19

‐ 267 (L)

New York et al. v. United States Dep’t of Justice et al.



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2018

Nos. 19

‐ 267(L); 19

‐ 275(con)

S TATE OF N EW Y ORK

, S TATE OF C ONNECTICUT

, S TATE OF N EW J ERSEY

,

S TATE OF W ASHINGTON

, C OMMONWEALTH OF M ASSACHUSETTS

,

C OMMONWEALTH OF V IRGINIA

, S TATE OF R HODE I SLAND

, C ITY OF N EW

Y ORK

, Plaintiffs

‐ Appellees

,

v.

U NITED S TATES D EPARTMENT OF J USTICE

, W ILLIAM P. B ARR

, in his

official capacity as Attorney General of the United States,

Defendants

‐ Appellants

.

On Appeal from the United States District Court

for the Southern District of New York

A RGUED : J UNE 18, 2019

D ECIDED : F EBRUARY 26, 2020

_____

Before: W INTER

, C ABRANES

, and R AGGI

, Circuit Judges

.

_____2 On appeal from a judgment entered in the United States District

Court for the Southern District of New York (Edgardo Ramos, Judge ),

which (1) mandates that defendants release withheld 2017 Byrne

Program Criminal Justice Assistance funds to plaintiffs, and (2)

enjoins defendants from imposing certain immigration

‐ related

conditions on such grants, defendants argue that the district court

erred in holding that the challenged conditions violate the

Administrative Procedure Act and the United States Constitution.

R EVERSED AND R EMANDED

.

______________

B RAD H INSHELWOOD (Mark B. Stern, Daniel Tenny, on the

brief ) for J OSEPH H. H UNT

, A SSISTANT A TTORNEY G ENERAL

, Appellate Staff, Civil Division, United States Department

of Justice, Washington, D.C., for Defendants

‐ Appellants

.

A NISHA S. D ASGUPTA

, for L ETITIA J AMES

, A TTORNEY

G ENERAL OF THE S TATE OF N EW Y ORK

, New York, New

York (Barbara D. Underwood, Eric R. Haren, Linda Fang,

New York State Office of the Attorney General, New

York, New York; Mark Francis Kohler, Michael Skold, for

William Tong, Attorney General of the State of

Connecticut, Hartford, Connecticut; Jeremy

Feigenbaum, for Gurbir S. Grewal, Attorney General of

the State of New Jersey, Trenton, New Jersey; Luke

Alexander Eaton, for Robert W. Ferguson, Attorney

General of the State of Washington, Olympia,

Washington; David Urena for Maura Healey, Attorney

General of the Commonwealth of Massachusetts, Boston,

Massachusetts; Victoria Pearson, for Mark R. Herring,3 Attorney General of the Commonwealth of Virginia,

Richmond, Virginia; Michael W. Field, for Peter F.

Neronha, Attorney General of the State of Rhode Island,

Providence, Rhode Island, on the brief ) for Plaintiffs

‐ Appellees the States of New York, Connecticut, New

Jersey, Washington, Rhode Island, and the

Commonwealths of Massachusetts and Virginia.

Jamison Davies, Richard Dearing, Devin Slack, for

Zachary W. Carter, Corporation Counsel of the City of

New York, New York, New York for Plaintiff

‐ Appellee the

City of New York.

Adam Lurie, Caitlin Potratz Metcalf, Linklaters LLP,

Washington, D.C., Counsel for Amicus Curiae American

Jewish Committee.

S PENCER E. A MDUR

, Lee Gelernt, Omar C. Jadwat,

American Civil Liberties Union Foundation, New York,

New York; Christopher Dunn, New York Civil Liberties

Union, New York, New York; Mark Fleming, Heartland

Alliance, Chicago, Illinois; Cody H. Wofsy, American

Civil Liberties Union of California Immigrants’ Rights

Project, San Francisco, California; Counsel for Amici

Curiae American Civil Liberties Union, New York Civil

Liberties Union, National Immigrant Justice Center,

National Immigration Law Center, Immigrant Legal

Resource Center, Asian Americans Advancing Justice—

Asian Law Caucus, Washington Defender Association,

and the New Orleans Workers’ Center for Racial Justice.4 R EENA R AGGI

, Circuit Judge :

INTRODUCTION

The principal legal question presented in this appeal is whether

the federal government may deny grants of money to State and local

governments that would be eligible for such awards but for their

refusal to comply with three immigration

‐ related conditions imposed

by the Attorney General of the United States. Those conditions

require grant applicants to certify that they will (1) comply with

federal law prohibiting any restrictions on the communication of

citizenship and alien status information with federal immigration

authorities, see 8 U.S.C. § 1373; (2) provide federal authorities, upon

request, with the release dates of incarcerated illegal aliens; and (3)

afford federal immigration officers access to incarcerated illegal

aliens.

The case implicates several of the most divisive issues

confronting our country and, consequently, filling daily news

headlines: national immigration policy, the enforcement of

immigration laws, the status of illegal aliens in this country, and the

ability of States and localities to adopt policies on such matters

contrary to, or at odds with, those of the federal government.

Intertwined with these issues is a foundational legal question:

how, if at all, should federal, State, and local governments coordinate

in carrying out the nation’s immigration policy? There is also a

corollary question: to what extent may States and localities seeking

federal grant money to facilitate the enforcement of their own laws5 adopt policies to extricate themselves from, hinder, or even frustrate

the enforcement of federal immigration laws?

At its core, this appeal presents questions of statutory

construction. In proceedings below, the United States District Court

for the Southern District of New York (Edgardo Ramos, Judge )

determined that the Attorney General was not statutorily authorized

to impose the challenged conditions and, therefore, enjoined their

application. See New York v. Dep’t of Justice

, 343 F. Supp. 3d 213

(S.D.N.Y. 2018). The thoughtful opinion of the district court requires

us to examine the authorization question in detail. For reasons

explained in this opinion, we conclude that the plain language of the

relevant statutes authorizes the Attorney General to impose the

challenged conditions.

In concluding otherwise, the district court relied on, among

other things, an opinion of the Seventh Circuit in City of Chicago v.

Sessions

, 888 F.3d 272 (7th Cir. 2018). While mindful of the respect

owed to our sister circuits, we cannot agree that the federal

government must be enjoined from imposing the challenged

conditions on the federal grants here at issue. These conditions help

the federal government enforce national immigration laws and

policies supported by successive Democratic and Republican

administrations. But more to the authorization point, they ensure that

applicants satisfy particular statutory grant requirements imposed by

Congress and subject to Attorney General oversight.

Nor can we agree with the district court that the challenged

conditions impermissibly intrude on powers reserved to the States.6 See U.S. C ONST

. Amend. X. As the Supreme Court has repeatedly

observed, in the realm of immigration policy, it is the federal

government that maintains “broad,” Arizona v. United States

, 567 U.S.

387, 394 (2012), and “preeminent,” power, Toll v. Moreno

, 458 U.S. 1,

10 (1982), which is codified in an “extensive and complex” statutory

scheme, Arizona v. United States

, 567 U.S. at 395. Thus, at the same

time that the Supreme Court has acknowledged States’

“understandable frustrations with the problems caused by illegal

immigration,” it has made clear that a “State may not pursue policies

that undermine federal law.” Id. at 416. As Chief Justice John

Marshall wrote over 200 years ago, “the states have no power, by

taxation or otherwise, to retard, impede, burden, or in any manner

control, the operations of the constitutional laws enacted by congress

to carry into execution the powers vested in the general government.”

McCulloch v. Maryland

, 17 U.S. 316, 436 (1819). This fundamental

principle, a bedrock of our federalism, is no less applicable today.

Indeed, it pertains with particular force when, as here, Congress acts

pursuant to its power under the Spending Clause. See U.S. CONST.

art. I, § 8.

BACKGROUND

Invoking this court’s interlocutory jurisdiction pursuant to 28

U.S.C. § 1292(a)(1), defendants the United States Department of

Justice and the Attorney General of the United States (hereinafter,

collectively, “DOJ”) appeal from an award of partial summary

judgment entered on November 30, 2018. See New York v. Dep’t of

Justice

, 343 F. Supp. 3d 213 (S.D.N.Y. 2018). That judgment grants7 plaintiffs, the States of New York, Connecticut, New Jersey, Rhode

Island, and Washington, the Commonwealths of Massachusetts and

Virginia (hereinafter, collectively, the “States”), and the City of New

York (the “City”), injunctive relief from three immigration

‐ related

conditions imposed by DOJ on the receipt of 2017 Byrne Program

Criminal Justice Assistance grants (“Byrne grants”). Those conditions

required 2017 Byrne grant applicants (1) to certify their willingness to

comply with 8 U.S.C. § 1373, which law precludes government

entities and officials from prohibiting or restricting the sharing of

citizenship or alien

‐ status information with federal immigration

authorities (the “Certification Condition”); (2) to provide assurance

that, upon written request of federal immigration authorities, grant

recipients would provide notice of an incarcerated alien’s scheduled

release date (the “Notice Condition”); and (3) to certify that grant

recipients would afford federal authorities access to State

‐

incarcerated suspected aliens in order for those authorities to

determine the aliens’ right to remain in the United States (the “Access

Condition”). 1 The district court’s judgment not only enjoins DOJ from

enforcing these three requirements as to any of plaintiffs’ 2017 Byrne

grants (which DOJ has otherwise awarded), but also mandates that

DOJ release the withheld 2017 funds to plaintiffs without regard to

the challenged conditions. See id. at 245–46; App. at 45 (modifying

mandate).

1 Defendants have imposed still further conditions on 2018 Byrne grants, which

plaintiffs also challenge before the district court. Because no judgment has yet

been entered on that part of plaintiffs’ case, we do not address plaintiffs’ challenge

to those conditions on this appeal.8 Three of our sister circuits have now upheld injunctions

precluding enforcement of some or all of the challenged conditions as

to other jurisdictions applying for Byrne grants. See City of Los Angeles

v. Barr, 941 F.3d 931 (9th Cir. 2019) (ruling as to Notice and Access

Conditions); City of Philadelphia v. Attorney Gen.

, 916 F.3d 276 (3d Cir.

2019) (ruling as to all three conditions); City of Chicago v. Sessions

, 888

F.3d 272 (7th Cir. 2018) (ruling as to Notice and Access Conditions),

reh’g en banc granted in part, opinion vacated in part

, No. 17

‐ 2991, 2018

WL 4268817 (7th Cir. June 4, 2018) (vacating nation

‐ wide injunction),

reh’g grant vacated

, No. 17

‐ 2991, 2018 WL 4268814 (7th Cir. Aug. 10,

2018). The district court relied on the Seventh Circuit decision in

entering the challenged judgment, see New York v. Dep’t of Justice

, 343

F. Supp. 3d at 226–45; the later Third and Ninth Circuit decisions were

not then available to it.

In urging reversal, DOJ argues that the district court erred in

holding that the challenged conditions violate the Administrative

Procedure Act (“APA”), 5 U.S.C. § 551 et seq.

, and the Constitution.

As to the APA, DOJ faults the district court for holding that (1) the

Attorney General (and his designee, the Assistant Attorney General

(“AAG”)) lacked the requisite statutory authority to impose the

challenged conditions; and (2) the conditions are, in any event,

arbitrary and capricious because DOJ failed to consider their negative

ramifications for applicants. As to the Constitution, DOJ argues that

(1) the district court having found the conditions invalid under the

APA, there was no need for it to consider their constitutionality; and

(2) the challenged conditions do not raise either the separation

‐ of

‐

powers or Tenth Amendment concerns identified by the district court.9 For reasons explained herein, we conclude that the challenged

conditions do not violate either the APA or the Constitution. We

therefore reverse the challenged judgment in favor of plaintiffs and

remand the case to the district court for further proceedings consistent

with this opinion.

I. The Byrne Justice Assistance Grant Program

The Edward Byrne Memorial Justice Assistance Grant Program

(“Byrne Program”), codified at 34 U.S.C. §§ 10151–10158, is the

vehicle through which Congress annually provides more than $250

million in federal funding for State and local criminal justice efforts. 2

The Byrne Program was created in 2006 as part of the Violence

Against Women and Department of Justice Reauthorization Act of

2005, Pub. L. No. 109

‐ 162, § 1111, 119 Stat. 2960, 3094 (2006). That Act

amended provisions of the Omnibus Crime Control and Safe Streets

Act of 1968, Pub. L. No. 90

‐ 351, tit. I, 82 Stat. 197, which itself had

2 The Byrne Program is named for New York City Police Officer Edward Byrne

who, at age 22, was shot to death while guarding the home of a Guyanese

immigrant cooperating with authorities investigating drug trafficking. The case is

well known in this circuit, where five persons were convicted in the Eastern

District of New York for their roles in Byrne’s murder. Among these was Howard

“Pappy” Mason, a drug dealer who, from his New York State prison cell, ordered

subordinates to kill a police officer in retaliation for Mason’s own incarceration.

See Joseph P. Fried, Officer Guarding Drug Witness Is Slain

, N.Y. Times, Feb. 27, 1988,

at A1, 34; Leonard Buder, Trial Is By a Defendant In Police Slaying

, N.Y. Times, Nov.

29, 1989, at B5.10 provided federal funding for State and local law enforcement

initiatives.

The Byrne Program is a formula grant program, i.e.

, Congress

appropriates a fixed amount of funding for the program and specifies

“how the funds will be allocated among the eligible recipients, as well

as the method by which an applicant must demonstrate its eligibility

for that funding.” Office of Justice Programs, Grant Process Overview

. 3

The Byrne Program’s statutory formula awards the States 50% of

allocated funds based on their relative populations, see 34 U.S.C.

§ 10156(a)(1)(A), and the other 50% based on their relative rates of

violent crime, see id. § 10156(a)(1)(B). The formula further provides

that, of total Byrne funds awarded to a State, the State itself keeps

60%, with the remaining 40% percent allocated to local governments

within the State. See id. § 10156(b).

