By Rachel Serebrenik
Over the last two months, federal judges across the United States have generally ruled in favor of “sanctuary cities.”
On June 6, 2018 U.S. District Judge Michael Baylson ruled that the Trump administration cannot cut off funds to Philadelphia’s (“City”) criminal justice program over the City’s policies regarding undocumented immigrants. Defendant Attorney General Sessions, imposed new immigration-related conditions in order for Philadelphia to receive federal grant funds under the Edward Byrne Memorial Justice Assistance Grant (JAG) Program. The City challenged the following three conditions:
- The City must provide to the U.S. Immigration and Customs Enforcement (ICE) access to City prisons to interview individuals of interest to ICE.
- The City must provide advance notice to ICE of release from City prisons of aliens whose “scheduled released date and time” ICE requests.
- The City must certify compliance with 8 U.S.C. § 1373, a statute which purports to prohibit the City from restrictions on disclosure of information as to the citizenship or immigration status of any “person.”
In his ruling, Judge Baylson finds, “The Attorney General did not follow established law in promulgating the [three] conditions.” Moreover, Judge Baylson asserts, “The Public statements of President Trump and Attorney General Sessions, asserting that immigrants commit more crimes than native-born citizens, are inaccurate as applied to Philadelphia, and do not justify the imposition of these three conditions.”
Judge Baylson supports Philadelphia’s Motion for Summary Judgement on several grounds. First, the City claims that “the DOJ acted ultra vires because neither U.S.C. § 10102(a)(6) nor § 10153(a) contains a grant of authority to the DOJ to impose the Challenged Conditions.” Judge Baylson concurs with this assertion that the JAG conditions exceed the DOJ’s authority as described by Congress in the aforementioned Sections. Second, the Court supports the City’s argument that the Attorney General’s actions “violated the separation of powers doctrine by using the unauthorized conditions to deny localities their congressionally appropriated Byrne JAG funds.” Lastly, the City contends that Attorney General Sessions’ “decision to impose the Challenged Conditions was arbitrary and capricious.” Under the Administrative Procedure Act, an agency action that is arbitrary and capricious is unlawful. According to Judge Baylson, the imposition of the JAG conditions violates the APA because “it deviates from past agency policy without reasoned explanation or justification.”
Moreover, Judge Baylson finds that Philadelphia “substantially complies with all three conditions” in a way that simultaneously doesn’t obstruct ICE efforts and serves the City’s needs.
In his decision, Judge Baylson rules that Philadelphia “has proven that it will suffer irreparable harms if the conditions are not enjoined.” Under the JAG program, “In fiscal year 2017, Philadelphia would been entitled to $1.598 million,” which it intended to allocate to necessities such as: “a. non-personnel costs of the police department: or b. Narcan needs.” According to Julie Wertheimer, Chief of Staff for criminal justice in the City’s Managing Director’s office and eight-year distributer of JAG grants, Philadelphia cannot afford to be short on federal funding. The City also has a major interest in preserving a positive relationship with its immigrant residents. Brian Abernathy, First Deputy Managing Director of the City of Philadelphia, testified that there is a need for the City’s Police Department to “establish trust with Philadelphia residents so that individuals feel safe to report crimes and use City services,” According to Abernathy, “immigrants perceive City government as highly integrated.” Thus, “He speculated about the potential health and safety implications if immigrants were not to avail themselves of the City Fire Department, public health services, or if they were to circumvent licensing and inspection processes in areas like construction.” These findings support Judge Baylson’s ruling that “Philadelphia need not make this ‘Hobson’s Choice’”—referencing Homer’s “The Odyssey”—”and in any event, can steer safely to Thrincia, accepting the $1.6 million without compromising its local objectives.”
About a month later, U.S. District Judge John Mendez echoed, in part, several of Judge Baylson’s sentiments in response to the United States of America’s (“Plaintiff”) motion for preliminary injunction against the State of California (“California” or “Defendant”). This motion deals with two imperative tasks as defined by Judge Mendez: “The Court must answer the complicated question of where the United States’ enumerated power over immigration ends and California’s reserved police power begins. The Court must also resolve the issue of whether state sovereignty includes the power to forbid state agents and private citizens from voluntarily complying with a federal program.” Plaintiff’s motion for preliminary injunction as to sections of Assembly Bill 103, Assembly Bill 450, and Senate Bill 54 are denied in part and granted in part.
