Ninth Circuit Rejects De-Funding of Sanctuary Cities

Yesterday, the U.S. Court of Appeals for the Ninth Circuit in City of Los Angeles v. Barr upheld a preliminary injunction barring the Trump administration from generally stripping federal funding from sanctuary cities.  Here is the Ninth Circuits summary of the opinion, which was written by Judge Sanda S. Ikuta and joined by Judge Jay S. Bybee, with a concurrence by Judge Kim McLane Wardlaw:

“The panel affirmed the district court’s preliminary injunction entered against the U.S. Department of Justice(“DOJ”)’s use of the notice and access conditions imposed on recipients of Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”) formula grants. Byrne JAG authorized the U.S. Attorney General to make grants to state and local governments for criminal justice programs. The authorizing statute allowed the Attorney General to depart from the statutory formula award in certain circumstances. DOJ’s Office of Justice Programs imposed two new conditions for Byrne JAG funding for fiscal year 2017: the “notice condition,” which required a recipient to honor the Department of Homeland Security’s requests for advance notice of release times of detained aliens in the recipient’s correctional facilities; and the “access condition,”which required a recipient to give federal agents access to correctional facilities to meet with detained aliens, or individuals believed to be aliens. The City of Los Angeles filed this suit against DOJ, seeking an injunction against implementation of the notice and access conditions.

DOJ first argued that the notice and access conditions were within the Assistant Attorney General’s authority under a 2006 amendment to § 10102(a)(6) in the Violence Against Women and Department of Justice Act of 2005. The panel rejected Los Angeles’s threshold argument that Congress’s amendment to § 10102(a)(6) did not give the DOJ any independent authority or power; and held that § 10102(a)(6) confirmed DOJ’s authority to place “special conditions on all grants” and determine “priority purposes for formula grants.” The panel held that § 10102(a)(6) did not authorize DOJ to require all recipients of Byrne JAG funding to comply with the notice and access condition. Specifically, first, the panel held that the notice and access conditions were not “special conditions” because they were not conditions triggered by specific characteristics not addressed by established conditions. Second,the panel held that priority purposes must be chosen from among the various possible purposes of a Byrne JAG award as set forth in§10152(a). The panel concluded that because the notice and access conditions met neither of these definitions, DOJ lacked statutory authority to impose them under § 10102(a)(6). The panel agreed with sister circuits that held that § 10102(a)(6) did not give the Assistant Attorney General broad authority to impose any condition it chose on a Byrne JAG award.

The panel next rejected DOJ’s argument that the propriety of the notice and access conditions were further supported by provisions in the Byrne JAG statute that authorize the Attorney General to obtain certain information and require coordination with agencies. See34 U.S.C. § 10153(a)(4), (5). First, the panel held that because the Department of Homeland Security requests for notice of the release of a detained alien did not relate to a program funded by Byrne JAG, the notice condition did not require “programmatic”information under § 10153(a)(4). Second, the panel held that§ 10153(a)(5)(C), which required a grant recipient to certify that “there has been appropriate coordination with affected agencies,” did not give the Attorney General authority to impose the access condition.The panel held that because none of DOJ’s proffered bases for statutory authority gave the Attorney General or the Assistant Attorney General the power to impose the notice and access conditions, the conditions were ultra vires. Judge Wardlaw concurred with the majority to the extent that it held that the challenged immigration conditions were not authorized by Congress, and were unlawful. Judge Wardlaw wrote that everything else that the majority wrote about 34 U.S.C. § 10102(a)(6) was unnecessary to the decision, and dicta.”

Maura Dolan for the Los Angeles Times summarizes the opinion and notes that the Third and Seventh Circuits have reached similar conclusions.

KJ