The City of Chicago v. Sessions III
Filing
78
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 9/15/2017:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THE CITY OF CHICAGO,
Plaintiff,
Case No. 17 C 5720
v.
Judge Harry D. Leinenweber
JEFFERSON BEAUREGARD
SESSIONS III, Attorney
General of the United States,
Defendant.
MEMORANDUM OPINION AND ORDER
This
case
involves
the
intersection
between
immigration policies and local control over policing.
federal
Defendant
Jefferson Beauregard Sessions III, the Attorney General of the
United
States,
seeks
grant
relied
federal
to
on
enforcement
initiatives.
cooperation
with
federal
impose
by
new
the
These
conditions
City
of
conditions
immigration
on
an
Chicago
require
officials
annual
for
law
additional
and
directly
conflict with Chicago’s local policy, codified in its Welcoming
City Ordinance, which restricts local officials’ participation
in
certain
policies
federal
engender
immigration
safer
efforts.
streets
by
Chicago
fostering
claims
its
trust
and
cooperation between the immigrant community and local police.
Chicago’s policies are at odds with the immigration enforcement
priorities and view of public safety espoused by the Attorney
General.
Against
these
new
this
backdrop,
conditions
are
the
City
unlawful
of
and
Chicago
claims
that
unconstitutional,
and
implores this Court to grant a preliminary injunction enjoining
their imposition.
For the reasons described herein, the Court
grants in part, and denies in part, the City of Chicago’s Motion
for a Preliminary Injunction.
I.
A.
FACTUAL BACKGROUND
The Edward Byrne Memorial
Justice Assistance Grant Program
The federal grant at issue is awarded by the Edward Byrne
Memorial
Justice
grant”).
Assistance
Grant
Program
(the
“Byrne
JAG
See, 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750).
Named after a fallen New York City police officer, the Byrne JAG
grant
supports
state
and
local
law
enforcement
efforts
by
providing additional funds for personnel, equipment, training,
and
other
criminal
justice
(formerly 42 U.S.C. § 3751).
formula
grant,
which
means
statutorily defined formula.
42 U.S.C. § 3755).
needs.
See,
34
U.S.C.
§
10152
The Byrne JAG grant is known as a
funds
are
awarded
based
on
a
See, 34 U.S.C. § 10156 (formerly
Each state’s allocation is keyed to its
population and the amount of reported violent crimes. Ibid.
- 2 -
The
City of Chicago (the “City”) has received Byrne JAG funds since
2005, including $2.33 million last year on behalf of itself and
neighboring political entities.
¶¶ 3, 11-12.)
(See, Decl. of Larry Sachs,
The City has used these funds to buy police
vehicles and to support the efforts of non-profit organizations
working in high crime communities.
B.
(See, id. ¶ 4.)
New Conditions on the Byrne JAG Grant
In late July 2017, the Attorney General announced two new
conditions on every grant provided by the Byrne JAG program.
(See, Byrne JAG Program, FY 2017 Local Solicitation, Ex. 11 to
Def.’s Br.)
authorities
The two new conditions require, first, that local
provide
federal
agents
advance
notice
of
the
scheduled release from state or local correctional facilities of
certain
individuals
suspected
of
immigration
violations,
and,
second, that local authorities provide immigration agents with
access
to
therein.
City
detention
facilities
and
individuals
detained
Additionally, a condition on Byrne JAG funds was added
last year that requires the City to certify compliance with a
federal
statute,
8
U.S.C.
§
1373,
which
prohibits
local
government and law enforcement officials from restricting the
sharing of information with the Immigration and Naturalization
Service
(“INS”)
individual.
regarding
the
citizenship
status
of
any
(See, FY 2016 Chicago/Cook County JAG Program Grant
- 3 -
Award, dated Sept. 7, 2017, at 2-13, Ex. C to Decl. of Alan
Hanson (“Hanson Decl.”).)
is
also
imposed
on
2017
The condition to certify compliance
Byrne
JAG
funds.
(See,
Byrne
Program, FY 2017 Local Solicitation, Ex. 11 to Def.’s Br.)
JAG
The
exact text of the three conditions is as follows:
(1) A State statute, or a State rule, regulation, -policy, or -practice, must be in
place that is designed to ensure that, when a
State (or State-contracted) correctional facility
receives from DHS a formal written request
authorized by the Immigration and Nationality Act
that seeks advance notice of the scheduled
release date and time for a particular alien in
such facility, then such facility will honor such
request and -- as early as practicable -- provide
the requested notice to DHS.
(2) A State statute, or a State rule, regulation, -policy, or -practice, must be in
place that is designed to ensure that agents of
the United States acting under color of federal
law in fact are given to access any State (or
State-contracted) correctional facility for the
purpose of permitting such agents to meet with
individuals who are (or are believed by such
agents to be) aliens and to inquire as to such
individuals’ right to be or remain in the United
States.
(3) The applicant local government must submit
the required ‘Certification of Compliance with 8
U.S.C. 1373’ (executed by the chief legal officer
of the local government).
(Byrne JAG Program Grant Award for County of Greenville, Special
Conditions (“Byrne Conditions”), ¶¶ 53, 55-56, Ex. A to Hanson
Decl.; see also Hanson Decl., ¶ 6.)
- 4 -
These conditions will be
referred to respectively as the notice condition, the access
condition, and the compliance condition.
The City claims all
three conditions are unlawful and unconstitutional, even though
it acquiesced to the compliance condition when accepting the
2016 Byrne JAG funds.
The
compliance
condition
requires
the
City
to
certify
compliance with Section 1373. (Byrne Conditions ¶ 53.)
Section
1373 is titled “Communication between government agencies and
the
Immigration
and
Naturalization
Service”
and
provides
follows, 8 U.S.C. § 1373:
(a) In General
Notwithstanding any other provision of Federal, State,
or local law, a Federal, State, or local government
entity or official may not prohibit, or in any way
restrict, any government entity or official from
sending
to,
or
receiving
from,
the
Immigration
and Naturalization Service information regarding the
citizenship or immigration status, lawful or unlawful,
of any individual.
(b) Additional Authority of Government Entities
Notwithstanding any other provision of Federal, State,
or local law, no person or agency may prohibit, or in
any
way
restrict,
a
Federal, State,
or
local
government entity from doing any of the following with
respect to information regarding the immigration
status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or
receiving such information from, the Immigration
and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other
Federal, State, or local government entity.
- 5 -
as
(c) Obligation to Respond to Inquiries
The
Immigration
and Naturalization Service
shall
respond to an inquiry by a Federal, State, or local
government agency, seeking to verify or ascertain the
citizenship or immigration status of any individual
within the jurisdiction of the agency for any purpose
authorized
by
law,
by
providing
the
requested
verification or status information.
