“Sanctuary” Jurisdictions: Federal, State, and Local Policies and Related Litigation
Released: 2019-05-03T00:00:00

Introduction

The federal government is vested with the exclusive power to create rules governing alien entry and removal. However, the impact of alien migration—whether lawful or unlawful—is arguably felt most directly in the communities where aliens reside . State and local responses to unlawfully present aliens within their jurisdictions have varied considerably, particularly in determining the role th at state or local police should play in enforcing federal immigration law. At one end of the spectrum, some states and localities actively assist federal immigration authorities in identifying and apprehending aliens for removal. For example, jurisdictions sometimes enter into "287(g) Agreements" with the federal government, in which state or local law enforcement are deputized to perform certain immigration enforcement activities. Some states and localities have attempted to play an even greater role in immigration enforcement, in many cases because of perceptions that federal efforts have been inadequate. In the past, some have adopted measures that criminally sanction conduct believed to facilitate the presence of unlawfully present aliens and have also instructed police to actively work to detect such aliens as part of their regular duties. The adoption of these kinds of measures has waned considerably, though, after the Supreme Court's 2012 ruling in Arizona v. United States held that several provisions of one such enactment, Arizona's S.B. 1070, were preempted by federal immigration law. Subsequent lower court decisions struck down many other state and local measures that imposed criminal or civil sanctions on immigration-related activity.

At the other end of the spectrum, some states and localities have been less willing to assist the federal government with its immigration enforcement responsibilities. Often dubbed "sanctuary jurisdictions," some states and localities have adopted measures that limit their participation in enforcing federal immigration laws, including, for example, prohibiting police officers from assisting with federal efforts to identify and apprehend unlawfully present aliens within the state or locality's jurisdiction. That said, there is debate over both the meaning and application of the term "sanctuary jurisdiction." Additionally, state and local jurisdictions have varied reasons for choosing not to cooperate with federal immigration enforcement efforts, including reasons not necessarily motivated by disagreement with federal immigration enforcement policies, such as concern about potential civil liability or the availability of state or local resources to assist federal immigration enforcement efforts. During President Donald Trump's first month in office, he issued an executive order, "Enhancing Public Safety in the Interior of the United States," which, in part, seeks to encourage state and local cooperation with federal immigration enforcement and disincentivize state and local adoption of sanctuary policies.

This report discusses legal issues related to state and local measures limiting law enforcement cooperation with federal immigration authorities, as well as the federal government's efforts to counter those measures. It begins by providing a general explanation of the term "sanctuary jurisdiction" for the purpose of this report. Next, it provides an overview of constitutional principles underlying the relationship between federal immigration laws and related state and local measures, namely, preemption and the anti-commandeering doctrine. Then, it discusses various types of laws and policies adopted by states and localities to limit their participation with federal immigration enforcement efforts, which may give rise to a label of "sanctuary jurisdiction," and federal efforts to counter those measures. Finally, the report concludes with a discussion of the lawsuits challenging the executive order targeting sanctuary jurisdictions and certain executive branch actions to implement the executive order.

What Is a Sanctuary Jurisdiction?

State or local measures limiting police participation in immigration enforcement are not a recent phenomenon . Indeed, many of the recent "sanctuary"-type initiatives can be traced back to church activities designed to provide refuge—or "sanctuary"—to unauthorized Central American aliens fleeing civil unrest in the 1980s. A number of states and municipalities issued declarations in support of these churches' actions. Others went further and enacted more substantive measures intended to limit police involvement in federal immigration enforcement activities. These measures have included, among other things, restricting state and local police from arresting persons for immigration violations, limiting the sharing of immigration-related information with federal authorities, and barring police from questioning a person about his or her immigration status.

Still, there is no official definition of a "sanctuary" jurisdiction in federal statute or regulation. Broadly speaking, sanctuary jurisdictions are commonly understood to be those that have laws or policies designed to substantially limit involvement in federal immigration enforcement activities, though there is not necessarily a consensus as to the meaning of this term. Some jurisdictions have self-identified as a sanctuary (or some other similar term). For other jurisdictions, there might be disagreement regarding the accuracy of such a designation, particularly if state or local law enforcement cooperates with federal immigration authorities in some areas but not others. Any reference by this report to a policy of a particular jurisdiction is intended only to provide an example of the type of measure occasionally referenced in discussions of "sanctuary" policies. These references should not be taken to indicate CRS is of the view that a particular jurisdiction is a "sanctuary" for unlawfully present aliens.

Legal Background

The heart of the debate surrounding the permissible scope of sanctuary jurisdictions centers on the extent to which states, as sovereign entities, may decline to assist in federal efforts to enforce federal immigration law, and the degree to which the federal government can stop state action that undercuts federal objectives in a manner that is consistent with the Supremacy Clause and constitutional principles of federalism. .

The Supremacy Clause and Preemption

The federal government's power to regulate immigration is both substantial and exclusive. This authority derives from multiple sources, including Congress's Article I powers to "establish a uniform Rule of Naturalization" and to "regulate commerce with foreign nations, and among the several states," as well as the federal government's "inherent power as sovereign to conduct relations with foreign nations." Rules governing the admission and removal of aliens, along with conditions for aliens' continued presence within the United States, are primarily contained in the Immigration and Nationality Act of 1952, as amended (INA). The INA further provides a comprehensive immigration enforcement regime that contains civil and criminal elements.

Arizona v. United States reinforced the federal government's pervasive role in creating and enforcing the nation's immigration laws. The ruling invalidated several Arizona laws designed "to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States" as preempted by federal law. In doing so, the Court declared that "[t]he Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens."

As Arizona highlights, the doctrine of preemption is relevant in assessing state policies related to immigration. The preemption doctrine derives from the Constitution's Supremacy Clause, which states that the "Constitution, and the laws of the United States ... shall be the supreme law of the land." Therefore, Congress, through legislation, can preempt (i.e., invalidate) state law. Preemption can be express or implied. Express preemption occurs when Congress enacts a law that explicitly expresses the legislature's intent to preempt state law. Preemption may be implied in two ways: (1) when Congress intends the federal government to govern exclusively, inferred from a federal interest that is "so dominant" and federal regulation that is "so pervasive" in a particular area (called "field preemption"); or (2) when state law conflicts with federal law so that it is impossible to comply with both sovereigns' regulations, or when the state law prevents the "accomplishment and execution" of Congress's objectives (called "conflict preemption"). Accordingly, any preemption analysis of the relationship between a federal statute and a state measure must be viewed through the lens of congressional intent.

The Supremacy Clause establishes that lawful assertions of federal authority may preempt state and local laws, even in areas that are traditionally reserved to the states via the Tenth Amendment. One notable power reserved to the states is the "police power" to promote and regulate public health and safety, the general welfare, and economic activity within a state's jurisdiction. Using their police powers, states and municipalities have frequently enacted measures that, directly or indirectly, address aliens residing in their communities.

Yet despite the federal government's sweeping authority over immigration, the Supreme Court has cautioned that not "every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted" by the federal government's exclusive power over immigration. Accordingly, in Arizona the Supreme Court reiterated that, "[i]n preemption analysis, courts should assume that the historic police powers of the States are not superseded unless that was the clear and manifest purpose of Congress." For example, in Chamber of Commerce of the United States v. Whiting, the Supreme Court upheld an Arizona law—related to the states' "broad authority under their police powers to regulate the employment relationship to protect workers within the State" —that authorized the revocation of licenses held by state employers that knowingly or intentionally employ unauthorized aliens. Even though the Immigration Reform and Control Act of 1986 (IRCA) expressly preempted "any State or local law imposing civil or criminal sanctions ... upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens," the Supreme Court concluded that Arizona's law fit within IRCA's savings clause for state licensing regimes and thus was not preempted.

The Anti-Commandeering Doctrine

Although the federal government's power to preempt state or local activity touching on immigration matters is extensive, this power is not absolute. The U.S. Constitution establishes a system of dual sovereignty between the federal government and the states, including by creating a national legislature with enumerated powers and reserving most other legislative powers to the states by way of the Tenth Amendment. The anti-commandeering doctrine derives from this structural allocation of power, which "withholds from Congress the power to issue orders directly to the [s]tates" and prevents Congress from directly compelling states "to enact and enforce a federal regulatory program." Thus, the federal government cannot "issue directives requiring the [s]tates to address particular problems, nor command the [s]tates' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."

