PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No. 18

- 2648

CITY OF PHILADELPHIA

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No.: 2

- 17

- cv

- 03894)

D i strict Judge: Honorable Michael M. Baylson

Argued on November 7, 2018

(Opinion filed : February 15, 2019 )

Before : AMBRO, SCIRICA and RENDELL, Circuit Judges2 Jasmeet K. Ahuja

Alexander B. Bowerman Virginia A. Gibson Hogan Lovells US

1735 Market Street

23rd Floor Philadelphia, PA 19103

Kirti Datla Matthew J. Higgins Neal K. Katyal (Argued) Hogan Lovells US

555 Thirteenth Street, N.W. Columbia Square Washington, DC 20004

Marcel S. Pratt

Lewis Rosman Kelly S. Diffily City of Philadelphia Law Department

1515 Arch Street Philadelphia, PA 19102 Counsel for Appellee

Katherine T. Allen (Argued)

United States Department of Justice Civil Division, Appellate Staff

Room 7325 950 Pennsylvania Avenue, N.W. Washington, DC 205303 Bradley Hinshelwood United States Department of Justice

Room 7256 950 Pennsylvania Avenue, N.W. Washington, DC 20530

Laura Myron

United Sta tes Department of Justice

Room 7222 950 Pennsylvania Avenue, N.W. Washington, DC 20 530

Chad A. Readler United States Department of Justice Appellate Section, Criminal Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530

Daniel Tenny

United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W.

Room 7130 Washington, DC 20530 Counsel for Appellant

Lawrence J. Joseph

Suite 700

- 1A 1250 Connecticut Avenue, N.W. Washington, DC 20036 Counsel for Amicus Appellant Immigration Reform Law

Institute4 Adam S. Lurie

Linklaters 601 Thirteenth Street, N.W.

Suite 400 South Washington, DC 20006 Counsel for Amicus American

Jewish Committee

Benna R. Solomon City of Chicago Corporate Counsel's Office

30 North LaSalle Street

Room 800 Chicago, IL 60602 Counsel for Amicus Appellee City of Chicago

Spencer E. W. Amdur

American Civil Liberties Union Immigrants' Rights Project

125 Broad Street

18th Floor New York, NY 10004 Counsel for Amicus Appellee

American Civil Libertie s Union

Foundation

Ilana H. Eisenstein DLA Piper

1650 Market Street One Liberty Place, 49th Floor Philadelphia, PA 191035 Counsel for Amicus Appellee Philadelphia Social and Legal Services Organizations

Nicolas Y. Riley

Institute for Constitutional Advocacy and Protection Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, DC 20001 Counsel for Amic us Appellee Current and Former P rosecutors and Law Enforcement Leaders

Linda Fang Office of Attorney General of New York 28 Liberty Street

23rd Floor New York, NY 10005 Counsel for Amicus Appellee State of New York

Robert Perrin

Latham & Watkins

355 South Grand Avenue

Suite 100 Los Angeles, CA 90071 Counsel for Amicus Appellee Anti Defamation League6 O P I N I O N

RENDELL

, Circuit Judge

. The City of Philadelphia has received funds under the federal Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG” ) every year since the program’s inception

in 2006

. Last year

, however, the Justice Department notified the City that it was withholding its FY2017 award because theCity was not in compliance with three newly implemented conditions (“the Challenged Conditions”) . These conditions required greater coordination with federal officials on matters of

i mmigration enforcement . The City filed suit to enjoin the Attorney General from withholding its award , and after discovery and extensive hearings, the District Court granted summary judgment in its favor.

The City attacked the government’s ability to impose the Challenged Conditions on several statutory and constitutional

fronts. But w e need only reach the threshold statutory question. W here , as here, the Executive Branch claims authority not granted to it in the Constitution, it “literally has no po wer to act ... unless and until Congress confers power upon it.” La.

Pub. Serv. Comm’n v. FCC , 476 U.S. 355, 374 (1986). Therefore , our inquiry is straightforward: did Congress empower the Attorney General to impose the Challenged Conditions?

Underlying th is question, and potentially complicating its resolution, is the stark contrast in the priorities of the City and

those of the Executive Branch regarding immigration policy

. In resolving the discrete legal question before us

, however, w e7 make no judgment as to the merits of this policy dispute

. Rather, o ur role is more confined , and our focus is only on the legality of the particular action before us

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

I

. B ACKGROUND

A . Byrne JAG and the Challenged Conditions

Federal grants to state and local governments play a large

role in facilitating national, state, and local policy . In FY 2018 alone, the federal government wa s expected to give approximately $728 billion to state and local governments through
1,3 19 federal grant programs

. Robert Jay Dilger, Cong. Research Serv., R40638, Federal Grants to State and Local Governments: A Historica l Perspective on Contemporary Issues 1 ( 2018). These programs encompass a wide range of policy areas, from health care to special education to infrastructure projects. Our immediate concern, however, is one particular grant program for state and local la w enforcement: the Edward Byrne Memorial Justice Assistance Gran t Program

. Byrne JAG , named for a fallen New York City police officer, was established in 2006 through the merger of two law enforcement grant programs. See Pub. L. No. 109

- 162, § 1111,

119 S tat. 2960, 3094 (2006). The Department of Justice administers the program through the Office of Justice Programs (“OJP”), which is headed by an Assistan t Attorney General8 (“AAG ”). Byrne JAG is the “primary provider of feder al criminal justice funding to S tate s and units of local government ”

and distributes over $80 million in awards each year. Edward Byrne Memorial Justice Assistance Grant Program FY 2017 Local Solicitation, Dep’t of Justice (Aug. 3, 2017); A pp. 332.

