Seventh Circuit Affirms Nationwide Injunction Against Sessions's Clamp Down on Sanctuary Cities

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit today affirmed a lower court's nationwide injunction against two portions of Attorney General Jeff Sessions's clamp-down on sanctuary cities. The ruling--a significant victory for Chicago and other sanctuary jurisdictions--means that the government cannot enforce the "notice" and "access" conditions on sanctuary cities' receipt of federal law-enforcement JAG grants.

We posted on the lower court's ruling here.

Recall that the lower court ruled that Chicago demonstrated a likelihood of success in its challenge to two key conditions that AG Sessions imposed on sanctuary cities--the notice condition and the access condition--and imposed a nationwide preliminary injunction against the enforcement of those conditions. (The notice condition requires sanctuary jurisdictions to comply with a DHS request to provide advance notice of any scheduled release date and time for a particular alien. The access condition requires sanctuary jurisdictions to allow federal agents to have access to any correctional facility to meet with aliens and interrogate them.) (The lower court did not enjoin the enforcement of the third condition, that sanctuary jurisdictions certify compliance with 8 U.S.C. Sec. 1373.)

The government argued that the lower court erred on the merits and that it exceeded its authority in issuing a nationwide injunction. The Seventh Circuit disagreed on both counts.

The court ruled that AG Sessions lacked unilateral authority to impose the notice and access conditions on receipt of a federal grant, because that's Congress's job:

The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions.

The court found nothing in the INA that authorized the AG to impose these conditions, and it rejected the government's claim that general statutory authority for the Assistant Attorney General, under 34 U.S.C. Sec. 10102(a)(6), authorized the AG to impose these conditions. That subsection says that "[t]he Assistant Attorney General shall . . . exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants." (Emphasis added.) The court said that "[t]he inescapable problem here is that the Attorney General does not even claim that the power exercised here is authorized anywhere in the chapter, nor that the Attorney General possesses that authority and therefore can delegate it to the Assistant Attorney General. In fact, as set forth above, the Byrne JAG provisions set forth the duties of the Attorney General and do not provide any open-ended authority to impose additional conditions."

Two judges went on to say that the district court was well within its authority to grant a nationwide injunction:

The case before us presents an example of the type of case in which a district court should properly be able to apply an injunction nationwide. The case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.

Judge Manion dissented from this portion of the ruling.