Several Supreme Court rulings inform the boundaries of the anti-commandeering doctrine. First, in New York v. United States , the Court reviewed a constitutional challenge to provisions of a federal law that created a series of incentives for states to dispose of radioactive waste. The statute provided states the option of (1) regulating according to Congress's direction, or (2) taking title to, and possession of, the low-level radioactive waste generated within their borders and becoming liable for all damages suffered by waste generators resulting from the state's failure to timely do so. The law, in the Court's view, gave states a "choice" between two options concerning their maintenance of radioactive waste disposal, neither of which the Constitution authorized Congress, on its own, to impose on the states. By offering this "choice," Congress had, in the Court's view, "crossed the line distinguishing encouragement from coercion," and in doing so acted "inconsistent[ly] with the federal structure of our Government established by the Constitution." In so holding, the Court declared that "[t]he Federal Government may not compel the States to enact or administer a federal regulatory program."

Then, in Printz v. United States, the Supreme Court reviewed whether certain interim provisions of the Brady Handgun Violence Prevention Act (Brady Act) violated the anti-commandeering doctrine. The relevant provisions required state and local law enforcement officers to conduct background checks (and other related tasks) on prospective handgun purchasers. The Court rejected the government's position that the challenged Brady provisions—which directed states to implement federal law—were distinguishable from the law at issue in New York —which directed states to create a policy—and thus was constitutionally permissible. Rather, the Court concluded that a federal mandate requiring state and local law enforcement to perform background checks on prospective handgun purchasers violated the anti-commandeering doctrine. Accordingly, the Court announced that "Congress cannot circumvent" the Constitution's prohibition against compelling states to enact or enforce a federal regulatory scheme "by conscripting the State's officers directly."

But not every federal requirement imposed on the states necessarily violates the anti-commandeering principles identified in Printz and New York . A number of federal statutes provide that certain information collected by state entities must be reported to federal agencies. And the Court in Printz expressly declined to consider whether these kinds of requirements were constitutionally impermissible, distinguishing reporting requirements from the case before it, which involved "the forced participation of the States ... in the actual administration of a federal program."

Additionally, in Reno v. Condon , the Supreme Court unanimously rejected an anti-commandeering challenge to the Driver's Privacy Protection Act (DPPA), which barred states from disclosing or sharing a driver's personal information without the driver's consent, subject to specific exceptions. The Court distinguished the DPPA from the federal laws struck down in New York and Printz because, in the Court's view, the DPPA sought to regulate states "as owners of databases" and did not "require the States in their sovereign capacity to regulate their own citizens ... [or] enact any laws or regulations ... [or] require state officials to assist in the enforcement of federal statutes regulating private individuals." The Court declined to address the state's argument that Congress may only regulate the states through generally applicable laws that apply to individuals as well as states, given that the Court deemed the DPPA to be a generally applicable law.

The Supreme Court recently clarified the scope of the anti-commandeering doctrine in its 2018 ruling, Murphy v. National Collegiate Athletic Association . Murphy involved a challenge under the anti-commandeering doctrine to the Professional and Amateur Sports Protection Act (PASPA), which, as relevant here, prohibited states from "authorizing" sports gambling "by law." (This is sometimes referred to as PASPA's "anti-authorization" provision. ) In 2012—20 years after PASPA's enactment—New Jersey eliminated its constitutional ban on sports gambling and then, two years later, repealed state laws that prohibited certain sports gambling. Invoking PASPA's civil-suit provision, several sports leagues sued to enjoin New Jersey from enforcing its new law, arguing that it violated PASPA. The Third Circuit Court of Appeals, sitting en banc, agreed. Further, the Third Circuit rejected New Jersey's counterargument that PASPA unlawfully commandeered state legislatures.

The Supreme Court concluded otherwise, holding that PASPA's anti-authorization provision violated the anti-commandeering doctrine. The sports leagues (and the United States, which appeared as amicus curiae ) had argued that under the anti-commandeering doctrine, Congress cannot compel states to enact certain measures, but it can prohibit states from enacting new laws, as PASPA does. The Court described this distinction as "empty," emphasizing that "[t]he basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event." Further, the Court elucidated two situations in which the anti-commandeering doctrine is not implicated. First, the doctrine does not apply "when Congress evenhandedly regulates an activity in which both States and private actors engage" (as the Court characterized the situation in Reno ). Second, the federal government does not commandeer states when it enacts a scheme involving "cooperative federalism," in which a state is given a choice either to implement, on its own, a federal program, or opt-out and yield to the federal government's administration of that program.

Finally, the Court rejected the sports leagues and the government's contention that PASPA validly preempts state and local gambling laws. The Court announced that "regardless of the language sometimes used by Congress and this Court, every form of preemption is based on a federal law that regulates the conduct of private actors, not the States ." But PASPA neither imposes federal restrictions, nor confers federal rights, on private actors, and so, the Court concluded, PASPA can be construed only as a law that regulates state actors and not as a valid preemption provision.

Congress's Spending Powers and the Anti-Commandeering Doctrine

Congress does not violate the Tenth Amendment or anti-commandeering principles more generally when it uses its broad authority to enact legislation for the "general welfare" through its spending power, including by placing conditions on funds distributed to the states that require those accepting the funds to take certain actions that Congress otherwise could not directly compel the states to perform. However, Congress cannot impose a financial condition that is "so coercive as to pass the point at which 'pressure turns into compulsion.'" For example, in National Federation of Independent Business v. Sebelius , the Supreme Court struck down a provision of the Patient Protection and Affordable Care Act of 2010 (ACA) that purported to withhold Medicaid funding to states that did not expand their Medicaid programs. The Court found that the financial conditions placed on the states in the ACA (withholding all federal Medicaid funding, which, according to the Court, typically totals about 20% of a state's entire budget) were akin to "a gun to the head" and thus unlawfully coercive.

Select State and Local Limitations on Immigration Enforcement Activity

Several states and municipalities have adopted measures intended to limit their participation in federal immigration enforcement efforts. These limitations take several forms. For example, some states and localities have sought to restrict police cooperation with federal immigration authorities' efforts to apprehend removable aliens, sometimes called "don't enforce" policies. Other measures may restrict certain state officials from inquiring about a person's immigration status, sometimes referred to as "don't ask" policies. Still others restrict information sharing between local law enforcement and federal immigration authorities, sometimes described as "don't tell" policies. The following sections discuss some state and local restrictions on law enforcement activity in the field of immigration enforcement along those lines, including the relationship between these restrictions and federal law.

Limiting Arrests for Federal Immigration Violations

Violations of federal immigration law may be criminal or civil in nature. Removal proceedings are civil, although some conduct that makes an alien removable may also warrant criminal prosecution. For example, an alien who knowingly enters the United States without authorization is not only potentially removable, but could also be charged with the criminal offense of unlawful entry. Other violations of the INA are exclusively criminal or civil in nature. Notably, an alien's unauthorized immigration status makes him or her removable but, absent additional factors (e.g., having reentered the United States after being formally removed), unlawful presence on its own is not a criminal offense.

Some jurisdictions have adopted measures that restrict its police officers from making arrests for violations of federal immigration law. In some jurisdictions restrictions prohibit police from detaining or arresting aliens for civil violations of federal immigration law, like unlawful presence . Other jurisdictions prohibit police from making arrests for some criminal violations of federal immigration law, like unlawful entry. Still others prohibit law enforcement from assisting federal immigration authorities with investigating or arresting persons for civil or criminal violations of U.S. immigration laws. And some other jurisdictions have prohibitions that are broader in scope, such as a general statement that immigration enforcement is the province of federal immigration authorities, rather than that of local law enforcement.

State or local restrictions on police authority to arrest persons for federal immigration law violations do not appear to raise significant legal issues. Even though the INA expressly allows state and local law enforcement to engage in specified immigration enforcement activities, nothing in the INA compels such participation. Indeed, any such requirement likely would raise anti-commandeering issues. Moreover, after Arizona , it appears that states and localities are generally preempted from making arrests for civil violations of the INA in the absence of a specific federal statutory authorization or the "request, approval, or other instruction from the Federal Government."