It is a “ formula grant, ” meaning tha t funds are distributed

among all grantees based on a st atutorily fixed formula

. In thecase of Byrne JAG, the formula considers two factors: population and vi olent crime statistics

. See 34 U.S.C. § 10156. Once approved, grantees may spend those funds within any of the eight statutorily enumerated areas. 1

Any “State or unit of local government” may submit an application to the Attorney General for this grant

. Id. § 10153(a )

. Historically, the OJP has included a number of conditions on the application (over 50 for FY 2017) , most of which relate to

program integrity or impose requirements for the handling of

federal funds. Applicants must also certify that they “will comply with all provisions of this part and all other applicable Federal laws.” Id. § 1 0153(a )(5)(D). Philadelphia has received anaward under Byrne JAG every year since the program’s inception in 2006. Its average annual award from the program is

1 Byrne JAG funds may be used for the following programs:

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

programs. (C) Prevention and education programs. (D) Corrections and community corrections 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 correctionsprograms, including behavioral programs and crisis intervention teams.” 34 U.S.C. § 10152(a)(1).9$2.5 million, which it has used to modernize courtroom technology, fund reentry programs for persons on release from prison , and operate substance abuse programs, among other

programs.

In the FY2017 applications that are the subject of this case,

t he Department included three new conditions

. These Challenged Conditions are:

• The Certification Co ndition . Grantees must “certify compliance with [8 U.S.C. § 1373 (“Section 1373”)] .” Backgrounder on Grant Requirements, Dep’t of Justice (July 25, 2017); App. 246. Section 1373 prohibits state

and local governments from restricting the sharing of

information relating to an individual’s immigration status

— lawful or unlawful

— with federal immigration officials

.

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

be or remain in the United States.” Id

.

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

The Attorney General maintains that these c onditions are “designed to ensure that the activities of fe deral law

- enforcement grant recipients do not impair the federal government’s ability to ensure public safety and the rule of law by detaining and removing aliens upon their release from local criminal custody.” Att’y Gen. Br. 12.10 Although the Certificati on Condition did not apply to FY2016 applications, DOJ asked ten jurisdictions, includingPhiladelphia, to submit legal opinions certifying their compliance with Section 1373. Philadelphia submitted its letter in April 2017. Upon receiving letters from a ll ten jurisdictions, DOJ issued a press release on July 6, 2017. It stated that the Department was “in the process of reviewing” the letters, butalso stated that “[i]t is not enough to assert compliance, the jurisdictions m ust actually be in compliance. ” Press Release, Dep’t of Justice (July 6, 2017); App. 248.

B . Immigration Enforcement and Local Law Enforcement

Under our federal system, “both the National and State Governments have elements of sovereignty the other is bound to respect.” Arizona v. U nited States , 567 U.S. 387, 398 (2012). While the federal government has “broad, undoubtedpower over the subject of immigration and the status of aliens,” 2 i d. at 394, the “ States possess primary authority for defining and enforcing the criminal law

, ” United States v. Lopez

, 514 U.S. 549, 561 n. 3 (1995) (internal quotation omitted).These powers intersect when a state or city arrests an individual whom ICE would also like to apprehend for removal proceedings. 3 This occurs frequently: 142,356 times in FY2017.

2 Within the Executive Branch, immigration enf orcement falls primarily to DHS . And within DHS, U.S. Immigration and Customs Enforcement (“ICE”) is the law enforcement agency tasked with identifying, apprehending, and removing aliens

from the United States.

3 “Removal” is synonymous with “deportation.” But as a matter of legal terminology, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104

- 208,11 U.S. Immigration and Customs Enf’t

, Fiscal Year 2017 ICE Enforcement and Removal Operations Report 8 (2017)

.An important tool used by ICE in these situations is the immigration detainer. Once ICE identifies a remova b l e alien who

is in state or local custody, it cannot simply wrest that individual from custody. Instead, it may issue a detainer, which servesto “advise another law enforcement agency that [it] seeks custody of an alien presently in the custody of that agency, for the

pur pose of a rresting and removing the alien.” 8 C.F.R. § 287. Detainers may ask two things of the state or local agency: thatit notify ICE at least 48 hours before a removable alien is released from custody; and that it detain a removable alien for up to 48 hours p ast the time that the alien would have otherwise been released to allow ICE to apprehend the individual. ICE Operations Report

, supra at 7. A detainer is a request , not a
demand

. Galarza v. Szalczyk , 745 F.3d 634, 642 (3d Cir. 2014) (“[D]etainers are no t mandatory.”). And DHS’s current policy authorizes ICE officials to issue detainers only after obtaining an administrative warrant supported by a showing of probable

cause that the alien is removable. ICE Operations Report

, supra at 7

- 8.

Like the immigra tion detainer, Section 1373 seeks to facilitate cooperation between the State and National Governments.Specifically, it prohibits any restrictions on the sharing of immigration info rmation. Section 1373 provides in relevant part:

[A] Federa l, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending

replaced all references to “deportation” with “removal.” See I.N.S. v. St. Cyr , 533 U.S. 289, 315 (2001).12 to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

8 U.S.C. § 1373(a).

C . Factual and Procedural History

1. Factual History

Philadelphia filed its FY2017 Byrne JAG application on September 5, 2017. 4 The Department issued a “preliminary determination” of the application on October 11, stating thatthe City “appears to have laws, policies, or practices that violate 8 U.S.C. § 1373.” No doubt, this referred to policies adopted by police or executive o rder that limit the circumstances under which C ity officials will share immigration information with the federal government, permit federal officialsto access City prison facilities, and coordinate with federal officials regarding the release of aliens fr om local custody. 5 The

4 Philadelphia intended to use FY 2017 funds to support the Police Commissioner’s “Crime Fighting Strategy,” support theCity’s “Reality Based Training Unit,” purchase supplies for inner

- city youth initiatives, and purchase naxalone for officers responding to opioid overdoses. See S.A. 23

. 5 Specifically, the policies at issue are: The Confidentiality Memo . Police Memorandum 01

- 06, adopted in May 2001, directs law enforcement officers to share immigration information with the federal government under limited circumstances: when required by law, when the immigrant consents, or when the “immigrant is suspected of engaging in criminal activity.” App. 250

- 51.13 City believes that these policies help foster trust between the immigrant community and law enforcement. It argues that such policies are “critical to reassure law

- abiding residents that contact with the City government will not le ad to deportation by ICE.” Philadelphia Br. 7.