C.
The City’s Welcoming Ordinance
Chicago’s Welcoming City Ordinance (the “Ordinance”) is a
codified local policy that restricts the sharing of immigration
status between residents and police officers.
Illinois,
Municipal
Code
§
2-173-005
et
seq.
See, Chicago,
The
explicit
purpose of the Ordinance is to “clarify what specific conduct by
City employees is prohibited because such conduct significantly
harms the City’s relationship with immigrant communities.” Id. §
2-173-005.
The Ordinance reflects the City’s belief that the
“cooperation of the City’s immigrant communities is essential to
prevent and solve crimes and maintain public order, safety and
security in the entire City” and that the “assistance from a
person, whether documented or not, who is a victim of, or a
witness to, a crime is important to promoting the safety of all
its residents.” Ibid.
Since the mid-1980s, the City has had in
place some permutation of this policy, typically in the form of
executive orders that prohibited City agents and agencies from
- 6 -
requesting
or
citizenship.
Pl.’s Br.)
disseminating
(See,
information
about
individuals’
Order
89-6,
Exs.
Executive
85-1,
A-B
to
First codified in Chicago’s Municipal Code in 2006,
the Ordinance was augmented in 2012 to refuse immigration agents
access
to
requests
Illinois
City
facilities
unless
certain
Municipal
Code
and
to
criteria
§
deny
immigration
detainer
were
met.
Chicago,
2-173-005.
An
See,
immigration
detainer
request is a request from Immigration and Customs Enforcement
(“ICE”),
asking
local
law
enforcement
to
detain
a
specific
individual for up to 48 hours to permit federal assumption of
custody.
The
Ordinance
prohibits
any
“agent
or
agency”
from
“request[ing] information about or otherwise investigat[ing] or
assist[ing]
in
immigration
status
investigation
the
is
investigation
of
any
required
person
by
of
the
unless
Illinois
State
citizenship
such
Statute,
regulation, or court decision.” Id. § 2-173-020.
forbid
any
agent
or
agency
from
inquiry
or
or
federal
It goes on to
“disclos[ing]
information
regarding the citizenship or immigration status of any person.”
Id.
§
2-173-030.
“[c]ivil
immigration
The
Ordinance
enforcement
specifically
actions”
responsibility,” and provides as follows:
- 7 -
as
characterizes
a
“[f]ederal
a.
Except for such reasonable time as is
necessary to conduct the investigation specified
in subsection (c) of this section, no agency or
agent shall:
1.
arrest, detain or continue to detain a
person
solely
on
the
belief
that
the person is not present legally in the
United
States,
or
that
the person has
committed a civil immigration violation;
2.
arrest, detain, or continue to detain a
person based on an administrative warrant
entered
into
the
Federal
Bureau
of
Investigation’s
National Crime Information
Center database, or successor or similar
database maintained by the United States,
when the administrative warrant is based
solely
on
a
violation
of
a
civil
immigration law; or
3.
detain, or continue to detain,
a person based upon an immigration detainer,
when such immigration detainer is based
solely on a violation of a civil
immigration law.
b.
1.
Unless an agency or agent is acting
pursuant to a legitimate law enforcement
purpose that is unrelated to the enforcement
of a civil immigration law, no agency or
agent shall:
A.
permit ICE agents access to
a person being detained by, or in
the custody of, the agency or agent;
B.
permit ICE agents use of agency
facilities for investigative interviews
or other investigative purpose; or
- 8 -
C.
while on duty, expend their time
responding to ICE inquiries or
communicating with ICE regarding
a person’s custody status or release
date.
2.
An agency or agent is authorized to
communicate with ICE in order to determine
whether any matter involves enforcement
based solely on a violation of a civil
immigration law.
c.
This section shall not apply when an
investigation conducted by the agency or agent
indicates that the subject of the investigation:
1.
has an outstanding criminal warrant;
2.
has been convicted of a felony in
any court of competent jurisdiction;
3.
is a defendant in a criminal case in
any court of competent jurisdiction where
a judgment has not been entered and
a felony charge is pending; or
4.
has been identified as a known gang
member either in a law enforcement agency’s
database or by his own admission.
Id. § 2-173-042. The Ordinance is thus irreconcilable with the
notice and access conditions the Attorney General has imposed on
the 2017 Byrne JAG grant.
After
receiving
notice
of
the
Attorney
General’s
new
conditions on the Byrne JAG grant program, the City filed suit
alleging that the conditions were unconstitutional and unlawful.
Throughout this litigation, the City has strenuously argued for
- 9 -
its prerogative to allocate scarce local police resources as it
sees
fit
–
that
is,
to
areas
other
than
civil
immigration
enforcement – and for the soundness of doing so based on the
integral
role
undocumented
reporting and solving crime.
immigrant
communities
play
(See, Pl.’s Br. at 2-4.)
in
Before
the Court is the City’s Motion for a Preliminary Injunction,
requesting the Court enjoin the Attorney General from imposing
the three above-described conditions on FY 2017 Byrne JAG funds.
The Court grants the City a preliminary injunction against
the imposition of the notice and access conditions on the Byrne
JAG
grant.
The
Court
declines
to
grant
the
preliminary
injunction with respect to the compliance condition.
II.
A.
ANALYSIS
Legal Standard
To warrant the entry of a preliminary injunction, the City
“must establish that it is likely to succeed on the merits, that
it
is
likely
to
suffer
irreparable
harm
in
the
absence
of
preliminary relief, that the balance of the equities tips in its
favor,
and
that
an
injunction
is
in
the
public
interest.”
Higher Soc’y of Indiana v. Tippecanoe Cty., Indiana, 858 F.3d
1113, 1116 (7th Cir. 2017) (quoting Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008)).
Where the Government is
the opposing party, the last two factors merge.
- 10 -
Nken v. Holder,
556
U.S.
418,
435
(2009).
Further,
under
Seventh
Circuit
precedent, the Court must also “weigh the harm the plaintiff
will suffer without an injunction against the harm the defendant
will suffer with one.”
Harlan v. Scholz, 866 F.3d 754, 758 (7th
Cir. 2017).
B.
Likelihood of Success on the Merits
This case presents three questions:
Did Congress authorize
the Attorney General to impose substantive conditions on the
Byrne
JAG
authorize
grant?
those
If
so,
conditions
did
Congress
under
the
have
Spending
the
power
Clause?
finally, does Section 1373 violate the Tenth Amendment?
to
And
We take
these questions in turn.
1.
