.
We already addressed the notice and access conditions in City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) ("Chicago I"), where we rejected the Attorney General's reliance on § 10102(a)(6) of the Byrne JAG statute and upheld the district court's grant of a preliminary injunction regarding those two requirements. Here, the Attorney General relies on § 10102(a)(6) once again, this time maintaining the provision extends to support the new harboring and additional certification conditions. But he raises no new meritorious arguments regarding § 10102(a)(6) in this appeal, so I agree with the court that our earlier reasoning warrants the same result here. I also agree that §§ 10102(a)(2) and (a)(4) do not support the harboring condition. Those provisions only permit the Assistant Attorney General to "maintain liaisons" with government agencies regarding criminal justice matters, not to impose conditions on grant money.
That still leaves the Attorney General's § 1373 compliance condition.[3] Section 1373 prohibits states and localities from restricting the flow and maintenance of information regarding the citizenship or immigration status of any individual. 8 U.S.C. § 1373. According to the Attorney General, conditioning Chicago's grant award on the city's compliance with this law is proper under § 10153 of the Byrne JAG statute. Section 10153 requires applicants to certify, among other things, compliance with the program's provisions and "all other applicable Federal laws." 34 U.S.C. § 10153(A)(5)(D). The Attorney General argues this language captures § 1373, but such logic depends on a revision to the statutory language, one that requires certified compliance with "all Federal laws," not just the applicable ones.
There are thousands of federal laws. Adopting the Attorney General's literal position would condition a grant award on certifying compliance with each and every one of them. That cannot be the case. Under its spending power, Congress can attach only those conditions that "bear some relationship to the purpose of the federal spending" and must do so unambiguously. New York v. United States, 505 U.S. 144, 167, 172 (1992) (citations omitted). The Attorney General's unbounded interpretation ignores this concept. His oversight makes a difference because the relevant statutory context limits § 10153(A)(5)(D)'s "all other applicable Federal laws" language to federal grant applicants. Reading § 10153 as a whole makes this clear. Indeed, the immediately preceding subsections, (A)-(C), all require certification of items pertaining directly to the Byrne JAG application itself. Moreover, the Byrne JAG program's FY 2017 solicitation literature directs applicants to specific federal laws that the applicants need to abide by. Those laws, unlike § 1373, by their very language pertain expressly to federal grants and grant recipients, further indicating that compliance with § 1373 represents a departure from the grant's statutory requirements.
The Attorney General's conditions, viewed in isolation, are perfectly reasonable. Federal officers have a basic duty to ensure enforcement of and compliance with our country's immigration laws. That the federal government would require cooperation with its agencies in exchange for grant funds should come as no surprise. Nevertheless, the Constitution places the power to spend money in the legislative branch. See U.S. Const. art. I, § 8, cl. 1 ("The Congress shall have Power ... to pay the Debts and provide for the ... general Welfare

of the United States ...."). The spending power also comes with the ancillary authority to place conditions on the receipt of federal funds. Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 576 (2012). So, the executive lacks authority to place conditions on the receipt of federal funds unless Congress vests it with such power. See generally La. Pub. Serv. Comm'n v. F.C.C., 476 U.S. 355, 374 (1986) ("[A]n agency literally has no power to act ... unless and until Congress confers power upon it."). Here, context clashes with the Attorney General's expanded reading of § 10153(A)(5)(D), and he has received no such assignment of power from Congress. Holding Byrne JAG applicants to § 1373, therefore, is not supported by law.
II.