Congress affords States and localities wide discretion in using

Byrne grants. While awarded funds cannot substitute for a state’s

own expenditures, see id. § 10153(a)(1), Byrne grants may be used to

support such diverse needs as “additional personnel, equipment,

supplies, contractual support, training, technical assistance, and

information systems,” pertaining to a broad range of criminal justice

initiatives:

(A) Law enforcement programs. (B) Prosecution and

court programs. (C) Prevention and education

programs. (D) Corrections and community corrections

3 Available at http://go.usa.gov/xPmkA (last visited Feb. 24, 2020).11 programs. (E) Drug treatment and enforcement

programs. (F) Planning, evaluation, and technology

improvement programs. (G) Crime victim and witness

programs (other than compensation). (H) Mental health

programs and related law enforcement and corrections

programs, including behavioral programs and crisis

intervention teams,

id. § 10152(a). As Congress has explained, its intent was thus to afford

States and localities the “flexibility to spend money for programs that

work for them rather than to impose a ‘one

‐ size fits all’ solution.”

H.R. R EP

. N O

. 109

‐ 233, at 89 (2005), as reprinted in 2005 U.S.C.C.A.N.

1636, 1640.

Plaintiffs have received Byrne grants each year since that

program’s inception. They have used these grants for a variety of

purposes, including, but not limited to, supporting various

investigative task forces, funding both prosecutors’ and public

defenders’ offices, paying 911 operators, improving their criminal

records systems and forensic laboratories, identifying and mentoring

criminally at

‐ risk youth and young adults, operating drug courts and

diversion programs for nonviolent felony offenders, mitigating gang

violence in prison, and funding prisoner re

‐ entry services.

While the Byrne fund

‐ distribution formula is statutorily

mandated, and while Byrne applicants can use such funds for almost

any law

‐ enforcement

‐ related purpose, no State or locality is

automatically entitled to receive a Byrne grant. Rather, a jurisdiction

seeking Byrne funding must submit an application satisfying a host

of statutory requirements. For example, a jurisdiction is statutorily12 required to make its Byrne Program application public and to afford

an opportunity for public comment before submitting its final

application to the Attorney General. See 34 U.S.C. § 10153(a)(3)(A)–

(B). Also, a Byrne grant application must include a “comprehensive

Statewide plan” detailing, as specified in § 10153(a)(6)(A)–(E), how

awarded grants will be used to improve the jurisdiction’s criminal

justice system. A Byrne grant applicant must satisfy these, and all

other statutory requirements, “in such form as the Attorney General

may require,” id. § 10153(a), and subject to such “rules” as the

Attorney General “shall issue” to carry out the program, id. § 10155. 4

Three statutory requirements for Byrne grants are particularly

relevant to this appeal. First

, an applicant must certify that it “will

comply with all provisions of this part [ i.e.

, part of chapter pertaining

to Byrne Program] and all other applicable Federal laws.” Id.

§ 10153(a)(5)(D). Second

, an applicant must provide assurance that it

“shall maintain and report such data, records, and information

(programmatic and financial) as the Attorney General may

reasonably require.” Id. § 10153(a)(4). Third

, an applicant must certify

4 The APA defines the term “rule” broadly to mean “the whole or a part of an

agency statement of general or particular applicability and future effect designed

to implement, interpret, or prescribe law or policy or describing organization,

procedure, or practice requirements of an agency

. . . .” 5 U.S.C. § 551(4); see Safari

Club Int’l v. Zinke

, 878 F.3d 316, 332 (D.C. Cir. 2017) (recognizing that APA defines

“rule” “very broadly” (internal quotation marks omitted)). At the same time, the

APA exempts rules pertaining to grants from the notice

‐ and

‐ comment procedures

generally attending federal rule

‐ making. See 5 U.S.C. § 553(a)(2); City of Los Angeles

v. McLaughlin

, 865 F.2d 1084, 1087 (9th Cir. 1989); cf. Richard B. Cappalli, Rights

and Remedies Under Federal Grants 247 (1979) (observing that “a significant number

of formula [grant] programs contain no mention of Due Process rights”).13 that “there has been appropriate coordination with affected

agencies.” Id. § 10153(a)(5)(C).

The Attorney General’s authority to disapprove Byrne

applications not satisfying the program’s statutory requirements is

implicit in the statutory provision tempering that authority with a

required opportunity for correction: the Attorney General “shall not

finally disapprove” a deficient application “without first affording

the applicant reasonable notice of any deficiencies in the application

and opportunity for correction and reconsideration.” Id. § 10154. The

authority to deny funds is further evident in Congress’s instruction as

to how appropriated funds are to be distributed if the Attorney

General determines “that a State will be unable to qualify or receive

[Byrne Program] funds”: that State’s allocation under the statutory

formula “shall be awarded by the Attorney General to units of local

government, or combinations thereof, within such State,” giving

priority to those with the highest reported number of violent crimes.

Id. § 10156(f). Such denial authority is, moreover, consistent with the

discretion Congress has afforded the Attorney General to waive

certain statutory program requirements, see id. § 10152(c)(2), and to

develop “guidelines” for the statutorily required “program

assessment component” of every Byrne grant that is awarded, id.

§ 10152(c)(1).

The Attorney General is statutorily authorized to delegate the

“powers and functions” thus vested in him by Title 34 to the AAG

responsible for DOJ’s Office of Justice Programs, which office now

administers the Byrne Program. Id. § 10102(a)(6). Congress has made14 plain that the powers and functions that may be so delegated

“includ[e] placing special conditions on all grants, and determining

priority purposes for formula grants.” Id.

II. The Challenged Immigration

‐ Related Conditions

In soliciting 2017 applications for Byrne Program grants, then

‐

Attorney General Jefferson B. Sessions III, on July 25, 2017, announced

the three immigration

‐ related conditions at issue in this case.

First

, the Certification Condition requires a Byrne grant applicant

to execute a “Certification of Compliance with 8 U.S.C. § 1373.” App.

at 288, ¶¶ 52–53. That statute, which the Attorney General identified

as an “applicable Federal law” for purposes of the certification

requirement of 34 U.S.C. § 10153(a)(5)(D), see supra at 12, states, in

pertinent part, as follows:

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 5 information regarding the citizenship or

immigration status, lawful or unlawful, of any

individual.

5 The Immigration and Naturalization Service, which had been a part of DOJ, see 8

U.S.C. § 1101(a)(34), was disbanded in 2002, see 6 U.S.C. § 291, and its duties

divided among three services operating within the new cabinet

‐ level Department

of Homeland Security: the United States Citizenship and Immigration Service, the

Immigration and Customs Enforcement Service, and the Customs and Border

Protection Service, see id

. §§ 111, 211, 251–52, 271.15 18 U.S.C. § 1373(a). The Certification Condition thus requires that,

with respect to the “program or activity” funded in

whole or part under this award (including any such

“program or activity” of any subrecipient at any tier),

throughout the period of performance for the award, no

State or local government entity,

‐ agency, or ‐ official may

prohibit or in any way restrict—(1) any government

entity or ‐ official from sending or receiving information

regarding citizenship or immigration status as described

in 8 U.S.C. § 1373(a); or (2) a government entity or

‐ agency from sending, requesting or receiving,

maintaining, or exchanging information regarding

immigration status as described in 8 U.S.C. § 1373(b).

App. at 288–89, ¶¶ 52–53.

Second

, the Notice Condition requires Byrne grant recipients to

have in place throughout the grant period a law, rule, or policy for

informing federal authorities, upon request, of the scheduled release

date of an alien in the recipient’s custody. It states that,

as of the date the recipient accepts [a Byrne] award, and

throughout the remainder of the period of performance

for the award—

. . . 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 will16 honor such request and—as early as practicable

. . .— provide the requested notice to DHS

.

Id. at 291, ¶ 55(1)(B).

Finally

, the Access Condition requires grant recipients to have a

law, rule, or policy in place allowing federal authorities to meet with

incarcerated aliens in order to inquire about their rights to remain in

the United States. It states that,

as of the date the recipient accepts [a Byrne] award, and

throughout the remainder of the period of performance

for the award—

. . . 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

. . . 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’ rights to be or remain in

the United States.

Id. at 291, ¶ 55(1)(A).

In announcing these conditions, Attorney General Sessions

stated an intent to “increase information sharing between federal,

state, and local law enforcement, ensuring that federal immigration

authorities have the information they need to enforce immigration

laws and keep our communities safe.” Press Release, Attorney

General Sessions Announces Immigration Compliance Requirements17 for Edward Byrne Memorial Justice Assistance Programs (July 25,

2017). 6 The Attorney General was specifically critical of “[s]o

‐ called

‘sanctuary’ policies [that] make all of us less safe because they

intentionally undermine our laws and protect illegal aliens who have

committed crimes.” Id. He stated that DOJ needed to “encourage

these ‘sanctuary’ jurisdictions to change their policies and partner

with federal law enforcement to remove [alien] criminals.” Thus,

“[f]rom now on,” DOJ would “only provide Byrne JAG grants to cities

and states that comply with federal law, allow federal immigration

access to detention facilities, and provide 48 hours[’] notice before

they release an illegal alien wanted by federal authorities.” Id. 7

III. Title 8 U.S.C. § 1373

Because an understanding of how 8 U.S.C. § 1373 became the

focus of the Certification Condition is useful to a consideration of

plaintiffs’ challenge to that condition, we set forth that history here.

Section 1373 was enacted in 1996, when Congress took notice

that certain states and localities were restricting their officials’

cooperation with federal immigration authorities. See generally H.R.

R EP

. N O

. 104

‐ 725, at 391 (1996) (Conf. Rep.), as reprinted in 1996

U.S.C.C.A.N. 2649, 2779 (noting that various state statutes and local

6 Available at https://www.justice.gov/opa/pr/attorney

‐ general

‐ sessions

‐

announces

‐ immigration

‐ compliance

‐ requirements

‐ edward

‐ byrne

‐ memorial.

7 As indicated in the text quoted supra at 15–16, the actual Notice Condition sets

no firm 48

‐ hour deadline but, rather, requires notification “as early as practicable.”18 laws prevent disclosure of individuals’ immigration status to federal

officials). 8

Members of the Senate Judiciary Committee voiced particular

concern with granting federal funds to “State and local governments

passing ordinances and rules which prohibit State and local agencies

from cooperating or communicating with INS.” See The Impact of

Immigration on the United States and Proposals to Reform U.S.

Immigration Laws: Hearing Before the Subcomm. on Immigration and

Refugee Affairs of the Comm. on the Judiciary

, 103d Cong. 45 (1994)

[hereinafter Immigration Reform Hearings ] (statement of Sen. Simpson,

R. Wyo. (“I believe cooperation has to be [a] condition[] for any

Federal reimbursement. In other words, you are not going to get

bucks from the Federal Government if the local governments can’t

communicate with the INS about illegal immigration and those who

are involved in it.”)); see also id. at 26 (statement of Sen. Feinstein, D.

8 This conference report specifically pertains to 8 U.S.C. § 1644, a provision of the

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L.

104

‐ 193), which states that, “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.” As this court has recognized, § 1373, enacted a month

after § 1644 as part of the Immigration Reform Act, “expands” on the earlier statute

insofar as it provides generally that no Federal, State, or local government entity

may restrict another government entity from sending to, or receiving from INS,

any immigration status information. See City of New York v. United States

, 179 F.3d

29, 32 (2d Cir. 1999) (rejecting constitutional challenge to both laws). Thus, the

conference report pertaining to § 1644 is relevant to § 1373.19 Cal. (signaling that she would not support providing immigration

“impact aid” to “States and local governments that declined to

cooperate in enforcement of [federal immigration] laws”)); 9 id.

(statement of Committee Chairman Sen. Kennedy, D. Mass.

(acknowledging concerns of some mayors that cooperation with

federal immigration authorities could be counterproductive to local

law enforcement efforts, and observing that federal aid had to be

provided “in ways that are going to get the[ir immigration]

cooperation but also,

. . . [allow them] to deal with

. . . violence and

gangs and drug problems and the rest. We are looking for balance

. . . .”)).

In its report accompanying the proposed legislation that

would become § 1373, the Senate Judiciary Committee expressly

recognized that the “acquisition, maintenance, and exchange of

9 Senator Feinstein’s comment was made in signaling agreement with a

recommendation of the Commission on Immigration Reform, a body created by

Congress in 1990 to “evaluate the impact of” changes in federal immigration law.

The relevant exchange is as follows:

Commissioner Teitelbaum: There is a further condition [on

recommended immigration impact aid] that was unanimously

supported by the Commission

. . . [and] it should be highlighted,

and that is a requirement for cooperation by State and local

governments with Federal authorities to enforce the immigration

laws of the United States. I don’t think the Commission would

support the notion of impact aid for States and local governments

that declined to cooperate in enforcement of such laws.

Senator Feinstein: Nor would I, sir, so I agree with you.

Immigration Reform Hearings

, 103d Cong. at 26.20 immigration

‐ related information by State and local agencies is

consistent with, and potentially of considerable assistance to, the

Federal regulation of immigration and the achieving of the purposes

and objectives of the Immigration and Nationality Act.” S. R EP

. N O

.

104

‐ 249, at 19–20 (1996) (quoted in City of New York v. United States

,

179 F.3d at 32–33). Thus, in enacting § 1373, as in enacting § 1644,

Congress sought “to give State and local officials the authority to

communicate with [federal immigration authorities] regarding the

presence, whereabouts, or activities of illegal aliens,”

notwithstanding any local laws to the contrary. H.R. R EP

. N O

. 104

‐

725, at 383 (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. at 2771

(quoted in City of New York v. United States

, 179 F.3d at 32).

In the twenty years that followed, political debates over federal

immigration policies grew more contentious, and the number of State

and local jurisdictions limiting official cooperation with federal

immigration authorities increased. In February 2016, Representative

John Culberson (R. Tex.), then the Chairman of the House

Appropriations Subcommittee on Commerce, Justice, Science, and

Related Agencies, forwarded to Attorney General Loretta E. Lynch a

report by the Center for Immigration Studies, which concluded that

“over 300 ‘sanctuary’ jurisdictions [were] refus[ing] to comply with

[federal immigration] detainers or [were] otherwise imped[ing]

information sharing with federal immigration officials.” App. at21 134. 10 Representative Culberson asked the Attorney General to

investigate whether DOJ “grant recipients were complying with

federal law, particularly

. . . § 1373. ” Id. (emphasis added).

