Second Circuit Soundly Repudiates Arguments Made by Sanctuary Cities

On to the Supreme Court

By Andrew R. Arthur on March 1, 2020
  • The U.S. Second Circuit Court of Appeals reversed a lower-court order enjoining conditions on federal grants to states and localities relating to assistance with immigration enforcement.
  • The "certification condition" requires applicants for criminal justice assistance grants to certify their willingness to comply with 8 U.S.C. § 1373, which prohibits states and localities from barring or restricting the sharing of information about the citizenship or alien status of any individual.
  • The "notice condition" requires applicants to provide information related to the release date of incarcerated aliens to ICE.
  • The "access condition" requires applicants to certify that they would allow ICE access to suspected aliens in state and local custody to determine whether those individuals are aliens subject to removal from the United States.
  • Significantly, the Second Circuit held that because the notice and access conditions only apply to individuals who are detained or incarcerated in connection with criminal activity, those conditions would not dissuade "law-abiding" illegal aliens from reporting or assisting in the investigation of crimes.
  • This decision is a strong repudiation to sanctuary jurisdictions that argue that assisting ICE in immigration enforcement will have a "chilling effect" on immigrant communities' cooperation with state and local authorities.

On February 26, 2020, a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a decision in State of New York v. Dep't of Justice, which examined the authority of the Department of Justice (DOJ) to condition grant funding on states' and localities' compliance with certain immigration-related requirements. It repudiates arguments made by sanctuary jurisdictions that cooperating with ICE in connection with its investigation of criminal aliens will have a "chilling effect" on the relationship between immigrant communities and state and local officials, and sets up a circuit split that will bring the issue of DOJ's ability to condition grant funding on such cooperation to the Supreme Court.

At issue was DOJ's ability to deny funding under the Byrne Program Criminal Justice Assistance grants (Byrne/JAG) to states and localities that would otherwise be eligible for those awards, but that refused to comply with three conditions that were imposed by DOJ.

As the DOJ Bureau of Justice Assistance states:

The JAG program . . . 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. [Emphasis added.]

In November 2017, in the context of DOJ's initial attempts to deny such funding, I explained:

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.

. . . 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.)

Which brings me back to the three conditions that DOJ imposed on the receipt of Byrne/JAG grants in 2017. As the Second Circuit noted, those conditions required applicants for those grants to certify that: they were willing to comply with section 1373 (the "certification condition"); to assure that if they received those grants, they would provide federal immigration authorities (in this case, U.S. Immigration and Customs Enforcement (ICE)), upon request, with notification of the release date of an alien incarcerated in their custody (the "notice condition"); and to allow ICE access to suspected aliens detained by the state to enable ICE to determine whether they were removable (the "access condition").

That decision resulted from an appeal by DOJ of a November 2018 opinion and order by Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York. Judge Ramos had found that DOJ was not authorized to impose those conditions by statute and that, in failing to consider the possible negative ramifications of the three conditions on the law-enforcement efforts of the plaintiff states and localities, DOJ had acted arbitrarily and capriciously.

He subsequently enjoined the enforcement of the three conditions on 2017 Byrne/JAG funding for states and localities that did not certify they would comply with them, and ordering that the plaintiffs receive the 2017 Byrne/JAG funds.

DOJ appealed, bringing the matter to the Second Circuit. In summary, that court held that the "plain language of the relevant statutes authorizes" DOJ "to impose the challenged conditions," and that those conditions did not "impermissibly intrude on powers reserved to the States."

With respect to this latter point, the circuit court held:

As the Supreme Court has repeatedly observed, in the realm of immigration policy, it is the federal government that maintains "broad," . . . and "preeminent," power, . . . which is codified in an "extensive and complex" statutory scheme . . . . Thus, at the same time that the Supreme Court has acknowledged States' "understandable frustrations with the problems caused by illegal immigration," it has made clear that a "State may not pursue policies that undermine federal law." . . . As Chief Justice John Marshall wrote over 200 years ago, "the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government." McCulloch v. Maryland, 17 U.S. 316, 436 (1819). This fundamental principle, a bedrock of our federalism, is no less applicable today. Indeed, it pertains with particular force when, as here, Congress acts pursuant to its power under the Spending Clause. [Emphasis added.]