Executive Authority under the Byrne JAG Statute
Whether
the
new
conditions
on
the
Byrne
JAG
grant
are
proper depends on whether Congress conferred authority on the
Attorney
General
to
delegate
authority
through statute.
457,
472
impose
and
them.
discretion
Congress
to
the
may
permissibly
Executive
Branch
See, Whitman v. Am. Trucking Ass’ns, 531 U.S.
(2001).
The
contours
of
the
Executive
Branch’s
authority are circumscribed by statute because the “power to act
. . . [is] authoritatively prescribed by Congress.”
City of
Arlington,
(2013).
Accordingly,
Tex.
we
v.
must
F.C.C.,
look
569
to
the
- 11 -
U.S.
290,
statute
to
297-98
determine
the
authority of the Attorney General to impose conditions on the
Byrne JAG grant.
In determining the scope of a statute, we look
first to its language.
392,
396
(7th
Cir.
See, United States v. Berkos, 543 F.3d
2008).
“If
the
statutory
language
is
unambiguous, in the absence of a clearly expressed legislative
intent
to
the
contrary,
regarded as conclusive.”
that
language
must
ordinarily
be
Russello v. United States, 464 U.S.
16, 20 (1983) (internal quotations omitted). The language and
design
of
the
statute
as
a
whole
may
guide
determining the plain meaning of the text.
the
Court
in
Berkos, 543 F.3d at
396.
The Byrne JAG program was created in 2006 and is codified
at 34 U.S.C. §§ 10151-10158 (formerly 42 U.S.C. §§ 3750-3757).
These
provisions
are
housed
in
Subchapter
entitled “Justice System Improvement.”
V
of
Chapter
101
Subchapter V enumerates
the various “Bureau of Justice Assistance Grant Programs” in
three parts:
covering
Part A covering the Byrne JAG program, Part B
“Discretionary
Grants,”
“Administrative Provisions.”
and
Part
C
discussing
The authority explicitly granted
to the Attorney General within the Byrne JAG statute is limited.
The Attorney General is authorized to: determine the “form” of
the application, 34 U.S.C. § 10153(a); “reasonably require” “the
applicant
[to]
maintain
and
report
- 12 -
. . .
data,
records,
and
information
(programmatic
10152(a)(4);
assessment”
and
“in
and
“develop[]
coordination
financial),”
guidelines”
with
the
34
for
U.S.C.
“a
National
§
program
Institute
of
Justice,” 34 U.S.C. § 10152.
In
light
of
the
limited
express
authority
the
statute
confers on the Attorney General, the City argues that Congress
did
not
authorize
the
Attorney
General
conditions on the Byrne JAG grant.
to
place
substantive
The fact that Congress did
authorize the Attorney General to place substantive conditions
on
other
grants,
the
City
contends,
reservation of that authority.
42
U.S.C.
textual
§
3742).
authority
By
within
an
express
See, 34 U.S.C. § 10142 (formerly
failing
the
indicates
to
direct
Byrne
JAG
the
Court
statute
to
any
itself,
the
Attorney General appears to concede the point.
However,
expressly
the
authorized
Attorney
General
imposition
of
the
argues
that
challenged
Congress
conditions
through a provision of Subchapter I establishing the Office of
Justice Programs, which provision allows the Assistant Attorney
General to “plac[e] special conditions on all grants” and to
“determin[e] priority purposes for formula grants.” 34 U.S.C.
§ 10102(a)(6) (formerly 42 U.S.C. § 3712(a)(6)).
The difficulty
with the Attorney General’s reading of the statute is that this
grant of authority to the Assistant Attorney General is located
- 13 -
in an entirely different subchapter governing Office of Justice
Programs, whereas Congress codified the later-in-time Byrne JAG
program under the aegis of Bureau of Justice Assistant Grant
Programs.
The
statute
contains
no
textual
reference
that
applies this section to the rest of the chapter or specifically
to the Byrne JAG program.
In fact, Chapter 101 comprises 38
subchapters implicating a broad swath of federal programs and
subject matter, ranging from grants for residential substance
abuse
treatment,
see,
34
U.S.C.
§§
10421-10426,
to
criminal
child support enforcement, see, 34 U.S.C. §§ 10361-10367.
Even
grant,
assuming
reading
the
that
§
10102(a)
statute
as
the
applies
to
Attorney
the
Byrne
General
JAG
advises
results in multiple incongruities within the text.
First,
it
renders
superfluous
the
explicit
statutory
authority Congress gave to the Director to impose conditions on
other Bureau of Justice Assistance grants housed within the same
subchapter
as
the
Byrne
JAG
statute.
Congress
explicitly
provides the Director of the Bureau of Justice Assistance with
authority
to
“determine[]”
“terms
and
conditions”
discretionary grants itemized in Part B of the statute:
The Director shall have the following duties:
[. . .]
- 14 -
for
the
(2) Establishing programs in accordance with part
B of subchapter V of this chapter and, following
public announcement of such programs, awarding
and allocating funds and technical assistance in
accordance with the criteria of part B of
subchapter V of this chapter, and on terms and
conditions determined by the Director to be
consistent with part B of subchapter V of this
chapter.
34 U.S.C. § 10142 (emphases added).
As noted earlier, the Byrne
JAG grant is a formula grant located in Part A of Subchapter V.
The most natural reading of the statute, then, is that Congress
endowed the Director with authority to impose conditions on the
discretionary
grants
under
Part
B,
but
specifically
withheld
that authorization for the formula grant, the Byrne JAG grant,
in Part A.
statute
Congress
See, ibid.
therefore
to
provisions.
The Attorney General’s reading of the
ignores
withhold
the
ostensibly
comparable
clear
authority
in
decision
the
Byrne
by
JAG
See, N.L.R.B. v. SW General, Inc., 137 S.Ct. 929,
940 (2017) (noting the expressio unius canon’s application when
“circumstances support a sensible inference that the term left
out
must
have
been
meant
to
be
excluded”)
(quotations
and
alterations omitted).
Regardless, it would be quite odd for
Congress
Attorney
to
conditions
give
on
the
the
General
discretionary
grants
authority
if
it
to
had
impose
already
provided the Attorney General authority to impose conditions on
all
grants
through
Section
10102(a)(6).
- 15 -
See,
34
U.S.C.
§
10102(a)(6).
statutory
This reading would render superfluous the explicit
grant
discretionary
of
grants
authority
in
Part
to
B.
impose
See,
conditions
Marquez
v.
on
the
Weinstein,
Pinson & Riley, P.S., 836 F.3d 808, 811 (7th Cir. 2016) (“It is
a cardinal principle of statutory construction that a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.”) (quotations and citations omitted).