2. Procedural History

This case has unfolded in four main acts: Philadelphia fi l e da complaint seeking to enjoin the Department from implementing the Challenged Conditions; the District Court gra nted a preliminary injunction; t he District Court granted summaryjudgement and a permanent injunction for the City; and, finally, the Attorney General filed this appeal

.

On A ugust 30, 2017, Philadelphia fi l e d the complaint in

this action against the Department o f Justice in the U.S. District Court for the Eastern District of Pennsylvania. The City sought

The Confidentiality Order . Executive Order 8

- 09, enacted in November 2009, bars law enforcement officers from inquiring about a pers on’s immigration status, “unless the status itself is a necessary predicate of a crime the officer is investigating or unless the status is relevant to identification of a person who is suspected of committing a crime.” App. 254.

The Detainer Order . Exec utive Order 5

- 16, enacted in January 2016, bars City officials from detaining an immigrant pursuant to an ICE detainer or from providing notice of the immigrant’srelease, unless the request is accompanied by a judicial warrant. App. 258

- 59.

The Inmate Consent Form . These consent forms are distributed to incarcerated individuals whom ICE requests to interrogate. The forms require the inmate’s consent before ICE is permitted access to the facility to conduct an interview. App.

263.14 to enjoin the Department from implementing the Ch allenged

Conditions and a writ of mandamus compelling th e Department to disburse its FY 2017 Byrne JAG funds

. T he City argued that this relief was warranted for five reasons : the Department acted ultra vires in enacting the Challenged Conditions

in violation of the Administrative Procedure Act (“APA”) and the Constitution’s separation of powers; the Conditions were enacted arbitrarily and capricious ly in violation of the APA; they violated the Spending Clause of the Constitution; the Certification Condition and Section 1373 violate the Tenth Amendment of the Constitution; and t he City was, in fact, in

substantial compliance w ith the Challenged Conditions. App.

411

- 63.

The District Court held extensive hearings and issued a preliminary injunction on November 15, 2017. In a thoughtful

and well

- reasoned opinion, t he Court found that the City was likely to succeed on all of its claims, and enjoined the Department from denying its FY 2017 application. See City of Philadelphia v. Sessions , 280 F. Sup p. 3d 579 (E.D. Pa. 2017) ( Philadelphia I )

. The Department appealed the preliminary injun ction to this Court on January 1 6 , 2018. After filing its appeal,

the case continued in the District Court, where t he Department also filed a motion to dismiss the City’ s complaint. T he District Court denied this motion on March 13 , 2018

. See City of Philadelphia v. Sessions

, 309 F. S upp. 3d 271 (E.D. Pa. 2018)

. In two orders, the Court granted summary judgment for the City on all of its claims

. See App. 93; City of Philadelphia v.

Sessions , 309 F. Supp. 3d 289 (E.D. Pa. 2018) ( Philadelphia

II

)

. It permanently enjoined the Department from enforcing the Challenged Conditions, ordered the Depar tment to disburse the City’s FY 2017 funds, and issued declaratory relief on all of15 the City’s legal claims. Furthermore, the Court issued additional relief, namely, orderi ng that “[t]o the extent an agency of the United States Government has probable cause to assert that an individual in the custody of the City of Philadelphia is a criminal alien ... and seeks transfer to federal custody of such individual within a city facil ity, it shall secure an order from ajudicial officer of the United States for further detention, as allowed by law.” A pp . 191.

After the District Court issued this order, we dismissed the Attorney General’s appeal of the preliminary injunction. The

At torney General filed this timely appeal of the Court’s grant of summary judgment and permanent injunction.

D . Related Litigation

Philadelphia is not alone in being advised that its Byrne

JAG award depends upon compliance with the Challenged

Conditions. I ndeed, s everal other jurisdictions have sued to enjoin enforcement of the Challenged Conditions , including the City of Chicago, the City and County of San Fran cisco, and the City of New York ( which was joined by seven states

— New York, Connecticut, New Jersey, Rhode Island, Washington, Massachusetts, and Virginia ) . In all of these cases, the courts

that have ruled have enjoined enforcement of the Challenged

Conditions. See City of Chicago v. Sessions , 264 F. Supp. 3d

933 (N.D. Ill. 2017 ) ( Chicago I ) (i ssuing a preliminary injunction as to the Notice and Access Conditions ) ; City of Chicago

v. Sessions , 888 F.3d 272 (7th Cir. 2018) ( Chicago II ) (affirming the district court’s preliminary injunction); City of Chicago

v. Sessions , 321 F. Supp. 3d 855 (N.D. Ill. 2018) ( Chicago III ) (issuing a permanent injunction); City & County of San Francisco v. Sessions , 2018 WL 4859528 (N.D. Cal. Oct. 5, 2018) ( San Francisco ) (issuing a permanent injunction after declining to issue a preliminary injunction ); States of Ne w York , et16 al. v. Dep’ t of Justice , 2018 WL 6257693 (S.D.N.Y. Nov. 30, 2018) ( New York, et al. ) (issuing a permanent injunction).

