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City of Chicago v. Sessions

United States Court of Appeals, Seventh Circuit

April 19, 2018

City of Chicago, Plaintiff-Appellee,
Jefferson B. Sessions III, Attorney General of the United States, Defendant-Appellant.

          Argued January 19, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:17-cv-05720 - Harry D. Leinenweber, Judge.

          Before Bauer, Manion, and Rovner, Circuit Judges.

          Rovner, Circuit Judge.

         This appeal is from the grant of a preliminary injunction in favor of the City of Chicago (the "City") and against Jefferson Beauregard Sessions III, the Attorney General of the United States, enjoining the enforcement of two conditions imposed upon recipients of the Edward Byrne Memorial Justice Assistance Grant Program (the "Byrne JAG program"). See 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750). The Byrne JAG grant, named after a fallen New York City police officer, allocates substantial funds annually to provide for the needs of state and local law enforcement, including personnel, equipment, training, and other uses identified by those entities. The Attorney General tied receipt of the funds to the grant recipient's compliance with three conditions which the City argued were unlawful and unconstitutional. The district court agreed with the City as to two of the three conditions—the "notice" condition mandating advance notice to federal authorities of the release date of persons in state or local custody who are believed to be aliens, and the "access" condition which required the local correctional facility to ensure agents access to such facilities and meet with those persons. Compliance with those conditions in order to receive the funding awarded under the Byrne JAG grant would require the allocation of state and local resources, including personnel. The district court granted the preliminary injunction as to those two conditions, applying it nationwide. The court subsequently denied the Attorney General's motion to stay the nationwide scope of the injunction, and this court denied the stay on appeal. The Attorney General now appeals that preliminary injunction.

         Our role in this case is not to assess the optimal immigration policies for our country; that is not before us today. Rather, the issue before us strikes at one of the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government-the separation of powers.

         The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken. The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever-vigilant in that endeavor.


         The path to this case began in 2006, which was both the year that the City enacted its Welcoming City ordinance, and the year that the federal government first established the Byrne JAG program. For many years, the two coexisted without conflict. In the past few years, numerous pieces of legislation were introduced in the House and Senate seeking to condition federal funding on compliance with 8 U.S.C. § 1373-which was intended to address "sanctuary cities" and prohibit federal, state or local government officials or entities from restricting the exchange of information with the immigration authorities regarding citizenship or immigration status. None of those efforts were passed by Congress. See, e.g., Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. § 4 (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. § 4 (2016); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. § 3 (2015); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2 (2015); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. § 3(a) (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 2 (2015) (all available at see also Annie Lai & Christopher N. Lasch, Crimmigration Resistance and the Case of Sanctuary City Defunding, 57 Santa Clara L. Rev. 539, 553 n. 87 (2017) (listing eight pieces of legislation introduced during that time, all of which were unsuccessful).

         Determined to forge a different path in immigration enforcement, the President on January 25, 2017 issued an Executive Order directing the Attorney General and the Department of Homeland Security (DHS) Secretary, in their discretion and to the extent consistent with law, to ensure that sanctuary jurisdictions are not eligible to receive Federal grants except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. Exec. Order No. 13, 768, 82 Fed. Reg. 8799 at § 9(a) (Jan. 25, 2017). That Executive Order was challenged in court and preliminarily enjoined by a district court on April 25, 2017-and subsequently permanently enjoined. County of Santa Clara v. Trump, 250 F.Supp.3d 497 (N.D. Cal. 2017); County of Santa Clara v. Trump, 275 F.Supp.3d 1196 (N.D. Cal. 2017). Shortly thereafter-in the face of the failure of Congress to pass such restrictions and the issues with the legality of the Executive Order-on July 25, 2017, the Attorney General pursued yet another path to that goal and issued the conditions for recipients of the Byrne JAG funds that are challenged here.

         The Byrne JAG program is the primary provider of federal criminal justice funding to state and local governments. The funds have been used to meet a wide range of needs for those law enforcement entities, including funding the acquisition of body cameras and police cruisers, and support for community programs aimed at reducing violence. The City, which challenges the new conditions imposed, had targeted the fiscal year 2017 funds for several purposes including expansion of the use of ShotSpotter technology to allow officers to quickly identify the location of shooting incidents and deploy a more precise response. Under the new provisions imposed by the Attorney General, state and local governing authorities who were awarded grants under the Byrne JAG program could not receive any of the funds unless they complied with the new conditions.

         Specifically, the Attorney General imposed "notice, " "access, " and "compliance" conditions, on Byrne JAG grant recipients, only the first two of which are at issue in this appeal. The "notice" and "access" conditions require that for local governments, throughout the period for the award:

A. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, -policy, or -practice) must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given access [to] a local-government (or local-government-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, -policy, or -practice) must be in place that is designed to ensure that, when a local-government (or local-government-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and-as early as practicable (see “Rules of Construction” incorporated by para. 4.B. of this condition)-provide the requested notice to DHS.