This conclusion is supported by the fact that Congress
specifically conferred authority to impose conditions on other
grants housed in the same chapter.
did so clearly.
Where Congress did so, it
For example, Subchapter XIX of Chapter 101
provides federal funds for efforts designed to combat violence
against women.
See, 34 U.S.C. § 10446-10453 (formerly 42 U.S.C.
§§ 3796gg-0 to 3796gg-11).
There, Congress expressly authorized
the Attorney General to impose conditions when administering the
grant:
In disbursing grants under this subchapter, the
Attorney General may impose reasonable conditions on
grant awards to ensure that the States meet statutory,
regulatory, and other program requirements.
34 U.S.C. § 10446(e)(3) (emphasis added).
Further, Congress
expressly limited its delegation of authority to apply only to
funds
awarded
under
that
specific
- 16 -
subchapter.
Ibid.
“Where
Congress
includes
particular
language
in
one
section
of
a
statute but omits it in another section of the same Act, it is
generally
presumed
that
Congress
acts
intentionally
purposely in the disparate inclusion or exclusion.”
and
Russello,
464 U.S. at 23. What is more, “[w]e do not lightly assume that
Congress has omitted from its adopted text requirements that it
nonetheless intends to apply, and our reluctance is even greater
when Congress has shown elsewhere in the same statute that it
knows
how
to
make
such
a
requirement
manifest.”
Jama
v.
Immigration & Customs Enf’t, 543 U.S. 335, 341 (2005).
Second, even if there were a basis for importing § 10102(a)
into the Byrne JAG statute, it is suspect to ground the Attorney
General’s authority to impose the challenged conditions via the
power
See,
Congress
34
conferred
U.S.C.
§
on
the
Assistant
10102(a)(6);
Whitman,
Attorney
531
U.S.
General.
at
468
(“Congress . . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions—it does
not,
one
might
say,
hide
elephants
in
mouseholes.”).
Furthermore, § 10102(a)(6) provides that the 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.” 34 U.S.C.
§ 10102(a)(6) (emphasis added).
The language of the statute,
- 17 -
including its use of the term “may,” implies that any authority
of the Assistant Attorney General to place special conditions on
grants
must
delegation
General.
flow
of
either
power
See,
from
the
independently
statute
Jama,
543
possessed
U.S.
at
customarily connotes discretion.”).
this
litigation
has
pointed
itself
346
by
or
the
(“The
from
a
Attorney
word
‘may’
Yet the Attorney General in
to
no
provision
other
than
§
10102(a)(6) to ground its purported authority to condition Byrne
JAG grants.
The Attorney General’s reliance on 34 U.S.C. § 10102(a)(6)
is persuasive only to the extent one scrutinizes the provision
without
the
illumination
of
the
rest
of
the
statute.
See,
Gonzales v. Oregon, 546 U.S. 243, 273 (2006) (statutes “should
not be read as a series of unrelated and isolated provisions”).
Viewed
in
its
context,
however,
§
10102(a)(6)
is
better
understood as allowing the Attorney General to delegate powers
to the Assistant Attorney General to aid in administering the
Office of Justice Programs – whereas the Byrne JAG grant is a
Bureau of Justice Assistance Program that is both housed in a
distinctly different subchapter of Chapter 101 and isolated from
other discretionary grants within its own subchapter.
§ 10102(a)(6)
to
authorize
the
Attorney
General
to
Reading
impose
substantive conditions on all grants under the entire chapter is
- 18 -
discordant with the specific and clear grants of authority in
other sections of the statute.
This
conclusion
interpretation.
rests
on
principles
of
statutory
It does not imply that Congress cannot impose
the conditions at issue.
See, Pennhurst State Sch. & Hosp. v.
Halderman,
17
451
U.S.
1,
(1981)
(“[O]ur
cases
have
long
recognized that Congress may fix the terms on which it shall
disburse
federal
Congress
may
conditions
money
well
or
have
delegate
to
the
States.”).
Spending
to
the
Clause
Executive
On
power
Branch
the
to
contrary,
impose
the
power
the
to
impose them, including the notice and access condition, but it
must exert that power through statute.
cannot
impose
the
conditions
without
The Executive Branch
Congressional
authority,
and that authority has not been conferred through Section 10102.
The notice and access conditions therefore exceed statutory
authority, and, consequently, the efforts to impose them violate
the separation of powers doctrine and are ultra vires.
The City
has shown a likelihood of success on the merits as to these
conditions.
access
We do not reach the question whether the notice and
conditions
violate
the
Spending
Clause
because,
regardless, Congress did not authorize the Attorney General to
impose them.
- 19 -
The
Attorney
General
points
to
one
other
statutory
provision, 34 U.S.C. § 10153 (formerly 42 U.S.C. § 3752), for
the authority to impose the compliance condition specifically.
Section
10153(a)
lays
out
the
Byrne
JAG
application
requirements, which read in relevant part:
(A) In general
To request a grant under this part, the chief
executive officer of a State or unit of local
government shall submit an application to the Attorney
General within 120 days after the date on which funds
to carry out this part are appropriated for a fiscal
year, in such form as the Attorney General may
require. Such application shall include the following:
[. . .]
(5) A certification, made in a form acceptable to
the Attorney General and executed by the chief
executive officer of the applicant (or by another
officer of the applicant, if qualified under
regulations promulgated by the Attorney General),
that—
[. . .]
(D) the applicant will comply with all
provisions of this part and all other
applicable Federal laws.
34
U.S.C.
Attorney
§
10153(a)
General
argues
(emphases
that
§
added).
Specifically,
10153(a)(5)(D)
furnishes
the
the
authority to require a Byrne JAG applicant’s compliance with
federal law, including Section 1373.
See, ibid.
Undeniably,
Section 1373 is a federal law that, by its terms, is applicable
- 20 -
to
the
City.
The
City
responds
that
“all
other
applicable
Federal laws” merely refers to compliance with the narrow body
of law governing federal grant-making.
See, e.g., 42 U.S.C. §
2000d; 29 U.S.C. § 794(a); 42 U.S.C. § 6102.
Both positions are
plausible, but for the reasons discussed below, the Attorney
General’s position is more consistent with the plain language of
the statute.
We,
as
statute.
always,
begin
with
the
plain
language
of
the
See, Jackson v. Blitt & Gaines, P.C., 833 F.3d 860,
863 (7th Cir. 2016).
We “must look to the particular statutory
language at issue, as well as the language and design of the
statute as a whole.”
281, 291 (1988).
K Mart Corp. v. Cartier, Inc., 486 U.S.