The court noted that in enacting section 1373 (which was part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996), "Congress sought to give State and local officials the authority to communicate with [federal immigration authorities] regarding the presence, whereabouts, or activities of illegal aliens,' notwithstanding any local laws to the contrary."

The court also noted that compliance with section 1373 had been a concern of attorneys general under both the Obama and Trump administrations:

Thus, when in July 2017, a new Attorney General, serving a new, Republican administration, announced that applicants for 2017 Byrne grants would have to certify their compliance with § 1373, he was putting into effect the same condition earlier announced by DOJ under the preceding, Democratic administration.

The court concluded that DOJ was authorized by statute to impose the three conditions, rejecting a contrary conclusion by the Third Circuit. Significantly, the court (reasonably) stated:

Indeed, whether a grant is awarded by formula or by discretion, there is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws, or worse, violating those laws. One has only to imagine millions of dollars in Byrne funding being sought by a locality that is simultaneously engaged in persistent, serious violations of federal environmental laws. The formula nature of the Byrne Program does not dictate that such an applicant must be given federal money even as it continues to flout federal law. . . .

The conclusion obtains with even more force here, where enactment of the law at issue, 8 U.S.C. § 1373, was informed by Congress's concern that States and localities receiving federal grants were hampering the enforcement of federal immigration laws. [Emphasis added.]

Relying on its 1999 decision in City of New York v. United States, the circuit court also held that section 1373 does not facially violate the "anticommandeering principle" of the Tenth Amendment to the Constitution. The Congressional Research Service explains:

The Supreme Court has repeatedly recognized that federal law preempts a broad range of state or local activities addressing immigration-related matters, though not every state enactment "which in any way deals with aliens is a regulation of immigration and thus per se preempted."

But there are constitutional constraints on the federal government's ability to influence state or local activity, including under the anti-commandeering doctrine. The doctrine, rooted in the Tenth Amendment and the Constitution's enumeration of Congress's powers, instructs that "even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts" on behalf of the federal government.

Importantly, in City of New York, the Second Circuit determined:

In the case of [section 1373], 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.

* * * *

We therefore hold that states do not retain under the Tenth Amendment an untrammeled right to forbid all voluntary cooperation by state or local officials with particular federal programs. [Emphasis added.]

The circuit court in State of New York also noted that:

[W]here Congress places conditions on a State's receipt of federal funds—whether directly, or by delegation of clarifying authority to an executive agency—there is no commandeering of reserved State power so long as the State has "a legitimate choice whether to accept the federal conditions in exchange for federal funds."

The Second Circuit concluded that the reporting requirement was "programmatic," (at a minimum for "Byrne-funded programs that relate in any way to the criminal prosecution, incarceration, or release of persons, some of whom will inevitably be aliens subject to removal") and therefore authorized under 34 U.S.C. § 10153(a)(4). That provision states:

In general-- To request a grant under this part, the chief executive officer of a State or unit of local government shall submit an application to the Attorney General within 120 days after the date on which funds to carry out this part are appropriated for a fiscal year, in such form as the Attorney General may require. Such application shall include the following:

* * * *

(4) An assurance that, for each fiscal year covered by an application, the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require. [Emphasis added.]

The court also found support for this requirement in 34 U.S.C. § 10153(a)(5)(C), which requires a certification by the state or local entity requesting the grant that "there has been appropriate coordination with affected agencies." It held:

[A] removable alien's State incarceration and release from incarceration will affect DHS's performance of its own statutory duties throughout the grant period. In these circumstances, "appropriate coordination" requires that, by the time a State or locality files its Byrne grant application, it have reached an agreement with DHS as to their mutual relationship and sequence of conduct throughout the grant period. Any less coordination would not be "appropriate"; indeed, it would be meaningless. [Emphasis added.]