OJP Form 4000/2 (Rev. 4-88); at 19 (last visited 03-20-18).

         It further provides that "[n]othing in this condition shall be understood to authorize or require … any entity or individual to maintain (or detain) any individual in custody beyond the date and time the individual would have been released in the absence of this condition." Id. at 18. Identical provisions apply when the states are the grant recipients rather than local governments. Id. Under the notice condition, grant recipients were initially required to provide 48 hours' advance notice to the DHS as to the scheduled release date and time of any individuals in the jurisdiction's custody suspected of immigration violations. When the City sued and sought a preliminary injunction, it argued in part that the requirement was impossible to implement in Chicago which operated only temporary lock-up facilities and held the vast majority of persons for less than 24 hours, and that holding them for a longer period in order to comply would violate the Fourth Amendment of the United States Constitution. The Attorney General subsequently modified the notice condition, requiring that advance notice be provided as early as practicable. The access condition required the local authorities to provide immigration agents with access to the local detention facilities and to the individuals detained there to question such individuals.

         Those conditions were inconsistent with the provisions in the Welcoming City Ordinance, and the City challenged the imposition of those conditions by the Attorney General. The Welcoming City Ordinance reflects the City's determination that, as a City in which one out of five of its residents is an immigrant, "the cooperation of all persons, both documented citizens and those without documentation status, is essential to achieve the City's goals of protecting life and property, preventing crime and resolving problems." Chicago Municipal Code, Welcoming City Ordinance, § 2-173-005 "Purpose and Intent." The City recognized that the maintenance of public order and safety required the cooperation of witnesses and victims, whether documented or not, and the cooperation of Chicago's immigrant communities. Id. Finally, the City concluded that immigrant community members, whether or not documented, should be treated with respect and dignity by all City employees. Id. Toward that end, the City set forth some standards for the treatment of persons within its jurisdiction, which included prohibitions on requesting or disclosing information as to immigration status, and on detaining persons based on a belief as to that status or based on immigration detainers when such immigration detainer is based solely on a violation of civil immigration law. Id. at § 2-173-020, -030, -042. It also provides in § 2-173-042 that unless acting pursuant to law enforcement purposes unrelated to the enforcement of civil immigration law, no agency or agent shall permit Immigrations and Customs Enforcement (ICE) agents access to a person being detained or permit the use of agency facilities for investigative interviews, nor can an agency or agent while on duty expend time responding to ICE inquiries or communicating with ICE as to a person's custody status or release date. The Ordinance explicitly clarifies that those provisions in § 2-173-042 do not apply when the subject of the investigation "has an outstanding criminal warrant, … has been convicted of a felony, … is a defendant … where … a felony charge is pending, … or has been identified as a known gang member either in a law enforcement agency's database or by his or her own admission." Id. at § 2-173-042(c).

         The City therefore could not comply, consistent with its Ordinance, with the conditions imposed by the Attorney General on those seeking funds under the Byrne JAG program, and filed this suit alleging that the conditions were unlawful under the statute and unconstitutional as a violation of separation of powers principles. In a thorough and well-reasoned opinion, Judge Leinenweber in the district court granted the City's motion for a preliminary injunction as to the notice and access conditions, but denied it as to the compliance condition which is not challenged in this appeal and of which we express no opinion. The district court noted that nothing in the Byrne JAG statute granted express authority to the Attorney General to impose the notice and access conditions, and rejected the Attorney General's claim that a provision in a different subsection, 34 U.S.C. § 10102, could be interpreted to allow such authority. The court further concluded that a nationwide preliminary injunction was required to provide full relief in this case.


         Underlying this case are the sometimes-clashing interests between those of the federal government in enforcing its laws and those of the state or local government in policing and protecting its communities. Here, the federal executive branch, in the person of the Attorney General, has concluded that its interests will be best served by harnessing the local authorities to identify and to make accessible persons in their custody who are potentially in the country unlawfully, so as to facilitate efficient civil immigration enforcement. State and local law enforcement authorities, however, are concerned with maximizing the safety and security of their own communities. For some communities, those goals might be maximized by cooperating with the federal immigration authorities and assisting them in identifying and seizing undocumented individuals in their communities.