The ensuing investigation was conducted by DOJ’s Inspector

General (“IG”) who, in May 2016, reported a significant, decade

‐ long

decline in state and local cooperation with federal immigration

authorities. He reported that a 2007 congressionally mandated IG

audit of seven jurisdictions then receiving federal funds pursuant to

the State Criminal Alien Assistance Program (“SCAAP”) revealed

that all but one (San Francisco) were accepting federal detainers and

providing federal authorities with timely notice of aliens’ release

dates. See App. at 134–35 n.1. By contrast, the IG’s 2016 examination

of ten jurisdictions receiving a combined 63% of relevant DOJ grants, 11

10 An immigration detainer is the instrument by which federal authorities formally

“advise another law enforcement agency that [they] seek[] custody of an alien

presently in the custody of that agency, for the purpose of arresting and removing

the alien.” 8 C.F.R. § 287.7(a). Supported by an administrative warrant issued on

a showing of probable cause, the detainer generally requests the agency then

having custody of the alien to provide federal authorities with advance notice of

the alien’s intended release date or to detain the alien for a brief time to allow

federal authorities to assume custody. See U.S. Immigration and Customs Enf’t,

Fiscal Year 2017 ICE Enforcement and Removal Operations Report 7–8 (2017); see also

Hernandez v. United States

, 939 F.3d 191, 200 (2d Cir. 2019).

11 The IG reviewed ten jurisdictions receiving federal grants administered by the

DOJ’s Office of Justice Programs ( e.g.

, Byrne Program grants) and/or the DOJ’s

Office of Violence Against Women: “the States of Connecticut and California; City

of Chicago, Illinois; Clark County, Nevada; Cook County, Illinois; Miami

‐ Dade22 revealed that “all

. . . had ordinances or policies that placed limits on

cooperation” with federal immigration authorities. Id.; see id. at 137,

145–49 (detailing limitations found). 12 The IG observed that insofar

County, Florida; Milwaukee County, Wisconsin; Orleans Parish, Louisiana; New

York, New York; and Philadelphia, Pennsylvania.” App. at 136.

12 To illustrate with some examples, the IG reported that Cook County, Illinois

(Chicago), prohibited its on

‐ duty employees from communicating with federal

immigration authorities “regarding individuals’ incarceration status or release

dates.” Id. at 140 (internal quotation marks omitted). Similarly, Orleans Parish,

Louisiana (New Orleans) prohibited its officials from “provid[ing] information on

an inmate’s release date” to federal authorities. Id. By executive order,

Philadelphia employees were prohibited from providing federal authorities with

release date information about the subject of an immigration detainer unless that

person was incarcerated “for a first or second degree felony involving violence

and the detainer is supported by a judicial warrant,” and not merely an

administrative one. Id. at 141 (internal quotation marks omitted).

New York City appears to have placed restrictions on its employees’ cooperation

with federal immigration authorities as early as 1989. See City of New York v. United

States

, 179 F.3d at 31 (discussing 1989 executive order prohibiting city officials or

employees from communicating individual’s immigration status to federal

authorities unless (1) required to do so by law, (2) expressly authorized to do so

by alien, or (3) alien is suspected of criminal behavior). Then, in a 2003 Executive

Order, the City established a “General Confidentiality Policy” summarized by the

district court as follows:

City employees may not disclose an individual’s immigration

status, except in limited circumstances, such as when the disclosure

is authorized by the individual, is required by law, is to another

City employee as necessary to fulfill a governmental purpose,

pertains to an individual suspected of illegal activity (other than

mere status as an undocumented immigrant), or is necessary to

investigate or apprehend persons suspected of terrorist or illegal

activity (other than mere documented status). Additionally, police23 as these limitations “may be causing local officials to believe and

apply the[se] policies in a manner that prohibits or restricts

cooperation with [federal immigration officials] in all respects,” that

would be “inconsistent with and prohibited by Section 1373.” Id. at

141. Thus, “to the extent [DOJ]’s focus is on ensuring that grant

applicants comply with Section 1373,” the IG stated that it could

consider taking “several steps,” including (1) clarifying that § 1373 “is

an ‘applicable federal law’” that DOJ grant recipients “would be

expected to comply with in order to satisfy relevant grant rules and

regulations”; and (2) “[r]equir[ing] grant applicants to provide

certifications specifying the applicants’ compliance with Section 1373,

along with documentation sufficient to support the certification.” Id.

at 142.

Following this IG report, in July 2016, DOJ, then still headed by

Attorney General Lynch, specifically identified § 1373 as “an

officers may not inquire about a person’s immigration status unless

investigating illegal activity other than mere undocumented status,

and may not inquire about the immigration status of crime victims

or witnesses at all. Other city employees may not inquire about any

person’s immigration status unless the inquiry is required by law

or is necessary to determine eligibility for or to provide government

services.

New York v. Dep’t of Justice

, 343 F. Supp. 3d at 223 (citations omitted). The IG

reported that by law enacted in November 2014, New York City further prohibited

its Corrections personnel from communicating inmate release dates to federal

immigration authorities unless the inmate is subject to a detainer supported by a

judicial warrant. See App. at 141.24 applicable federal law” for purposes of both Byrne and SCAAP grants

and began providing applicants and recipients with guidance as to

the requirements of that statute. That guidance explained that § 1373

imposed no affirmative obligation on States and localities but, rather,

prohibited such entities from taking actions to restrict the exchange of

immigration information with federal authorities. 13 For some

jurisdictions identified by the IG, notably plaintiff New York City,

DOJ conditioned the continuance of their 2016 Byrne grants on the

submission of documentation validating their compliance with

§ 1373. 14

13 In that respect, DOJ stated,

Section 1373 does not impose on states and localities the affirmative

obligation to collect information from private individuals

regarding their immigration status, nor does it require that states

and localities take specific actions upon obtaining such

information. Rather, the statute prohibits government entities and

officials from taking action to prohibit or in any way restrict the

maintenance or intergovernmental exchange of such information,

including through written or unwritten policies or practices.

App. at 151 (internal quotation marks omitted).

14 The validation requirement imposed by DOJ on New York City’s 2016 Byrne

grant stated as follows:

The recipient agrees to undertake a review to validate its

compliance with 8 U.S.C. § 1373. If the recipient determines that it

is in compliance with 8 U.S.C. § 1373 at the time of review, then it

must submit documentation that contains a validation to that effect

and includes an official legal opinion from counsel (including

related legal analysis) adequately supporting the validation. If the25 In October 2016, DOJ published further guidance stating that

henceforth, “all” Byrne grant applicants “must certify compliance

with all applicable federal laws, including Section 1373.” App. at 182.

Grant applicants were advised “to examine their policies and

procedures to ensure they will be able to submit the required

assurances” in their 2017 applications. Id. at 183.

Thus, when in July 2017, a new Attorney General, serving a

new, Republican administration, announced that applicants for 2017

Byrne grants would have to certify their compliance with § 1373, he

was putting into effect the same condition earlier announced by DOJ

under the preceding, Democratic administration.

recipient determines that it is not in compliance with 8 U.S.C. § 1373

at the time of review, then it must take sufficient and effective steps

to bring it into compliance therewith and thereafter submit

documentation that details the steps taken, contains a validation

that the recipient has come into compliance, and includes an official

legal opinion from counsel (including related legal analysis)

adequately supporting the validation. Documentation must be

submitted

. . . by June 30, 2017. Failure to comply with this

condition could result in the withholding of grant funds,

suspension or termination of the grant, ineligibility for future

[grants], or other administrative, civil, or criminal penalties as

appropriate.

App. at 170, ¶ 53. By letter dated June 27, 2017, the City stated that

“[n]otwithstanding [its] position that § 1373 is not an applicable federal law

. . . the

City certifies that its laws and policies comply with and operate within the

constitutional bounds of § 1373.” 2016 Compliance Validation at 2, New York v.

Dep’t of Justice

, 343 F. Supp. 3d 213 (No. 18

‐ cv

‐ 6474), ECF No. 41

‐ 1.26 IV. Plaintiffs’ 2017 Byrne Grant Awards

On June 26, 2018, DOJ applied the Byrne Program formula to

award the plaintiff States Byrne grants totaling $25 million—subject

to their acceptance of the three immigration

‐ related conditions at

issue. As to New York City, DOJ reiterated, in both October 2017 and

January 2018, the concerns it had first expressed in 2016, i.e.

, that

certain of the City’s laws or policies appeared to violate § 1373, which

could render it ineligible for Byrne grants. See supra at n.14.

In response to these DOJ actions, the plaintiff States and City

filed the instant related actions, challenging, inter alia

, the

Certification, Notice, and Access Conditions for 2017 Byrne grants as

violative of both the APA and the Constitution.

V. The Award of Summary Judgment to Plaintiffs

On the parties’ cross motions for summary judgment, the

district court granted partial judgment to plaintiffs, enjoining the

enforcement of the challenged conditions as to them and mandating

the release of 2017 Byrne grant funds to plaintiffs.

In so ruling, the district court held that the challenged

conditions violated the APA in two respects: (1) the Attorney General

lacked the statutory authority to impose the conditions, see New York

v. Dep’t of Justice

, 343 F. Supp. 3d at 227

 31; and (2) defendants’ failure

to consider the conditions’ potential negative ramifications for

plaintiffs’ law enforcement efforts rendered the conditions arbitrary

and capricious, see id. at 238

 41.27 While the district court could have stopped there, it proceeded

also to rule on certain of plaintiffs’ constitutional challenges. As to

§ 1373 in particular, the district court ruled that DOJ could not

identify it as an “applicable law” requiring compliance certification

under 34 U.S.C. § 10153(a)(5)(D) because, on its face, § 1373 violates

the anticommandeering principle of the Tenth Amendment to the

Constitution. See id. at 231

 37. Further, the district court concluded

that, in the absence of statutory authority for the Attorney General to

impose the challenged conditions, all three violated the separation of

legislative and executive powers mandated by Articles I and II of the

Constitution. See id. at 238.

Defendants timely appealed.

D ISCUSSION

We review an award of summary judgment de novo

, construing

the record in the light most favorable to the non

‐ moving party. See,

e.g.

, Bentley v. Autozoners

, 935 F.3d 76, 85 (2d Cir. 2019). We will

uphold such an award only if there is no genuine dispute as to any

material fact, and the movant is entitled to judgment as a matter of

law. See id.

I. Statutory Authorization To Impose the Challenged

Conditions

Except when acting pursuant to powers expressly conferred on

the Executive Branch by the Constitution—which are not asserted

here—an executive department or agency “literally has no power to

act

. . . unless and until Congress confers power upon it.” Louisiana28 Pub. Serv. Comm’n v. FCC

, 476 U.S. 355, 374 (1986). Thus, the APA

requires that executive action taken in the absence of statutory

authority be declared invalid. See 5 U.S.C. § 706(2)(C). 15 When the

challenged action is not only unauthorized but also intrusive on

power constitutionally committed to a coordinate branch, the action

may violate the Constitution, specifically, its mandate for the

separation of legislative from executive powers. 16

DOJ maintains that the Attorney General was statutorily

authorized to impose each of the challenged conditions. Whether

Congress conferred such authority depends on statutory text, which

we construe de novo

. See Kidd v. Thomson Reuters Corp.

, 925 F.3d 99,

15 The relevant statutory text states as follows:

[t]o the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and determine the

meaning or applicability of the terms of an agency action. The

reviewing court shall

. . . hold unlawful and set aside agency action,

findings, and conclusions found to be

. . . in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right

. . . .

5 U.S.C. § 706(2)(C).

16 See generally New York v. United States

, 505 U.S. 144, 182 (1992) (“[S]eparation of

powers

. . . is violated where one branch invades the territory of another.”). But see

Dalton v. Specter

, 511 U.S. 462, 472 (1994) (explaining that not every action “in

excess of

. . . statutory authority is ipso facto in violation of the Constitution,” and

distinguishing between “claims of constitutional violations and claims that an

official has acted in excess of his statutory authority”).29 103 (2d Cir. 2019); United States v. Shyne

, 617 F.3d 103, 106 (2d Cir.

2010). 17

A. Title 34 U.S.C. § 10102(a)(6) Does Not Itself

Authorize the Challenged Conditions

Because DOJ devotes considerable energy on this appeal, as it

did in the district court, to arguing that the challenged conditions are

authorized by 34 U.S.C. § 10102(a)(6), we explain at the outset why

that argument does not persuade. We will then discuss sections of

Title 34 that do authorize the conditions at issue.

At the conclusion of a list of criminal

‐ justice

‐ related duties

assigned to the AAG, § 10102(a)(6) authorizes the AAG,

[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, and

determining priority purposes for formula grants.

17 Defendants have not claimed Chevron deference for their own interpretation of

the authority conferred by statutes pertaining to Byrne grants and, thus, on this

appeal, we do not consider whether any such deference might be warranted. See

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc

., 467 U.S. 837, 845 (1984); compare

Neustar, Inc. v. FCC

, 857 F.3d 886, 894 (D.C. Cir. 2017) (holding Chevron deference

“forfeited” where not claimed on appeal), with Sierra Club v. United States Dep’t of

the Interior

, 899 F.3d 260, 286 (4th Cir. 2018) (explaining in case where parties

assumed Chevron deference that parties “cannot waive the proper standard of

review by failing to argue it” (internal quotation marks omitted)). Rather, we

conclude on de novo review that the challenged conditions are statutorily

authorized.30 3 4 U.S.C. § 10102(a)(6) (emphasis added). Focusing on the

highlighted language, DOJ argues that § 10102(a)(6) does not merely

authorize the Attorney General to delegate powers and functions to

the AAG, but also grants “addition[al]” authority, which supports the

three challenged conditions. Appellant Br. at 22; see Reply Br. at 4–5.

In rejecting this argument, the district court held that the

highlighted text is not a “‘stand

‐ alone grant of authority to the

Assistant Attorney General to attach any conditions to any grants.’”

New York v. Dep’t of Justice, 343 F. Supp. 3d at 228 (quoting City of

Chicago v. Sessions, 888 F.3d at 285). Rather, the introductory word

“including” signals that the ensuing phrase is necessarily cabined by

what went before it.

Thus, the Assistant Attorney General can only place

special conditions or determine priority purposes to the

extent that power already “may be vested in the

Assistant Attorney General pursuant to this chapter or

by delegation of the Attorney General[,]”

. . . who may

only delegate it to the extent that he has such power

himself.