There are several legal frameworks in which Judge Mendez positions his ruling, primarily the Supremacy Clause and the Tenth Amendment. He writes, “The United States’ broad power over ‘the subject of immigration and the status of aliens’ is undisputed.” Citing DeCanas v. Bica (1976), “But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.” A consequence of the Supremacy Clause is the doctrine of intergovernmental immunity, which establishes that “a State may not regulate the United States directly or discriminate against the Federal Government or those with whom it deals.” Judge Mendez also frequently references the Tenth Amendment and the accompanying “anticommandeering doctrine” as both are “checks on Congressional power.
Plaintiff contends that California’s AB 103 § 12532, which requires a review of the living and due process conditions of detention facilities of noncitizens by California’s Attorney General, interferes with “the Federal Government’s exclusive authority in the area of immigrant detention.” However, the Court rules that AB 103 “does not impose any substantive requirements upon detention facilities” and that its immediate consequence is merely to “provide access for these reviews”—which Defendant argues are necessary in response to “growing concerns of egregious conditions in facilities housing civil detainees.” Furthermore, the Court finds AB 103 does not violate the doctrine of intergovernmental immunity because “even if AB 103 treats federal contractors differently than the State treats other detention facilities, Plaintiff has not shown the State treats other facilities better than those contractors.” Thus, Judge Mendez denies Plaintiff’s motion for a preliminary injunction as to AB 103.
Plaintiff also seeks to enjoin California’s Assembly Bill 450, which “imposes various requirements on public and private employers with respect to immigration worksite enforcement actions,” with regards to private employers only. Upon analysis of AB 450’s application, the Court finds, “For those employers who chose to allow immigration enforcement agents to enter or access documents, AB 450 imposes significant and escalating fines.” Thus, Judge Mendez writes, “The Court does not find Defendant’s argument that the law is neutral convincing.” Judge Mendez also sides with Plaintiff that California’s “prohibition on reverification appears to stand as an obstacle to the accomplishment of Congress’s purpose in enacting” the Immigration Reform and Control Act. However, Judge Mendez sides with California in the provisions of AB 450 that require employers to provide notice to their employees of federal immigration regulation inspections of I-9 forms.
Lastly, Plaintiff challenges three subsections of California Senate Bill 54, which specify that California law enforcement agencies shall not use its resources to “investigate, interrogate, detain, detect, or arrest persons for immigration purposes,” provide “information regarding a person’s release date,” and provide “personal information about an individual” respectively. Plaintiff’s chief argument is that these provisions conflict with 8 U.S.C. § 1373, the section under scrutiny in City of Philadelphia v. Sessions. Defendant argues Judge Mendez should follow Judge Baylson in ruling § 1373 is unconstitutional under Murphy v. NCAA, which held that “Congress cannot dictate what a state legislature may and may not do, ‘as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on offending proposals.’” Judge Mendez expresses that § 1373 appears to violate the Tenth Amendment, though he rules that SB 54 and § 1373 are not even in conflict. Based on a “narrow reading” of § 1373, the Court finds, “’information regarding immigration or citizenship status’ does not include an immigrant’s release date or home and work addresses.” Furthermore, Judge Mendez writes, “California’s decision not to assist federal immigration enforcement in its endeavors is not an ‘obstacle’ to that enforcement effort,”—adding, “refusing to help is not the same as impeding.”
In addition, Judge Mendez emphasizes California’s expressed interest to maintain positive relations with its immigrant community. Similar to Philadelphia law enforcement, California officials believe “entangled” state and local agencies will result in immigrants abstaining from law enforcement resources, education, and health services. Judge Mendez writes, “The ebb of tensions between communities and the police underscores the delicate nature of this relationship. Even perceived collaboration with immigration enforcement could upset the balance California aims to achieve.” Thus, the Court denies Plaintiff’s motion for a preliminary injunction as to the subsections of SB 54.
Judge Mendez concludes, “There is no place for politics in our judicial system and this one opinion will neither define nor solve the complicated immigration issues currently facing our Nation.” Judge Mendez calls on the legislative and executive branches to enact a long-term solution for immigration issues in the U.S.