Outside the Beltway

Chicago To File Suit Against Trump’s War On So-Called “Sanctuary Cities”

Chicago is joining the growing list of jurisdictions challenging the Administration's policy on sanctuary cities.

Doug Mataconis · Monday, August 7, 2017 · 16 comments

Earlier this year, President Trump signed an Executive Order purporting to punish so-called “sanctuary cities” that refuse to cooperate with the Federal Government regarding detaining of people who are in the country illegally by withholding certain forms of Federal aid related to law enforcement and other activities. Last month, Attorney General Jeff Sessions took that Executive Order a step further by announcing new restrictions that would be placed on Federal aid to such cities, and new conditions that they must meet if they want to continue receiving those funds. In response to those twin announcements, late last week Chicago Mayor Rahm Emanuel announced that the city would be filing suit against the Federal Government seeking to have these actions declared illegal and unconstitutional:

Mayor Rahm Emanuel is planning to double down against President Donald Trump’s immigration policies by filing a federal lawsuit claiming it’s illegal for the federal government to withhold public safety grant money from so-called sanctuary cities.

The city will head into federal court Monday to argue Attorney General Jeff Sessions cannot hold back federal Byrne grants from cities the administration says aren’t cooperating enough with U.S. Immigration and Customs Enforcement officials, Emanuel said during an interview on “Connected to Chicago” on WLS radio-890. The interview will air at 7 p.m. Sunday.

Byrne Justice Assistance Grants provide a relatively minuscule amount of money to Chicago. The city this year is counting on $3.2 million from the program, money mostly used to buy police vehicles. The grants amount to roughly three-hundredths of 1 percent of the entire $9.8 billion city budget.

That makes the lawsuit a relatively low-stakes gambit with some political upside for Emanuel as he courts support from Latinos, who are deeply concerned about the Trump administration’s immigration policies. The lawsuit also could affirm Emanuel’s profile among big-city mayors pushing back against Trump policies.

“We are not going to be between picking our values of who we are as a welcoming city, and strengthening our police department,” Emanuel said in the interview with WLS reporter Bill Cameron.

“We’re not going to actually auction off our values as a city, so Monday morning the City of Chicago is going to court; we’re going to take the Justice Department to court based on this,” he said. “We find it unlawful and unconstitutional to be, as a city, coerced on a policy.”

The Justice Department declined to comment on Emanuel’s comments Friday.

Sessions announced last month that local governments would lose the money if they do not give advance notice when immigrants in the country illegally are about to be released from custody and allow immigration agents access to local jails.

“So-called ‘sanctuary’ policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes,” Sessions said in a statement at the time. “These policies also encourage illegal immigration and even human trafficking by perpetuating the lie that in certain cities, illegal aliens can live outside the law.”

Those comments and the threat to the Byrne grants have prompted concerns with Democratic California Attorney General Xavier Becerra, who is considering legal action accusing the Justice Department of violating the state Constitution, according to a McClatchy news service report.

Becerra could argue that Congress, not the executive branch, has power to set conditions on the grant money.

Chicago is considered a sanctuary city in part because Chicago law prohibits police from providing federal ICE officials access to people who are in the Police Department’s custody, unless they are wanted on a criminal warrant or have serious criminal convictions.

Emanuel offered additional details about the suit over the weekend:

Mayor Rahm Emanuel on Sunday trickled out some new details about the city’s impending lawsuit against President Donald Trump’s Department of Justice as part of a dayslong rollout of the mayor’s latest effort to counter the administration’s immigration policies.

Emanuel said U.S. Attorney General Jeff Sessions’ plan to withhold some federal grants from local police in so-called sanctuary cities violated the Constitution, stymied police anti-crime efforts and threatened the city’s long history as a place where immigrants have prospered.

“Chicago will not let our police officers become political pawns in a debate,” Emanuel said. “Chicago will not let our residents have their fundamental rights isolated and violated. And Chicago will never relinquish our status as a welcoming city.”

Those are themes the mayor has sounded repeatedly since Trump — whose campaign for office was built in part on a pledge to crack down on illegal immigration — last year became the presumptive Republican nominee. Emanuel’s message is viewed as politically advantageous in an overwhelmingly Democratic city with a minimal number of Trump supporters and a significant Latino population.

Emanuel’s latest effort to cite his pro-immigration bona fides came during a rare Sunday news conference at City Hall, alongside Corporation Counsel Edward Siskel, police Superintendent Eddie Johnson and a multiracial group of officeholders. It was just two days after Emanuel received widespread attention for telling a veteran news reporter he planned to sue the Justice Department.