Id. (quoting 34 U.S.C. § 10102(a)(6)).

This conclusion finds support not only in City of Chicago v.

Sessions, the Seventh Circuit decision quoted by the district court, but

also in subsequent decisions of the Third and Ninth Circuits. See City

of Los Angeles v. Barr

, 941 F.3d at 938

 39; City of Philadelphia v. Attorney

Gen.

, 916 F.3d at 287

 89. We agree with that much of these courts’

decisions.31 Depending on context, the word “including” can be either

illustrative or enlarging. Compare Federal Land Bank of St. Paul v.

Bismarck Lumber Co.

, 314 U.S. 95, 100 (1941) (construing word as

illustrative of preceding section), with American Sur. Co. of N.Y. v.

Marotta

, 287 U.S. 513, 517 (1933) (observing that, “[i]n definitive

provisions of statutes,” word frequently signifies extension rather

than limitation), and Adams v. Dole

, 927 F.2d 771, 776–77 (4th Cir. 1991)

(noting dual meaning of word). The context here signals illustration

rather than enlargement. It is the “other powers and functions” that

may be vested in or delegated to the AAG that can “include” the

authority to impose special conditions and to set priority purposes for

Byrne Program grants. Thus, § 10102(a)(6) does not itself confer

authority on the Attorney General (or AAG) to impose the conditions

here at issue. The authority must originate in other provisions of law.

That is the case here.

B. Statutory Provisions Authorizing the Attorney

General To Impose the Challenged Conditions

1. Other Circuits Identify No Such Authority

In looking to whether the Attorney General is otherwise

authorized to impose the challenged conditions, we are mindful that

three sister circuits have considered that question before us and

concluded that he is not. Their reasons for so holding have not been

uniform.

The Seventh Circuit so ruled with respect to the Notice and

Access Conditions, reasoning that no provision of law outside

§ 10102(a)(6) specifically mentions “special conditions” or “priority32 purposes” for Byrne grants. See City of Chicago v. Sessions

, 888 F.3d at

285.

The Ninth Circuit did not think that omission determinative.

Reasoning that Congress could not have enacted § 10102(a)(6) “for the

purpose of expressly authorizing the Assistant AG to exercise powers

that do not exist,” that court construed § 10102(a)(6) as effectively

“confirming” what had been implicit in the overall statutory scheme,

i.e.

, that the Attorney General has the authority to impose special

conditions on, and to identify priority purposes for, Byrne grants,

which authority he can delegate to the AAG. City of Los Angeles v.

Barr

, 941 F.3d at 939. We agree with that much of the Ninth Circuit’s

reasoning. The court goes on, however, to construe the terms “special

conditions” and “priority purposes” narrowly and, from that,

concludes that the Attorney General is not statutorily authorized to

impose the challenged Notice and Access Conditions. See id. at

939

 41 (construing “special conditions” as used in § 10102(a)(6) to

reference only “tailored requirements” necessary to particular

circumstance “such as when a grantee is [at] ‘high

‐ risk’” of violating

a grant’s terms, not general conditions applicable to all grants); id. at

941

 42 (limiting “priority purposes” for Byrne awards to purposes set

out in § 10152(a)).

We cannot adopt the Seventh or Ninth Circuit’s conclusions

because we do not think the Attorney General’s authority to impose

the three challenged conditions here derives from the words “special

conditions” or “priority purposes.” Rather, we locate that authority

in other provisions of law, specifically, those requiring Byrne grant33 applicants to satisfy the program’s statutory requirements in such

“form” and according to such “rules” as the Attorney General

prescribes. See 34 U.S.C. §§ 10153(a), 10153(a)(5), 10155. Considering

that form

‐ and rule

‐ making authority in light of three particular

statutory requirements—(1) for certification of willingness to comply

with “applicable Federal laws,” id. § 10153(a)(5)(D); (2) for assurance

that required information will be maintained and reported, see id.

§ 10153(a)(4); and (3) for coordination with affected agencies, see id.

§ 10153(a)(5)(C)—we conclude that the Attorney General is

statutorily authorized to impose the challenged conditions.

Before explaining that conclusion, we acknowledge that the

Third Circuit, considering these same three statutory requirements,

held that none supports the challenged conditions. See City of

Philadelphia v. Attorney Gen.

, 916 F.3d at 285

 91. The Third Circuit,

however, viewed the Attorney General’s statutory authority

respecting Byrne Program grants as “exceptionally limited.” Id. at

284

 85. We do not.

The Third Circuit emphasized that the Byrne Program awards

formula grants. See id. at 290. We agree that the Attorney General’s

authority to depart from that formula when awarding grants to

qualified applicants is extremely limited. But before there can be an

award, there must be a demonstrated showing of qualification.

Repeatedly and throughout its pronouncement of Byrne Program

statutory requirements, Congress makes clear that a grant applicant

demonstrates qualification by satisfying statutory requirements in

such form and according to such rules as the Attorney General34 establishes. This confers considerable authority on the Attorney

General. 18

18 The following statutory sections confer on, or confirm, the Attorney General’s

authority in this respect:

• 34 U.S.C. § 10152(c)(1)

– Requiring every program funded with a Byrne

grant to have a “program assessment component, developed pursuant to

guidelines established by the Attorney General” together with the National

Institute of Justice.

• Id. § 10152(d)(2)

– Authorizing Attorney General to certify that

extraordinary and exigent circumstances warrant using Byrne grant funds

for generally prohibited expenditures.

• Id. § 10152(f)

– Affording Attorney General discretion to extend Byrne

grants beyond normal four

‐ year period.

• Id. § 10153(a)

– Requiring Byrne grant applicants to submit application

to Attorney General “in such form as the Attorney General may require,”

including statutorily required certifications and assurances.

• Id. § 10153(a)(5)(C)

– Requiring certification “in a form acceptable to the

Attorney General” that “there has been appropriate coordination with

affected agencies.”

• Id. § 10153(a)(5)(D)

– Requiring certification “in a form acceptable to the

Attorney General” that “applicant will comply with all provisions of this

part and all other applicable Federal laws.”

• Id. § 10154

 Requiring Attorney General to afford applicant notice and

opportunity to correct any application deficiencies before finally

disapproving application.

• Id. § 10155

– Requiring Attorney General to “issue rules to carry out this

part.”35 To be sure, the Attorney General’s authority in identifying

qualified Byrne applicants is not limitless but, rather, a function of the

particular requirements prescribed by Congress. Not surprisingly,

however, Congress has prescribed those requirements broadly,

enlisting the Attorney General to delineate the rules and forms for

them to be satisfied. See generally United States v. Haggar Apparel Co.

,

526 U.S. 380, 392

 93 (1999) (explaining that because “Congress need

not, and likely cannot, anticipate all circumstances in which a general

policy must be given specific effect[,]” agency may issue rules so that

statute “may be applied

. . . in a manner consistent with Congress’

general intent”). While the Attorney General certainly cannot

exercise that authority arbitrarily or capriciously, see infra Point II, the

authority itself cannot fairly be characterized as “exceptionally

limited.”

With that understanding, we proceed to consider each

challenged condition and the statutory provisions supporting it.

2. The Certification Condition Is Statutorily

Authorized by 34 U.S.C. § 10153(a)(5)(D)

a. The Statutory Text Requires Applicants To

Certify a Willingness To Comply With “All

. . . Applicable Federal Laws”

The Certification Condition requires a Byrne grant applicant to

certify that, throughout the grant period, it will comply with 8 U.S.C.

§ 1373, the federal law prohibiting any government entity or official

from restricting the receipt, maintenance, or exchange of information

regarding citizenship or immigration status as specified in that36 statute. See supra at 15 (quoting condition). The Attorney General’s

statutory authority to impose this condition derives from 34 U.S.C.

§ 10153(a)(5)(D). Therein, Congress specifically requires a Byrne

grant applicant to include in its application “[a] certification, made in

a form acceptable to the Attorney General” stating that “the applicant

will comply with all provisions of this part and all other applicable

Federal laws .” 34 U.S.C. § 10153(a)(5)(D) (emphasis added).

The conjunctive structure of § 10153(a)(5)(D) makes plain that

a Byrne grant applicant must certify its willingness to comply with

more than those provisions of law specifically pertaining to the Byrne

Program (“this part”). It must also certify its willingness to comply

with “all other applicable Federal laws.” Id. At the same time that

this phrase expands an applicant’s certification obligation, the word

“applicable,” as used in the phrase, serves a limiting function. A

Byrne applicant is not required to certify its willingness to comply

with the United States Code in its entirety as well as all accompanying

regulations. Rather, an applicant must certify its willingness to

comply with those laws—beyond those expressly stated in Chapter

34—that can reasonably be deemed “applicable.” This raises two

questions: What is an “applicable” law? And who identifies it? We

answer the second question first because it is not seriously disputed

and, thus, requires only brief discussion.

1. The Attorney General Is Authorized To

Identify “Other Applicable Federal Laws”

Requiring § 10153(a)(5)(D) Compliance

Certification37 The statutory text signals that the Attorney General identifies

the laws requiring § 10153(a)(5)(D) compliance certification. This is

evident in the requirement that Byrne grant applicants provide

certification in a “form acceptable to the Attorney General.” Id.

§ 10153(a)(5). A “form” is commonly understood to be a “document”

for providing “required or requested specific information.”

W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 892 (1986). By

requiring that § 10153(a)(5)(D) certification be in a “form acceptable

to the Attorney General,” the statute makes clear that it is the

Attorney General who has authority to “require[] or request[] specific

information,” to ensure a grant applicant’s intended compliance with

all other applicable federal laws. See id. Thus, § 10153(a)(5)(D)

authorizes the Attorney General to decide not only the style ( e.g.

,

format and typeface) for § 10153(a)(5)(D) certification, but also the

specificity of its content, i.e.

, whether certification is “acceptable” in a

form that references “all other applicable Federal laws” generally, or

whether such certification needs to be in a form that identifies specific

applicable laws. 19

That Congress would vest such authority in the Attorney

General makes sense for several reasons. First, while Congress itself

requires compliance certification as to “all other applicable Federal

laws,” the number of laws that could apply to States and localities

seeking Byrne funding is large, variable, and not easily identified in a

19 While matters of “substance” are frequently distinguished from matters of

“form,” see, e.g.

, PPL Corp. v. Comm’r of Internal Revenue

, 569 U.S. 329, 340–41 (2013)

(distinguishing between form and substance of a tax), a form serves to ensure the

communication of required substance.38 single statutory provision. Second, the Attorney General, as the

nation’s chief federal law enforcement official, is particularly suited

to identify the federal laws applicable to persons and circumstances.

Third, having the Attorney General identify specific laws requiring

§ 10153(a)(5)(D) certification serves the salutary purpose of affording

applicants clear notice of what is expected of them as Byrne grant

recipients

. 20

2. “All Other Applicable Federal Laws”

Encompasses Both Laws Applying To the

Entity Seeking a Grant and Laws Applying To

the Proposed Grant Program

The district court nevertheless concluded that the Attorney

General was not authorized to identify § 1373 as an applicable law. It

held that “‘applicable Federal laws’ for purposes of 34 U.S.C.

§ 10153(a)(5)(D) means federal laws applicable to the grant,” not to

the grant applicant. New York v. Dep’t of Justice

, 343 F. Supp. 3d at 230–

31. Because it thought that § 1373 applies only to applicants in their

capacities as State and local governments, not to their grants, the

district court ruled that the statute could not be an “applicable” law

requiring § 10153(a)(5)(D) certification. Id. at 231. The Third Circuit

subsequently reached the same conclusion. See City of Philadelphia v.

Attorney Gen.

, 916 F.3d at 288

 90. In so ruling, both courts

acknowledged that it would be reasonable to construe the statutory

text to mean laws applicable to a grant applicant as well as to a

requested grant. See id. at 288; New York v. Dep’t of Justice

, 343 F. Supp.

20 We discuss this notice point further infra at 47–49.39 3d at 230

 31. Nevertheless, the Third Circuit concluded that a

narrower construction was required by the canon against surplusage,

the structure of the statute, the historical practice of DOJ, and the

formula

‐ grant nature of the program. See City of Philadelphia v.

Attorney Gen.

, 916 F.3d at 289

 91. The district court relied on similar

reasoning, as well as Congress’s obligation “unambiguously” to

impose conditions on grants of federal money, to justify its narrow

reading of § 10153(a)(5)(D). New York v. Dep’t of Justice, 343 F. Supp.

3d at 231 (internal quotation marks omitted). We cannot agree.

First and foremost, we do not think the statutory text admits

such narrowing. See generally Connecticut Nat’l Bank v. Germain

, 503

U.S. 249, 254 (1992) (stating that “when the words of a statute are

unambiguous

. . . judicial inquiry is complete” (internal quotation

marks omitted)); accord Mei Xing Yu v. Hasaki Rest., Inc.

, 944 F.3d 395,

403 (2d Cir. 2019) (citing Connecticut Nat’l Bank v. Germain ). The word

“applicable,” as used in § 10153(a)(5)(D), is not statutorily defined.

Thus, it is properly construed according to its contemporary

dictionary definition, see Taniguchi v. Kan Pac. Saipan, Ltd.

, 566 U.S.

560, 566 (2012); accord Munoz

‐ Gonzalez v. D.L.C. Limousine Serv., Inc.

,

904 F.3d 208, 213 (2d Cir. 2018), which is “capable of being applied:

having relevance,” W EBSTER ’ S T HIRD N EW I NTERNATIONAL

D ICTIONARY 105. Statutes are “capable of being applied,” and can be

relevant both to persons and to circumstances. A second dictionary

definition for the word “applicable”—“fit, suitable, or right to be

applied,” id. —only reinforces that conclusion, in that a statute may be40 fit, suitable, or right to apply both to persons and to circumstances. 21

Thus, an “applicable Federal law” under § 10153(a)(5)(D) is one

pertaining either to the State or locality seeking a Byrne grant or to

the grant being sought.

