Second Circuit Rules against Cities and States in Sanctuary Jurisdictions Case

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In 2006, Congress created the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG) to provide “flexible” funds for state and local law enforcement programs. Last week, the Second Circuit became the first federal court of appeals to rule in favor of the Attorney General’s decision to add conditions to receiving federal Byrne JAG grants.

In 2017, the Attorney General added three conditions to receive Byrne JAG funds. Specifically, recipients must

  1. comply with federal law prohibiting restrictions on communicating citizenship information to federal immigration authorities (certification condition);
  2. provide federal authorities release dates of incarcerated undocumented persons (notice condition); and
  3. allow federal immigration officers access to incarcerated undocumented persons (access condition).

Challengers in this case – New York, Connecticut, New Jersey, Washington, Massachusetts, Virginia, Rhode Island, and New York City – argue that the Attorney General lacks statutory authority to add these conditions and that adding them was “arbitrary and capricious.” The Second Circuit disagreed.

Regarding the certification condition, the Second Circuit concluded that the Byrne JAG statutory language requiring applicants to certify compliance with “all other applicable Federal laws” is broad enough to require applicants to comply with federal law prohibiting restrictions on communicating citizenship information to federal immigration authorities. The court also held that adding this condition didn’t violate the Tenth Amendment or the Constitution’s Spending Clause.

The Second Circuit held the Byrne JAG statute allows the notice requirement because the statute “authorizes the Attorney General to decide both what data, records, and information a Byrne grant recipient must maintain and report and the form of an applicant’s assurance that it will do so.”

The access condition is okay, according to the Second Circuit, because the Byrne JAG statute allows “appropriate coordination with affected agencies.” According to the court, the Department of Homeland Security (DHS) is an affected agency per the Byrne JAG statute. “[C]oordination between the State and DHS is not only appropriate, but necessary, to allow the federal agency effectively to resume its obligations when the State has achieved its penal ones.”

The Second Circuit notes that its decision conflicts with a decision from the Seventh Circuit (in favor of the City of Chicago on the notice and access conditions) and the Third Circuit (in favor of the City of Philadelphia on all three conditions).

A federal district court in California has ruled in favor of San Francisco on all three conditions. Likewise, a federal district court in Rhode Island has ruled in favor of Providence and Central Falls, Rhode Island.

While the district court in the Chicago case issued a nationwide injunction, which would have prevented the Attorney General from imposing the notice and access conditions on any state or local government in the country, that nationwide injunction is currently not in effect while it is being appealed to the Seventh Circuit.

Not only have Chicago, Philadelphia, San Francisco, and Providence and Central Falls, Rhode Island, received relief on this issue from the federal courts. A federal district court in Illinois has permanently enjoined the Attorney General from imposing any of the three conditions against Evanston, Illinois, and any members of the U.S. Conference of Mayors.

As lower federal district and appellate courts continue to hear this case, they may find persuasive either the reasoning of the Seventh and Third Circuits or the reasoning of the Second Circuit. We will keep you updated on future court decisions around grant funds for state and local law enforcement programs.

lisa_soronen_new_125x150About the author: Lisa Soronen is the executive director of the State and Local Legal Center, which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.