II

. J URISDICTION AND S TANDARD OF R EVIEW

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1346. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s findings of fact for clear error, and we review its legal conclusions de novo

. Blackledge v. Blackledge , 86 6 F.3d 169, 177 (3d Cir. 2017). We review the scope of the District Court’s injunctive relief for

abuse of discretion. Allstate Settlement Corp. v. Rapid Settlements, Ltd. , 559 F.3d 164, 172 (3d Cir. 2009).

III

. D ISCUSSION

The District Court addressed each of the City’s contentions

and ruled that: the Attorney General d id not have statutory authority to promulgate the Challenged Conditions; he did so arbitrarily and capriciously; the Challenged C onditions violate the Spending Clause; the Certification Condition violates the Tenth Amendment; and the City was in s ubstantial compliance

with the Challenged C onditions. The Attorney General challenges these rulings and also argues that the District Court abused its discretion in grantin g injunctive relief.

We begin with the threshold issue : whether the Attorney

Gene ral possessed the statutory authority to enact the Challenged Conditions . If the Attorney General did not have that authority , then we needn’t reach the other claims

.

A. S tatutory Authorization for the Challenged Conditions

Where, as here, the Executive Branch is not acting pursuant to a constitutional power, it “literally has no power to act ...17 unless and until Congress confers power upon it.” La. Pub.

Serv. Comm’n , 476 U.S. at 374 . An executive agency that acts without statutory authority violates the Administrative Procedure Act, see 5 U.S.C. § 706(2)(C)

, and may run afoul of the constitutional separation of powers. Accordingly

, we must determine whether Congress empower ed the Attorney General to

promu lgate the Challenged Conditions. We consider three sources of authority offered by the Attorney General : first

, the Byrne JAG statute , 34 U.S.C. § § 10151

– 10158 ; second

, the provision defining the duties of the AAG for OJP , 34 U.S.C

. § 10102(a) ; and third

, for the Certification Condition only, Section 10153(a)(5)(D) of the Byrne JAG statute.

In interpret ing the me aning of the se statutory provisions

, we rely on the rules of statutory interpretation articulated by the Supreme Court and this Court. Our point of departure is

the text of the statute. See Gov’ t of Virgin Islands v. Knight

, 989 F.2d 619, 633 (3d Cir. 1993)

. B ut we are mindful not to read provisions in isolati on. Rather, we look to the text and

structure of the statute as a whole. See K Mart Corp. v. Cartier,

Inc.

, 486 U.S. 281, 291 (1 988) . We are also guided by any

relevant

, well

- established canons of statutory interpretation.

See Schaar v. Lehigh Valley Health Servs., Inc. , 598 F.3d 156, 160 (3d Cir. 2010)

.

1. The Byrne JAG Statute

The Attorney General argues that authorization for the N otice Condition and the Access C ondition is found in the Byrne

JAG statute itself. 6 See A tt’y G en. Br. 23. He pursues this

6 The Attorney Gener al asserts that one provision of the Byrne JAG statute, § 10153(a)(5)(D), authorizes the Certification

Condition but not the Notice and Access Conditions. We will discuss that provision separately, infra III. A. 3.18 argument in the least depth, however , a nd for good reason.

Such authorization is nowhere to be found in the text of the

statute. As other courts have noted , t he s tatute delegates some authority to the Attorney General, but it is exceptionally limited in nature. 7 See

, e.g. , San Francisco , 2018 WL 4859528,at *10 (“[T]he Byrne JAG statute contains limited discretionary auth ority for the Attorney General to carry out specific parts of the grant program.”). Two aspects of the statute , however, deserve closer scrutiny

. T he first is cited by the Attorney General as authorizing t he Notice and Access Conditions, and the second, although not relied on by the Attorney General, highlights just how little discretionary authority the statute

confers on him

.

First , the Attorney General has limited authority to monitor

a nd review grantees’ program and financial information

. For exampl e, the s tatute directs him to re quire grantees to certify that p rogram funds “will not be used to supplant State or local

funds.” Id. § 10153(a )(1). He is directed to require “each program funded under this part [to] contain a program assessment component,” id. § 10152(c)(1), but he may waive that requirement if he deems that a program is “not of sufficient size to ju stify a full program assessment,” id. § 10152(c)(2)

. H e must also direct applicants to report “data, records, and information(programmatic and financial)” that he may “reasonably require,” id. § 10153(a )(4), and require that grantees certify that

7 For example, the Attorney General may determine the “form”of the application, 34 U.S.C. § 10153(a); he may waive the prohibition on using funds on vehicles, luxury items, real estate, and construction projects, id. § 10152(d)(2); and he may provide “tech nical assistance” to jurisdictions that request it, id. § 10153(b)(1).19“there has been appropriate coordination with affected agencies

, ” id. § 10153(a )(5).

The Attorney General argues that these latter two provisions

— regarding data reporting and coordination with affected agencies

— authorize the Notice and Access Conditions. See Att’y Gen. Br. 26. His theory is that notice of an ali en ’ s release from custody constitutes “ information” that the Attorney G eneral may “reasonably require” and access to prison facilities constitutes “appropriate coordination” with an affected agency.

But t his interpretation stretches those provisions too f ar . The

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. Furthermore, t he coordinationrequirement asks for a certification that there “has been” appropriate coordination. Given that “Congress’ use of a verb tense is significant in construing statutes,” United States v. Wilson , 503 U.S. 329, 333 (1992) , and this provision is house d in a subsection containing several other certification requirements regarding a grantee’s applica tion, we interpret it to require certification that there was appropriate coordination in

connection wi th 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.