And he’s likely to get further chances to sound off in the coming week. The city plans to file the paperwork “first thing on Monday morning,” officials said. But officials declined to release the lawsuit wording Sunday despite holding a news conference, leaving some details of the filing still unknown.

There’s also a possibility of other sanctuary cities taking the city’s side. “The city of Chicago may be the first to bring a lawsuit, but I’m also confident we will not be the last,” Emanuel said. Cook County Board President Toni Preckwinkle, who oversees what is considered a “sanctuary county” that also could lose funding, said in a statement that she supports the mayor’s effort. “We will assess our own legal options going forward,” she said.

Although Sessions’ threat to withhold money from the Edward Byrne Justice Assistance grant program from sanctuary cities is not new, the Justice Department late Thursday released conditions for new grant applications, said Siskel, the city’s top lawyer.
The conditions include complying with a federal law that bars restrictions on local police sharing immigration status information, providing unlimited police station access to federal officials searching for people in the country illegally and giving federal officials 48 hours’ notice of an arrested person’s release in cases of potential immigration violations.

“So-called ‘sanctuary’ policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes,” Sessions was quoted as saying in a July statement telegraphing the conditions. Department officials on Friday declined to comment on the mayor’s pledge to sue.

Chicago’s welcoming city ordinance bars police from providing federal Immigration and Customs Enforcement officials access to people in local custody unless they are wanted on a criminal warrant or have serious criminal convictions. It also prohibits allowing ICE agents to sue police facilities for interviews or investigations and bars on-duty officers from responding to ICE questions or talking to ICE officials prior to a person’s release from custody.

Nevertheless, the city maintains it is in compliance with federal immigration laws. And Siskel said holding people “longer than necessary” because ICE wants 48 hours’ notice would be a “violation of their Fourth Amendment” rights related to searches and seizures. And Siskel maintains that the Justice Department does not have the authority to add requirements to a grant program created by Congress or “commandeer local law enforcement to carry out federal immigration functions.”

Siskel also said the city chose to file a lawsuit now, rather than after it had been denied a grant, because of the new conditions set last week. He said the city will ask a judge to declare the new Byrne grant conditions unlawful and unconstitutional before they affect the city.

Chicago would not be the first American city to challenge Trump’s effort to crack down on cities that fail to cooperate with his Administration’s tougher deportation plans for undocumented immigrants. Earlier this year, the City and County of San Francisco and its neighboring jurisdiction of Santa Clara County filed their own lawsuits against the Trump Administration’s newly announced policy. In April, a Federal Judge in California ruled that Trump’s Executive Order overstepped his Constitutional authority and issued an injunction against enforcement of the order, an order that remains in effect and is presumably under appeal to the Ninth Circuit Court of Appeals. In his ruling in that case, Judge William Orrick cited a number of Supreme Court precedents establishing the limitations on the authority of the Federal Government to impose restrictions and requirements on localities receiving Federal funding and also cited comments that President Trump made regarding his intentions in imposing this policy made both before and after the 2016 election.

Ilya Somin of The Volokh Conspiracy addressed the issue of whether the Trump Administration could withhold funding from cities that declined to cooperate with Federal immigration authorities in a series of posts at the time that the President first announced the policy. In the first such post, he argued quite persuasively why such efforts are most likely unconstitutional:

There are two serious constitutional problems with conditioning federal grants to sanctuary cities on compliance with Section 1373. First, longstanding Supreme Court precedent mandates that the federal government may not impose conditions on grants to states and localities unless the conditions are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” Few if any federal grants to sanctuary cities are explicitly conditioned on compliance with Section 1373. Any such condition must be passed by Congress, and may only apply to new grants, not ones that have already been appropriated. The executive cannot simply make up new conditions on its own and impose them on state and local governments. Doing so undermines both the separation of powers and federalism.

Even aside from Trump’s dubious effort to tie it to federal grants, Section 1373 is itself unconstitutional. The Supreme Court has repeatedly ruled that the federal government may not “commandeer” state and local officials by compelling them to enforce federal law. Such policies violate the Tenth Amendment.