“If the statutory language is unambiguous, in
the absence of a clearly expressed legislative intent to the
contrary,
that
conclusive.”
The
language
ordinarily
be
regarded
as
Russello, 464 U.S. at 20.
statutory
applicable
must
Federal
language
at
issue
laws.”
Black’s
here
Law
is
“all
Dictionary
other
defines
“applicable” as “[c]apable of being applied; fit and right to be
applied”
group,
or
or
Dictionary
parties’
“affecting
or
relating
to
a
particular
situation;
having
direct
relevance.”
(10th
2014).
This
definition
ed.
interpretations.
However,
- 21 -
the
person,
Black’s
embraces
prefatory
term
Law
both
in
§ 10153(a)(5)(D), “all other,” implies a broader meaning than
that tolerated by the City’s interpretation.
Furthermore, if
Congress intended to have the applicant only certify compliance
with a limited body of Federal grant-making law, it could have
so
stated.
The
City
seeks
to
read
into
§
10153(a)(5)(D)
references to specific federal statutes that are not there.
The
City
argues
that
the
word
“applicable”
must
have
a
narrowing effect. (Pl.’s Brief at 19.) However, it is equally
reasonable to read “applicable” as referring to the noun, in
other words, to refer to the federal laws applicable to the
applicant – in this case, Chicago.
34 U.S.C. § 10153(a)(5)(D).
The Court will not stretch the natural meaning of the text,
especially
here
where
the
City
offers
no
case
law
or
other
authority to support its straitjacketed interpretation of “all
other applicable Federal laws.”
34 U.S.C. § 10153; see also,
Sandifer v. U.S. Steel Corp., 134 S.Ct. 870, 876 (2014) (“It is
a
fundamental
canon
of
statutory
construction
that,
unless
otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning.”) (quotations omitted).
The
Court
interpreting
broadly
found
similar
interpreted
no
directly
constructions,
the
term
analogous
the
“applicable
case,
Supreme
laws.”
but
Court
See,
when
has
e.g.,
Dep’t of Treasury v. Fed. Labor Relations Auth., 494 U.S. 922,
- 22 -
930 (1990) (interpreting the statutory term “applicable laws” as
“laws
outside
the
Act”);
see
also,
Bennett
Enters.,
Inc.
v.
Domino’s Pizza, Inc., 45 F.3d 493, 497 (D.C. Cir. 1995) (noting
that
“all
applicable
susceptible
compliance
to
an
with
laws”
is
“not
interpretation
state
and
federal
reasonably
that
tax
does
or
not
laws”);
fairly
encompass
United
States
Dep’t of Health & Human Servs. v. F.L.R.A., 844 F.2d 1087, 109495 (4th Cir. 1988) (finding statutory requirement that Executive
Branch managers follow “applicable laws” to exclude Office of
Management and Budget circulars but to encompass a broad panoply
of statutory law); United States v. Odneal, 565 F.2d 598, 600
(9th Cir. 1977) (reference to “all applicable laws” relating to
admiralty grants “very broad statutory authority”).
With
no
“applicable
authority
.
.
.
to
laws”
support
in
a
a
more
statutory
narrow
reading
context,
and
of
some
authority (albeit in a different context) to support a broad
reading of the phrase, combined with the plain meaning of the
language, the Court finds that “all other applicable Federal
laws” encompasses Section 1373 as applicable to the Byrne JAG
applicant – in this case, the City of Chicago.
Here, it is the
City’s burden as the movant to show otherwise, and it fails to
meet that burden on this record.
U.S.
968,
972
(1997)
(“It
See, Mazurek v. Armstrong, 520
frequently
- 23 -
is
observed
that
a
preliminary injunction is an extraordinary and drastic remedy,
one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.”).
This
interpretation
leads
to
a
rational
reading
of
the
statute, as Congress could expect an entity receiving federal
funds to certify its compliance with federal law, as the entity
is
–
independent
comply.
At
of
oral
receiving
federal
argument,
the
funds
City
–
obligated
argued
that
to
this
interpretation is limitless, allowing the Attorney General to
pick from the United States Code like a menu at a restaurant.
For several reasons, the City’s consternation can be assuaged.
First, the default assumption is that states and localities do
comply with all federal laws.
Second, the discretion to demand
certifications of compliance is not limitless.
The limitations
on federal grant conditions announced in South Dakota v. Dole,
483
U.S.
condition,
203,
such
207-08
(1987),
as
compliance
a
require
that
a
certification,
relation to the purpose of the federal funds.
particular
bear
some
And further, as
noted at oral argument, any condition attached to federal grants
that is too burdensome defeats itself because a state or local
government
Attorney
could
reject
General’s
the
attempt
funds
to
and
induce
condition.
- 24 -
thus
undermine
compliance
with
the
the
The
City
argues
that
previous
conditions
have
all
been
tethered to statutes that by their terms apply to federal grant
recipients.
This may be true, but the fact that the Attorney
General has not exercised authority does not necessarily speak
to whether he possesses it, especially where the statutory terms
embrace such an authorization.
The City has not met its burden to show a likelihood of
success on the merits regarding the lack of statutory authority
for the compliance condition.
statute
authorizes
the
The most natural reading of the
Attorney
General
to
require
a
certification of compliance with all other applicable federal
laws, which by the plainest definition includes Section 1373.
The City offers no statutory or case law authority to support
its narrower reading.
Because the lack of authority supporting
a narrower interpretation and the plain language of the statute
counsel
against
applicable
General
the
Federal
has
City’s
laws,”
statutory
interpretation
the
Court
authority
finds
to
of
that
impose
“all
the
other
Attorney
the
compliance
the
compliance
condition on the Byrne JAG grant.
2.
Constitutionality of Section 1373
Even
with
Congressional
condition
must
be
proper
authorization,
under
the
Spending
Section 1373 must pass constitutional muster.
- 25 -
Clause,
and
As the City has
not argued that the compliance condition violates the Spending
Clause, the Court now turns to the Section 1373 question.
Although Congressional power is substantial, Congress may
not simply “commandeer the legislative processes of the States
by
directly
compelling
regulatory program.”
them
to
enact
and
enforce
a
federal
Travis v. Reno, 163 F.3d 1000, 1003 (7th
Cir. 1998). It also cannot require states “to govern according
to
Congress’
instructions”
or
circumvent
the
“conscripting the State’s officers directly.”
rule
by
Printz v. United
States, 521 U.S. 898, 935 (1997); New York v. United States, 505
U.S. 144, 162 (1992).
of
federalism
These prohibitions derive from principles
ingrained
in
our
constitutional
system,
under
which “both the National and State Governments have elements of
sovereignty the other is bound to respect.”