I respectfully dissent, however, from my colleagues' view that the injunction here should be applied beyond Chicago, nationwide.[4] I departed from the panel on this same issue in our prior opinion, see Chicago I, 888 F.3d at 293-300 (Manion, J., concurring in the judgment in part and dissenting in part), and for similar reasons here, I reiterate my disagreement.[5]
A. The Byrne JAG Statute
In Chicago I, the court justified a nationwide preliminary injunction to avoid "simultaneous litigation of [a] narrow question of law in countless jurisdictions" and because the Attorney General imposed unlawful conditions that applied "uniformly" to all grant applicants. 888 F.3d at 291-92. This time around, it seeks to affirm the same scope of relief on narrower grounds. In a nutshell, the court claims the Byrne JAG statute's structure permits a nationwide injunction because all applicants—localities and states—are interconnected regarding how much funding they receive. Therefore, according to the court, a nationwide injunction is needed to prevent the Attorney General from enforcing his unlawful conditions in other jurisdictions (beyond Chicago) because if those jurisdictions are denied funding for failing to comply, then that will affect Chicago's award.[6]
The court misinterprets the statute. With one exception, none of the provisions invoked by the court—read singly or in combination—make Chicago's award contingent on any other governing body's compliance with the Attorney General's conditions. See generally 34 U.S.C. § 10156. For example, any reallocated funds Chicago receives under § 10156(e)(1) come from excess awards granted to other local governments, not from those jurisdictions' noncompliance. And, the joint application process described in § 10156(d)(4) is likewise silent on whether one local government's failure to comply can alter the grant awards of its fellow "geographical constituent units."
Furthermore, the court theorizes that the disqualification of a given locality (for failing to comply with the Attorney General's conditions) can alter Chicago's award amount because Chicago's funds depend on both "the number of applicants" and its "share of all violent crimes reported in the state relative to those other applicants." Maj. Op. at 81 (emphasis added). That's not what the statute says. Subsection 10156(d)(2)(A) governs grant allocations to localities. It directs the Attorney General to allocate an amount equal to the ratio of (1) the average number of violent crimes reported by the applicant over the three most recent years for which such data is available to (2) the number of "violent crimes

reported by all units of local government in the State in which the [applicant] is located ... for such years." Id. (emphasis added). By its own language—"all units of local government"—§ 10156(d)(2)(A) simply compares the applicant's violent crimes against those reported by all localities within the applicant's state. In other words, even if another Illinois locality fails to comply with the notice and access conditions, its violent crime statistics are not removed from § 10156(d)(2)(A)'s formula; they are still used to calculate Chicago's award. The ratio remains the same regardless of any other locality's noncompliance, and the yield for Chicago, therefore, is not affected. The one exception, foreshadowed above, is § 10156(f).
That subsection provides:
If the Attorney General determines ... that a State will be unable to qualify or receive funds under this part ... then such State's allocation (or portion thereof) shall be awarded by the Attorney General to units of local government, or combinations thereof, within such State ....
Id. (emphasis added). So, if a state falls out of compliance, any redistribution of funds benefits that state's local governments. But if, for example, California refuses to comply with the Attorney General's conditions, then California's allocation would not go to Chicago or otherwise change Chicago's award at all. The states' allocations are siloed by state; in this example, California's allocation (or portion thereof) would be redistributed only to compliant localities within its borders.
The court showcases the Keep Illinois Families Together Act, 5 ILCS 835, to emphasize that "[t]he possibility of [§ 10156(f)] impacting Chicago's grant amount is far from negligible" because the Attorney General may determine the legislation runs afoul of his unlawful requirements. Maj. Op. at 83. Maybe so. But while the possibility of an Illinois law impacting Chicago's Byrne JAG award is "more than negligible" under § 10156(f), the possibility of another state's law impacting Chicago's award is zero.
My colleagues' reliance on the reallocation clauses in SORNA and PREA similarly falls short of justifying nationwide relief. SORNA and PREA each provide that jurisdictions failing to implement the statutes' mandates will be penalized with a reduction to their Byrne JAG award. 34 U.S.C. § 20927(a) and § 30307(e)(2)(A). Those reductions are redistributed among SORNA- and PREA-compliant jurisdictions. Id. § 20927(c) and § 30307(e)(2)(E)(iii). The court's theory is that, if states other than Illinois both (1) are held ineligible for a Byrne JAG grant because of the Attorney General's unlawful conditions and (2) fail to implement SORNA and PREA, then Illinois—and perhaps by extension, Chicago—will miss out on the reallocated penalties. The court thus believes only a nationwide injunction can prevent injury to Chicago.
