Federal Judge Rules Attorney General Sessions Cannot Withhold Grants from Sanctuary Cities

Out in Illinois, a federal court has recently ruled that Attorney General Sessions cannot fully follow through on his threat to withhold federal funds from so-called sanctuary cities. In a campaign and presidency that has made immigration one of its most spoken on and contentious issues, the idea of sanctuary cities-cities refusing to fully cooperate with immigration investigations-is something that President Trump has revisited again and again. Trumps’ own steps to take rights away from immigrants-such as his recent DACA declarations-have only exacerbated the matter as the number of cities with laws limiting how state law enforcement may interact with immigration agents and ICE grows.

Several states such as California, Vermont, Connecticut, and Rhode Island have laws in place limiting police cooperation with federal immigration authorities. However, it is Chicago-a state with a similar law of its own-that has brought the first successful challenge to Sessions’ immigration compliance requirements on federal funds-specifically the Byrne Memorial Justice Assistance Grant Program (better known as the Byrne JAG grant).

The ruling out of the US District Court for the Northern District of Illinois has determined that part-but not all-of the restrictions AG Sessions has place on Byrne JAG grants are unconstitutional-an undeniable, if not complete, victory for cities with laws like Chicago’s across the nation. The ruling places a nationwide stop on the portions of the restrictions the court ruled unconstitutional.  Let’s look at the limitations Sessions attempted to place on these grants and the court’s ruling.

Sessions’ Restrictions on Grant Funding

Sessions’ restrictions on funding, announced by the Attorney General back in July of this year, placed two new conditions on the ability to receive funds through Byrne JAG grants. First, requiring local authorities to tell federal agents before people suspected of immigration violations were released from jail, detention facility, or really any type of correctional facility. Second, state authorities had to give immigration access to detention facilities and to the people in those facilities. This was on top of a condition added back in 2016 which required cities and states receiving Byrne JAG funds to certify that they wouldn’t restrict state and local law enforcement from sharing information with Immigration and Naturalization Services when it comes to somebody’s citizenship status.

These Byrne JAG grants are generally used to support and outfit state and local law enforcement across the country so these additional requirements had the potential for serious national impact. Normally, Byrne JAG grants are given based on a statutory formula based on population and the amount of reported violent crimes. Chicago has received this grant money every year since 2005-including last year when it was required to certify that it would not restrict law enforcement from sharing information with federal immigration authorities. In fact, just last year it was given a little over $2.3M.

Chicago itself has had rules limiting law enforcement’s participation in federal immigration investigations in place since the mid-80s and codified those rules into law over a decade ago. The rules also prevent city agents and agencies form requesting or telling giving others information about somebody’s citizenship. In 2012, these rules were taken even one step further to specifically deny immigration agents access to Chicago facilities and to deny immigration detainer requests (requests for local police to hold somebody on suspicion of an immigration issue) unless specific criteria are met.

These policies-known as the Welcoming City Ordinance-have been in place so long because, according to Chicago, they have created safer streets by allowing the immigrant community to feel safe talking to law enforcement. However, as a potential “sanctuary city,” Sessions’ restrictions had a chance to seriously impact Chicago’s ability to fund its law enforcement. Thus, it’s no surprise they were quick to challenge their constitutionality.

The Court’s Ruling

Chicago challenged the constitutionality of AG Sessions’ restrictions on two primary grounds. First, that Congress never granted Sessions the power to restrict Byrne JAG grants in this manner. Second, that even if Congress did give Sessions that power the restrictions themselves impinged on the Constitutional rights of the states.

On the most recent restrictions, the ones dealing with reporting and access to detention centers, the court determined that AG Sessions simply overstepped his bounds. Congress not only didn’t give him the power to make such limitations on these grants, they explicitly gave the power to somebody else. While Sessions argued he’d been given broad power to make such restrictions in an older act of Congress, the court felt that if such a grant had been given Congress wouldn’t have needed to give the AG the limited powers to restrict these grants that it did-the power to require a certification that a grantee will comply with all federal laws.

With only this limited power at the AG’s disposal, both the most recent restrictions on these grants were an overreach and thus unconstitutional. However, Sessions does have the power to require certifications as he did with last year’s additional restriction. This meant that this third restriction would only be unconstitutional if it violated some other part of the Constitution.

The 10th Amendment means that the federal government can’t generally force the states to legislate or act in a certain way. Nor can they force state agents such as state police to act in a certain way. They can, however, often tie funds to certain behavior. Chicago argued that the restrictions were violating the 10th Amendment by forcing them to allow state agents to report to the federal government. However, Congress has broad power to legislate when it comes to immigration. What’s more, these very restrictions have already been ruled by another court to not violate the 10th amendment-drawing a potentially questionable distinction between forcing a state to act and preventing the state from directly restricting its officials from acting. The court primarily looked at the fact that the requirements don’t force any active legislation or make state agents act on the federal government’s behalf. Thus, the certification requirement from last year was ruled constitutional.

Ruling Still a Partial Victory for AG Sessions

This ruling takes away the most controlling parts of AG Sessions’ restrictions. However, what is left will still allow for the potential to withhold funds from many states. Chicago is far from alone in its Welcoming City Ordinance, many cities and states have similar provisions. These laws have become particularly contentious in recent months.

California has been moving forward on bills to increase protection from undocumented students in public schools. At the same time, Mississippi and Texas have passed laws barring local ordinances creating “sanctuary cities.” Alabama passed legislation targeting universities attended by undocumented immigrants. The controversy on this issue has just begun and will only continue to heat up. Even this ruling will likely be appealed by the federal government. However, even with what’s left, there is a real possibility the AG Sessions will have the oomph to follow through on some of his threats to funding for cities not cooperating with federal immigration officials.