To the extent the district court might be understood to have

construed “all other applicable laws” to mean only laws applying to

States and localities as recipients of federal grants, nothing in the

statutory text suggests that Congress there used the word

“applicable” only in that limited sense. To the contrary, Congress’s

use of the adjective “all” to introduce the phrase “ all other applicable

Federal laws” signals an intent to give the word “applicable” its full

effect, not to narrow it. See Norfolk & W. Ry. Co. v. Am. Train

Dispatchers Ass ʹ n

, 499 U.S. 117, 128–29 (1991) (explaining that phrase

“all other law” is “clear, broad, and unqualified” and “indicates no

limitation” (internal quotation marks omitted)).

Second

, we cannot agree with the Third Circuit that a

redundancy or surplusage problem arises if “all other applicable

Federal laws” is construed to mean laws pertaining both to Byrne

applicants and to the grants they seek. See City of Philadelphia v.

Attorney Gen.

, 916 F.3d at 289 (concluding that such construction

effectively equates phrase with “other Federal laws,” making word

“applicable” mere surplusage). As explained supra at 36, the word

21 See Ransom v. FIA Card Servs., N.A.

, 562 U.S. 61, 69–70 (2011) (using both

dictionary definitions in construing phrase “debtor’s applicable monthly expense

amounts” in provision of Bankruptcy Code (emphasis added) (quoting 11 U.S.C.

§ 707(b)(2)(A)(ii)(I))).41 “applicable” does serve a limiting function in the statutory text—even

if not as limiting as plaintiffs might wish. Thus, to raise a redundancy

concern, the Third Circuit must imply that if Congress had used the

phrase “all other Federal laws” in § 10153(a)(5)(D), then courts would

have to infer the word “applicable” because of the improbability of

Congress requiring certification for the entirety of federal law. But

Congress did not use that broader phrase in § 10153(a)(5)(D). And we

do not think its use of a modifying word—“applicable”—to make

explicit in actual statutory text what our sister circuit thinks would

have to be implied in a hypothetical alternative manifests surplusage.

Rather, we think it demonstrates clear drafting.

Third

, the formula nature of the Byrne Program does not

warrant limiting the phrase “all other applicable Federal laws.”

While Congress’s intent in appropriating funds for formula (as

distinct from discretionary) grants is to have all the money

distributed, even a formula grant applicant must satisfy the

program’s requirements before being entitled to receive funding. Cf

.

Richard B. Cappalli, Rights and Remedies Under Federal Grants 40 (1979)

(remarking that states typically qualify for formula grants after

submitting document statutorily described as “state plan,” which

serves as “vehicle by which the state commits itself to abide by the

conditions which Congress attaches to the funds”). As to the Byrne

Program, this is evident from the fact that Congress has expressly

provided for alternative distributions of appropriated funds if “a

State will be unable to qualify” for a Byrne grant

 a matter Congress

also leaves for “the Attorney General [to] determine[].” 34 U.S.C.

§ 10156(f); see supra at 13. Thus, Byrne Program formula funding can42 be denied to an applicant that fails to provide the required

§ 10153(a)(5)(D) certification as to any “applicable Federal law[],”

whether that law pertains to the particular grant sought or to the

applicant seeking it. 22

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

22 The Third Circuit inferred from the fact that qualifying Byrne (and other federal)

grant recipients could lose a specified (often small) percentage of their annual

distribution if they fail to comply with certain other statutes, that the Attorney

General was not statutorily authorized “to withhold all of a [Byrne] grantee’s

funds for any reason the Attorney General chooses.” City of Philadelphia v. Attorney

Gen.

, 916 F.3d at 286 (emphases in original) (citing 34 U.S.C. § 20927(a) (providing

mandatory 10% penalty for failure to comply with Sex Offender Registration and

Notification Act); id. § 30307(e)(2) (mandating 5% penalty for failure to comply

with Prison Rape Elimination Act); id. § 40914(b) (withholding up to 4% of funding

for failure to meet requirements of National Instant Criminal Background Check

System)). That reasoning does not apply here, where the issue is not whether the

Attorney General can withhold Byrne funding for any reason from qualifying

applicants, but whether he can deny any such funding to an applicant that fails to

demonstrate qualification under the Program’s statutory requirements, indeed,

fails to satisfy them in a “form acceptable to the Attorney General,” as Congress

has mandated. 34 U.S.C. § 10153(a)(5). To be sure, the form acceptable to the

Attorney General must be grounded in the qualifying requirements it serves, but

where that is the case, an applicant’s failure—or refusal—to satisfy the statutory

requirement in that form can result in denial of a Byrne grant. While the Attorney

General cannot “finally disapprove” a deficient Byrne grant application “without

first affording the applicant reasonable notice of any deficiencies

. . . and

opportunity for correction and reconsideration,” id. § 10154, if those deficiencies

persist after such notice and opportunity, then the Attorney General is authorized

to deny the grant in its entirety and to reallocate funds as provided in § 10156(f).43 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.

The conclusion obtains with even more force here, where

enactment of the law at issue, 8 U.S.C. § 1373, was informed by

Congress’s concern that States and localities receiving federal grants

were hampering the enforcement of federal immigration laws. See

supra at 17–20. Subsequent reports that increasing numbers of federal

grant recipients were limiting cooperation with federal immigration

authorities prompted a congressional request for DOJ investigation,

the results of which led two successive Attorneys General serving

different administrations to identify § 1373 as an “applicable Federal

law” requiring compliance certification. See supra at 20–25. 23 We are

satisfied that these identifications are authorized by the plain

23 The IG’s findings, see supra at 21–23

, might well be found to demonstrate the

“high risk” identified by the Ninth Circuit for imposing “special conditions” on

Byrne grants, see City of Los Angeles v. Barr

, 941 F.3d at 940 (holding that “special

conditions,” as referenced in § 10102(a)(6), means “unusual” or “extraordinary”

conditions for a “high

‐ risk grantee,” i.e.

, a grantee with “a history of

noncompliance with grant requirements, financial stability issues, or other factors

that suggest[] a propensity toward violation of a grant’s terms” (internal quotation

marks omitted)).44 language of § 10153(a)(5)(D), and the formula nature of the Byrne

Program requires no contrary conclusion.

Fourth

, the Third Circuit observes that certain § 10153(a)(5)

certification requirements appear, on their face, to pertain to the

requested grant rather than to the grant applicant. See City of

Philadelphia v. Attorney Gen.

, 916 F.3d at 289 (citing § 10153(a)(5)(A)

(requiring certification that “the programs to be funded by the grant

meet all the requirements of this part”); § 10153(a)(5)(B) (requiring

certification that “all the information contained in the application is

correct”); and § 10153(a)(5)(C) (requiring certification that “there has

been appropriate coordination with affected agencies”)). That,

however, is insufficient reason to impose a similar limitation on

§ 10153(a)(5)(D), when the plain language of that provision—“all

other applicable Federal laws”—reaches more broadly. See generally

Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n

, 499 U.S. at 127, 129

(rejecting argument that exemption from “antitrust laws and from all

other law” was limited to antitrust

‐ related laws; ejusdem generis canon

does not apply where neither statutory text nor context supports

urged limitation (emphasis added) (internal quotation marks

omitted)).

In urging otherwise, plaintiffs point to 34 U.S.C. § 10228, which

states that “[n]othing 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.” As the Fourth Circuit has45 observed in construing § 10228’s predecessor statute, the provision is

intended “to guard against any tendency towards federalization of

local police and law enforcement agencies.” Ely v. Velde

, 451 F.2d

1130, 1136 (4th Cir. 1971) (construing statute to prohibit federal

authorities from “[prescribing] the type of shoes and uniforms to be

worn by local law enforcement officers, the type or brand of

ammunition to be purchased and used by police departments and

many other vital matters pertaining to the day

‐ to

‐ day operations of

local law enforcement” (citation omitted)). Section 1373 raises no

such federalization concern. It does not direct, control, or supervise

the day

‐ to

‐ day operations of any State or local police force or law

enforcement agency. It does not mandate that State or local law

enforcement authorities cooperate with federal immigration officers.

It requires only that nothing be done to prohibit voluntary

communication about citizenship or immigration status among such

officials. See supra at 24. To hold that § 10228 places such a statutory

requirement outside the scope of applicable laws requiring

§ 10153(a)(5)(D) compliance certification is to render that

qualification condition a nullity, as compliance with every federal law

necessarily places some limits on a grant applicant’s actions. Indeed,

that conclusion applies whether the law pertains to the applicant or

the grant program. We decline to construe § 10228 so broadly as to

render § 10153(a)(5)(D) inoperative. Cf. Mountain States Tel. & Tel. Co.

v. Pueblo of Santa Ana

, 472 U.S. 237, 250 (1985) (noting “elementary

canon of construction that a statute should be interpreted so as not to

render one part inoperative” (internal quotation marks omitted)). See

generally Ely v. Velde

, 451 F.2d at 1136 (declining to construe

predecessor provision “so broadly as unnecessarily to undercut46 solutions adopted by Congress to preserve and protect other societal

values”). 24

Fifth

, DOJ’s own focus on laws pertaining to grants rather than

applicants in its past identifications of “applicable” federal laws does

not itself limit the word. Given the scope of local programs that can

be funded with Byrne grants, it is not surprising that DOJ would most

frequently identify laws applicable to a particular program in

specifying the form of an acceptable § 10153(a)(5)(D) certification. See

generally City of Philadelphia v. Attorney Gen.

, 916 F.3d at 290 (observing

that if requested grant was to be used for body armor purchases or

human research, applicants were expected to certify willingness to

comply with applicable federal regulations in those areas). Far fewer,

one expects, will be the occasions when States and localities seeking

Byrne grants are themselves violators of federal laws applicable to

them. Nevertheless, in such circumstances, the violated laws fall

within the plain meaning of the phrase “all other applicable Federal

laws” as used in § 10153(a)(5)(D). To illustrate, while the Attorney

General can—and has—required applicants proposing to use Byrne

grants for construction or renovation projects to comply with federal

environmental laws specifically applicable to such work, that hardly

means he cannot also require an applicant that has a history of

violating environmental laws generally from certifying its willingness

going forward to comply with such laws. The laws are applicable in

24 Insofar as plaintiffs rely not only on § 10228, but also on the Tenth Amendment

to argue that § 1373 cannot be an “applicable” law requiring Compliance

Certification, we discuss that constitutional point infra at 49–61.47 the former instance to the grant purpose; in the latter, to the grant

applicant. In either case, the Attorney General is requiring

compliance certification as to “applicable Federal laws.”

Sixth

, Congress’s duty to speak unambiguously in imposing

conditions on federal grant money also does not require “all other

applicable Federal laws” to be construed to mean only laws

pertaining to grants and not to grant applicants. See New York v. Dep’t

of Justice

, 343 F. Supp. 3d at 231. The duty derives from Pennhurst State

School & Hospital v. Halderman

, 451 U.S. 1 (1981). The Supreme Court

there analogized federal spending legislation to “a contract: in return

for federal funds, the States agree to comply with federally imposed

conditions.” Id. at 17. It concluded therefrom that Congress must

“speak with a clear voice” in placing conditions on federal grants

because there “can

. . . be no knowing acceptance [of the putative

contract] if a State is unaware of the conditions or is unable to

ascertain what is expected of it.” Id.

“Knowing acceptance” is no concern here. Section

10153(a)(5)(D) provided plaintiffs with clear notice that their Byrne

grant applications had to include a certification, in a form acceptable

to the Attorney General, of their willingness to comply not only with

laws specifically applicable to the Byrne Program, but also with “all

other applicable Federal laws.” To the extent the quoted phrase fails

to specify precisely which laws are “applicable,” that uncertainty can

pertain as much for laws applicable to requested grants as for those

applicable to grant applicants. Thus, the district court’s Pennhurst

reasoning does not support its conclusion that “applicable Federal48 laws” can pertain only to requested Byrne grants, not to grant

applicants.

But more to the point, no Pennhurst concern arises here because

plaintiffs were given advance notice that their 2017 Byrne grant

applications had to certify a willingness to comply with § 1373.

Indeed, they were given such notice twice, first in 2016, and again in

2017. See supra at 23–25. To be sure, that notice was provided by DOJ

rather than Congress. But the Supreme Court has recognized that, in

establishing federal grant programs, Congress cannot always

“prospectively resolve every possible ambiguity concerning

particular applications of the [program’s statutory] requirements.”

Bennett v. Kentucky Dep’t of Educ.

, 470 U.S. 656, 666, 669 (1985) (making

point in context of federal education grant program). Thus, it has

upheld an administering agency’s clarifying interpretations, and even

its violation determinations, as long they were grounded in “statutory

provisions, regulations, and other guidelines provided by the

Department” at the time of the grant. Id. at 670–71; see also United

States v. O’Hagan

, 521 U.S. 642, 672

 73 (1997) (recognizing agency

authority to prescribe legislative rules consistent with statute).

Plaintiffs here may disagree with the identification of § 1373 as an

“applicable Federal law,” but they can hardly complain of inadequate

notice.

In a final argument in support of their APA challenge to the

Attorney General’s identification of § 1373 as an applicable federal

law, plaintiffs point to Congress’s rejection of various legislative

proposals to impose immigration

‐ related conditions on receipt of49 federal funds. As the Supreme Court has cautioned, “subsequent

legislative history is a hazardous basis for inferring the intent of an

earlier Congress.” Pension Ben. Guar. Corp. v. LTV Corp.

, 496 U.S. 633,

650 (1990) (internal quotation marks omitted). Such legislative

history “is a particularly dangerous ground” of construction where,

as here, the “proposal[s]

. . . do[] not become law.” Id. Indeed,

“several equally untenable inferences may be drawn from”

congressional inaction, “including the inference that the existing

legislation already incorporated the offered change.” Id. (internal

quotation marks omitted). Thus, this challenge to the Attorney

General’s § 10153(a)(5)(D) authority to identify § 1373 as an

“applicable” law also fails.