         Other communities, such as the City in this case, however, have determined that their local law enforcement efforts are handcuffed by such unbounded cooperation with immigration enforcement. They have concluded that persons who are here unlawfully-or who have friends or family members here unlawfully-might avoid contacting local police to report crimes as a witness or a victim if they fear that reporting will bring the scrutiny of the federal immigration authorities to their home.[1] In the case of domestic violence or crimes of that nature, the reluctance to report that is endemic to such offenses could be magnified in communities where reporting could turn a misdemeanor into a deportation. And the failure to obtain that victim and witness cooperation could both hinder law enforcement efforts and allow criminals to freely target communities with a large undocumented population, knowing that their crimes will be less likely to be reported. Those competing interests, between the Attorney General in pursuing civil immigration compliance and the state and local law enforcement authorities in ensuring the safety and security of their communities, are placed into direct conflict because the Attorney General in requiring these conditions forces the states and localities to devote resources to achieving the federal immigration goals or forfeit the funds. State and local law enforcement authorities are thus placed in the unwinnable position of either losing needed funding for law enforcement, or forgoing the relationships with the immigrant communities that they deem necessary for efficient law enforcement

         Although the City uses the term Welcoming City in its ordinance, localities which have concluded that cooperation in federal civil immigration efforts is counterproductive or simply offensive are often labeled "sanctuary" cities or states, but that term is commonly misunderstood. The term signifies a place of refuge or protection, see e.g Merriam-Webster Dictionary, dictionary/sanctuary, and is used for example to describe a house of worship, into which, if a person flees, law enforcement authorities commonly will not enter to forcibly remove the person. That definition has no correlation to the so-called sanctuary cities at issue here. The City, like other "welcoming" or "sanctuary" cities or states, does not interfere in any way with the federal government's lawful pursuit of its civil immigration activities, and presence in such localities will not immunize anyone to the reach of the federal government. Accord City of Philadelphia v. Sessions, 280 F.Supp.3d 579, 591, 602 (E.D. Pa. 2017). The federal government can and does freely operate in "sanctuary" localities.

         And the level of refuge provided by sanctuary cities is not unbounded. For instance, the City cooperates with immigration enforcement authorities for persons who pose a threat to public safety, exempting from the Ordinance investigations involving persons for whom there is an outstanding criminal (as opposed to civil) warrant, persons convicted of or charged with a felony, or persons who are known gang members. Thus, for the persons most likely to present a threat to the community, City law enforcement authorities will cooperate with ICE officials even in "sanctuary" cities. The decision to coordinate in such circumstances, and to refuse such coordination where the threat posed by the individual is lesser, reflects the decision by the state and local authorities as how best to further the law enforcement objectives of their communities with the resources at their disposal.

         Moreover, as to the persons who have proven to be a threat to society such as those in longer-term incarceration, other programs already in place would alert ICE to potential immigration issues. For instance, the "Secure Communities" program was first instituted in 2008 and reactivated in 2017 in order to carry out ICE's enforcement priorities regarding persons in the custody of another law enforcement agency. See Official Website of DHS, at 1. Local law enforcement agencies as a matter of routine submit fingerprints of individuals in their custody to the FBI for criminal background checks and, under Secure Communities, the FBI automatically forwards that information to the DHS to check the prints against its immigration databases. Id.; City of Philadelphia, 280 F.Supp.3d at 633. According to the DHS, "ICE completed full implementation of Secure Communities to all 3, 181 jurisdictions within 50 states, the District of Columbia, and five U.S. territories on January 23, 2013." See Official Website of DHS, at 1. With that ability to identify undocumented individuals, at least as to those serving prison sentences for whom the pressure of time and the possibility of a quick release are not issues, ICE could procure a judicial warrant and obtain a transfer of custody.


         To establish its entitlement to preliminary relief, the City must demonstrate that "(1) without such relief, [it] will suffer irreparable harm before [its] claim is finally resolved; (2) [it] has no adequate remedy at law; and (3) [it] has some likelihood of success on the merits." Harlan v. Scholz, 866 F.3d 754, 758 (7th Cir. 2017). If that burden is met, the court must weigh the harm that the plaintiff will suffer absent an injunction against the harm to the defendant from an injunction, and consider whether an injunction is in the public interest. Id.; Higher Soc'y of Indiana v. Tippecanoe Cty., Indiana, 858 F.3d 1113, 1116 (7th Cir. 2017). The district court weighed all of those factors and granted the preliminary injunction as to the notice and access conditions, denying it as to the compliance condition. On this appeal from the grant of the preliminary injunction as to those two conditions, we ask only whether the district court abused its discretion. Harlan, 866 F.3d at 758. In the absence of any clear error of fact or law, we accord great deference to the district court's weighing of the relevant factors. Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 896 (7th Cir. 2001).

         With respect to the preliminary injunction factors, the Attorney General challenges only the district court's conclusion as to the likelihood of success on the merits, and the scope of the preliminary injunction. The district court held that the Attorney General lacked the statutory authority to impose the notice and access conditions, and consequently the efforts to impose them violated the separation of powers doctrine and were ultra vires. Dist. Ct. at 19.