But Illinois and Chicago are not guaranteed reallocated funds in the first place; that depends on whether any other jurisdictions fail to implement SORNA and PREA. Even still, how much money would Chicago stand to receive? Any reallocated penalties, while not small sums themselves, are a drop in the bucket compared to all Byrne JAG funds. As the court notes, in FY 2016, reallocated SORNA penalties exceeded $6 million across the country. Reallocated PREA penalties in FY 2019 totaled nearly $3 million. Compare those amounts with nearly $275 million in Byrne JAG funds distributed for FY 2016 and over $252 million for FY 2019.[7] Describing the reallocated SORNA and PREA penalties as "significant"

overstates the matter, yet the court's analysis of SORNA and PREA is a key player in its approval of injunctive relief that stretches beyond Chicago.
Since other state and local governments' compliance with the Attorney General's conditions does not affect Chicago's award amount, the purported need for a nationwide injunction disappears as Chicago cannot prove (and has not done so here) how an injunction imposed throughout the country— upon every state and locality—is necessary to protect its own interests. See California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) (Nationwide injunctive relief "must be necessary to give prevailing parties the relief to which they are entitled.") (internal quotations and citation omitted). Indeed, if granted injunctive relief for just Chicago, then Chicago cannot lose; it is guaranteed at least the same amount of grant money, if not more should the State of Illinois fail to qualify for funding. This outcome stays the same under the court's statutory interpretation, too, where Chicago's funds can be altered by the non-compliance of other states or localities in other states. Even then, a limited injunction would ensure Chicago receives either the same or more funding.
The court deems this relief not "proper" because it fears Chicago could receive a windfall when the would-be awards of other unlawfully denied applicants make their way into Chicago's grant. First of all, this still does not justify nationwide relief. At best, it serves as a basis for an Illinois-wide injunction because, again, nothing indicates the noncompliance of local governments or states outside Illinois will result in any additional funds being redistributed to Chicago.
More importantly, the "proper" relief the court speaks of is not for Chicago's redress, but for that of unrelated non-parties; the relief here ensures other applicants receive their deserved slice of the pie. This approach oversteps the narrow and well-established maxim that "injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs," not to non-litigant third parties. Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (emphasis added); see also Int'l Kennel Club of Chi., Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1094 (7th Cir. 1988) (holding that the geographic scope of an injunction "must not exceed the extent of the plaintiff's protectable rights.") (emphasis added); Azar, 911 F.3d at 584 ("The scope of [injunctive relief] must be no broader and no narrower than necessary to redress the injury shown by the plaintiff[s].") (emphasis added).
The "usual rule," after all, is "that litigation is conducted by and on behalf of the individual named parties only." Califano, 442 U.S. at 700-01. Thus, the court's approach also breaks with "American courts' tradition of providing equitable relief only to parties ...." Trump v. Hawaii, 138 S. Ct. 2392, 2427 (2018) (Thomas, J., concurring) (emphasis added). As Justice Thomas outlined:
For most of our history, courts understood judicial power as fundamentall[y] the power to render judgments in individual cases. Misuses of judicial power, Hamilton reassured the people of New York, could not threaten the general liberty of the people because courts, at most, adjudicate the rights of individual[s].
Id. at 2427-28 (alterations in the original) (internal quotation marks and citations omitted).[8] Chicago has failed to show why a nationwide injunction—and nothing less—is

necessary to preserve its Byrne JAG award, and the court's statute-based explanation is, in my view, inadequate to rescue the city's request.
B. Mendoza Concerns
Even were the court's statutory interpretation sound, I would still dissent because its reasoning necessarily depends on the following assumptions: that the parties presented the district court with the very best arguments on the merits; that no other jurisdictions' standards for injunctive relief would yield different results than in this case; that what goes for a Chicago-specific ordinance goes for all others; and that no trial judge sitting in the 93 other districts could possibly reach a different decision on these issues.