Arizona v. United
States, 567 U.S. 387, 398 (2012); see also, Gregory, 501 U.S. at
459 (“In the tension between federal and state power lies the
promise of liberty.”).
With
the
conflict.
existence
of
two
sovereigns
comes
occasional
The Supremacy Clause provides the clear rule that
federal law “shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the
Constitution
or
notwithstanding.”
Laws
of
any
Art. VI, cl. 2.
- 26 -
state
to
the
Contrary
“As long as it is acting
within the powers granted it under the Constitution, Congress
may impose its will on the States [and] . . . may legislate in
areas traditionally regulated by the States.”
at 459-60.
Gregory, 501 U.S.
Further, the presumption attached to every statute
is that it is a constitutional exercise of legislative power.
Reno,
528
U.S.
at
148.
We
start
there,
attaching
presumption of constitutionality to Section 1373.
in
relevant
part,
provides
that
“no
person
the
Section 1373,
or
agency
may
prohibit, or in any way restrict, a Federal, State, or local
government entity from doing any of the following with respect
to
information
regarding
the
immigration
unlawful, of any individual:
or
requesting
Immigration
information;
Federal,
and
(3)
State,
or
lawful
or
(1) Sending such information to,
receiving
such
Naturalization
information
Service;
Exchanging
such
or
government
local
status,
the
Maintaining
(2)
from,
such
information
with
entity.”
any
8
other
U.S.C.
§ 1373(b).
It
is
undisputed
that
Congress
legislate on the subject of aliens.
Game
Commission,
334
U.S.
410,
has
plenary
power
to
See, Takahashi v. Fish and
419
(1948)
(“The
Federal
Government has broad constitutional powers in determining what
aliens shall be admitted to the United States, the period they
may remain, regulation of their conduct before naturalization,
- 27 -
and
the
Indeed,
terms
regulation
of
and
their
naturalization.”).
enforcement
are
federal
See, Arizona, 567 U.S. at 396-97. Nonetheless, the
argues
because
conditions
immigration
functions.
City
and
it
that
Section
“requires
1373
state
violates
and
local
the
Tenth
officers
Amendment
to
provide
information that belongs to Chicago and is available to them
only in their official capacity” and requires “state officials
to assist in the enforcement of federal statute by regulating
private individuals.”
(Pl.’s Brief at 20 (internal quotations
omitted).)
Specifically, the City contends that Section 1373
commandeers
state
and
local
governments
by
“controlling
the
actions of their employees.” Ibid.
The constitutionality of Section 1373 has been challenged
before.
The
Second
Circuit
in
City
of
New
York
v.
United
States, 179 F.3d 29 (2d Cir. 1999), addressed a facial challenge
to Section 1373 in similar circumstances.
New
York
providing
City
prohibited
federal
its
immigration
By executive order,
employees
from
voluntarily
authorities
with
information
concerning the immigration status of any alien.
The
city
sued
constitutionality
the
of
United
Section
1373
Id. at 32.
- 28 -
States,
under
the
Id. at 31-32.
challenging
Tenth
the
Amendment.
The Second Circuit found that Section 1373 did not compel
state or local governments to enact or administer any federal
regulatory
program
or
conscript
local
employees
into
its
service, and therefore did not run afoul of the rules gleaned
from the Supreme Court’s Printz and New York decisions.
New York, 179 F.3d at 35.
City of
Rather, the court held that Section
1373 prohibits local governmental entities and officials only
from directly restricting the voluntary exchange of immigration
information with the INS. Ibid.
The Court found that the Tenth
Amendment, normally a shield from federal power, could not be
turned into “a sword allowing states and localities to engage in
passive resistance that frustrates federal programs.” Ibid.
The
Second
and
local
Circuit
concluded
governments
from
that
Congress
outlawing
their
may
forbid
state
officials’
voluntary
cooperation with the INS without violating the Tenth Amendment.
Ibid.
As such, the court nullified New York City’s executive
order
mandating
non-cooperation
with
federal
immigration
authorities to the extent it conflicted with Section 1373.
Id.
at 37.
The City argues that City of New York v. United States
contravenes the Seventh Circuit’s decision in Travis v. Reno,
163
F.3d
1000
(7th
Cir.
1998),
by
impermissibly
balancing analysis to encroachments on federalism.
- 29 -
applying
a
We agree
with
the
City
infringement
precedent
is
in
that
balancing
the
inappropriate,
Travis,
163
not
F.3d
weight
only
at
of
under
1003,
a
federalism
this
but
Circuit’s
Supreme
Court
precedent as well.
See, Printz, 521 U.S. at 932 (noting that,
where
whole
“it
is
the
object
of
the
law
to
direct
the
functioning of the state executive, and hence to compromise the
structural
framework
of
dual
sovereignty,
such
a
‘balancing’
analysis is inappropriate . . . [N]o comparative assessment of
the various interests can overcome that fundamental defect.”)
(emphasis omitted).
holding
is
not
However, the logic of City of New York’s
indebted
to
an
impermissible
balancing
test.
Rather, City of New York relies on the distinction between an
affirmative obligation and a proscription:
In the case of Sections 434 and [1373], Congress has
not compelled state and local governments to enact or
administer any federal regulatory program. Nor has it
affirmatively conscripted states, localities, or their
employees into the federal government’s service. These
Sections do not directly compel states or localities
to require or prohibit anything.
Rather, they
prohibit state and local governmental entities or
officials only from directly restricting the voluntary
exchange of immigration information with the INS.
City of New York, 179 F.3d at 34-35 (citation omitted).
The
improper balancing the City highlights occurs where the Second
Circuit
addressed
a
secondary
question
yet
found
the
record
insufficient to supplant its prior analysis. Id. at 36-37. The
- 30 -
prior analysis was its holding – free from any inappropriate
balancing
–
that
states
do
not
have
the
power
“to
passive resistance to federal programs.” Id. at 37.
command
Granted,
City of New York does not fully address or answer two arguments
that
are
presented
in
this
case:
first,
that
the
federal
government cannot demand information belonging to the state; and
second, that it cannot (even indirectly) control the scope and
nature of the duties of state and local employees. Id. at 36.
The Second Circuit merely deemed the record insufficient on both
scores.
Ibid.
Regardless,
Supreme
Court
precedent
does
not
command a different result.
The City relies on Printz, but there, the statute at issue
required state officers to perform mandatory background checks
on prospective handgun purchasers – an affirmative act foisted
on local officials by Congress.
