By Lisa Soronen
The 2nd Circuit has become the first federal court of appeals to rule in favor of then-Attorney General Jeff Sessions' decision to add conditions to receiving federal Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG) grants.
If the decision stands, it means the Trump administration can withhold millions of dollars from law enforcement agencies in states and cities that do not cooperate with U.S. immigration authorities.
Congress created Byrne JAG in 2006 to provide “flexible” funds for state and local law enforcement programs. In 2017, Sessions added three conditions to receive Byrne JAG funds. Specifically, recipients must (1) comply with federal law prohibiting restrictions on communicating citizenship information to federal immigration authorities (certification condition); (2) provide federal authorities with release dates of incarcerated undocumented persons (notice condition); (3) and allow federal immigration officers access to incarcerated undocumented persons (access condition).
Challengers in this case—New York, Connecticut, New Jersey, Washington, Massachusetts, Virginia, Rhode Island and New York City—argue that the attorney general lacks statutory authority to add these conditions and that adding them was “arbitrary and capricious.” The 2nd Circuit disagreed.
Regarding the certification condition, the 2nd Circuit concluded that the Byrne JAG statutory language requiring applicants to certify compliance with “all other applicable Federal laws” is broad enough to require applicants to comply with federal law prohibiting restrictions on communicating citizenship information to federal immigration authorities. The court also held that adding this condition didn’t violate the 10th Amendment or the Constitution’s spending clause.
The 2nd Circuit held that the notice condition is permitted pursuant to the Byrne JAG statute because it "authorizes the Attorney General to decide both what data, records and information a Byrne grant recipient must maintain and report and the form of an applicant assurance that it will do so."
The access condition is OK, according to the 2nd Circuit, because the Byrne JAG statute allows “appropriate coordination with affected agencies.” According to the court, the Department of Homeland Security (DHS) is an affected agency per the Byrne JAG statute. “[C]oordination between the State and DHS is not only appropriate, but necessary, to allow the federal agency effectively to resume its obligations when the State has achieved its penal ones.”
The 2nd Circuit notes that its decision conflicts with a decision from the 7th Circuit (in favor of the city of Chicago on the notice and access conditions) and the 3rd Circuit (in favor of the city of Philadelphia on all three conditions).
A federal district court in California has ruled in favor of San Francisco on all three conditions. Likewise, a federal district court in Rhode Island has ruled in favor of Providence and Central Falls, R.I.
While the district court in the Chicago case issued a nationwide injunction which would have prevented the attorney general from imposing the notice and access conditions on any state or local government in the country, that nationwide injunction is currently not in effect while it is being appealed to the 7th Circuit.
Cities other than Chicago, Philadelphia, San Francisco, and Providence and Central Falls, R.I., have received relief on this issue from the federal courts. A federal district court in Illinois has permanently enjoined the attorney general from imposing any of the three conditions against Evanston, Ill., and any members of the U.S. Conference of Mayors.
As lower federal district and appellate courts continue to hear these cases they may find persuasive either the reasoning of the 7th and 3rd Circuits or the reasoning of the 2nd Circuit.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.