Sanctuary Jurisdictions Win Another Court Challenge

By Michael Bournas-Ney

In late November, a District Court judge handed a victory to defenders of immigrants’ rights in their challenge to Trump-era restrictions on criminal justice funding. Seven states and the City of New York had argued that new Department of Justice requirements for information-sharing and “access” to undocumented detainees in local facilities exceeded federal authority and violated states’ rights.

Since 2006, states and localities have been eligible to apply for federal funding under the Edward Byrne Memorial Justice Assistance Grant (“JAG”) program for grants to support criminal justice programs in various categories, including law enforcement, crime prevention, mental health, victim and witness services, drug treatment and technology. These funds are allocated according to a formula based upon a particular jurisdiction’s population and violent crime statistics. On July 25, 2017, for the first time in the history of the program, the United States Department of Justice and the Attorney General (collectively “Defendants”) announced that they would be imposing three immigration-related conditions on applicants for JAG funds.

Specifically, potential grantees would have to comply with the following conditions in order to receive funding: 1) the “Notice Condition” requires grantees, upon request, to give advance notice to the Department of Homeland Security of the scheduled release date and time of undocumented persons housed in state or local correctional facilities; 2) the “Access Condition” requires grantees to give federal agents access to undocumented persons in state or local correctional facilities in order to question them about their immigration status; and 3) the “Compliance Condition” requires grantees to certify their compliance with 8 U.S.C. § 1373, a federal rule that prohibits states and localities from restricting their officials from communicating with immigration authorities regarding anyone’s citizenship or immigration status.

After the new conditions were promulgated, New York, Connecticut, New Jersey, Rhode Island, Washington, Massachusetts and Virginia, as well as New York City (the “Plaintiffs”), commenced two challenges in United States District Court (Southern District of New York). Essentially, Plaintiffs argued that by imposing these conditions the Executive branch was exceeding the scope of what was authorized by Congress in the relevant legislation, and the federal government was violating the Tenth Amendment’s reservation of powers to the states.

On November 30, 2018, United States District Court Judge Edgardo Ramos issued a decision (the “decision”) in which he granted summary judgment in favor of Plaintiffs but declined to give nationwide effect to his ruling. (Summary judgment is a decision that can be made by a judge just on the legal briefs and without the need for an actual trial, because the court has found that no factual disputes exist that can alter the outcome.)  This Decision is generally in harmony with rulings from federal judges in other regions of the country. For a discussion of those other rulings concerning “sanctuary jurisdictions,” see pp. 7-9 of the full decision, as well as our previous update from July.

Some insight into why “sanctuary jurisdictions” have resisted the imposition of these immigration-related conditions can be gleaned from New York City’s “General Confidentiality Policy.”  This policy broadly prevents investigation into, or disclosure of, an individual’s immigration status, except in certain limited circumstances such as, for example, when a person is suspected of illegal activity other than mere status as an undocumented immigrant, or when it is necessary to determine an individual’s eligibility for government services. The decision states the City believes this policy promotes trust and cooperation between the police and the public, especially within immigrant communities “that otherwise may retreat into the shadows if they believe that the police will share their information with federal immigration authorities.” (Decision at p. 7)  Similarly, fear that the City could disclose information to immigration authorities might lead some undocumented individuals to refuse to cooperate with public health investigations or obtain medical services such as immunizations.

In his decision, Judge Ramos framed the key issues as follows:

This case challenges the authority of the Executive Branch of the federal government to compel states to adopt its preferred immigration policies by imposing conditions on congressionally authorized funding to which the states are otherwise entitled. As such, this case is fundamentally about the separation of powers among the branches of our government and the interplay of dual sovereign authorities in our federalist system.  (Decision at p. 11)

In terms of the separation of powers between the Executive and Legislative branches, Judge Ramos ruled that Defendants had exceeded their authority in imposing conditions upon disbursement of JAG funding that were not found in the relevant statutes enacted by Congress. In terms of the “interplay of dual sovereign authorities” between the Federal government and the States, relying on the recent Supreme Court decision in Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018), Judge Ramos held that these new conditions violate the Tenth Amendment’s “anti-commandeering principle,” which “withhold[s] from Congress the power to issue orders directly to the States.” He concluded by ordering the government to issue the JAG funds without the new conditions.