Limiting Police Inquiries into Immigration Status

Many sanctuary-type policies place restrictions on police inquiries or investigations into a person's immigration status. Some policies provide that police may not question a person about his or her immigration status except as part of a criminal investigation. Others bar law enforcement from initiating police activity with an individual for the sole purpose of discovering immigration status. And other policies prohibit law enforcement from questioning crime victims and witnesses about their immigration status. Still other policies more broadly limit officials from gathering information about persons' immigration status, except as required by law.

Restricting the authority of police to question a person about his or her immigration status helps ensure that law enforcement lacks any information that could be shared with federal immigration authorities. As explained in the " PRWORA and IIRIRA " section below, two federal laws prevent state or local restrictions on sharing information about a person's immigration status with federal immigration authorities, but the provisions do not require state or local police to actually collect such information. Murphy has raised questions, though, about the continuing constitutional viability of these statutes.

Limiting Information Sharing with Federal Immigration Authorities

Some states and localities have restricted government agencies or employees from sharing information with federal immigration authorities. For instance, some jurisdictions prohibit law enforcement from notifying federal immigration authorities about the release status of incarcerated aliens, unless the alien has been convicted of certain felonies. Similarly, other jurisdictions prohibit their employees from disclosing information about an individual's immigration status unless the alien is suspected of engaging in illegal activity that is separate from unlawful immigration status. Some jurisdictions restrict disclosing information except as required by federal law —sometimes referred to as a "savings clause"—although it appears that the Department of Justice has interpreted those provisions as conflicting with federal information-sharing provisions.

Federal Measures to Counteract Sanctuary Policies

Over the years the federal government has enacted measures designed to counter certain sanctuary policies. Notably, in 1996 Congress enacted Section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), and Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), to curb state and local restrictions on information sharing. Most recently, the President issued Executive Order 13768, "Enhancing Public Safety in the Interior of the United States," which, as relevant here, seeks to encourage state and local cooperation with federal immigration enforcement and disincentivize state and local adoption of sanctuary policies that hinder federal immigration enforcement. These federal initiatives—and related legal issues—are described below.

PRWORA and IIRIRA

In 1996 Congress sought to end state and local restrictions on information sharing through provisions in PRWORA and IIRIRA. Neither PRWORA nor IIRIRA require s state or local government entities to share immigration-related information with federal authorities. Instead, these provisions bar restrictions that prevent state or local government entities or officials from voluntarily communicating with federal immigration authorities regarding a person's immigration status.

IIRIRA § 642, codified at 8 U.S.C. § 1373, bars any restriction on a federal, state, or local governmental entity or official's ability to send or receive information regarding "citizenship or immigration status" to or from federal immigration authorities. It further provides that no person or agency may prohibit a federal, state, or local government entity from (1) sending information regarding immigration status to, or requesting information from, federal immigration authorities; (2) maintaining information regarding immigration status; or (3) exchanging such information with any other federal, state, or local government entity. PRWORA § 434, codified at 8 U.S.C. § 1644, similarly bars state and local governments from prohibiting or restricting state or local government entities from sending or receiving information, to or from federal immigration authorities, regarding the "immigration status" of an individual.

Related Litigation

Shortly after Congress enacted these information-sharing restrictions, New York City, which had a policy limiting information sharing with federal immigration authorities, brought suit challenging the constitutionality of Sections 1373 and 1644. Among other things, New York City alleged that the provisions facially violated the Tenth Amendment by barring states and localities from controlling the degree to which their officials may cooperate with federal immigration authorities. A federal district court dismissed this claim in City of New York v. United States , and the U.S. Court of Appeals for the Second Circuit affirmed the judgment.

The Second Circuit observed that, unlike the statutes struck down on anti-commandeering grounds in New York and Printz , the information-sharing provisions in PRWORA and IIRIRA did not directly compel state authorities to administer and enforce a federal regulatory program. Instead, the court reasoned, these provisions prohibited state and local governments from restricting "the voluntary exchange" of immigration information between federal and state authorities. Further, the court added, "informed, extensive, and cooperative interaction of a voluntary nature" between states and federal authorities is an integral feature of the American system of dual sovereignty, and, in any event, the Supremacy Clause "bars states from taking actions that frustrate federal laws and regulatory schemes." Accordingly, the Second Circuit concluded that the Tenth Amendment does not provide states and municipalities with the "untrammeled right to forbid all voluntary cooperation by state or local officials with particular federal programs." The court therefore rejected New York City's constitutional challenge to the information-sharing provisions of PRWORA and IIRIRA, holding that that they did not violate the Tenth Amendment or principles of federalism.

New York City sought to appeal the decision to the Supreme Court, but its petition for certiorari was denied. A few months later, though, the Court handed down Reno , which, as explained earlier, held that the DPPA (a federal statute regulating the dissemination of certain personal information collected by state authorities) did not violate federalism principles embodied in the Tenth Amendment.

Since the Second Circuit's ruling, questions about Section 1373's constitutionality remained relatively quiet until President Trump issued the executive order targeting jurisdictions that do not comply with Section 1373. This sparked new litigation challenging Section 1373, some of which invoked Murphy after the ruling came down.

Executive Order 13768 and Related Litigation

Shortly after taking office, President Trump issued Executive Order (EO) 13768, "Enhancing Public Safety in the Interior of the United States," which, in Section 9, addresses sanctuary jurisdictions. Specifically, Section 9(a) of the EO seeks to encourage state and local cooperation with federal immigration enforcement and disincentivize—by threatening to withhold federal grant money—state and local adoption of sanctuary policies. Although EO 13768 did not explicitly define "sanctuary jurisdiction," later interpretive guidance from the Department of Justice (DOJ or Justice Department) defined the term, as it is used in the executive order, as a jurisdiction that willfully refuses to comply with 8 U.S.C. § 1373 (IIRIRA § 642).

This section discusses recent litigation concerning efforts by the Trump Administration to deter the implementation of state or local "sanctuary" policies. It begins by providing a brief description of Section 9(a) of EO 13768 and the DOJ's implementation of its requirements. Next, it discusses ongoing litigation involving challenges to Section 9(a). Several of these cases involve direct challenges to the executive order. Other lawsuits involve challenges to the Justice Department's decision, in implementing the executive order, to attach new conditions for grant eligibility under the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) program and Community Oriented Policing Services (COPS) program, all of which are designed to encourage state and local law enforcement cooperation with federal immigration enforcement. Finally, this section discusses a lawsuit filed by the United States against California, claiming that three new state laws obstruct the federal government's immigration enforcement efforts and, as a result, violate the Constitution's Supremacy Clause.

Section 9 of Executive Order 13768

On January 25, 2017, the President signed EO 13768, "Enhancing Public Safety in the Interior of the United States." Section 9 of the executive order seeks to encourage state and local cooperation with federal immigration enforcement and disincentivize state and local adoption of sanctuary policies. In particular, Section 9 declares that "[i]t is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or political subdivision of a State, shall comply with 8 U.S.C. 1373."

To implement the policy set forth in the executive order, the President instructs the Attorney General and the Secretary of the Department of Homeland Security (DHS) under Section 9(a) to ensure that jurisdictions that "willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants," subject to limited exception. The executive order authorizes the DHS Secretary to designate a jurisdiction she determines to be a "sanctuary," and directs the Attorney General to take "appropriate enforcement actions" against "any entity" that violates Section 1373 or that "has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law." Under Section 9(b), the President directs the DHS Secretary to publish, weekly, a list of jurisdictions that ignore or fail to honor detainer requests for incarcerated aliens, "[t]o better inform the public regarding the public safety threats associated with sanctuary jurisdictions."

DOJ Implementation of EO 13768

A few months later, on May 22, 2017, Attorney General Sessions issued a memorandum interpreting EO 13768. First, he announced that "sanctuary jurisdictions," for the purposes of enforcing the executive order, are "jurisdictions that 'willfully refuse to comply with 8 U.S.C. 1373.'" Further, the Attorney General stated that the executive order applies only to grants that the DOJ or DHS administer. As a result, the Attorney General announced that the DOJ would "require jurisdictions applying for certain Department grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an award." In addition, the certification requirement would apply to all existing grants administered by the DOJ's Office of Justice Programs and Office of Community Oriented Policing Services (COPS) that expressly contain the certification condition, and to future grants for which the DOJ has statutory authority to impose such conditions. Further, the Attorney General added that "[s]eparate and apart from the Executive Order, statutes may authorize the Department to tailor grants or to impose additional conditions on grantees to advance the Department's law enforcement priorities." Accordingly, "[g]oing forward," the Attorney General announced, "the Department, where authorized, may seek to tailor grants to promote a lawful system of immigration."