The court recognized that the plaintiffs in that matter "would prefer not to coordinate at all with DHS," but found, however, "that option is denied to them by § 10153(a)(5)(C) when the States seek Byrne grants for programs relating to prosecution, incarceration, or release that will affect DHS's performance of its own statutory duties." {emphasis added.]

Finally, the Second Circuit concluded that the access condition was also statutorily authorized, in much the same way that the reporting requirement was, again, under 34 U.S.C. § 10153(a)(5)(C) and under DOJ's rulemaking authority in 34 U.S.C. § 10155 ("The Attorney General shall issue rules to carry out this part.").

Specifically, the court held that DHS was an "affected agency" under the former provision "because a State's incarceration of an alien requires DHS to delay acting on its own statutory obligations to arrest, detain, and remove certain aliens until the State releases the alien." It continued:

In such circumstances, coordination between the State and DHS is not only appropriate, but necessary, to allow the federal agency effectively to resume its obligations when the State has achieved its penal ones.

For DHS to be able to do so, it needs to ascertain not only when a removable alien will be released (the object of the Notice Condition), but also what aliens incarcerated by the State are removable. DHS does not ask the State to provide the latter information. Rather, it asks to be afforded access to State‐incarcerated aliens (or suspected aliens) so that DHS can itself ascertain their potential removability before release. That is what the challenged Access Condition ensures.

Affording such access constitutes "appropriate coordination" in that it allows both the State seeking a Byrne grant for purposes relating to prosecution, incarceration, or release and an affected agency, DHS, to carry out their respective duties with respect to incarcerated aliens in an orderly sequence. [Emphasis added.]

Most significantly, however, the circuit court rejected the argument that DOJ acted in an "arbitrary and capricious" manner in imposing these three conditions "without considering the conditions' negative consequences, particularly in undermining relationships between immigrant communities and local law enforcement."

The Second Circuit noted that DOJ knew about the "detrimental effects" that the plaintiffs asserted would result from these three conditions. As alluded to above, the district court had found that DOJ had acted in an arbitrary and capricious manner because it had not mentioned such effects, finding that "the record is devoid of any analysis that the perceived benefits outweigh these drawbacks."

The circuit court concluded, however, that such consideration was unnecessary with respect to the certification condition because "the legislative history shows that Congress was itself aware of the very detrimental effects of compliance" the plaintiff states and locality had raised at the time that it enacted section 1373. In other words, Congress knew about the arguments that communications between state and local authorities on the one hand, and the then-INS on the other, could dissuade aliens unlawfully present from going to the authorities, and prohibited states and localities from blocking such communications anyway.

And critically, it concluded:

As for the Notice and Access Conditions, these apply only to persons in State custody, i.e., persons found guilty beyond a reasonable doubt of charged crimes, or persons for whom there is at least probable cause to think that they committed crimes. Such conditions do not put law‐abiding undocumented aliens who have been crime victims or witnesses at risk of removal and, thus, should not dissuade such aliens from reporting crimes or cooperating in their investigation. Thus, it was hardly arbitrary or capricious for DOJ to impose these conditions without discussing detrimental effects that they were unlikely to cause. [Emphasis added.]

This conclusion is a specific repudiation to those sanctuary jurisdictions that refuse to provide information to ICE about aliens who have been arrested and/or convicted for criminal activity because of the so-called "chilling effect" that it will have on the willingness of otherwise "law-abiding" illegal aliens to contact authorities when they have been the victims of crimes, or to come forward as witnesses.

As my colleague Jessica Vaughan has testified: "No evidence of a "chilling effect" from local police cooperation with ICE exists in federal or local government data or independent academic research." The Second Circuit's plain reasoning is in line with that statement.

Consequently, the circuit court vacated the district court's injunction barring DOJ from imposing the certification, notice, and access conditions, as well as its mandate that the department release 2017 Byrne/JAG funds to the plaintiff states and city.

This will likely not be the end of the question, however, as the Second Circuit's decision is at odds with decisions from the Ninth, Third, and Seventh Circuits. Because of the circuit split, this matter is ultimately to be decided by the Supreme Court. In the interim, however, that decision provides strong support for opponents of sanctuary jurisdictions.