Supreme
Court
held
that
the
See, 521 U.S. at 933.
statute
violated
the
The
Tenth
Amendment, because the federal government cannot “command the
States’
officers
.
regulatory program.”
not
require
the
.
.
to
administer
Id. at 935.
“forced
or
enforce
a
However, Section 1373 does
participation”
of
state
officers
“administer or enforce a federal regulatory program.”
917-18.
federal
to
Id. at
It merely precludes a state or local government from
“prohibit[ing], or in any way restrict[ing], any . . . official”
- 31 -
from
sending,
“information
requesting,
regarding
the
maintaining,
immigration
individual.” 8 U.S.C. § 1373.
or
status
exchanging
.
.
.
of
any
In other words, it prohibits
prohibitions on local officials’ voluntary participation.
For similar reasons, other cases cited by the City do not
advance the ball either.
(finding
the
Driver’s
See, e.g., Reno, 528 U.S. at 151
Privacy
Protection
Act
constitutional
because “[i]t does not require the [state] Legislature to enact
any laws or regulations, and it does not require state officials
to
assist
private
in
the
enforcement
individuals”);
New
of
York,
federal
505
statutes
U.S.
at
188
regulating
(finding
a
“take title” provision on nuclear waste unconstitutional because
it forced a state to “enact or administer a federal regulatory
program” by affirmatively requiring it to legislate a certain
way
or
take
Mississippi,
ownership
456
U.S.
of
742,
nuclear
765
Amendment
violation
in
Policies
Act
permitting
utilities
on
condition
(1982)
provisions
Regulatory
proposals,
as
the
the
statute
waste);
that
of
(finding
the
states
they
contained
F.E.R.C.
Public
to
no
nothing
Tenth
Utilities
regulate
entertain
v.
public
federal
“directly
compelling” states to enact a legislative program).
At its core, this case boils down to whether state and
local governments can restrict their officials from voluntarily
- 32 -
cooperating
with
a
federal
scheme.
The
Court
has
not
been
presented with, nor could it uncover, any case holding that the
scope of state sovereignty includes the power to forbid state or
local
employees
program.
from
voluntarily
complying
with
a
federal
Like the statute at issue in Reno, Section 1373 “does
not require” the City “to enact any laws or regulations, and it
does not require state officials to assist in the enforcement of
federal
U.S.
statutes
at
151.
regulating
Without
a
private
doubt,
individuals.”
Section
1373
Reno,
528
restricts
the
ability of localities to prohibit state or local officials from
assisting a federal program, but it does not require officials
to
assist
in
the
enforcement
distinction is meaningful.
of
a
federal
program.
This
In this distinction, Section 1373 is
consistent with the constitutional principles enunciated in New
York and Printz.
U.S. at 161-63.
See, Printz, 521 U.S. at 935; New York, 505
Because no case has gone so far as to prohibit
the federal government from restricting actions that directly
frustrate
federal
constitutionally
prevent
local
law,
when
it
officers
the
Court
determines
from
finds
that
voluntarily
that
Congress
localities
cooperating
acts
may
not
with
a
federal program or discipline them for doing so.
It is worth noting, however, that this case poses a unique
and
novel
constitutional
question.
- 33 -
The
characterization
of
Section 1373 as a prohibition that requires no affirmative state
action accurately conveys the literal text of the statute, but
it
does
not
accurately
portray
its
practical
import.
Section 1373 mandates that state and city employees have the
option
of
furnishing
to
the
INS
information
on
individuals’
immigration status while the employee is acting in his or her
capacity as a state or local official.
local
governments
cannot
both
comply
The corollary is that
with
Section
1373
and
discipline an employee for choosing to spend his or her time
assisting in the enforcement of federal immigration laws.
state
or
local
government
cannot
control
the
scope
If a
of
its
officials’ employment by limiting the extent of their paid time
spent
cooperating
with
the
INS,
then
Section
1373
may
practically limit the ability of state and local governments to
decline to administer or enforce a federal regulatory program.
In this way, Section 1373 may implicate the logic underlying the
Printz decision more than it does the Reno rationale.
See,
Printz, 521 U.S. at 929-30.
Read
literally,
Section
1373
imposes
no
affirmative
obligation on local governments.
But, by leaving it up to local
officials
in
immigration
whether
to
priorities,
assist
the
statute
enforcement
may
of
effectively
federal
thwart
policymakers’ ability to extricate their state or municipality
- 34 -
from involvement in a federal program.
however,
only
violation
of
Supreme
Second
affirmative
the
Court
Tenth
precedent
Circuit,
neither
demands
Under current case law,
on
Amendment.
and
of
states
Here,
we
the
persuasive
which
elevates
degree urged by the City here.
constitute
follow
a
binding
authority
of
the
federalism
to
the
A decision to the contrary would
require an expansion of the law that only a higher court could
establish.
Accordingly, the City has not shown a likelihood of success
on the merits on the constitutionality of Section 1373.
C.
The
City
preliminary
assessing
has
Irreparable Harm
demonstrated
injunction
irreparable
the
analysis
harm,
–
courts
second
factor
irreparable
must
analyze
of
harm.
whether
the
In
the
“harm . . . cannot be prevented or fully rectified by the final
judgment
after
trial.”
Roland
Mach.
Co.
Inc., 749 F.2d 380, 386 (7th Cir. 1984).
v.
Dresser
Indus.,
Injury to reputation
or goodwill is not easily measurable in monetary terms, and so
often is deemed irreparable.
Stuller, Inc. v. Steak N Shake
Enterprises, Inc., 695 F.3d 676, 680 (7th Cir. 2012).
Here, the
City contends that, in the absence of an injunction, it must
either
forego
the
Byrne
JAG
grant
funds
it
has
specifically
earmarked for life-saving technology that detects when and where
- 35 -
gunshots are fired (P.I. Hrg. Tr. at 31:8-32:9) or accede to the
new conditions the Attorney General has placed on the funds and
suffer the collapse of trust between local law enforcement and
immigrant communities that is essential to ferreting out crime.
Two recent cases have dealt with preliminary injunctions
regarding facts similar to those before the Court.
Though the
legal issues presented in these cases are different than those
at bar, the harms alleged are sufficiently analogous.
In both
cases, the district court found that the plaintiff established
irreparable injury.
In City of El Cenizo v. State, the court
entered a preliminary injunction and credited the plaintiff’s
assertion that it would suffer two forms of irreparable harm:
(1) “Trust between local law enforcement and the people they
serve, which police departments have worked so hard to promote,
will
be
rates”;
substantially
and
(2)
eroded
“Local
and
result
jurisdictions
in
face
increased
severe
crime
economic
consequences . . . including . . . the loss of grant money.”