The Supreme Court cautioned against these same kinds of assumptions in United States v. Mendoza, determining that a judicial holding against the federal government in one case could not be used by another party in another case "to preclude relitigation of issues ...." 464 U.S. 154, 162 (1984). The Court was concerned that allowing parties to use preclusion in this way "would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue," thereby depriving the Court of the benefit it receives when the various circuits explore and address difficult legal issues. Id. at 160. Thus, in barring the use of such nonmutual offensive collateral estoppel against the government, the Court sought to promote "thorough development of legal doctrine by allowing litigation in multiple forums." Id. at 163.
While the Court in Mendoza did not address its concerns within the framework of nationwide injunctions, its reasoning nonetheless applies here. Indeed, the Fourth and Ninth Circuits have overruled nationwide injunctions as preventing the development of divergent views and outcomes. See Va. Soc'y for Human Life, Inc. v. Fed. Election Comm'n, 263 F.3d 379, 393 (4th Cir. 2001) (remanding nationwide injunction in favor of more limited relief because such a broad measure encroaches on other circuits' ability to develop their own precedent, relying on Mendoza), overruled on other grounds by Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 550 n.2 (4th Cir. 2012); East Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029-30 (9th Cir. 2019) (criticizing nationwide injunctions for depriving other parties of the ability to litigate issues in other jurisdictions, interfering with judicial decisionmaking, and preventing the percolation of legal issues and the development of the law, citing accordance with Mendoza in a footnote); Azar, 911 F.3d at 583-84 (determining nationwide injunction overbroad, citing Mendoza's concerns).[9]
By affirming the nationwide scope of relief here, the court blocks the underlying issues from percolating through the lower courts and thereby hinders the issues' development, prevents divergent legal views and opinions from coming to the fore, and forces all future litigants in this country to accept the determination of one district judge who was presented with one city's ordinance and who took arguments from one set of parties. These are real, tangible harms that impair our federal legal system. See Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring) ("[Nationwide] injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch."). And the fact that five circuits have now sounded off on the Attorney General's conditions does not lessen the need for other courts to do so.

Diversity of thought and opinion that flows from percolation is meant to benefit not only the Courts of Appeals, but our Supreme Court as well. See Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting) ("[W]hen frontier legal problems are presented, periods of `percolation' in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring final pronouncement by this Court."). Why should the judiciary call it a day after only five circuits weigh in, especially when they are split?
III.
The phenomenon of nationwide injunctions began to emerge in the latter half of the twentieth century but has "exploded in popularity" in recent years. Hawaii, 138 S. Ct. at 2429 (Thomas, J., concurring). Indeed, in the public domain, the Attorney General has represented that, as of September 2019, the current administration had already faced at least forty such injunctions, compared with twenty total throughout the previous administration's eight years. William Barr, End Nationwide Injunctions, The Wall Street Journal, Sept. 5, 2019, http://www.wsj.com/articles/end-nationwide-injunctions11567723072 (last visited April 24, 2020). That figure has since gone up.
The nationwide injunction trend has also received scrutiny from the academy, and as Justice Thomas cautioned, the Supreme Court will be "dutybound to adjudicate" the lower courts' authority to issue such "legally and historically dubious" injunctions should the practice continue. Hawaii, 138 S. Ct. at 2429 (Thomas, J., concurring).
Last year, when ordering a limited injunction to ensure relief to the sole plaintiff before him, Judge Bennett of the District of Maryland observed:
It is clear that most of the nationwide injunctions issued against the federal government in the past two years have come from United States District Courts in states less favorably inclined politically to the current administration. It is also clear that most of the nationwide injunctions against the federal government in the years before also came from United States District Courts in states less favorably inclined politically to the previous administration. It is important that the federal judiciary not allow itself to become part of underlying policy debate.
Mayor & City Council of Baltimore v. Azar, 392 F. Supp. 3d. 602, 619 n.12 (D. Md. 2019) (emphasis added) (internal quotations and citations omitted). Considering the recent flood of nationwide injunctions, I echo Judge Bennett in emphasizing this final point: we must not allow nationwide injunctions to serve as pretext for judicial activism.