As a follow up to that interpretive memorandum, two months later on July 25, 2017, the DOJ issued a press release and accompanying background document announcing new conditions for recipients of the Byrne JAG program. The Byrne JAG program provides federal funds to the states, District of Columbia, Puerto Rico, and other territories for various nonfederal criminal justice initiatives. The press release announced three new conditions:

1. Compliance Condition . Byrne JAG program grant recipients must certify compliance with Section 1373, which would notify the federal government that the jurisdiction does not restrict its offices and personnel from sending or receiving citizenship or immigration status to or from federal immigration authorities . 2. Access Condition . Grant recipients that have detention facilities housing aliens (e.g., local jails or state prisons where aliens may be confined) must permit DHS immigration enforcement personnel (i.e., enforcement officers with DHS's U.S. Immigration and Customs Enforcement [ICE]) to access those facilities to meet with housed aliens and inquire into their eligibility to remain in the country. 3. Notice Condition . When DHS believes that an alien in state or local custody is removable from the United States for a violation of federal immigration law, ICE officers may issue a "detainer" requesting that the state or local entity give notice of the alien's pending release from custody so that ICE may take control of the alien for possible removal proceedings. To be eligible for grants under the Byrne JAG program, DOJ announced that recipients generally must give DHS 48 hours' advance notice before releasing from custody an alien wanted for removal.

These requirements were made applicable to Byrne JAG applications that were due six weeks later, on September 5, 2017, meaning that applying jurisdictions would need to be in compliance with all three conditions within six weeks.

Additionally, the Justice Department announced a requirement for applicants seeking grants administered by the COPS Office to certify compliance with Section 1373. COPS grants are used to advance community policing, for example, through training, technical assistance, and developing "innovative policing strategies" in a number of "topic areas" selected by the DOJ. For FY2018, in the topic area for "Field Initiated Law Enforcement," priority consideration could be given to applicants that cooperate with federal immigration authorities "to address illegal immigration." Further, the COPS Office notified potential applicants that additional consideration would be given to applicants that partner with federal law enforcement to combat illegal immigration. To obtain that special consideration, applicants could sign a form certifying that they follow practices mirroring those of the notice and access conditions of Byrne JAG program: (1) allowing federal immigration authorities to access detention facilities where they may question known or suspected aliens about their immigration status; and (2) providing at least 48 hours' notice of those persons' expected custodial release.

Litigation Challenging EO 13768 and its Implementation

The lawsuits challenging Section 9(a) of EO 13768 and its implementation came in two waves. The first wave came shortly after President Trump signed the executive order, when several jurisdictions sued for injunctive relief. The second, larger wave of litigation came after the DOJ announced the new Byrne JAG and COPS conditions. In the litigation challenging the EO's implementation, the various challengers have brought arguments raising similar statutory and constitutional concerns, chiefly:

the DOJ lacked statutory authority to impose the new conditions; the DOJ imposed the conditions arbitrarily and capriciously in violation of the Administrative Procedure Act; the executive branch violated principles of separation of powers by usurping the legislature's spending power; and the government violated the anti-commandeering doctrine by unconstitutionally conscripting the states into federal immigration enforcement.

The County and City of San Francisco and the County of Santa Clara (collectively, the "Counties"), for example, filed suit within days of each other, and those lawsuits were considered jointly by a district judge in the Northern District of California. The district court presiding over the Counties' challenges ultimately issued an injunction blocking nationwide enforcement of Section 9(a). The Ninth Circuit agreed with the lower court that Section 9(a) violates the Constitution's principles of separation of powers. However, while agreeing that the injunction was appropriate to prevent Section 9(a) from having effect in California, the appellate court concluded that the current factual record was insufficient to support a nationwide injunction and remanded the case to the district court for further factfinding.

As for the litigation challenging new Byrne JAG and COPS conditions, in one case, the U.S. District Court of the Northern District of Illinois enjoined the Byrne JAG conditions as applied to Chicago. The court held that, in imposing those conditions, the DOJ exceeded the statutory authority Congress delegated to implement the Byrne JAG program. In another case, the U.S. District Court for the Eastern District of Pennsylvania enjoined the federal government from enforcing the three Byrne JAG conditions against Philadelphia. The district court concluded, among other things, that the conditions were imposed arbitrarily and capriciously in violation of the Administrative Procedure Act (APA) because the government had failed to adequately justify imposing the new conditions. For reasons similar to the federal district courts in Chicago and Pennsylvania, a district court in New York enjoined the government from enforcing the new conditions against the City of New York and the States of New York, Connecticut, New Jersey, Rhode Island, Washington, Massachusetts, and Virginia (the collective plaintiffs in that case). Notably, all of the district judges held, post- Murphy , that Section 1373 violates the anti-commandeering doctrine. Finally, in another lawsuit brought by the City of Los Angeles, California, a district judge permanently enjoined the new considerations for COPS grant selections, concluding that they were imposed without statutory authority, violated the Spending Clause, and were arbitrarily and capriciously imposed in violation of the APA.

City & Cty. of San Francisco v. Trump and Cty. of Santa Clara v. Trump

Shortly after President Trump issued EO 13768, the City and County of San Francisco and the County of Santa Clara, California, filed suit, asking a federal court to enjoin Section 9(a) of the order. The Counties principally argued that Section 9(a) is unconstitutional in three ways. First, the Counties contended that the funding restrictions, by purporting to withhold, or impose new eligibility conditions on, congressional appropriations, violated the separation of powers by usurping the legislature's spending power granted in Article I, Section 8 of the Constitution. Alternatively, even assuming that the President had lawful authority to withhold, or impose conditions on, congressionally appropriated funds, the Counties argued that Section 9(a) would still violate the Spending Clause because it surpasses the constitutional limits of the Spending Clause set forth by the Supreme Court. Finally, the Counties argued that Section 9(a) violates the anti-commandeering doctrine, contending, for instance, that Section 9(a) coerces jurisdictions into complying with ICE-issued immigration detainers by threatening to withhold federal funding and take unspecified enforcement action against jurisdictions that "'hinder the enforcement of federal law.'"

The district judge ultimately agreed with all three arguments and permanently enjoined—nationwide—Section 9(a) of the executive order. The Ninth Circuit, in a 2-1 ruling, affirmed the district court's judgment on the ground that Section 9(a) violates the separation of powers by usurping Congress's spending power. The Ninth Circuit vacated the injunction's nationwide application, however, and remanded for further factfinding on whether the injunction ought to be nationwide in scope.

In holding that EO Section 9(a) violates the separation of powers, the Ninth Circuit recounted that "when it comes to spending, the President has none of his own constitutional powers to rely upon." That power, the court explained, is exclusively Congress's domain, subject to delegation. Yet, the court opined, Congress had not authorized the executive branch "to withdraw federal grant moneys from jurisdictions that do not agree with the current Administration's immigration strategies." Further, the court pointed to nearly a dozen failed congressional proposals to do just that during the 114th Congress. Thus, the Ninth Circuit concluded, "[n]ot only has the Administration claimed for itself Congress's exclusive spending power, it also attempted to coopt Congress's power to legislate."

City of Richmond v. Trump

Another California city unsuccessfully tried to challenge EO 13768 as it relates to sanctuary jurisdictions. Richmond, California, like Santa Clara and San Francisco, argued that (1) the President exceeded his constitutional authority by purporting to appropriate federal funds; (2) even assuming that the President has such spending authority, the conditions set forth in the executive order violate the Spending Clause's lawful parameters; and (3) the executive order unlawfully commandeers the states. The district court denied Richmond's request for injunctive relief, however, after concluding that the city could not establish pre-enforcement standing to challenge the executive order.