In sum, we conclude that the plain language of § 10153(a)(5)(D),

authorizes the Attorney General to require certification in a form that

specifically references federal laws applicable either to the Byrne

grant sought or to the State or locality seeking that grant. Because 8

U.S.C. § 1373 is a law applicable to all plaintiffs in this action, the

Attorney General was authorized to impose the challenged

Certification Condition and did not violate either the APA or

separation of powers by doing so.

b. Tenth Amendment Challenge

(1) “As Applied” Review

The district court ruled not only that the Certification

Condition was not statutorily authorized, but also that it could not be

so authorized without violating the Constitution. Specifically, the

district court held that 8 U.S.C. § 1373, the law for which the condition50 required certification, “is facially unconstitutional under the

anticommandeering doctrine of the Tenth Amendment,” and, as

such, “drops out of the possible pool of ‘applicable federal laws’”

requiring § 10153(a)(5)(D) certification. New York v. Dep’t of Justice

,

343 F. Supp. 3d at 237 (internal quotation marks omitted). The district

court did not have to reach this constitutional question, having

already found the Certification Condition to violate the APA. See

Lyng v. Nw. Indian Cemetery Protective Ass’n

, 485 U.S. 439, 445 (1988)

(noting that “longstanding principle of judicial restraint requires that

courts avoid reaching constitutional questions in advance of the

necessity of deciding them”); accord Camreta v. Greene

, 563 U.S. 692,

705 (2011). This court, however, cannot avoid the issue in light of our

ruling that the Certification Condition is statutorily authorized.

For reasons briefly explained herein, we think the district

court’s reasoning insufficient to support its declaration of facial

unconstitutionality. We do not pursue the matter in detail, however,

because § 1373’s constitutionality is properly assessed here not on the

face of the statute, but as applied to clarify a federal funding

requirement. 25 In that context, § 1373 does not constitute

commandeering in violation of the Tenth Amendment.

25 As the Supreme Court has long recognized, “as

‐ applied challenges are the basic

building blocks of constitutional adjudication,” and it is not the court’s “traditional

institutional role to resolve questions of constitutionality with respect to each

potential situation that might develop.” Gonzales v. Carhart

, 550 U.S. 124, 168 (2007)

(internal quotation marks and alterations omitted); see Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc.

, 455 U.S. 489, 494–95 (1982) (holding that courts51 To the extent the district court thought that § 1373 had to be

constitutional in all its applications to be identified as an “applicable

Federal law[]” warranting § 10153(a)(5)(D) certification, it was

mistaken. Even assuming arguendo that § 1373 can constitutionally be

applied to States and localities only when they are seeking federal

funding—a matter we do not here decide—the principle of

severability would warrant upholding the statute as so narrowed. See

Alaska Airlines, Inc. v. Brock

, 480 U.S. 678, 685 (1987) (discussing

severability in addressing constitutional challenges to statutes); accord

National Fed’n of Indep. Bus. (“NFIB”) v. Sibelius

, 567 U.S. 519, 586–88

(2012) (severing part of Affordable Care Act raising constitutional

concerns and upholding remainder); United States v. Booker

, 543 U.S.

220, 245 (2005) (remedying constitutional defect in Sentencing

Guidelines by severing provision for mandatory application). There

can be no question that Congress would have enacted the law, even

as so narrowed. Legislative history indicates that § 1373’s enactment

was animated by reports that States and localities receiving federal

should consider constitutional challenge to statute as applied to plaintiff before

considering other applications); Yazoo & Miss. Valley R.R. Co. v. Jackson Vinegar Co.

,

226 U.S. 217, 219–20 (1912) (upholding statute as applied to instant case without

speculating as to how it might apply in other circumstances); accord United States

v. Holcombe

, 883 F.3d 12, 17 (2d Cir. 2018) (explaining that where First Amendment

rights are not implicated, court considers constitutional challenge “in light of the

specific facts of the case at hand” (internal quotation marks omitted)). Section 1373

is not here challenged as constitutionally vague, much less constitutionally vague

in a way implicating First Amendment rights, so as to warrant more than as

‐ applied review. See Farrell v. Burke

, 449 F.3d 470, 496 (2d Cir. 2006) (“The general

rule disfavoring facial vagueness challenges does not apply in the First

Amendment context.”); see also United States v. Davis

, 139 S. Ct. 2319, 2323 (2019)

(“In our constitutional order, a vague law is no law at all.”).52 funding were hindering cooperation with immigration authorities.

See supra at 17–20. Nor is there any reason to think that the law would

not operate as Congress intended as applied in the funding context.

See generally Alaska Airlines, Inc. v. Brock

, 480 U.S. at 684–85 (discussing

two factors informing severability).

With this understanding, that, in the end, the proper scope of

constitutional inquiry is “as applied,” we briefly discuss concerns

raised by the district court’s facial assessment before explaining our

conclusion that § 1373 does not violate the Tenth Amendment as

applied here to States and localities seeking Byrne Program grants.

(2) The District Court’s Identification of Facial

Unconstitutionality

The Tenth Amendment states: “The powers not delegated to

the United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to the people.” U.S.

C ONST

. amend. X. From this text, the Supreme Court has derived an

“anticommandeering principle,” which prohibits the federal

government from compelling the States to enact or administer a

federal regulatory program. See Printz v. United States

, 521 U.S. 898,

935 (1997) (“The Federal Government may neither issue directives

requiring the States to address particular problems, nor command the

States’ officers, or those of their political subdivisions, to administer

or enforce a federal regulatory program.”).

This court has already considered, and rejected, a facial

commandeering challenge to § 1373. See City of New York v. United

States

, 179 F.3d 29 (2d Cir. 1999). We reasoned that § 1373 does not53 “compel[] state and local governments to enact or administer any

federal regulatory program.” Id. at 35. Nor does it “affirmatively

conscript[] states, localities, or their employees into the federal

government’s service.” Id. Rather, the law prohibits state and local

governments and officials “only from directly restricting the

voluntary exchange of immigration information” with federal

immigration authorities. Id.

The district court acknowledged this precedent, but concluded

that it does not survive Murphy v. National Collegiate Athletic

Association

, 138 S. Ct. 1461 (2018). 26 The Supreme Court there held

that federal legislation prohibiting States from authorizing sports

gambling violates the Tenth Amendment’s anticommandeering rule

because it “unequivocally dictates what a state legislature may and

may not do.” Id. at 1478. The Court explained that it did not matter

whether Congress issued such a dictate by commanding affirmative

action or imposing a prohibition: “The basic principle—that Congress

cannot issue direct orders to state legislatures—applies in either

event.” Id. The district court concluded that Murphy ’s reasoning

required it to hold § 1373 facially violative of the Tenth Amendment

because the statute’s proscriptions prevent States from “adopting

[immigration] policies contrary to those preferred by the federal

government,” or “extricating themselves from federal immigration

26 It has long been the rule in this circuit that a panel decision controls “unless and

until

. . . reversed en banc or by the Supreme Court.” In re Arab Bank, PLC Alien Tort

Statute Litig.

, 808 F.3d 144, 154 (2d Cir. 2015) (internal quotation marks omitted).54 enforcement.” New York v. Dep’t of Justice

, 343 F. Supp. 3d at 235

(internal quotation marks and alterations omitted).

Murphy may well have clarified that prohibitions as well as

mandates can manifest impermissible commandeering. But the

conclusion that § 1373, on its face, violates the Tenth Amendment

does not follow.

A commandeering challenge to a federal statute depends on

there being pertinent authority “reserved to the States.” In Murphy

,

there was no question that, but for the challenged federal law, the

States’ police power allowed them to decide whether to permit sports

gambling within their borders. That conclusion is not so obvious in

the immigration context where it is the federal government that holds

“broad,” Arizona v. United States

, 567 U.S. at 394, and “preeminent”

power, Toll v. Moreno

, 458 U.S. at 10. Title 8 of the United States Code,

commonly known as the Immigration and Nationality Act (“INA”),

see 8 U.S.C. § 1101 et seq.

, is Congress’s “extensive and complex”

codification of that power, Arizona v. United States

, 567 U.S. at 395.

This does not mean that States can never enact any laws

pertaining to aliens. See id. at 404 (observing that “[w]hen there was

no comprehensive federal program regulating the employment of

unauthorized aliens

. . . State had authority to pass its own laws on

the subject”). But courts must carefully identify the powers reserved

to States in this area of extensive and complex federal legislation and

the effect of their exercise on federal immigration laws and policies.

It is doubtful that States have reserved power to adopt—in the words

of the district court—immigration policies “ contrary to those preferred55 by the federal government.” New York v. Dep’t of Justice

, 343 F. Supp.

3d at 235 (internal quotation marks omitted) (emphasis added). As

Chief Justice Marshall famously pronounced, “The states have no

power, by taxation or otherwise, to retard, impede, burden, or in any

manner control, the operations of the constitutional laws enacted by

congress to carry into execution the powers vested in the general

government.” McCulloch v. Maryland, 17 U.S. at 436. The Supreme

Court recently made the same point in the immigration context.

While acknowledging a State’s “understandable frustrations with the

problems caused by illegal immigration,” the Court held that the

“State may not pursue policies that undermine federal law.” Arizona

v. United States

, 567 U.S. at 416.

Here, the district court declared § 1373 facially violative of the

Tenth Amendment without identifying what reserved power States

have to enact laws or policies seemingly foreclosed by 8 U.S.C. § 1373,

i.e.

, laws prohibiting their officials and agencies from engaging in

even voluntary communications about citizenship and immigration

status with federal authorities. A court undertaking that inquiry

would have to recognize, as the Supreme Court has, that

“[c]onsultation between federal and state officials is an important

feature of the immigration system” established by the INA. Id. at 411.

A court would then have to consider how various INA provisions

establish that consultation feature. In Arizona v. United States, the

Supreme Court discussed various INA provisions encouraging or

prohibiting restrictions on federal

‐ state sharing of immigration

‐ status

information before concluding that the “federal scheme thus leaves

room for a [State] policy requiring state officials to contact [federal56 immigration authorities] as a routine matter.” Id. at 413 (emphasis

added). The same conclusion may not be so easy to reach, however,

with respect to a State policy prohibiting information sharing. Among

the statutes cited in Arizona v. United States to illustrate the importance

placed on federal

‐ state consultation by the INA is 8 U.S.C. § 1644. See

567 U.S. at 412–13. As discussed supra at 17–20, § 1644, like § 1373,

prohibits restricting State or local government entities from

communicating with federal immigration authorities “‘regarding the

immigration status, lawful or unlawful, of an alien in the United

States.’’’ Id. (quoting 8 U.S.C. § 1644). Further, even outside the

immigration context, the Supreme Court has not decided whether a

federal law imposing “purely ministerial reporting requirements” on

the States violates the Tenth Amendment. See Printz v. United States

,

521 U.S. at 936 (O’Connor, J.

, concurring) (noting open question

regarding statute’s missing child reporting requirement).

While this authority casts doubt on the district court’s

identification of facial unconstitutionality, we do not ourselves pursue

the point further because, even assuming some power reserved for

the States to prohibit information sharing with federal immigration

authorities, we conclude that § 1373 does not violate the Tenth

Amendment as applied here to a federal funding requirement. 27

27 For that same reason, we need not conclusively decide the preemptive effect of

§ 1373. We note only that, insofar as the district court concluded that the statute

could claim no preemptive effect because it confers a “purported federal right to

transmit information only on government entities and officials,” not on private57 (3) Section 1373 Raises No Commandeering

Concerns as Applied to a Federal Funding

Requirement

While Congress cannot regulate the States, its constitutional

powers, notably under the Spending Clause, see U.S. C ONST

. art. I, § 8,

cl. 1, do allow it to “fix the terms on which it shall disburse federal

money to the States,” Pennhurst State Sch. & Hosp. v. Halderman, 451

U.S. at 17. By setting such terms, Congress can “influenc[e] a State’s

policy choices,” New York v. United States, 505 U.S. at 166, and even

“implement federal policy it could not impose directly under its

enumerated powers,” NFIB v. Sibelius

, 567 U.S. at 578; see South Dakota

v. Dole

, 483 U.S. 203, 207 (1987) (explaining that “objectives not

thought to be within Article I’s enumerated legislative fields may

nevertheless be attained through the use of the spending power and

the conditional grant of federal funds” (internal quotation marks

omitted)); United States v. Butler

, 297 U.S. 1, 66 (1936) (holding that

Congress’s power to place conditions on disbursement of federal

funds “is not limited by the direct grants of legislative power found

in the Constitution”). Thus, where Congress places conditions on a

State’s receipt of federal funds—whether directly, or by delegation of

persons, its focus may have been too narrow. New York v. Dep’t of Justice

, 343 F.

Supp. 3d at 235 (internal quotation marks and alterations omitted); see Murphy v.

Nat’l Collegiate Athletic Ass’n

, 138 S. Ct. at 1480 (observing that “Constitution

. . . confers upon Congress the power to regulate individuals, not States” (internal

quotation marks omitted)). As already noted, § 1373 is one provision of a larger

statute, the INA, which certainly confers rights and places restrictions on large

numbers of private persons.58 clarifying authority to an executive agency—there is no

commandeering of reserved State power so long as the State has “a

legitimate choice whether to accept the federal conditions in exchange

for federal funds.” NFIB v. Sibelius

, 567 U.S. at 578. 28

A State is deprived of “legitimate choice” only when the federal

government imposes grant conditions that pass the point at which

“pressure turns into compulsion.” Id. at 577–78 (internal quotation

marks omitted). On this point, even the NFIB dissenters agreed. See

id. at 681 (Scalia, J.

, with Kennedy, Thomas, and Alito, JJ.

, dissenting)

(observing that “courts should not conclude that legislation is

unconstitutional

. . . unless the coercive nature of an offer is

unmistakably clear”). Pressure can turn into compulsion when the

28 The law further requires that federal grant conditions (1) promote the “general

welfare,” (2) “unambiguously” inform States what is demanded of them, (3)

reasonably relate “to the federal interest in particular national projects or

programs,” and not “induce the States to engage in activities that would

themselves be unconstitutional.” South Dakota v. Dole

, 483 U.S. at 207–08, 210

(internal quotation marks omitted). None of these requirements is at issue on this

appeal. Section 10153(a)(5)(D)’s requirement that Byrne grant applicants certify

their willingness to comply with “all

. . . applicable Federal laws” promotes the

respect for law necessary to the general welfare. See, e.g.