Second

, certain provisions of the statute, and other provisions in the U.S. Code that expressly mention the Byrne JAG statute, give the Attorney General narrow authority to withhold20 or re

- allocate funds under very limited circumstances. 8 For example

, he may re

- allocate funds among grantees and withhold

a small percentage of fun ds from a particular g rantee

. The s tatute gives the Attorney General the authority to “reserve notmore than 5 percent” of total funds in order to “address ... precipitous or extraordinary increases in crime” or to “mitigate significant programmatic harm resulting from operation of the formula” in one or more jurisdictions. 34 U.S.C. § 10157. This provision, however, authorizes the Attorney General to re

- allocate funds only in those two, narrow circumstances. A nd it only allows the Attorney General to set aside five percent ofthe total Byrne JAG funds, leaving the formula in place for distribution of the remainder of the funds. It does not authorize the enactment of the Challenged Conditions or the withholding of the entirety of a particular jurisdiction’s award.

There are also circumstances in which the Att orney G eneral may, or must, withhold Byrne JAG funds for a grantee’s failure to comply with certain federal laws. F or example, he may withhold up to four percent of a jurisdiction’s Byrne JAG funds if it fails to meet certain requirement s of the National Instant Criminal Background Check System. See 34 U.S.C. § 40914(b)(1). A mandatory reduction of five percent of Byrne

JAG funds will occur if there are e gregious violations. See i d. § 40914 (b)(2). The Attorney General also has the discretion to

withhold “not more than [] 10

- percent ” of Byrne JAG funds if a jurisdiction fails to comply with “death

- in

- custody” reporting requirements. Id. § 60105 (c)(2)

. A ll other delegation s of this

8 The Attorney General does not rely on these provisions, but

we think that consideration of them is necessary to make our analysis complete . The limited scope of authority granted b y these provisions stands in stark contrast to the broad authority the Attorney General seeks.21 sort are similarly circumscribed. See i d. § 20927(a) (mandatory ten percent penalty for failure to comply with the Sex Offender Registration and Notification Act); id. § 30307(e)(2) (mandatory five percent penalty for failure to comply with th e Prison Rape Elimination Act).

We discuss these provisions primarily to highlight what they do not authorize: the power to withhold all of a grantee’s

funds for any reason the Att orney General chooses. See Chicago II , 888 F.3d at 284 (“None of those provisions grant theAttorney General the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or l ocal governments for the failure to comply with those conditions.”). Moreover, as the District Court and the Seventh Circuit have observed

, 9 Congress knows how to grant this sort of broad discretionary authority when it wants. See 34 U.S.C. § 10446(e)(3) (Grants to Combat Violent Crime Against Women) (“ In disbursing grants under this subchapter, the Attorney General may impose reasonable conditions on grant awards

.... ”). But it has not

done so here.

S uch a grant of authority, if it existed, would also ren der the aforementioned limited grants of authority superfluous. IfCongress had already given the Attorney General this sweeping authority to withhold all funds for any reason, it would have

no need to delineate numerous
, specific circumstances under which the Attorney General may wi thhold limited amounts of

9 See City of Philadelphia I , 280 F. Supp . 3d at 616 (“Congress delegated authority to impose conditions on other grants in the same chapter, and did so clearl y.”); Chicago II , 888 F.3d at 286 (“Congress knew how to grant such authority, and explicitly did so in another statute within the same Act.”).22 funds. Even if the statute were ambiguous

— which it is not

— we generally would not interpret such a provision to render superfluous more specific delegations of power. See, e.g.

, Gonzales v. Oregon , 546 U.S. 243, 262 ( 2006 ) (“ It would be anomalous for Congress to have so painstakingly described the Attorney General’ s limited authority to deregister a single physician or schedule a single drug, but to have given him, jus t by implication, authority to declare an en tire class of activity outside ‘ the c ourse of professional practice,’ and therefore a criminal violation of the CSA. ”); see also Chicago II , 888 F.3d at
286 (“Against that backdrop, it is inconceivable that Congr ess would have anticipated that the Assistant Attorney General could abrogate the entire distribution scheme and deny all funds to states and localities that would qualify under the Byrne JAG statutory provisions, based on the Assistant Attorney General’ s decision to impose his or her own conditions

—the putative authority for which is provided in a different statute.”).

Finding no authority for the Challenged Conditions in the Byrne JAG statute or other provisions that specifically mention it, we turn to th e At torney General’s next suggested source of authority

.

2. The Duties and Functions of Assistant Attorney

General

The Attorney General also argues that all three conditions are authorized by 34 U.S.C. § 10102, the provision establishing

the “Duties and Functions of Assistant Attorney General ” for the Office of Justice Programs. That provision provides, in relevant part, that “[t]he Assistant Attorney General shall”:23 exercise such other powers and functions as may be vested in the Assistant Attorney Gene ral pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants , and determining priority purposes for formula grants.

34 U.S.C. § 10102(a)(6) (emphasis added) . The Attorney General argues that bec ause this provision authorizes “placing special conditions on all grants,” it authorizes placing the Challenged Conditions on the Byrne JAG grant.

But t he Attorney General’s argument runs headlong into a n obstacle : the word “including.” 10 In the Attorney General’s view, the Special Conditions Clause confers upon the AAG new authority, not found e lsewhere in the Code, to establish conditions on grants . This c lause, however, is preceded by the word “including,” which is used to denote something that is

wit hin a larger whole. See Webster’s Third New International Dictionary of the English Language Unabridged, 1143 (3d ed. 1993) (defining “include” as “to place, list, or rate as a part or component of a whole or of a larger group class or aggregate”).