In dismissing Richmond's suit, the district court applied the framework that the Supreme Court set forth in Babbitt v. Farm Workers National Union to determine whether a plaintiff has standing to challenge a statute before it is enforced against the plaintiff. Under Babbitt, the plaintiff must demonstrate "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." The district court assumed without deciding that Richmond had policies proscribed by the executive order, could lose federal funding if the order was enforced against it, and put forward claims that implicated constitutional interests. So the ruling on whether Richmond had pre-enforcement standing ultimately hinged on whether Richmond had demonstrated a "well-founded fear" that the executive order would be enforced against it, and the court concluded the city had not. The court opined that "[t]he likely targets of enforcement under the [Executive] Order are jurisdictions that have actually refused to cooperate with ICE and that ICE believes are hindering its immigration enforcement efforts." But according to Richmond's own complaint, the court found, the federal government had never asked Richmond to assist in enforcing immigration policy, nor had it been identified as a locality that restricts cooperation with ICE or regularly declines immigration detainers. Thus, the court decided that Richmond had "no real-world friction with ICE or the defendants over its policies" and thus was unlikely to be subjected to the executive order's funding restrictions.

City of Seattle & City of Portland v. Trump

The Cities of Seattle, Washington, and Portland, Oregon, jointly challenged President Trump's executive order. The cities asked a district court to declare that Section 9(a) of EO 13768 is unconstitutional under the Tenth Amendment, the Spending Clause, and separation-of-power principles, principally for the same reasons as the other jurisdictions challenging the executive order. Soon after the plaintiffs brought suit, though, the district court stayed the case, pending the resolution of the appeal in the Ninth Circuit of the injunction issued in the Santa Clara/San Francisco litigation. After the Ninth Circuit concluded that Section 9(a) was unconstitutional, the district judge in this case also ruled that Section 9(a) unconstitutionally violated the separation of powers.

City of Chelsea & City of Lawrence v. Trump

Two cities in Massachusetts, Chelsea and Lawrence, also filed suit shortly after President Trump issued EO 13768, challenging Section 9(a). Chelsea and Lawrence principally argued that that Section 9(a) violates the Tenth Amendment and the Constitution's separation-of-power principles, for reasons substantially similar to those argued by Santa Clara, San Francisco, and Richmond. However, after the district court in the Santa Clara/San Francisco litigation issued a nationwide preliminary injunction blocking the executive order, the parties agreed to stay the proceedings unless and until the injunction is lifted.

City of Chicago v. Sessions

After the Justice Department announced the new Byrne JAG conditions, the City of Chicago, Illinois, sued, asking a district court to enjoin the Attorney General from imposing them. Chicago's suit challenged each of the three conditions that the Justice Department imposed for grant eligibility (compliance with the information-sharing requirements of Section 1373, DHS access to state and local detention facilities, and providing notice to DHS when an alien wanted for removal is released from custody).

First, Chicago argued that the DOJ lacked statutory authority to impose the new conditions because the Byrne JAG statute does not confer agency discretion to add substantive conditions to the receipt of those federal funds. And even though the Byrne JAG statute requires that recipients certify compliance with "all other applicable Federal laws," Chicago contended that conditioning the receipt of the grant on state and local compliance with Section 1373 is a new condition nevertheless. This is so because, Chicago asserted, Section 1373 is not an "applicable" law as intended by the JAG statute; rather, Chicago argued that the word "applicable" necessarily narrows the phrase from one that includes the entire body of federal law, to one that includes a subset of laws that "make[s] clear to grant recipients that their receipt of money is conditioned on compliance." In Chicago's view, the correct set of "applicable" laws is "the specialized body of statutes that govern federal grantmaking."

Second, Chicago argued that the notice and access conditions violate the Constitution's separation-of-power principles because the DOJ—an executive branch agency—unlawfully exercised the spending authority exclusively granted to the legislative branch. Third, Chicago asserted that, even if the DOJ had been given the discretion to condition grant eligibility, the notice and access conditions exceeded constitutional spending authority. According to Chicago, the new conditions (1) are not germane to the federal interest in the Byrne JAG funds Chicago receives, and (2) by requiring grant recipients to provide immigration authorities with 48 hours' notice before releasing an alien in custody, would induce Chicago to engage in activities that violate the Fourth Amendment because, in practice, Chicago would have to hold detainees longer than constitutionally permitted. Finally, Chicago alleged that Section 1373, on its face, violates the Tenth Amendment, and thus the DOJ cannot condition the receipt of federal funds on state and local compliance with it.

The district court initially granted a nationwide, preliminary injunction concerning the notice and access conditions. The Seventh Circuit upheld this ruling on interlocutory appeal but stayed its nationwide effect, making the injunction applicable to only Chicago. Before the district court made its final ruling, the Supreme Court issued Murphy , prompting the court to reconsider its earlier conclusion that the compliance condition was lawful. Ultimately, the court issued a nationwide, permanent injunction, holding that Section 1373 is unconstitutional on its face and blocking the enforcement of all three Byrne JAG conditions. However, because the en banc Seventh Circuit previously had stayed the nationwide effect of the preliminary injunction, the district court stayed the nationwide effect of the permanent injunction, pending appeal, in deference to the Seventh Circuit's earlier order.

Turning to the merits of the district court's order, the court first concluded that Section 1373 violates the anti-commandeering doctrine. The court recounted that in Murphy, the Supreme Court held that, under the anti-commandeering doctrine, "Congress cannot issue direct orders to state legislatures" through a federal law that compels state action or that prohibits state action. Thus, because Section 1373 prohibits state policymakers from forbidding its employees to share immigration-status information with immigration authorities, the court concluded that this federal prohibition on state action runs afoul of the anticommandeering doctrine. The court further rejected the government's request to carve out an exception to the anti-commandeering doctrine for laws requiring states to share information with the federal government "in the face of clear guidance from Murphy " and without the Supreme Court ever creating such an exception.

Next, the district court concluded that the notice, access, and compliance conditions were imposed without statutory authority and thus unlawful. The court's conclusion that Section 1373 is unconstitutional doomed the compliance condition. The Byrne JAG statute requires compliance with "all other applicable Federal laws." But, "[a]s an unconstitutional law," the court explained, "Section 1373 automatically drops out of the possible pool of 'applicable Federal laws.'"

For the notice and access conditions, the court principally relied on the Seventh Circuit's reasoning in its order affirming the preliminary injunction, adding that "the Attorney General ha[d] not mustered any other convincing argument in support of greater statutory authority" and that "nothing ha[d] shaken this Court from the opinion it expressed at the preliminary injunction stage." For instance, the Seventh Circuit had rejected the government's contention that the conditions are authorized by 34 U.S.C. § 10102(a)(6), which sets forth the duties and functions of the Assistant Attorney General (AAG) in running the Office of Justice Programs, which administers the Byrne JAG program. The government had pointed to the statutory text granting the AAG the authority to exercise "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 . " But, according to the Seventh Circuit, "[t]he inescapable problem here is that the Attorney General does not even claim that the power exercised here is authorized anywhere in the chapter, nor that the Attorney General possesses that authority and therefore can delegate it to the Assistant Attorney General."

City of Evanston v. Sessions

The City of Evanston, Illinois (City), and the United States Conference of Mayors (Conference), together, brought a lawsuit that mirrored Chicago's and requested preliminary injunctive relief. The case was assigned to the same district judge who had presided over Chicago's lawsuit. For that reason, when considering whether the plaintiffs were likely to succeed on the merits of their claims, the district court relied on its earlier opinions and those of the Seventh Circuit. The district judge observed that, "though the plaintiffs at bar have changed, the legislation proscribing which conditions the Attorney General may attach has not." Accordingly, because the Seventh Circuit described as "untenable" the government's arguments for its statutory authority to impose the Byrne JAG conditions, the district court concluded that the City and Conference were likely to prevail. Consequently, the district court enjoined the government from enforcing the conditions against the plaintiffs.

City of Philadelphia v. Sessions

The City of Philadelphia, Pennsylvania, also sued to stop the Attorney General from imposing the new Byrne JAG conditions. Like Chicago, Philadelphia argued that the DOJ lacked statutory authority to impose the new conditions, violated constitutional principles of separation of powers, violated the Spending Clause, and unconstitutionally conscripted the states into federal immigration enforcement. Philadelphia also argued that the conditions were arbitrarily and capriciously imposed in violation of the APA.