, City of Los Angeles v. Barr

,

929 F.3d 1163, 1176 (9th Cir. 2019) (“[C]ooperation relating to enforcement of

federal immigration law is in pursuit of the general welfare, and meets the low bar

of being germane to the federal interest in providing the funding.”). Such a

certification condition reasonably relates to the Byrne Program, whose focus, after

all, is law enforcement. For reasons discussed supra at 47–48, Congress avoids

ambiguity by itself stating that § 10153(a)(5)(D) certification must be made as to all

applicable Federal laws, and then authorizing the Attorney General to require

certification in a form that references specifically identified applicable laws.

Finally, nothing about § 10153(a)(5)(D) induces unconstitutional conduct by the

State

‐ applicants.59 amount of funding that a State would lose by not acceding to the

federal conditions is so significant to the States’ overall operations as

to leave it with no real choice but to agree.

Such was the case with the Medicaid expansion provision of the

Affordable Care Act, which the Supreme Court held invalid in NFIB

v. Sebelius because it threatened States rejecting expansion with the

withholding of 100% of their Medicaid funding, which constituted

10% to 16% of most States’ total budgets. The Supreme Court

concluded that “[t]he threatened loss of over 10 percent of a State’s

overall budget

. . . is economic dragooning that leaves the States with

no real option but to acquiesce in the Medicaid expansion.” Id. at 581–

82 (describing condition as “a gun to the head”).

The funding loss associated with most grant conditions,

however, does not raise such coercion concerns. See id. at 684–85

(Scalia, J.

, with Kennedy, Thomas, and Alito, JJ.

, dissenting)

(observing that Medicaid expansion provision was “quite unlike

anything that we have seen in a prior spending

‐ power case” in that it

“threatened to withhold 42.3% of all federal outlays to the States”). In

South Dakota v. Dole

, the Supreme Court described a threatened loss

of 5% of federal highway funding—less than 0.5% of South Dakota’s

budget—if the state did not raise its legal drinking age to 21, as only

“mild encouragement” and “a valid use of the spending power.” 483

U.S. at 211–12.

This case is much more akin to Dole than to NFIB. While

plaintiffs emphasize that a failure to provide § 10153(a)(5)(D)

certification in a form acceptable to the Attorney General, i.e.

, a form60 certifying a willingness to comply with 8 U.S.C. § 1373, can result in

the denial of any Byrne funding for that year, plaintiffs do not—and

cannot—claim that such a loss represents so significant a percentage

of their annual budgets as to cross the line from pressure to coercion.

For example, New York’s anticipated 2017 Byrne award is $8,879,161,

a significant amount of money to be sure, but one representing less

than 0.1% of the State’s annual $152.3 billion budget, a smaller

percentage loss even than that in Dole

. 29 Massachusetts’ anticipated

2017 Byrne award is $3,453,006, also representing less than 0.1% of its

annual $38.92 billion budget. 30 Thus, however much the plaintiff

States would prefer to receive Byrne awards without having to certify

their willingness to comply with 8 U.S.C. § 1373, they cannot

complain that the consequences for failing to do so are so severe as to

leave them with no real choice in the matter. As the Supreme Court

has observed in connection with the conditions attached to most

federal funding programs: “The States are separate and independent

sovereigns. Sometimes they have to act like it.” NFIB v. Sebelius

, 567

U.S. at 579.

In sum, the district court erred in holding 8 U.S.C. § 1373

unconstitutional because the statute does not violate the

29 See N EW Y ORK D IVISION OF THE B UDGET

, FY 2017 E NACTED B UDGET F INANCIAL

P LAN 69 (May 2016), available at https://www.budget.ny.gov/pubs/

archive/fy17archive/enactedfy17/FY2017FP.pdf.

30 See Press Release, Governor Baker Signs Fiscal Year 2017 Budget (July 8, 2016),

available at https: www.mass.gov/news/governor

‐ baker

‐ signs

‐ fiscal

‐ year

‐ 2017

‐ budget.61 anticommandeering principle of the Tenth Amendment as applied

here to a federal funding requirement.

In the absence of any such Tenth Amendment concern, and in

light of our holding that the challenged Certification Condition is

statutorily authorized by 34 U.S.C. § 10153(a)(5)(D), we conclude that

the condition does not violate either the APA or the Constitution.

Accordingly, we vacate the district court’s injunction prohibiting

application of the Certification Condition.

3. The Notice Condition Is Statutorily Authorized

by 8 U.S.C. §§ 10153(a)(4), 10153(a)(5)(C), and

10155

The challenged Notice Condition requires States and localities

accepting Byrne grants to have in effect during the grant period a

“statute, or a state rule,

‐ regulation,

‐ policy, or ‐ practice” for their

criminal detention facilities to respond “as early as practicable” to

written requests from federal immigration authorities for notice of

identified aliens’ scheduled release dates. Supra at 15–16 (quoting

condition). The Attorney General’s statutory authority to impose this

condition derives from 34 U.S.C. §§ 10153(a)(4), 10153(a)(5)(C),

and 10155.

Section 10153(a)(4) requires a State or locality seeking Byrne

funding to include in its application, “in such form as the Attorney

General may require,” “[a]n assurance” that throughout the grant

period, “the applicant shall maintain and report such data, records,

and information (programmatic and financial) as the Attorney

General may reasonably require.” Section 10153(a)(5)(C) requires a62 Byrne grant applicant to provide “[a] certification, made in a form

acceptable to the Attorney General,” that “there has been appropriate

coordination with affected agencies.” Section 10155 authorizes the

Attorney General to “issue rules to carry out” these requirements and

any other parts of the Byrne Program.

The district court did not discuss these statutory conditions. It

concluded simply that the Notice Condition was not authorized by

§ 10102(a)(6), as DOJ maintained. The Third Circuit, however, did

consider §§ 10153(a)(4) and 10153(a)(5)(C). It concluded that

§ 10153(a)(4) did not authorize the Notice Condition because “[its]

data

‐ reporting requirement is expressly limited to ‘programmatic and

financial’ information— i.e.

, information regarding the handling of

federal funds and the programs to which those funds are directed. It

does not cover Department priorities unrelated to the grant

program.” City of Philadelphia v. Attorney Gen.

, 916 F.3d at 285. As for

§ 10153(a)(5)(C), the Third Circuit concluded that it did not authorize

the Notice Condition because its “coordination requirement”

operated only in the past tense, i.e, “to require certification that there

was appropriate coordination in connection with the grantee’s

application. This does not serve as a basis to impose an ongoing

requirement to coordinate on matters unrelated to the use of grant

funds.” Id. (emphases in original).

To explain why we conclude otherwise, we discuss each

statutory requirement in turn.63 a. Section 10153(a)(4)’s Reporting Requirement

The plain language of § 10153(a)(4) authorizes the Attorney

General to decide both what data, records, and information a Byrne

grant recipient must maintain and report and the form of an

applicant’s assurance that it will do so. This authority is cabined only

by the parenthetical modifier “(programmatic and financial),” which

serves to limit the referenced data, records, and information to those

pertaining to the particular program being funded by a Byrne grant

or to related financial matters. In this respect, at least, we agree with

the Third Circuit. See id.

But unlike that court, we think the release information required

by the Notice Condition is “programmatic,” at least for Byrne

‐ funded

programs that relate in any way to the criminal prosecution,

incarceration, or release of persons, some of whom will inevitably be

aliens subject to removal. 31 This includes most, if not all, of the

programs for which plaintiffs seek Byrne funding, for example, (1)

programs for task forces targeting certain crimes, the object of which

is undoubtedly the arrest, prosecution, and eventual incarceration of

perpetrators; (2) programs for prosecutors’ offices, whose attorneys

decide when to pursue (or forego) the prosecution and incarceration

31 As this court observed in Cuomo v. Barr

, 7 F.3d 17 (2d Cir. 1993), plaintiff “New

York houses many illegal aliens in its prison system. As of March 1992, New York

held approximately 60,000 prisoners in state correctional facilities, 8% of whom

were known to be aliens and an additional 4% of whom were suspected to be

aliens. Of this number, 6,096 had been convicted of aggravated felonies, making

them subject to deportation.” Id. at 18. While the record on appeal does not

provide current statistics, there is no reason to suspect a marked decline in these

percentages.64 of criminal suspects; (3) programs for defenders’ offices, whose

attorneys work to secure persons’ release from criminal detention and

to avoid their conviction and incarceration; (4) diversion programs for

persons who might otherwise remain in criminal custody; (5)

programs for persons while incarcerated or for the facilities

maintaining them; (6) programs for persons upon their release from

incarceration. As to such programs, we conclude that the Attorney

General is statutorily authorized by 8 U.S.C. § 10153(a)(4) to require

Byrne grant recipients to report when identified aliens in their

custody will be released. 32

Insofar as the Notice Condition specifically requires a grant

applicant to have a statute, rule, regulation, policy, or practice in place

for its criminal detention facilities to report identified aliens’ release

dates “as early as practicable” after receipt of a written federal

request, we are satisfied that the requirement falls within the

Attorney General’s authority to determine the “form” of an

acceptable Byrne grant application, which necessarily includes the

form of an acceptable assurance. 34 U.S.C. § 10153(a). That

conclusion is reinforced by the Attorney General’s authority to “issue

rules to carry out this part.” Id. § 10155. See generally Federal Election

Campaign Comm’n v. Democratic Senatorial Campaign Comm.

, 454 U.S.

27, 37 (1981) (“[D]eference should be presumptively afforded” to

32 Because plaintiffs have not sought to distinguish among their grant purposes in

defending the challenged injunction and judgment, we have no occasion on this

appeal to consider whether Byrne Program funding could be sought for a purpose

so unrelated to prosecution, incarceration, or release that the Notice Condition

would not be statutorily authorized in those circumstances.65 agency authorized to make rules in administering statute.); National

Broad. Co. v. United States

, 319 U.S. 190, 215, 219 (1943) (explaining that

statute delegating authority, inter alia

, to “[m]ake such rules and

regulations

. . . as may be necessary to carry out the provisions of this

Act” gave agency “expansive powers” (internal quotation marks

omitted)).

b. Section 10153(a)(5)(C)’s Coordination

Requirement

Further statutory authority for the Notice Condition is supplied

by § 10153(a)(5)(C)’s requirement for certification, in “a form

acceptable to the Attorney General,” that “there has been appropriate

coordination with affected agencies.” The Third Circuit observed that

Congress’s use of the past tense in the quoted text signals that

“appropriate coordination” must have occurred by the time a State or

locality formally files its Byrne Program application. See City of

Philadelphia v. Attorney Gen., 916 F.3d at 285. While we agree with that

construction, we do not think that means the required coordination

need not continue into the future. See id. Rather, we think appropriate

coordination frequently, perhaps invariably, must determine future

conduct.

The plain meaning of “coordination” is “the functioning of

parts in cooperation and normal sequence.” W EBSTER ’ S T HIRD N EW

I NTERNATIONAL D ICTIONARY 502. “Coordination” strives to bring a

“combination [of parts] in suitable relation for most effective or

harmonious results.” Id. The definition does not describe a static

concept that ends as soon as the suitable relation of parts and66 sequence of their operation is determined. Rather, coordination

contemplates that relation and sequence are agreed upon in order to

establish how parts will operate going forward to achieve effective

and harmonious results.

The “parts” pertinent to § 10153(a)(5)(C)’s coordination

requirement are the grant applicant and the agencies that will be

affected by that grant. Thus, the certification required by

§ 10153(a)(5)(C) demands that, in advance of any Byrne award, States

and localities coordinate with affected agencies to determine their

relationship and sequence of conduct as necessary throughout the

grant period to ensure effective and harmonious results.

Put more concretely, if a State were to seek Byrne Program

funding for its State police to pursue a law enforcement initiative

involving undercover operations across several municipalities,

“appropriate coordination” might well require the State to reach an

understanding with the affected localities as to how notice will be

given to them when those undercover activities are occurring within

their borders, thus ensuring that local authorities do not misidentify

the State undercover officers as real criminals, with possibly tragic

consequences for both sides. In sum, the parties reach an

understanding about necessary coordination before the State files its

formal Byrne grant application, and the parties’ conduct during the

funding period is coordinated as thus agreed upon.

Similarly, were a State or locality to seek a Byrne grant to

modernize equipment used to track terrorist threats, “appropriate

coordination” might require the applicant to consult with other state67 and federal agencies engaged in similar tracking and to reach

agreement as to the type of compatible equipment to be acquired and

how obtained information will be shared and secured. Such

coordination before formal application then determines the parties’

conduct after receipt of the grant.

So, here, when a State seeks Byrne funding for programs that

relate to the prosecution, incarceration, or release of persons, some of

whom will be removable aliens, there must be coordination with the

affected federal agency, the Department of Homeland Security

(“DHS”), before a formal application is filed, but what makes that

coordination “appropriate” is that it will establish the parties’

relationship and the sequence of their conduct throughout the grant

period.

To explain what makes DHS an affected agency, we begin with

the ordinary and clear meaning of “affect,” which is to “produce a

material influence upon.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL

D ICTIONARY 35; see B LACK ’ S L AW D ICTIONARY (9th ed. 2009) (defining

“affect” to mean “to produce an effect on; to influence in some way”).

The degree of influence need not be significant for the law to

recognize that something has been “affected” in a range of contexts.

See, e.g.

, Jones v. United States

, 529 U.S. 848, 854 (2000) (holding that

“statutory term ‘affecting

. . . commerce,’

. . . when unqualified,

signal[s] Congress’ intent to invoke its full authority under the

Commerce Clause”); United States v. Wiant

, 314 F.3d 826, 830 (6th Cir.

2003) (holding, in context of “affected a financial institution” that

“breadth of [its] definition indicates that” word “affect” “is intended68 to encompass even minimal impacts”); United States v. SKW Metals &

Alloys, Inc.

, 195 F.3d 83, 90 (2d Cir. 1999) (“The sum of what

dictionaries say about the relevant meaning is that the verb ‘to affect’

expresses a broad and open

‐ ended range of influences.”).

When States use Byrne grants in ways related to the

prosecution, incarceration, or release of aliens, the DHS Secretary’s

performance of numerous statutory responsibilities with respect to

such aliens is affected. For example, the Secretary must “begin any

removal proceeding” for an alien convicted of a deportable offense

“as expeditiously as possible after the date of the conviction,” 8 U.S.C.

