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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