A Primer on Federal Funds for Sanctuary Cities

By Andrew R. Arthur on November 27, 2017

As my colleague Jessica Vaughan reported in her November 16, 2017, post, the Department of Justice (DOJ):

[S]ent a letter to 29 sanctuary jurisdictions that received law enforcement grants under the Byrne/Justice Assistance Grants [JAG] program in 2016, warning them that they appear to be in violation of federal law and may have to repay the funds. In addition, they could be barred from receiving funds in 2017. Collectively, these jurisdictions received more than $16.7 million last year.

Background on Byrne/JAG, and its intersection with federal immigration disclosure prohibitions, provides a framework for interpreting a number of recent court decisions on the Trump administration's recent efforts to crack down on sanctuary jurisdictions by denying them grant funding, and in particular, Byrne/JAG.

As the Office of Justice Programs (OJP) at DOJ explains:

The JAG Program, authorized under 42 U.S.C. §3751(a), is the leading source of federal justice funding to state and local jurisdictions. The JAG Program provides states, tribes, and local governments with critical funding necessary to support a range of program areas including law enforcement, prosecution, indigent defense, courts, crime prevention and education, corrections and community corrections, drug treatment and enforcement, planning, evaluation, technology improvement, and crime victim and witness initiatives and mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams.

Because, of course, nothing in the law can be simple, the statutory provision for Byrne/JAG has been subject to "editorial reclassification and renumbering" and can now be found not at 42 U.S.C. §3751(a) as OJP's website still states, but rather at 34 U.S.C. § 10152. This is a "formula grant", which means that the funds are apportioned under a statutory formula set forth in 34 U.S.C. § 10156, based upon each state's population and the number of violent crimes in each.

The application process for Byrne/JAG grants can be found at 34 U.S.C. § 10153. Paragraph 10153(a)(5) therein requires a certification by the chief executive officer of the State or unit of local government requesting the grant (or his or her designee) that:

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

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

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

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

The most important provision for purposes of DOJ's attempt to limit Byrne/JAG funding to sanctuary cities is subparagraph (D), because of a specific requirement under the 8 United States Code, specifically 8 U.S.C. § 1373.

Normally, chapter 8 of the code is known collectively as the "Immigration and Nationality Act" (INA). Section 1373, however, is not part of the INA, but that does not affect its applicability or its force as law. In pertinent part, 8 U.S.C. § 1373 states:


(a) In general

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) Additional authority of government entities. Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity. (Emphasis added.)

This provision was added to the code by Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (1996). In City of New York v. United States, the Court of Appeals for the Second Circuit considered a facial challenge to the constitutionality of this provision and to a similar provision, Section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("Welfare Reform Act"), Pub. L. No. 104-193, 110 Stat. 2105 (1996), brought by the city and then-Mayor Rudolph Giuliani 11 days after IIRIRA was signed by then-President Clinton.

The court held that the provision survived that challenge. In its decision, the court stated:

In the case of Sections 434 and 642, Congress has not compelled state and local governments to enact or administer any federal regulatory program. Nor has it affirmatively conscripted states, localities, or their employees into the federal government's service. These Sections do not directly compel states or localities to require or prohibit anything. Rather, they prohibit state and local governmental entities or officials only from directly restricting the voluntary exchange of immigration information with the INS.

With its current action, DOJ in essence is asserting that the 29 sanctuary jurisdictions that it targeted with its compliance letters have policies, regulations, ordinances, resolutions, memoranda, Executive Orders, general orders, or code provisions that conflict with the information-sharing scheme in 8 U.S.C. §§ 1373(a) and (b).

As Vaughan explained, in February 2016 then-Attorney General Loretta Lynch "announced that her department has agreed to begin enforcing federal law against sanctuary policies that obstruct communication and cooperation with federal immigration authorities," including 8 U.S.C. § 1373. With the Trump administration's enhanced emphasis on immigration enforcement, several sanctuary localities, including the City of Chicago, County of Santa Clara, City and County of San Francisco, and City of Philadelphia have sought injunctive relief against DOJ's restrictions on their individual requests for grant funding.

I will discuss those efforts further in future posts.