Initially, the district court found that all three of the conditions were unlawfully imposed and preliminarily blocked their enforcement against Philadelphia. Then, after a bench trial, the court permanently enjoined the DOJ from enforcing against Philadelphia the three new Byrne JAG conditions. The district court concluded that the Byrne JAG Statute contained no explicit authority for the notice and access conditions. The court further held that the Justice Department's decision to impose all three conditions was arbitrary and capricious in violation of the APA. The court reasoned that the DOJ did not adequately justify imposing the new conditions. For instance, the court found that, before imposing the certification condition, the government had not "assess[ed] the benefits or drawbacks of imposing a condition, but instead merely assessed whether jurisdictions would be compliant were such a condition imposed." Finally, the district court in Philadelphia concluded that Murphy mandates holding Section 1373 unconstitutional.

The Third Circuit affirmed the district court's ruling but on narrower grounds: The court held that the conditions were imposed without statutory authority and thus are unlawful. The circuit court first concluded that the JAG statute did not authorize any of the challenged conditions. In support of the notice and access conditions, the government pointed to two provisions of the statute requiring the Attorney General to direct grant applicants (1) to report "data, records, and information (programmatic and financial)" that he may "reasonably require," and (2) to certify that "there has been appropriate coordination with affected agencies." In the government's view, "information" the Attorney General may "reasonably require" includes notification of an alien's release from custody from law-enforcement and corrections programs funded by the JAG grant. But the court disagreed, explaining that JAG statute explicitly limits information to programmatic and financial information, meaning "information regarding the handling of federal funds and the programs to which those funds are directed" and not "priorities unrelated to the grant program."

The court also rejected the government's argument that the coordination provision authorizes access to aliens in Philadelphia's custody because that would amount to "appropriate coordination" with immigration authorities affected by those same JAG-funded law-enforcement and corrections programs. Because the statute refers to instances where "there has been " coordination, which the court understood to reference past coordination, the court concluded that the statutory language "does not serve as a basis to impose an ongoing requirement to coordinate." As for the lawfulness of the compliance condition, the government invoked another JAG statute provision, this one requiring applicants to certify compliance with "all other applicable Federal laws." The government contended that Section 1373 is an applicable federal law. The court rejected the government's expansive view of the term, however. The court reasoned, for instance, that if the Attorney General could condition funds based on compliance with any law in the U.S. Code , this practice would essentially turn the JAG formula grant—which is awarded to a jurisdiction through a formula that considers only population and violent crime statistics—into a discretionary grant.

Next, the court rejected the government's other asserted source of statutory authority for imposing the conditions: the provision establishing the duties and functions of the AAG in 34 U.S.C. § 10102. This statute directs the AAG to "exercise such other powers and functions as may be vested in the [AAG] pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants." The court emphasized, however, that this provision authorizes the AAG to place conditions on grants only if that power has been vested by Title 34 of the U.S. Code or delegated by the Attorney General, and neither of those predicates had occurred. All told, based on the sole ground that the Attorney General lacked statutory authority to impose the notice, access, and compliance conditions, the Third Circuit affirmed the district court's order enjoining those conditions as applied to Philadelphia, and declined to address Philadelphia's additional arguments.

City & Cty. of San Francisco v. Sessions

In separate lawsuits considered together, the State of California and the City and County of San Francisco sued the Justice Department seeking to block the three new Byrne JAG conditions. The California plaintiffs argued that the notice and access conditions were imposed without statutory authority and, thus, violate the separation of powers, invoking the conclusions reached by the district courts who had enjoined those conditions. The plaintiffs further argued that, post- Murphy , Section 1373 is constitutionally unenforceable against the states. They contended that Section 1373 "dictates what a state legislature may and may not do," and Murphy forecloses Congress's ability to do that.

The district court concluded that the Byrne JAG conditions violate the separation of powers and that Section 1373 is unconstitutional, declaring that he is "[i]n agreement with every court that has looked at these issues." And "follow[ing] the lead of the district court in City of Chicago ," the district judge entered a nationwide injunction, staying the nationwide aspect until the Ninth Circuit has an opportunity to review the order on appeal. Like the district courts in Chicago and Philadelphia, the district court here concluded that the Byrne JAG statute does not authorize the Justice Department to impose the notice and access conditions, given the sparse, inapplicable discretion the statute delegates. Without that delegated authority, the court continued, the Justice Department unlawfully exercised Congress's exclusive Spending Power and violated the separation of powers. Next, the court held that Section 1373 violates principles of federalism. The court explained that post- Murphy , "[t]here is no distinction for anti-commandeering purposes . . . between a federal law that affirmatively commands States to enact new laws and one that prohibits States from doing the same." And even if the Supreme Court eventually were to carve out an exception for federally required information-sharing, the district court opined that Section 1373 impacts jurisdictions much more than "a ministerial information-sharing statute." For example, the court found that Section 1373 "takes control over the State's ability to command its own law enforcement."

States of New York v. Department of Justice

The States of New York, Connecticut, New Jersey, Rhode Island, Washington, Massachusetts, and Virginia and the City of New York (collectively, the "States and City") sued the DOJ, challenging the three new Byrne JAG conditions. Like other jurisdictions, these plaintiffs contended that the conditions violate the separation of powers and the APA, and, further, that Section 1373 violates the anti-commandeering doctrine. A district judge in the Southern District of New York enjoined the Justice Department from imposing the notice, access, and compliance conditions on the States and City.

The court first concluded that the conditions were imposed without statutory authority and thus, as the APA directs, must be set aside. Agreeing with the other courts, the district judge rejected the government's arguments that the statutory provision authorizing the Assistant Attorney General to exercise powers delegated by the Attorney General to impose grant conditions. Specifically, the government had contended that 34 U.S.C. § 10102(a)(6) authorizes the imposition of the conditions, and Department's compliance condition is authorized by the Byrne JAG statute's requirement, under 34 U.S.C. § 10153(a)(5)(D), to certify compliance with "all other applicable Federal laws." Concerning § 10102(a)(6), the district court concluded that the Assistant Attorney General could not impose the conditions because the Attorney General had no statutory authority to do so, and thus had no authority to delegate. As for § 10153(a)(5)(D), the court concluded that the term "all other applicable Federal laws" is ambiguous and thus violates the tenet that "if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously." Accordingly, the court viewed the language "'from the perspective of a state official who is engaged in the process of deciding whether the State should accept [the] funds and the obligations that go with those funds,' and 'must ask whether such a state official would clearly understand that one of the obligations of the Act is the [purported] obligation.'" From that perspective, the court concluded that the applicable federal laws are limited to those applicable grant, given that the rest of § 10153 concerns requirements for the application and grant itself.

Additionally, the district court concluded that the conditions constitute arbitrary and capricious agency action in violation of the APA. The court reasoned that, notwithstanding the government's evidence in support of the benefits of withholding Byrne JAG funds from jurisdictions that fail to comply with the three conditions, "[c]onspicuously absent" from the government's evidence "is any discussion of the negative impacts that may result from imposing the conditions, and the record is devoid of any analysis that the perceived benefits outweigh these drawbacks."

Next, the district court concluded that Section 1373 violates the anti-commandeering doctrine and thus is unconstitutional. The court acknowledged that the Second Circuit—whose opinions are binding precedent on the Southern District of New York—held that Section 1373 is constitutional in City of New York v. United States . But the court concluded that the Second Circuit's earlier ruling "cannot survive the Supreme Court's decision in Murphy ." City of New York , the court explained, had relied on a distinction between affirmative commands, which were considered unconstitutional, and affirmative prohibitions, which the circuit court had considered permissible. But, the Second Circuit continued, the Supreme Court in Murphy described that distinction as "empty." Because Murphy concluded that the anti-commandeering doctrine forbids the federal government from imposing a direct prohibition on state legislatures, the district court held that Section 1373—by dictating what a state legislature may not do—is unconstitutional.

The district court additionally held that the three Byrne JAG conditions violate the separation of powers. Harking back to its earlier analysis of the Byrne JAG statute provisions, the court explained that when Congress delegated spending authority to the executive branch in the statute, it did not delegate the authority to impose the new conditions. The Byrne JAG statute, the court continued, authorizes the distribution of funds "according to statutorily prescribed criteria" that the executive branch is powerless to disturb.

