Ninth Circuit Rebuffs Administration Effort to Clamp Down on Sanctuary Cities

Steven D. Schwinn, University of Illinois Chicago John Marshall Law School

The Ninth Circuit affirmed a preliminary injunction against the Department of Justice's effort to clamp down on sanctuary cities by imposing two conditions on recipients of the DOJ-administered Byrne JAG grant program. The ruling keeps in place the injunction against DOJ's "notice" and "access" conditions that are designed to encourage local governments to cooperate with federal immigration authorities to identify unauthorized aliens.

The Ninth Circuit ruling is just the latest in a line halting the implementation of these conditions. We posted most recently on sanctuary litigation here.

The case, City of Los Angeles v. Barr, tests the two conditions that DOJ put on Byrne-JAG grant recipients without specific congressional authorization. The first condition, the "notice" condition, requires a recipient to honor DHS's requests for advance notice of the scheduled release date and time of any detained alien held in a grant recipient's correctional facilities. The second condition, the "access" condition, requires a grant recipient to give federal agents access to correctional facilities to meet with detained aliens.

The court rejected DOJ's arguments that two statutory provisions authorized it to impose the conditions. The first, a provision in the Violence Against Women Act, says that the Assistant AG shall "exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this title or by delegation of the Attorney General, including placing such special conditions on all grants, and determining priority purposes for formula grants." The court held that the notice and access conditions were not "special conditions" under the provision, "because they are not conditions triggered by specific characteristics not addressed by established conditions, as was the case for high-risk grantees under [Department regulations]." It held that they weren't "priority purposes," because "[t]he notice and access conditions are not included as purposes of the Byrne JAG award, nor are they purposes of either of its predecessor grant statutes." The court said that the first provision therefore didn't authorize the conditions.

The second provision, a section of the Byrne-JAG statute itself, authorizes the AG to obtain certain information and to require coordination with agencies. The court held that maintenance and reporting requirements applied to programs under the statute, and not to notice of a detained alien. And it held that the coordination requirement applied to "agencies affected by the program to be funded by the Byrne JAG award," not "DHS agents who are not part of a funded program." The court said that the second provision therefore didn't authorize the conditions, either.

Because no statute authorized DOJ to impose the conditions, DOJ lacked authority to impose them, and the court upheld a preliminary injunction halting them.