An injunction is a "drastic and extraordinary" remedy, Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010), outdone only by an injunction issued on a national scale. This type of relief should be issued only when absolutely necessary, and it is far from necessary here. This is a funding case at its core, not an immigration case, where a nationwide injunction may, in very limited circumstances, be appropriate. See, e.g., Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017) (upholding a nationwide injunction on the President's "travel ban" because plaintiffs were "dispersed throughout the United States" and there existed a need to apply immigration laws uniformly). Those circumstances are not present here. Therefore, once again, I would

remand this issue in its entirety to the district court with instructions to curtail its injunction so as to prevent the Attorney General from enforcing the unlawful conditions with respect to Chicago's funds only.
[1] The Homeland Security Act of 2002 completely dismantled the Immigration and Naturalization Service and created a new cabinet level agency— the Department of Homeland Security—under which Immigration and Customs Enforcement (ICE) now operates. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.
[2] Although one additional claim was dismissed without prejudice, the City of Chicago has informed the court that it disavows any right to further pursue that claim in this action, and therefore the judgment is reviewable under § 1291. See West v. Louisville Gas & Elec. Co., 920 F.3d 499, 506 (7th Cir. 2019).
[3] In the course of his argument that § 10102(a)(6) authorizes the imposition of the additional certification condition, the Attorney General also states in a parenthetical that the additional certification condition "also involves the provision of programmatic information to the extent that any active impeding takes the form of withholding information, see 34 U.S.C. § 10153(A)(4)." Appellant Brief, No. 19-3290, at 22; see also City of Providence v. Barr, 2020 WL 1429579 at *7 (1st Cir. March 24, 2020) (rejecting the argument that the "programmatic information" language in § 10153(A)(4) provided authority for the conditions). That is the sole reference to § 10153(A)(4) as a basis to support the imposition of the additional certification condition, and is insufficient to raise the argument before this court. See Sauk Prairie Conservation All. v. United States Dep't of the Interior, 944 F.3d 664, 674 (7th Cir. 2019).
[4] The Attorney General argues that some federal laws and regulations include language modifying "applicable," and that absent such language the term should be interpreted as unbounded (citing 42 U.S.C. § 16154(g)(1) ("generally applicable Federal laws and regulations governing awards of financial assistance, contracts, or other agreements") and Pub. L. No. 113-121, § 1043(a)(3)(C)(ii)(II), 128 Stat. 1193, 1246 (2014) ("all applicable Federal laws (including regulations) relating to the use of the funds")). It is not at all clear that such language serves to narrow rather than to clarify, but regardless, the use of modifying language in other statutes does not alter our conclusion that the context, language and structure of this statute defines the phrase as including only laws relating to grants and grantees.
[5] As we noted in Chicago I, the provision for discretionary grants is located in a different subpart of the same statute, and "imbues the Director (who reports to the Assistant Attorney General) with the authority to award funds on terms and conditions that the Director determines to be consistent with that subpart." Chicago I, 888 F.3d at 286.
[6] In addition to the impropriety of such discretion in a formula grant generally, the discretion to set conditions here is also problematic because the certification provided in § 10153(A)(5) is only a certification "in a form acceptable to the Attorney General" that the applicant will comply with all other applicable federal laws. The statute, then, grants discretion only over the form of the certification, not the content as the Attorney General seeks to assert here. Compare 13 U.S.C. § 141 (providing that "[t]he Secretary shall ... take a decennial census of the population ... in such form and content as he may determine ....") (emphasis added); accord City of Providence, 2020 WL 1429579 at *11.
[7] The terms "nationwide" and "universal" injunctions are both used by courts and commentators to describe injunctions for which relief extends beyond the plaintiff, see Wasserman, Nationwide Injunctions at 352-53, and we use these terms interchangeably in this opinion. As to the relief provided in this case, we use "program-wide" injunction because it is more descriptive of the actual reach of the injunction here.