10 Several other federal courts have identified this flaw in the Attorney General’s reasoning

. See, e.g., Chicago II , 888 F.3d

at 285 (“Because that interpretation is so obviously belied by the plain meaning of the word ‘i ncluding,’ the Attorney General’ s position is untenable.”); New York , et al. , 2018 WL

6257693 , at *7 (“The problem for Defendants is that th e [Clause] begins with the word ‘including.’”); San Francisco

, 2018 WL 4859528, at *12 (“The clause begins with the word ‘including,’ conveying a reference to part of a whole.”).24 I n th e case of this provision, “including” sig nifies that the Special Conditions C lause is part of “such other power s and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General .”

34 U.S.C. § 10102(a)(6) (emphasis added). Therefore, under the plain text of this provision, the AAG has the power to place special conditions on grants only to the extent that such power

has been vested in him or her “pursuant to this chapter or by deleg ation of the Attorney General

. ” As we discussed in the previous sectio n, the broad authority he urges has not been vested in the Attorney General or the AAG in the Byrne JAG

statute or anywhere else in the United States Code. Therefore,

the Special Condi tions Clause cannot authorize this power on

its own.

The structure of Section 10102 also casts serious doubt on the Attorney General’s interpret ation. The Special Conditions

Clause is housed in the sixth of six subsections delineating the AAG’s power. The preceding five subsections all deal with the AAG’s power to disseminate criminal justice information and coordinate with various agencies and officials. See 34 U.S.C. § 10102(a)(1)

- (5). The principle of noscitur a sociis

— “a word is known by the compa ny it keeps”

— is helpful here.

Yates v. United States , 135 S. Ct. 1074, 1085 (2015). Giventhe ministerial nature of the powers in the preceding five subsections, we would be hesitant to find such a sweeping grant of authority in the sixth subsection abse nt clear language to support that interpretation

. 11 Moreover, hiding such a broad

11 In stating this, we join the District Court and several other

federal courts. See Chicago II , 888 F.3d at 285 (“§ 10102(a)(6) would be an unlikely place for Congress to place a power as broad as the one the Attorney General asserts.”); Philadelphia

I , 28 0 F. Supp. 3d at 617 (“Congress is unlikely to ground the25 power

— the power to place any special conditions on all
grants

— in a statute outlining ministerial duties for an Assistant Attorney General would be akin to hiding an elephant in a

mousehole . And Congress “does not, one might say, hide elephants in mouseholes.” Wh itman v. Am. Trucking Ass’ ns , 531 U.S. 457, 468 (2001).

G iven its text and structure , 34 U.S.C. § 10102 does not

authorize the Attorney General’s imposition of the Challenged Conditions. We turn, then, to the Attorney General’ s final statutory argument.

3. All Other Applicable Federal Laws

T he Attorney General next argues that the Certification

Condition is authorized by 34 U.S.C. § 10153(a)(5)(D) . This

section of the Byrne JAG statute requires applicants to certify that they “will comply with all provisions of this part and all other applicable Federal l aws .” Id. § 10153(a)(5)(D) (emphasis added). The Attorney General argues that Section 1373

— discussed supra , I. B

. , prohibiting restrictions on the sharing of information regarding immigration status

— is an applicable federal law, as it applies to local government entities. Accordingly , he argues that he is authorized to require applicants to

Attorney General’ s authority to impose substantive conditions in a subsection dedicated to conferring power on the AAG.”); New York, et al. , 2018 WL 6257693, at *8 (“[Section 10102]

would be an odd place indeed to put a sweeping power to impose any conditions on any grants

— a power much more significant than all of the duties and powers that precede it in the listing, and a power granted to the Assistant Attorney General that was not granted to the At torney General.”) (quoting Chicago II , 888 F.3d at 285 ).26 certify their complian ce with that law. The Ci ty responds, however, that the Applicable Laws C lause only covers laws that “expressly govern federal grants or grantees.” Philadelphia Br. 20. At first blush , both parties’ interpretations have

merit

— the text does no t explicitly indicate to whom

, or to
what

, the laws must be applicable. But closer scrutiny of the text, structure, and history of the provision leads us to reject the Attorney General’s expansive view.

Starting with the text, we observe that 34 U.S.C. § 10153(a)(5)(D) contains an initial specific phrase followed by a general phrase: a grant applicant must certify that it “willcomply with [1] all provisions of this part and [2] all other applicable Federal laws.” In these situations, the principle of eju sdem generis teaches that “ the general term should be understood as a reference to subjects akin to th e one with specific

enumeration.” Norfolk & W. Ry. C o. v. Am. Train Dispatchers

Ass’ n , 499 U.S. 117, 129 (1991) . But “[t] he absence of a list of specifi c items undercuts the inference embodied in ejusdem generis .” Ali v. Fed. Bureau of Prisons , 552 U.S. 214, 225 (2008) (emphasis added). If the general phrase (“all other applicable Federal laws”) were preceded by a list of specific federal laws, then our task would be much easier. But here we find only “one specific and one general category.” Id. Moreover, the specific phrase (“all provisions of this part”) tells us little about the meaning of the general phrase. In short, ejusdem generis does not get us very far in interpreting “all other applicable Federal laws.”

But several other considerations all suggest that Section 1373 is not an “applicable” law. First , the canon against surplusage counsels us to read the term “applicable” in a way that gives it some independent heft. See Paek v. Att’y Gen. , 793 F.3d 330, 337 (3d Cir. 2015) (“The canon against surplusage27 counsels us to give effect to every word of a statute.”). Here, the term “applicable” avoids being redundant only by doing some limiting wor k beyond delineating the set of all federallaws that would “appl[y]” to an entity like Philadelphia. Otherwise, Congress could have simply written that a grant applicant must certify compliance with “all other Federal laws.” See

San Fransisco , 2018 WL 4 859528 at *17 (“[I]t is superfluous to interpret ‘all other applicable Federal laws’ as ‘all Federal laws.’”). Thus, the word “applicable” must have a narrowermeaning than one that sweeps in all possible laws that independently apply to a grant applicant

.