         In considering on appeal the likelihood of success on the merits, it is necessary to focus narrowly on the dispositive question and to avoid the invitation of the parties to weigh in on broader policy considerations. For instance, the Attorney General repeatedly characterizes the issue as whether localities can be allowed to thwart federal law enforcement. That is a red herring. First, nothing in this case involves any affirmative interference with federal law enforcement at all, nor is there any interference whatsoever with federal immigration authorities. The only conduct at issue here is the refusal of the local law enforcement to aid in civil immigration enforcement through informing the federal authorities when persons are in their custody and providing access to those persons at the local law enforcement facility. Some localities might choose to cooperate with federal immigration efforts, and others may see such cooperation as impeding the community relationships necessary to identify and solve crimes. The choice as to how to devote law enforcement resources- including whether or not to use such resources to aid in federal immigration efforts-would traditionally be one left to state and local authorities. Whether the conscription of local and state law enforcement for federal immigration enforcement through the sword of withholding federal funds presents other Constitutional concerns is not before us. See generally Nat. Federation of Indep. Bus. v. Sebelius, 567 U.S. 519, 580 (2012) (noting, for example, that the Constitution may be implicated where "'the financial inducement offered by Congress' was 'so coercive as to pass the point at which pressure turns into compulsion'"); Printz v. United States, 521 U.S. 898 (1997); South Dakota v. Dole, 483 U.S. 203 (1987). This appeal turns on the more fundamental question of whether the Attorney General possessed the authority to impose the conditions at all.

         The Attorney General also complains that "[n]othing in the statute supports the counterintuitive conclusion that applicants can insist on their entitlement to federal law enforcement grants even as they refuse to provide the most basic cooperation in immigration enforcement, which the Attorney General has identified as a federal priority." Appellant's Brief at 17. In fact, throughout the briefs in this case, the Attorney General is incredulous that localities receiving federal funds can complain about conditions attached to the distribution of those funds. But that repeated mantra evinces a disturbing disregard for the separation of powers. The power of the purse does not belong to the Executive Branch. It rests in the Legislative Branch. Congress may, of course, delegate such authority to the Executive Branch, and indeed the case today turns on whether it did so here, but the Executive Branch does not otherwise have the inherent authority as to the grant at issue here to condition the payment of such federal funds on adherence to its political priorities.

         In fact, the Attorney General otherwise acknowledges that limitation when addressing the legal issues here. The Attorney General does not claim to possess inherent executive authority to impose the grant conditions, and instead recognizes that the authority must originate from Congress.

         We turn, then, to that core issue in the Attorney General's challenge to the preliminary injunction-whether Congress granted to the Assistant Attorney General the unbounded authority to impose his or her own conditions on the release of the Byrne JAG funds. The Byrne JAG statute itself grants the Attorney General explicit authority to carry out specific actions under the Act in 34 U.S.C. §§ 10152-10158, including: to make grants "in accordance with the formula established under section 10156, " § 10152(a)(1); to develop a program assessment component in coordination with the National Institute of Justice, and to waive that requirement if the program is not of sufficient size to justify it, § 10152(c); to certify that extraordinary and exigent circumstances exist that would allow the use of the funds for purposes that fall within the prohibited use categories, § 10152(d)(2); to grant renewals and extensions beyond the four year period, § 10152(f); to determine the form of the application and the certification, § 10153(a); to provide technical assistance to states and local governments, § 10153(b); to approve or disapprove applications after affording the applicant reasonable notice of deficiencies and the opportunity for correction and reconsideration, § 10154; to issue rules to carry out this part, § 10155; to allocate funds pursuant to the statutory formula, § 10156; to certify that a unit of local government bears disparate costs as defined in the statute to allow for disparate allocations under that formula, § 10156(d)(4); to reallocate funds not used by the state, § 10156(f); to reserve not more than $20, 000, 000 for use by the National Institute of Justice and for antiterrorism programs, § 10157(a); to reserve not more than 5 percent, to be granted to 1 or more states or local governmental units, to address precipitous or extraordinary increases in crime or in types of crimes, or to mitigate significant programmatic harm resulting from the operation of the formula for allocating funds, § 10157(b); and to reduce the amounts paid if a state or local unit of government fails to expend the funds within the grant period and fails to repay it, § 10158. None of those provisions grant the Attorney General the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or local governments for the failure to comply with those conditions. The Attorney General does not argue otherwise; he does not argue that any provision in the Byrne JAG statute authorizes the imposition of the conditions.

         Instead, in his appeal, the Attorney General places all his purported authorization in one statutory basket, pointing to 34 U.S.C. § 10102(a)(6) as authorizing the Assistant Attorney General to impose these-and indeed any-conditions on grant recipients. Section 10102 sets forth the duties and functions of the Assistant Attorney General for the Office of Justice Programs and provides:

§ 10102. Duties and functions of Assistant Attorney ...

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