[8] They subsequently explained that injunctions restraining the "United States" from nationwide enforcement of a law could not happen until after 1976, when the United States enacted its first general waiver of sovereign immunity, and that suits to restrain high level executive branch officials like the Attorney General were difficult to bring because "[i]n the absence of the modern venue statute, and because of doctrinal barriers that no longer exist, a modern nationwide injunction could only have been brought in Washington, D.C." Amicus at 18-19.
[1] Although Chicago's ordinance places the city among other so-called "sanctuary" jurisdictions, Chicago creatively labels itself a "welcoming city," perhaps to avoid prosecutorial suspicion over whether its elected officials are committing a federal harboring offense. Federal law makes it a crime for any person, "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 "harbor" that alien. 8 U.S.C. § 1324(a)(1)(A)(iii). The same statute also criminalizes encouraging or inducing an alien to "come to, enter, or reside in the United States," knowing that such entry or residence would be in violation of

law. Id. § 1324(a)(1)(A)(iv). With the right facts, a policy like Chicago's could very well facilitate harboring or at least encourage and induce aliens to enter and reside unlawfully in the United States.
[2] Compare 2018 CHI. POLICE DEP'T ANN. REP., at 62 (2019), available at http://home.chicagopolice.org/wpcontent/uploads/2019/07/2018AnnualReport-05July19.pdf (last visited April 24, 2020), with FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES 2018, Table 25: Percent of Offenses Cleared by Arrest or Exceptional Means, available at https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.2018/topicpages/tables/table-25 (last visited April 24, 2020).
[3] As the court notes, the Attorney General concedes the two compliance conditions—§ 1373 and § 1644—rise and fall together.
[4] I use the term "nationwide" while recognizing that "universal" might be more precise, see Trump v. Hawaii, 138 S. Ct. 2392, 2425 n.1 (2018) (Thomas, J., concurring): the court's injunction really prohibits the Attorney General from enforcing a policy with respect to any applicant, regardless of geographic scope. I do not, however, accept the court's reference to a "program-wide" injunction. This word choice is an obvious euphemism that downplays the injunction's inappropriate extension to non-parties and tiptoes around the growing criticism of nationwide injunctions in general.
[5] I do not dissent, however, from the court's decision to affirm the injunction's temporal scope, i.e., "all future years." Nor do I disagree with remanding for the district court to consider proper injunctive relief regarding the compliance condition.
[6] The court relied on this same statute-based logic in its previous decision, but to a lesser degree and without the same detailed discussion as here. See Chicago I, 888 F.3d at 292-93.
[7] See https://www.bjs.gov/content/pub/pdf/jagp16.pdf (last visited April 24, 2020); https://external.ojp.usdoj.gov/selector/title?solicitationTitle=BJA%20FY%2019%20Edward%20Byrne%20Memorial%2 0Justice%20Assistance%20Grant%20(JAG)%20Program%20-%20State%20Solicitation&po=BJA (last visited April 24, 2020); https://external.ojp.usdoj.gov/selector/title?solicitationTitle=BJA%20FY%2019%20Edward%20Byrne%20Memorial%2 0Justice%20Assistance%20Grant%20(JAG)%20Program%20%20Local%20Solicitation&po=BJA (last visited April 24, 2020).
[8] In the analogous context of Article III standing, the Supreme Court has also "caution[ed] ... that `standing is not dispensed in gross': A plaintiff's remedy must be tailored to redress the plaintiff's particular injury." Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006)).
[9] We have also invoked Mendoza in the Rule 23 context to uphold a geographically limited class in light of "the Supreme Court's admonition that certification of a nationwide class may have a detrimental effect by foreclosing adjudication by a number of different courts and judges, and of increasing, in certain cases, the pressures on [the Supreme Court's] docket." Shvartsman v. Apfel, 138 F.3d 1196, 1201 (7th Cir. 1998) (alteration in the original) (internal quotations and citation omitted).