Second

, the noscitur a sociis canon

— discussed supra , III.

A. 2.

— provide s further guidance. The Applicable Laws

Clause is located in the fourth of four subsections, all of which require certifications that must be included in a Byrne J AG application. These four requirements provide that an “application shall include ... [a] certification ... that” :

(A) the programs to be funded by the grant meet all the requirements of this part;

(B) all the information contained in the application is correct;

(C) there has been appropriate coor dination with affected agencies; and

(D) the applicant will comply with all provisions of this part and all other applicable Federal laws.

34 U.S.C. § 10153 (a)(5). These requirements all relate to the programs that will be funded under the grant. See San Francisco , 2018 WL 4859528, at *17 (“[A]ll the other conditions in Section 10153(a) apply to th e grant itself

. ”); New York , et al.

, 2018 WL 6257693, at *9 (“The structure of § 10153, which28 concerns requirements pertaining to the grant and the application, points toward the [more narrow] reading.”). This is evident on the face of the first requirement. The second requirement necessarily deals with programs funded under the grant, as the bulk of information contained in the applic ation is regarding the use of grant funds. And we can infer that the requirement that there “ has been appropriate coordination with affected agencies” relates to coordination that had occurred in compiling a grantee’s application. Although not dispositiv e, these narrow neighboring provisions counsel against a broad interpretation of the Applicable Laws C lause. Thus, it would be reasonable to view “all other applicable Federal laws” to refer specifically to laws that apply to operations relating to the

gr ant, not to require the City to certify compliance with every single law that might apply to it.

Third

, the historical practice of the Justice Department is also an important interpretive tool. See N.L.R.B. v. Noel Canning , 134 S. Ct. 2550, 2560 (2014) (“[T]he longstanding ‘practice of the government’ can inform our dete rmination of ‘ what

the law is. ’ ” ) (quoting McCulloch v. Maryland , 4 Wheat. 316, 401 (1819)

, and Marbury v. Madison , 1 Cranch 137, 177 (1803) ) . Here, the Justice Department’s historical p ractice does not comport with the broad interpretation that it urges in

this case. E very condition that is authorized by the Applicable

Laws C lause applies specifically to programs funded under the
grant , not more generally to the grantee

. 12

12 While t he Attorney General does not expressly state the

statutor y authority for each condition, the City does. See App. 391

- 4 0 0. The Attorney General does not take issue with the City’s account.29 The Attorney General points to several conditions

— such as compliance with laws regarding human research, body armor purchases, and military equipment purchases

— as establishing a practice of conditioning Byrne JAG funds on certification of compliance with b roader categories of federal law

. But the se conditions are not blanket requirements with which the grantee must comply under all circumstances ; rather, their applicability

is conditioned on whether federal funds are used in a particular

area. See, e.g.

, App. 379 (requiring compliance with 28 C.F.R. § 46, which sets out regulations for human research that is “conducted or supported by a federal department or agency”). For example

, i f a grantee uses funds to purchase body armor or military style equipment, then it must comply with the applicable federal regulati ons regarding those purchases. And if a grantee uses funds to conduct research on human subjects, then it must comply with the applicable federal regulations in that

area. The Certification Conditi on is written differently: regardless of how a grantee uses its funds, it must certify compliance

with this federal law. The Attorney General has not pointed toany historical precedent for the kind of unconditional requirement it now seeks to impose.

Fou rth , as we have noted, Congress structured the Byrne JAG program as a “ formula grant, ” under which a jurisdiction’s award is calculated through a formula that considers only population and violent crime statistics

. The Attorney General

asserts that the Applicable Laws Clause authorizes him to condition Byrne JAG funds on compl iance with any law in the

U.S. C ode. But that reading of the C lause would destabilize the formula nature of the grant. Allowing the Attorney General

to withhold all funds because a jurisdiction does not certify compliance with any federal law of the Attorney General’schoosing undermines the predictability and consistency embedded in the program’s design, thus turning the formula grant30 into a discretionary one. Moreover, if Byrne JAG were intended to be a discretionary grant, one would think that Congress would house it in the section of the U.S. Code containing discretionary Justice Department grants

, see 34 U.S.C. Subt. I, Ch. 101, Subch. V, Part B (“Discretionary Grants”), not i ts own, neighboring section

, see 34 U.S.C. Subt. I, Ch. 101,Subch. V., Part A (“Edward Byrne Memorial Justice Assistance Grant Program”).

Finally , there is reason to doubt that even under a broad reading of the Applicable Laws Clause, Section 1373 would apply. In the “Administrative Provisions” section of the same chapter of the code as the Applicable Laws Clause, Congress provided:

Nothing in thi s 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 p olitical subdivision

thereof.

34 U.S.C. § 10228. Under the plain terms of this provision, theApplicable Laws Clause “shall” not be “construed” to authorize the Department to “exercise any direction, supervision, or control” over Philadelphia Police. But under the Attorney General’s reading of the Applicable Laws Clause, Section 1373 would authorize the Department to direct, supervise, or control Philadelphia Police communications with ICE. Section 10228 may therefore be a statutory limit to which laws are “applicable” under the Applicable Laws Clause.