§ 1229(d)(1); must effect the removal of such an alien “within

. . . 90

days” after an order of removal becomes final, see id. § 1231(a)(1)(A)–

(a)(1)(B)(i)–(ii); and must detain the alien during that 90

‐ day period,

see id. § 1231(a)(2). 33 The Secretary, however, “may not remove an

alien who is sentenced to imprisonment”—whether by federal or

State authorities— ʺ until the alien is released.” Id. § 1231(a)(4)(A). In

that case, the 90

‐ day removal period starts to run from the date of the

alien’s release from custody. See id. § 1231(a)(1)(B)(iii). 34 Moreover, in

33 While these statutory sections refer to the Attorney General, the removal

responsibilities stated therein and in other statutory provisions referenced in this

part of the opinion have been transferred to the Secretary of DHS. See 6 U.S.C.

§§ 251(2), 552(d).

34 States are under no obligation to incarcerate criminal aliens convicted of state

felony crimes, but if they do so, they may then request that the federal government

either (1) pay “compensation

. . . as may be appropriate” to the State “with respect

to the incarceration” of the alien, or (2) “take the undocumented criminal alien into

the custody of the Federal Government and incarcerate the alien.” 8 U.S.C.69 circumstances where a removable alien is released from custody

before a final removal order has been obtained, the law authorizes the

Secretary to issue a warrant for the alien’s arrest and detention, see id.

§ 1226(a), and (with limited exceptions) requires the Secretary to do

so if the alien has a certain criminal history or has engaged in terrorist

activities, see id. § 1226(c)(1), (2). 35

As even this brief review makes plain, a removable alien’s State

incarceration and release from incarceration will affect DHS’s

performance of its own statutory duties throughout the grant period.

In these circumstances, “appropriate coordination” requires that, by

the time a State or locality files its Byrne grant application, it have

reached an agreement with DHS as to their mutual relationship and

sequence of conduct throughout the grant period. Any less

coordination would not be “appropriate”; indeed, it would be

meaningless.

§ 1231(i). It appears that, in 2017, plaintiff the State of New York received $13.9

million in such compensation pursuant to the SCAAP program referenced supra

at 21. See Bureau of Justice Assistance, Fiscal Year 2017 SCAAP Award Details,

available at https://bja.ojp.gov/program/state

‐ criminal

‐ alien

‐ assistance

‐ program

‐ scaap/archives (last visited Feb. 24, 2020) (follow “FY 2017” hyperlink below

“SCAAP Awards” subheading).

35 In 1992, New York attempted to sue federal authorities for failing to comply with

a predecessor statute requiring them to take into custody, upon release, aliens

convicted of aggravated felonies under state as well as federal law. See Cuomo v.

Barr

, 812 F. Supp. 324 (N.D.N.Y. 1993), appeal dismissed

, 7 F.3d 17 (2d Cir. 1993).70 The Notice Condition serves to ensure such appropriate

coordination. It advises States that, at the time they file a Byrne grant

application, they must agree to respond as soon as practicable to a

written DHS request for the release date of an identified State

‐

incarcerated alien and to have a statute, rule, or policy in force

throughout the grant period.

We conclude that the Attorney General is authorized to impose

such a condition by § 10153(a)(5)(C), which empowers him to

determine the acceptable form for certifying appropriate

coordination. See supra at 37 (discussing dictionary definition of

“form” as something requiring “specific information”). 36 It is further

supported by § 10155, which authorizes the Attorney General to issue

rules for carrying out Byrne Program requirements. Of course, we

recognize that plaintiffs would prefer not to coordinate at all with

DHS, but that option is denied to them by § 10153(a)(5)(C) when the

States seek Byrne grants for programs relating to prosecution,

incarceration, or release that will affect DHS’s performance of its own

statutory duties.

36 Where, as here, the affected agency is federal, the Attorney General can be

expected to have particular insights into what coordination is appropriate to

establish the relationship and sequence of conduct necessary for a grant applicant

and the affected federal agency both to perform their respective duties in an

effective and harmonious manner. But even where the affected agency is not

federal, the Attorney General’s form

‐ and rule

‐ authority may allow him to help

parties resolve coordination disputes that surface after the application is made

public but before it is approved. See 34 U.S.C. § 10153(a)(3)(B).71 In sum, we conclude that the Notice Condition is statutorily

authorized by § 10153(a)(4)’s reporting requirement,

§ 10153(a)(5)(C)’s coordination requirement, and § 10155’s rule

‐

making authority for Byrne Program applications relating to

prosecution, incarceration, and release. That being the purpose for

which plaintiffs have generally sought Byrne funding, we vacate the

district court’s injunction barring any application of the Notice

Condition.

4. The Access Condition Is Statutorily Authorized

by 34 U.S.C. §§ 10153(a)(5)(C) and 10155

Title 34 U.S.C. § 10153(a)(5)(C)’s coordination requirement and

§ 10155’s rule

‐ making provision also authorize the challenged Access

Condition, and for much the same reason that they authorize the

challenged Notice Condition. The Access Condition requires Byrne

grant applicants to agree to have in place throughout the grant period

a “statute, or a State rule,

‐ regulation,

‐ policy, or ‐ practice” that

ensures federal immigration officials “access” to State correctional

facilities so that these officials can meet with detained aliens (or

suspected aliens) to determine their legal status in this country. See

supra at 16 (quoting condition).

As explained in discussing the Notice Condition, when States

seek Byrne funding for programs related to the prosecution,

incarceration, or release of persons, some of whom will inevitably be

removable aliens, DHS is an “affected agency” for purposes of 34

U.S.C. § 10153(a)(5)(C). That is because a State’s incarceration of an

alien requires DHS to delay acting on its own statutory obligations to72 arrest, detain, and remove certain aliens until the State releases the

alien. See supra at 67–69. In such circumstances, coordination

between the State and DHS is not only appropriate, but necessary, to

allow the federal agency effectively to resume its obligations when

the State has achieved its penal ones.

For DHS to be able to do so, it needs to ascertain not only when

a removable alien will be released (the object of the Notice Condition),

but also what aliens incarcerated by the State are removable. DHS

does not ask the State to provide the latter information. Rather, it asks

to be afforded access to State

‐ incarcerated aliens (or suspected aliens)

so that DHS can itself ascertain their potential removability before

release. That is what the challenged Access Condition ensures. 37

Affording such access constitutes “appropriate coordination”

in that it allows both the State seeking a Byrne grant for purposes

relating to prosecution, incarceration, or release and an affected

agency, DHS, to carry out their respective duties with respect to

incarcerated aliens in an orderly sequence. Thus, as with the Notice

Condition, we conclude that the Attorney General is statutorily

authorized to impose the Access Condition pursuant to

§ 10153(a)(5)(C), which empowers him to determine the acceptable

form for certifying appropriate coordination, and § 10155, which

authorizes him to issue rules to carry out the coordination

37 What it does not ensure is that incarcerated aliens will then agree to talk with

federal immigration authorities.73 requirement. Accordingly, we vacate the injunction prohibiting any

application of the Access Condition.

II. The Attorney General’s Imposition of the Challenged

Conditions Was Not Arbitrary and Capricious

Plaintiffs argue that, even if the Attorney General was

statutorily authorized to impose the challenged conditions, the

district court correctly concluded that it was arbitrary and capricious

for him to do so here without considering the conditions’ negative

consequences, particularly in undermining relationships between

immigrant communities and local law enforcement. See New York v.

Dep’t of Justice

, 343 F. Supp. 3d at 240–41. The conclusion does not

withstand de novo review. See Karpova v. Snow

, 497 F.3d 262, 267 (2d

Cir. 2007) (holding that appeals court reviewing summary judgment

award on APA claim examines “administrative record de novo

without according deference to the decision of the district court”).

While agency action may be overturned as arbitrary and

capricious if the agency “entirely failed to consider an important

aspect of the problem” at issue, Motor Vehicle Mfrs. Ass’n of U.S., Inc.

v. State Farm Mut. Auto. Ins. Co.

, 463 U.S. 29, 43 (1983), a court will not

“lightly” reach that conclusion, Islander East Pipeline Co., LLC v.

McCarthy

, 525 F.3d 141, 151 (2d Cir. 2008) (citing approvingly to

Patterson v. Caterpillar, Inc.

, 70 F.3d 503, 505 (7th Cir. 1995) (stating that

court “must be very confident that the decisionmaker overlooked

something important”)).

Here, DOJ did not overlook something important. As the

district court acknowledged, DOJ was aware of the detrimental effects74 plaintiffs fear from the three challenged conditions. The court also

acknowledged that the weight to be given these effects as compared

to the conditions’ perceived benefits was at least arguable. See New

York v. Dep’t of Justice

, 343 F. Supp. 3d at 241. The sole ground on

which the district court concluded that DOJ arbitrarily and

capriciously “ignored” these detrimental effects in imposing the

challenged conditions was its failure to mention such effects in any

proffered document. See id. (observing that documents “do not reflect

that [DOJ] in any way considered whether jurisdictions’ adherence to

the conditions would undermine trust and cooperation between local

communities and government”).

In fact, there was no need for DOJ to discuss the relative

detriments and benefits of the Certification Condition. That condition

identifies a specific statute, 8 U.S.C. § 1373, as an “other applicable

Federal law[]” for purposes of the statutory compliance certification

requirement of 34 U.S.C. § 10153(a)(5)(D). Thus, the sole question for

DOJ to decide was whether 8 U.S.C. § 1373 is an applicable law.

Having made that decision—which we uphold, see supra at 35–61—

nothing in the statute authorized DOJ to excuse a Byrne applicant

from certifying its willingness to comply with an applicable federal

law on a finding that the detrimental effects of compliance outweigh

the benefits. Indeed, that would be particularly unwarranted here

where the legislative history shows that Congress was itself aware of

the very detrimental effects raised by plaintiffs when it enacted

§ 1373. See supra at 19 (quoting Senator Kennedy’s acknowledgment

of mayors’ concerns that cooperating with immigration authorities

could be counterproductive). Thus, DOJ’s failure to discuss75 detrimental effects does not show that it arbitrarily or capriciously

imposed the Certification Condition.

As for the Notice and Access Conditions, these apply only to

persons in State custody, i.e.

, persons found guilty beyond a

reasonable doubt of charged crimes, or persons for whom there is at

least probable cause to think that they committed crimes. Such

conditions do not put law

‐ abiding undocumented aliens who have

been crime victims or witnesses at risk of removal and, thus, should

not dissuade such aliens from reporting crimes or cooperating in their

investigation. 38 Thus, it was hardly arbitrary or capricious for DOJ to

impose these conditions without discussing detrimental effects that

they were unlikely to cause.

Nor are we persuaded by plaintiffs’ further argument that the

challenged conditions are arbitrary and capricious because DOJ failed

38 See City of Philadelphia v. Attorney Gen.

, 916 F.3d at 282 (citing Philadelphia’s

rationale for policy limiting employee cooperation with federal immigration

authorities: to “foster trust between the immigrant community and law

enforcement,” which is “critical to reassure law

‐ abiding residents that contact with

the City government will not lead to deportation” by federal authorities (internal

quotation marks omitted)); City of Chicago v. Sessions

, 888 F.3d at 279 (observing

that “City recognized

. . . maintenance of public order and safety required the

cooperation of witnesses and victims, whether documented or not”); Michael R.

Bloomberg, Mayor Michael R. Bloomberg Signs Executive Order 41 Regarding

City Services For Immigrants (Sept. 17, 2003) (remarking in public speech that

“[w]hen the parents of an immigrant child forego vaccination for fear of being

reported to the federal immigration authorities, we all lose

. . . . Likewise, we all

suffer when an immigrant is afraid to tell the police that she has been the victim of

a sexual assault or domestic violence”), available at https://www1.nyc.gov/office

‐

of

‐ the

‐ mayor/news/262

‐ 03/mayor

‐ michael

‐ bloomberg

‐ signs

‐ executive

‐ order

‐ 41

‐ city

‐ services

‐ immigrants.76 to “display awareness that it [was] changing position” and did not

show “good reasons for the new policy.” Encino Motorcars, LLC v.

Navarro

, 136 S. Ct. 2117, 2126 (2016) (internal quotation marks

omitted). DOJ did not change its position; rather, the Attorney

General exercised his authority to have Byrne grant applicants satisfy

the §§ 10153(a)(4), 10153(a)(5)(C), and 10153(a)(5)(D) requirements in

a more specific form. Even if it was necessary to show “good reasons”

for this decision, however, that is satisfied here by the 2016 IG

Report’s findings of a significant, decade

‐ long decline in cooperation

between local law enforcement officials and federal immigration

authorities, some achieved through policies in tension with, if not

actually violative of, 8 U.S.C. § 1373.

C ONCLUSION

To summarize, we conclude as follows:

(1) The Attorney General was statutorily authorized to impose

all three challenged conditions on Byrne grant applications.

a. The Certification Condition (1) is statutorily

authorized by 34 U.S.C. § 10153(a)(5)(D)’s

requirement that applicants comply with “all other

applicable Federal laws,” and (2) does not violate the

Tenth Amendment’s anticommandeering principle;

b. The Notice Condition is statutorily authorized by 34

U.S.C. § 10153(a)(4)’s reporting requirement,

§ 10153(a)(5)(C)’s coordination requirement, and

§ 10155’s rule

‐ making authority;77 c. The Access Condition is statutorily authorized by 34

U.S.C. § 10153(a)(5)(C)’s coordination requirement,

and § 10155’s rule

‐ making authority.

(2) The Attorney General did not overlook important

detrimental effects of the challenged conditions so as to

make their imposition arbitrary and capricious.

Accordingly,

(1) We REVERSE the district court’s award of partial summary

judgment to plaintiffs;

(2) We VACATE the district court’s mandate ordering

defendants to release withheld 2017 Byrne funds to

plaintiffs, as well as its injunction barring defendants from

imposing the three challenged immigration

‐ related

conditions on such grants; and

(3) We REMAND the case to the district court,

a. with directions that it enter partial summary

judgment in favor of defendants on plaintiffs’

challenge to the three immigration

‐ related conditions

imposed on 2017 Byrne Program grants; and

b. insofar as there remains pending in the district court

plaintiffs’ challenge to conditions imposed by

defendants on 2018 Byrne Program grants, for further

proceedings consistent with this opinion.