City of Los Angeles v. Sessions

The City of Los Angeles, California, separately challenged the new conditions attached to the Byrne JAG program and the additional consideration factors for the COPS program. Initially focusing on the COPS program, Los Angeles first asked the U.S. District Court for the Central District of California to enjoin the DOJ from implementing the new COPS considerations in any future grant solicitations, contending, among other things, that they were imposed without statutory authority, violate the Spending Clause, and are invalid under the APA.

The district court agreed with Los Angeles and granted a permanent injunction. The court first concluded that the DOJ lacked statutory authority to consider the degree to which applying jurisdictions cooperate with federal immigration enforcement when assessing applications. The court pointed to 34 U.S.C. § 10381(c)—the statute authorizing the COPS program for community-policing grants—which identifies when the DOJ "may give preferential consideration" to applicants, and explained that none of the scenarios listed apply to federal immigration enforcement.

Next, the court concluded that the challenged COPS considerations violate the Spending Clause. The federal government had contended that the challenged "considerations" on grant funding were not subject to the same Spending Clause requirements as grant "conditions" because compliance with the considerations was not required to receive the grant. But the court found no meaningful distinction between grant "conditions" and the challenged "considerations," declaring that "compliance is required in order for applicants to compete on a level playing field." Further, the court remarked, if the government's assertion were correct, "it would be simple for federal agencies to avert Spending Clause requirements by labeling all considerations 'plus factors.'" And because the COPS statute does not identify as a factor for preferential treatment a jurisdiction's cooperation with federal immigration enforcement, the court concluded that Congress did not, as the Spending Clause requires, "unambiguously condition" the receipt of funds on the recipients' compliance with federal authorities. "It is irrelevant" that the DOJ's COPS Office was forthcoming about the conditions because, the court added, it is Congress—not the agency—that "must be clear in its directives." Additionally, the added considerations violate the Spending Clause because, the court concluded, they are not germane to the goals of the COPS program: "[C]ommunity policing is about developing partnerships between local authorities and the community," and, in the court's view, "there is no relationship between local police partnerships with federal authorities and community policing."

Finally, the district court concluded that the added considerations are arbitrary and capricious in violation of the APA because the government put forth no evidence, nor did it argue, that its explanation for adding the considerations—that "'[c]ities and states that cooperate with federal law enforcement make all of us safer by helping remove dangerous criminals from our communities,' including by ending 'violent crime stemming from illegal immigration'"—was based on any findings or data. Thus the court concluded that the government had no reasonable basis for adding the new conditions.

Concerning the Byrne JAG notice and access conditions, the district court later entered a preliminary injunction blocking the government from enforcing those conditions against Los Angeles. In doing so, the court pointed to the text of the Byrne JAG statute, explaining that "[t]he authority explicitly granted to the Attorney General . . . is limited." That limited authority, the court concluded, does not include requiring states or localities to assist in immigration enforcement.

Justice Department Lawsuit Against California

On the other side of the coin, the Justice Department has sued California, seeking to invalidate three laws governing the state's regulation of private and public actors' involvement in immigration enforcement within its border. The government contends that these laws "reflect a deliberate effort by California to obstruct the United States' enforcement of federal immigration law, to regulate private entities that seek to cooperate with federal authorities consistent with their obligations under federal law, and to impede consultation and communication between federal and state law enforcement officials," and, thus, violate the Supremacy Clause. The government is challenging parts of the following three California laws: (1) The Immigrant Worker Protection Act, Assembly Bill 450 (AB 450); (2) Section 12 of Assembly Bill 103 (AB 103); and (3) the California Values Act, Section 3 of Senate Bill 54 (SB 54). In particular, the federal government principally contends that these laws violate the Supremacy Clause in two ways. First, the DOJ argues that the state measures violate the doctrine of intergovernmental immunity—a doctrine that derives from the Supremacy Clause and provides that "a State may not regulate the United States directly or discriminate against the Federal Government or those with whom it deals." Second, the government asserts that the California laws are preempted because they create an obstacle for the federal government's enforcement of certain immigration laws.

The Challenged California Laws

The Immigrant Worker Protection Act (AB 450)

AB 450 imposes on public and private employers in California several requirements related to federal immigration enforcement actions taking place at the worksite. First, AB 450 prohibits an employer from allowing an immigration enforcement officer to enter any nonpublic areas of a worksite, unless the officer has a judicial warrant or "as otherwise required by federal law." Second, AB 450 bars employers from permitting immigration enforcement officers to access, review, or obtain employee records without a subpoena or judicial warrant, or "as otherwise required by federal law" (together, the "consent" provisions). Third, "[e]xcept as otherwise required by federal law," AB 450 requires employers to provide employees with written notice of any I-9 employment eligibility inspection (or other employment record inspections) within 72 hours after receiving notice of the inspection (the "notice" provision). Fourth, AB 450 prohibits an employer (or a person acting on the employer's behalf) from reverifying the employment eligibility of a current employee unless as required by 8 U.S.C. § 1324a(b) or "as otherwise required by federal law" (the "reverification" provision).

Section 12 of AB 103

Section 12 of AB 103—part of California's omnibus budget bill—requires, for the next 10 years, the California Attorney General (or a designee) to review and report on county, local, and private detention facilities that house aliens in immigration proceedings, including those housing minors on behalf of, or by contract with, the U.S. Office of Refugee Resettlement or ICE. The review must include the conditions of confinement, standard of care, due process provided, and the circumstances surrounding the aliens' apprehension and transfer to the facility.

California Values Act (Section 3 of SB 54)

SB 54 enacts the California Values Act, which regulates to California's participation in federal immigration enforcement. As relevant here, the California Values Act generally prohibits law enforcement agencies from using agency money or personnel to investigate, interrogate, detain, detect, or arrest persons for the purpose of immigration enforcement, including

inquiring into immigration status; detaining a person subject to a hold request; providing information about a person's release date; providing personal information such as a person's home or work address, unless it is publicly available; making or participating in arrests based on civil immigration warrants; or performing any functions of an immigration officer.

The Act also prohibits California law enforcement agencies from placing their officers under the supervision of federal agencies or employing officers who are deputized as special federal officer for purposes of immigration enforcement. Further, under the Act, California law enforcement agencies may not use immigration authorities as "interpreters" for law enforcement matters relating to persons in custody. Nor may California law enforcement agencies transfer a person to immigration authorities unless authorized to do so by judicial warrant, a judicial probable cause determination, or otherwise in accordance with California law. Additionally, subject to limited exception, the agencies may not contract with the federal government to use California law enforcement facilities to house federal detainees.

However, the Act specifies that it does not prevent California law enforcement from enforcing violations of 8 U.S.C. § 1326, which makes it a criminal offense to unlawfully enter the United States after being denied admission to, or being removed from, the United States. Nor does the Act prevent California law enforcement from responding to requests for information about a person's criminal history. Further, the Act does not prevent California law enforcement from engaging in certain joint law enforcement task force activities. Additionally, California law enforcement may still give immigration authorities access to interview an individual in custody, in compliance with California law, and to make inquiries related to determining whether a person is a potential crime or trafficking victim and thus eligible for certain visas.

United States v. California

On March 6, 2018, the United States sued California, requesting an injunction to preliminarily block the three California laws described above. In particular, the government contends that the contested California laws violate the Supremacy Clause. The government asserts that the California laws "reflect a deliberate effort by California to obstruct the United States' enforcement of federal immigration law, to regulate private entities that seek to cooperate with federal authorities consistent with their obligations under federal law, and to impede consultation and communication between federal and state law enforcement officials." Further, the United States contends that the California laws "have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California," and "[t]he Supremacy Clause does not allow California to obstruct the United States' ability to enforce laws that Congress has enacted or to take actions entrusted to it by the Constitution." The district court granted the government's request, in part, concluding only that parts of California's Immigrant Worker Protection Act (AB 450), as applied to private employers, violates the Supremacy Clause. The government appealed, arguing that the other challenged California provisions, too, likely are unconstitutional. But the Ninth Circuit sustained all but one of the district court's rulings, concluding that one subsection within Section 12 of AB 103 violates the doctrine of intergovernmental immunity.