Accordingly , we find that Section 1373 is not an applicable law for the purposes of Byrne JAG.31 * * *

After reviewing the three sources of authority offered by the Attorney General, we hold that Congre ss has not empowered the Attorney General to enact the Challenged Conditions

. Because the Attorney General exceeded his statutory authority in promulgating the Challenged Conditions, we needn’t reac h Philadelphia’s other arguments . Therefore, all that re mains forthe purposes of our review is the District Court’s injunctive order.

B. The Judicial Warrant Injunction

In its final judgment and decree, the District Court issued injunctive relief establishing that a judicial warrant shall be necessary to transfer a cr iminal alien to federal custody. The order provides, in relevant part:

To the extent an agency of the United States Government has probable cause to assert that anindividual in the custody of the City of Philadelphia i s a criminal alien (as previously defined by

this Court in City of Philadelphia v. Sessions

, 2018 WL 2725503, *19 n. 3 (E.D. Pa. June 6, 2018), and seeks transfer to federal custody ofsuch individual within a city facility, it shall secure an order from a judicial officer of the United States for further detention, as allowed by law.

A pp . 191. The Attorney General asks that, even if we find for the City on the merits

— which we have done

— we vacate this

section of the order. In a memorandum accompanying the Order, the District Court explai ned that the order was necessaryto shield the City from legal liability that might arise if it detained an individual pursuant to an immigration detainer who

should have otherwise been released. A pp . 194. The Court32 state d that , with this order, “[t]his risk can be ea sily eliminated

. ” A pp . 194.

We do not doubt , as the District Court rightly decided, th at equitable relief was warranted in this case. See Philadelphia

II , 3 09 F. Supp. 3d at 338

- 43. The question before us, h owever, is whether the Court’s order swept too broadly. 13 While there

are tried and true standard s for determining when equitable relief is warranted, see , e.g. , Shields v. Zuccarini , 254 F.3d 476, 482 (3d Cir. 2001) (discussing the four

- part test for determine when a permanent injunction is warranted )

, there is less authority regarding the scope of equitable relief. The Supreme Courthas instructed that the equity power of the federal courts is confined to “the system of judicial remedies which had be en devised and was being administered by the English Court ofChancery at the time of the separation of the two countries.” Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund,

Inc. , 527 U.S. 308, 318 (1999)

. We have stated , consistent with many of our s ister circuits, that “injunctive relief should be ‘no more burdensome to the defendant than necessary to provide complete relief to plaintiffs.’” Novartis Consumer Health, Inc.

v. Johnson & Johnson

- Merck Consumer Pharm. Co. , 290 F.3d 578, 598 (3d Cir. 200 2) (quoting Califano v. Yamasaki , 442 U.S. 682, 702 (1979)); see also Waldman Publ’g Corp. v. Landoll, Inc. , 43 F.3d 775, 785 (2d. Cir. 1994) (“Injunctive relief should be narrowly tailored to fit specific legal violations.”); Hayes v. N. State Law Enf’ t O fficers Ass’n , 10 F.3d 207, 217 (4th Cir. 1993) (“An injunction should be tailored to restrain no more than what is reasonably required to accomplish its ends.”) (internal quotation omitted). In short, equitable relief

13 “We review the terms of an injunction for abuse of discretion.” Allstate Settlement Corp. v. Rapid Settlements, Ltd. , 559 F.3d 164, 172 (3d Cir. 2009).33 should be “dictated by the extent of the violation established. ” Califano , 442 U.S. at 702.

Our review of the scope of the District Court’s injunction

, then, has two aspects : first, we must determine “ the extent of

the violation established

, ” id. ; and second, we must determine whether the injunction is “more burdensome to the defendant than necessary to provide complete relief to plaintiffs

. ” Novartis , 290 F.3d at 598. On the first point, we have already

addressed the legal violation at length: t he Attorney General

acted ultra vires in imposing the three Challenged Conditions on Byrne JAG grants. Several aspects of the District Court’s order are narrowly tailored to remedy ing this legal wrong, including enjoining the Attorney General from enforci ng the Challenged Conditions on Philadelphia’s applica tion and ordering the Attorney G en eral to issue Philadelphia’s FY 2017 award. Both of these orders speak directly to the dispute over the Challenged Conditions

. The judicial warrant requirement, however , goes beyond

the bounds of the complaint

. While the District Court’s concerns regarding the legality of holding an alien pursuant to a

detainer may well be legitimate, they are not part of this case and controversy. Nor , as we noted above, is the broade r policy dispute between the City and the Attorney General rega rding immigration enforcement. The order extends outside of this particular case and controversy and into those disputes.

Moreover, t he other aspects of the order entered by the District Court afford the City full and complete relief. The City filed its complaint to enjoin the Attorney General from denying its Byrne JAG award based on unlawfully imposed conditions. The other aspects of the District Court’s order require that the Attorney G ene ral distribute the City’s FY 2017 award and re-34frain from ever enforcing the Challenged Conditions. A district court has discretion to fashion equitable remedies, but these aspects of the order left the City wanting nothing by way

of further remedies

. The judicial warrant requirement was not

request ed in the District Court and was not defend ed with any vigor at oral argument. See Oral Argument Transcript, 52 ( stating that the District Court’s order is “the hardest thing to defend”).

Accordingly, we hold that the District Court abused its discretion as to the scope of the equitable relief and will vacate its

o rder to the extent it imposed a requirement that the federal
government obtain a judicial warrant before seeking custody of aliens in City custody

.

I V. C ONCLUSION

For the aforementioned reasons, we hold that the Attorney General did not have statutory authority to impose the Challenged Conditions. We also determine that the District Court

abused its discretion in granting broader injunctive relief tha n was warranted

. Accordingly, we will affirm the District

Court’s order to the extent it is supported by this opinion, and we will vacate its order as it pertains to the judicial warrant requirement.