Section 1373 attempts to circumvent this prohibition by forbidding higher-level state and local officials from mandating that lower-level ones refuse to help in enforcing federal policy. But the same principle that forbids direct commandeering also counts against Section 1373. As the late conservative Justice Antonin Scalia explained in Printz v. United States, the purpose of the anti-commandeering doctrine is the “[p]reservation of the States as independent and autonomous political entities.” That independence and autonomy is massively undermined if the federal government can take away the states’ power to decide what state and local officials may do while on the job. As Scalia put it in the same opinion, federal law violates the Tenth Amendment if it “requires [state employees] to provide information that belongs to the State and is available to them only in their official capacity.” The same is true if, as in the case of Section 1373, the federal government tries to prevent states from controlling their employees’ use of information that “is available to them only in their official capacity.”

(…)

The constitutional issues raised by Trump’s executive order are not mere technicalities. If the president can make up new conditions on federal grants to the states and impose them without specific, advance congressional authorization, he would have a powerful tool for bullying states and localities into submission on a wide range of issues. Such an executive power-grab also undermines separation of powers. Congress, not the president, has the constitutional authority to attach conditions to federal grants to state governments.

Somin’s fellow blogger David Post makes a similar argument that I also commend to your consideration, but which is far too long to fairly summarize here via excerpts. Among other things, Post argues that requiring localities to hold suspected illegal aliens for an extended period until Immigration and Customs Enforcement (ICE) or a similar Federal agency can either determine if they should be detained for immigration violations, or take custody of any such persons themselves, would constitution serious violations of the Fourth Amendment rights of those people, especially if it’s determined that there is no legal basis for holding them otherwise either because there isn’t sufficient evidence to hold them for having committed a crime or because they have a legal right to a bail hearing. In other words, the Trump Administration would be asking these localities to expose themselves to legal liability for violating the rights of individuals based merely on the suspicion that they may have violated immigration laws. That constitutes a violation of both the principles of Federalism as set forth in the Tenth Amendment and the separation of powers between the Federal Government and the states.

As I note in my post about Judge Orrick’s April decision, there are three principal Supreme Court cases that are relevant to the debate over the legality of the Trump Administration’s efforts to drag cities such as Chicago into line when it comes to holding suspected undocumented immigrants, South Dakota v. Dole, New York v. United States, and Printz v. United States. Finally, there’s National Federation of Independent Business v. Sebelius, the 2011 case in which the Supreme Court largely upheld the Constitutional arguments against the Affordable Care Act that also includes an important statement regarding the limitations placed on what the Federal Government can force the states to do.

Dole is a 1987 case uphold a Federal law that withheld Federal highway funds from states that did not raise their drinking age to 21 but also set forth a series of criteria that the Federal Government must meet in order to avoid violating the Tenth Amendment and other protections of the rights and powers of the states when using this method to force action by the states. Based on those criteria, the Court determined that the requirement that states raise their drinking age was sufficiently linked to highway funding to meet the Constitutional test. The New York case was decided about five years after Dole, and in that case the Court ruled that a Federal law requiring states and localities to “take title” to low-level nuclear waste and imposed on them primary responsibility for its disposal went beyond the boundaries of both Congressional power under Article One and the Tenth Amendment. Finally, about five years after New York, the Court ruled in the Printz case that the provisions of the Brady Handgun Violence Prevention Act that required local law enforcement to undertake certain duties in connection with the background checks required by the statute were unconstitutional. In a ruling that relied primarily on the Tenth Amendment, Justice Scalia relied heavily on the requirements set forth in the Dole case as well as the limits further placed on Dole by the New York case and determined that the Federal Government lacked the authority to force states or localities to act to enforce Federal law. This is perhaps the case that comes closest to what the Trump policy is seeking to do with regard to so-called “sanctuary cities.” Finally, in the part of the Sebelius decision relevant to this case, the Supreme Court ruled that the Federal Government could not force states to expand their Medicaid programs to include millions of more citizens even if the law provided that the costs of such expansion would be covered by the Federal Government.  Based on all these rulings, it seems clear that the current state of the law is that, while there are some conditions under which the Federal Government can impose requirements on states and localities, those circumstances are strictly limited by the provisions of Article I and the Tenth Amendment.

Once the Chicago lawsuit is filed, it will follow a familiar path, and it will likely be several months at least before we get even a preliminary ruling from whatever Federal Judge it is assigned to regarding the city’s request that the Administration’s policies be enjoined pending final resolution of the case. Based on the ruling in the California case, though, it seems clear that the Trump Administration faces a rough road ahead and that the President could be setting himself up for yet another disappointment at the hands of the Federal Judiciary.

Update: Here is a copy of the Complaint that was filed today:

Chicago v. Sessions Complaint by Doug Mataconis on Scribd