AB 450

The district court concluded that the United States was likely to succeed on its claim challenging AB 450's consent and reverification provisions. The court concluded that consent provision violates the doctrine of intergovernmental immunity because it imposes monetary penalties on employers for voluntarily consenting to immigration officers entering nonpublic areas of the worksite and to access employment records, and thus, the provision "impermissibly discriminates against those who choose to deal with the Federal Government." Concerning the reverification provision, the court reasoned that the government was likely to succeed on the merits of its claim that the provision is preempted by IRCA. The court concluded that the reverification provision likely stands as an obstacle to enforcing IRCA's continuing obligation imposed on employers to avoid knowingly employing an unauthorized alien.

But the court concluded that the government was unlikely to succeed on its claim that AB 450's notice provision violates the Supremacy Clause. The court first concluded that this provision does not violate the intergovernmental immunity doctrine because, the court explained, it punishes employers for failing to communicate with its employees and not for choosing to deal with the federal government. The Ninth Circuit agreed, adding that "intergovernmental immunity attaches only to state laws that discriminate against the federal government and burden it in some way ." And the Ninth Circuit accepted California's contention that "[t]he mere fact that those notices" required by AB 450 "contain information about federal inspections does not convert them into a burden on those inspections."

The district court also rejected the government's argument that the notice provision prevents an obstacle to enforcing IRCA's prohibition on employing unauthorized aliens because, the government asserted, if investigation targets are warned, investigations will be less effective. But the court opined that IRCA imposes obligations and penalties on employers , not employees, and so the "target" of any investigation is the employer , not the employee. Likewise, the Ninth Circuit concluded that AB 450's notice requirement does not impose "additional or contrary obligations that undermine or disrupt the activities of federal immigration authorities" in implementing IRCA.

AB 103

The district court declined to preliminarily enjoin Section 12 of AB 103. The government had argued that California's "efforts to assess the process afforded to immigrant detainees" through the review and reporting requirements in AB 103, create an obstacle to administering the federal government's exclusive discretion in deciding whether and how to pursue an alien's removal. The court disagreed, though, opining that the California Attorney General's review would not give the state a role in determining whether an alien should be detained or removed from the United States. Rather, the court characterized the provision as one that harnesses power California's Attorney General lawfully possesses to investigate matters related to state law enforcement.

Nor, the court concluded, would the government likely succeed on its claim Section 12 of AB 103 violates the doctrine of intergovernmental immunity. The court recognized that the law imposes inspections only on facilities that contract with the federal government. But the court opined that the burden imposed on the federal contractors is minimal, and the government had not shown that the burden imposed under AB 103 is higher than burdens imposed under independent California laws governing inspections of other detention facilities within the state.

On appeal, however, the Ninth Circuit concluded that part of Section 12 of AB 103 (the requirement for the California Attorney General to review the circumstances surrounding detained aliens' apprehension and transfer to each facility) violates the doctrine of intergovernmental immunity. The Ninth Circuit characterized the district court's ruling as creating a "de minimis exception" to the doctrine of intergovernmental immunity. But the Ninth Circuit rejected this new exception, opining that "[ a ] ny economic burden that is discriminatorily imposed on the federal government is unlawful." Still, the court decided that only the provision requiring state inspectors to examine the circumstances surrounding the immigration detainees' apprehension and transfer to the facility likely violates the doctrine of intergovernmental immunity. In the Ninth Circuit's view, this "unique" requirement appeared distinct from any other inspection imposed under California law, and, thus, the Ninth Circuit concluded that the district court erred in finding that the review appears no more burdensome than other legally mandated inspections.

SB 54

Finally, the district court rejected the government's argument that SB 54 acts as an obstacle to immigration enforcement and, thus, is preempted. The government had asserted that SB 54's limitations on information sharing and transferring to federal custody certain alien inmates "impede immigration enforcement from fulfilling its responsibilities regarding detention and removal because officers cannot arrest an immigrant upon the immigrant's release from custody and have a more difficult time finding immigrants after the fact without access to address information." The court opined, however, that "refusing to help is not the same as impeding." A state's refusal to help with federal immigration enforcement will always make obtaining the federal objective more difficult than if the state voluntarily assists, but, the court explained, "[s]tanding aside does not equate to standing in the way."

The Ninth Circuit upheld the district court's ruling. First, the court concluded that SB 54 does not obstruct the government's implementation of the INA. The court reasoned that the INA (with the exception of Section 1373) "provides state and localities the option , not the requirement , of assisting federal immigration authorities," and "SB 54 simply makes that choice for California law enforcement agencies." Further, invoking the Supreme Court's ruling in Murphy , the Ninth Circuit opined that invalidating SB 54 under the principles of conflict preemption "would, in effect, 'dictate[] what a state legislature may and may not do,' because it would imply that a state's otherwise lawful decision not to assist federal authorities is made unlawful when it is codified as state law." Nor does Section 1373 preempt the information-sharing provisions of SB 54 because, the court concluded, the state measure expressly permits the type of information required by Section 1373, specifically, citizenship or information status. Moreover, the Ninth Circuit, again relying on Murphy , concluded that anti-commandeering principles likely precluded a preemption challenge to the information-sharing provisions. The court described the exception to the anti-commandeering doctrine for reporting requirements as existing only when the "Congress evenhandedly regulates an activity in which both States and private actors engage." But here, Section 1373 regulates only state actors, and therefore anti-commandeering principles preclude the government from requiring California to exchange information with it.

Conclusion

Ongoing lawsuits concerning sanctuary jurisdictions may offer clarity on some unsettled and cross-cutting issues involving immigration and federalism. The Tenth Amendment reserves for the states the "police power" to regulate and protect the health, safety, and welfare of the public, and, in adopting sanctuary policies, jurisdictions have sometimes invoked public safety concerns as a justification for enacting those measures. But the federal government's power to regulate immigration-related matters is substantial and exclusive, and on occasion the exercise of this power has been found to render unenforceable state or local initiatives that conflict with federal immigration enforcement priorities. Additionally, Congress generally may condition the receipt of federal funds on compliance with specific conditions that achieve federal goals. Still, the anti-commandeering doctrine restricts the federal government from compelling the states to administer or enforce a federal regulatory program, like the immigration laws, whether through direct compulsion or prohibition, or indirectly, through monetary incentives that are unduly coercive.

With that background, the heart of the debate in the lawsuits challenging EO 13768 and its implementation has principally centered on what constitutionally permissible methods are available to the federal government to stop or deter state and local adoption of sanctuary policies, which the government views as hindering federal immigration enforcement objectives, and, on the flip side, whether and when state and local sanctuary policies do, in fact, undercut federal immigration enforcement efforts in a manner that contravenes the Supremacy Clause.

In City & County of San Francisco v. Trump and County of Santa Clara v. Trump , for example, the district court's ruling that enjoined Section 9(a) hinged, in part, on its conclusion that the executive branch lacked statutory authority from Congress to withhold and create new conditions for federal grants, and that purporting to withhold all federal grants from what it labeled as sanctuary jurisdictions was unconstitutionally coercive, given the sheer amount of money a sanctuary jurisdiction would stand to lose if it didn't dispense with its policies. Congress could step in to ratify Section 9(a), at least in part, using its spending power to incentivize states to cooperate with immigration enforcement, so long as it doesn't threaten to withhold an amount of money that could be deemed coercive. And in City of Chicago v. Sessions and City of Philadelphia v. Sessions, the district courts and one appellate court concluded that the executive branch lacked statutory authority to impose some of the spending conditions that the DOJ attached to the Byrne JAG program. Likewise, Congress could amend the Byrne JAG statute to give the Attorney General, as it has done for other grant programs, the discretion to impose conditions on the receipt of the federal grant.

Moreover, since Murphy, the courts considering the challenges to Section 1373 have concluded that the statute is no longer constitutionally viable, given the Supreme Court's application of the anti-commandeering doctrine to a federal statute that prohibits states from enacting certain kinds of laws. Accordingly, to achieve Section 1373's goals, Congress may consider using its power of the purse to incentivize states and localities to share immigration-related information with federal immigration authorities.