City
of
El
Cenizo
v.
State,
No.
SA-17-CV-404-OLG,
3763098, at *39 (W.D. Tex. Aug. 30, 2017).
2017
WL
In County of Santa
Clara v. Trump, the court found that the plaintiff established a
“constitutional injury” and irreparable harm “by being forced to
comply
with
injury.”
an
unconstitutional
law
or
else
face
financial
County of Santa Clara v. Trump, No. 17-CV-00485-WHO,
- 36 -
2017
WL
1459081,
reconsideration
at
denied,
*27
(N.D.
No.
Cal.
Apr.
17-CV-00485-WHO,
25,
2017
2017),
WL
3086064
(N.D. Cal. July 20, 2017).
The
harm
to
the
City’s
relationship
with
the
immigrant
community if it should accede to the conditions is irreparable.
Once such trust is lost, it cannot be repaired through an award
of money damages, making it the type of harm that is especially
hard to “rectif[y] by [a] final judgment.” Roland Mach., 749
F.2d at 386.
The Attorney General minimizes the impact of the relatively
modest Byrne JAG funds on public safety and argues that the City
could, by simply declining the funds, avoid any loss of trust
between
local
However,
a
law
enforcement
“Hobson’s
choice”
and
can
the
immigrant
establish
communities.
irreparable
harm.
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992).
In Morales, the Supreme Court held that a forced choice between
acquiescing
to
a
law
that
the
plaintiff
believed
to
be
unconstitutional and violating the law under pain of liability
was sufficient to establish irreparable injury. Ibid.
In the
same way, forcing the City either to decline the grant funds
based on what it believes to be unconstitutional conditions or
accept
them
and
face
an
irreparable
harm,
is
“Hobson’s choice” that supports irreparable harm.
- 37 -
the
type
of
Further, a
constitutional
violation
may
be
sufficient
irreparable injury as a matter of law.
to
establish
See, 11A Charles Alan
Wright et al., Federal Practice & Procedure § 2948.1 (2d ed.
1995) (“When an alleged deprivation of a constitutional right is
involved,
most
courts
hold
that
no
further
showing
of
irreparable injury is necessary.”); see also, Ezell v. City of
Chicago, 651 F.3d 684, 698–700 (7th Cir. 2011); Doe v. Mundy,
514 F.2d 1179, 1183 (7th Cir. 1975).
The lack of injury afflicting the Attorney General in the
absence
of
an
injunction
irreparable harm.
buttresses
the
City’s
showing
of
The Seventh Circuit has described this factor
as follows:
In deciding whether to grant a preliminary injunction,
the court must also consider any irreparable harm that
the defendant might suffer from the injunction—harm
that would not be either cured by the defendant’s
ultimately prevailing in the trial on the merits or
fully compensated by the injunction bond that Rule
65(c) of the Federal Rules of Civil Procedure requires
the district court to make the plaintiff post. The
cases do not usually speak of the defendant’s
irreparable harm, but the qualification is implicit;
if the defendant will not be irreversibly injured by
the injunction because a final judgment in his favor
would make him whole, the injunction will not really
harm
him.
But
since
the
defendant
may
suffer
irreparable harm from the entry of a preliminary
injunction, the court must not only determine that the
plaintiff
will
suffer
irreparable
harm
if
the
preliminary
injunction
is
denied—a
threshold
requirement for granting a preliminary injunction—but
also weigh that harm against any irreparable harm that
- 38 -
the defendant can show
injunction is granted.
he
will
suffer
if
the
Roland Mach., 749 F.2d at 387 (emphasis in original).
Although
harm to federal interests should not be diminished, a delay in
the imposition of new conditions that have yet to go into effect
will likely not cause any harm akin to that alleged by the City.
The Attorney General has put forth no comparable claim that a
delay
in
imposition
of
the
new
Byrne
JAG
conditions
would
permanently harm community relationships or any other interest
that would be difficult to remedy through money damages.
See,
Kansas v. United States, 249 F.3d 1213, 1227 (10th Cir. 2001)
(noting that maintaining the status quo was unlikely to affect a
substantial
public
interest
in
the
short
time
of
the
injunction).
Thus, the Court finds that the City has established that it
would suffer irreparable harm if a preliminary injunction is not
entered.
D.
The
Balancing of Equities and the Public Interest
remaining
two
factors
in
the
preliminary
analysis merge where the Government is a party.
at 435.
Both
injunction
Nken, 556 U.S.
These two factors are not outcome-determinative here.
sides
can
claim
that
concerns
their positions.
- 39 -
of
public
safety
justify
The City and amici strongly emphasize the studies and other
evidence
demonstrating
their counterparts.
that
sanctuary
cities
are
safer
than
Although both parties before the Court have
emphatically stressed the importance of their policy choice to
decrease
crime
and
support
law
enforcement
–
with
Chicago
emphasizing the benefits that flow from immigrant communities
freely
reporting
Attorney
crimes
General
and
emphasizing
acting
the
as
witnesses,
need
to
and
enforce
the
federal
immigration law – choosing between competing public policies is
outside the realm of judicial expertise and is best left to the
legislative and executive branch.
See, Nat’l Fed’n of Indep.
Bus. v. Sebelius, 567 U.S. 519, 538 (2012) (noting that the
courts
are
“vested
with
the
authority
to
interpret
the
law;
[they] possess neither the expertise nor the prerogative to make
policy judgments”).
Accordingly,
the
final
two
factors
favor
neither
party.
Both parties have strong public policy arguments, the wisdom of
which is not for the Court to decide.
finds
that
balancing
the
equities
and
Accordingly, the Court
weighing
the
public
interest do not tip the scale in favor of either party.
III.
CONCLUSION
For the reasons stated herein, the Court grants the City a
preliminary injunction against the Attorney General’s imposition
- 40 -
of the notice and access conditions on the Byrne JAG grant.
The
City has established a likelihood of success on the merits as to
these two conditions and irreparable harm if an injunction does
not issue, and the other two preliminary injunction factors do
not sway the analysis.
This injunction against imposition of
the notice and access conditions is nationwide in scope, there
being no reason to think that the legal issues present in this
case are restricted to Chicago or that the statutory authority
given
to
the
jurisdiction.
Attorney
General
would
differ
in
another
See, Int’l Refugee Assistance Project v. Trump,
857 F.3d 554, 605 (4th Cir. 2017).
The
Court
denies
the
City’s
Motion
for
a
Preliminary
Injunction with respect to the compliance condition, because the
City has failed to establish a likelihood of success on the
merits.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
September 15, 2017
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