On September 15, the City of Chicago successfully obtained a preliminary injunction to enjoin U.S. Attorney General Jeff Sessions from leveraging federal funds against “sanctuary cities” to enforce compliance with the new immigration policy conditions. In another blow to immigration policy under the Trump Administration, the 7th Circuit’s ruling applies nationwide and took effect immediately.
The City sued A.G. Sessions for applying new conditions under the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG Grant”). Referred to as the Notice and Access conditions, they require cities such as Chicago to: 1) Provide 48 hours advance notice to the Department of Homeland Security (“DHS”) regarding the release of undocumented individuals; and 2) Permit DHS personnel to access any correctional or detention facility in order to meet with undocumented individuals and inquire as to their right to remain in the U.S. Chicago uses these funds for projects such as law enforcement equipment, overtime, community policing outreach and engagement and, in fiscal year 2016, received $2.33 million from the Byrne JAG Grant.
The City argued that these conditions were unconstitutional and unlawful because Congress did not authorize the executive branch to impose penalties on local jurisdictions based on their refusal to comply with immigration enforcement requests. The City also argued that compliance with the new conditions would interfere with the local administration of local police stations and lockups, and would sow fear and mistrust between immigrant communities and law enforcement. Further, the City alleged that compliance would also result in violations of state laws including the Illinois Code of Criminal Procedure, the Illinois Administrative Code and potentially violate detainees’ Fourth Amendment right to be free of unreasonable seizures.
Judge Leinenweber agreed with the City, holding that the executive branch cannot impose the new conditions without congressional authority, and that authority was not included in the Byrne JAG Grant. The Court noted that there are other grants to which A.G. Sessions has authority to impose substantive conditions (e.g. to combat violence against women). The court determined that not explicitly conferring the same authority within the Byrne JAG Grant was an indication of Congress’ express reservation of that authority.
The court also ruled against the City regarding a “compliance” condition that was imposed in 2016 requiring the City to certify compliance with 8 U.S.C. §1373. This statute bars authorities from prohibiting or in any way restricting a government entity or official from sending the citizenship or immigration status of any individual to federal immigration authorities. The City argued that §1373 violates the 10th amendment by commandeering state and local governments and controlling the actions of their employees. Contrary to the City’s arguments, the court held that this condition does not require forced participation, but rather precludes a state or local government from restricting officials in any way from sharing information regarding the immigration status of an individual.
The Court’s ruling has resulted in an immediate hold on the conditions imposed by the federal government on the Byrne JAG Grants. The Department of Justice has appealed this ruling and asked that this injunction be set aside. The outcome of this litigation has significant implications for local and state governments that oppose current federal immigration policy.