Trump Administration Allowed to Withdraw Funds from Sanctuary Cities (9th Circuit)

On 12 July 2019, the US Court of Appeals for the 9th Circuit ruled 2-1, in the case of City of Los Angeles v Barr, D.C. No. 2:17-cv-07215-R-JC, that the Trump Administration could put sanctuary cities at disadvantage when they apply for federal funding related to law enforcement due to a failure to cooperate on illegal immigration. Although the judgment is limited in its scope, it is the first time a federal appellate Court rules that limiting federal funding because of sanctuary policies is lawful.

Under the Violent Crime Control and Law Enforcement Act 1994 (VCCLEA 1994), State and local jurisdictions can apply for federal funding for law enforcement administered by the Department of Justice (DOJ) on a competitive basis. When considering what entity should be given federal funding, VCCLEA 1994 permits the DOJ to give ‘preferential considerations’ and in 2015 it was amended to allow the DOJ to give preferential treatment to a State which enacts certain laws directed at human trafficking (pp5-6). In line with the statutory requirements, the DOJ has developed a combined guidelines and application form for applicants interested in applying. It contains a series of questions and instructions, including in the illegal immigration focus area (such as “Please specify your focus on partnering with the federal law enforcement to address illegal immigration for information sharing, partnerships, task forces and honoring detainers.”). As grants are administered on a competitive basis, the DOJ scores and ranks all applications and then awards grant funds to the highest scoring applicants (pp8-9).

In the 2017 application cycle, the DOJ was awarding points, among others, for activities related to the control of illegal immigration, including additional points for submitting a ‘Certification of Illegal Immigration Cooperation’ confirming that the applicant will implement regulations ensuring that the Department of Homeland Security (DHS) has access to the applicant’s detention facilities in order to meet with an alien as well as regulations ensuring that such detention facilities provide notice “as early as practicable (at least 48 hours, where possible) to DHS regarding the scheduled release” of an alien in custody (pp10-11). In that application cycle, the DOJ received grant requests totaling $410 million while the funds allocated for that purpose by Congress stood at roughly $98.5 million. The City of Los Angeles applied but its application was unsuccessful. In response, Los Angeles sued in a federal District Court alleging that awarding points in connection to the control of illegal immigration violated constitutional principles of separation of powers, exceeded DOJ’s lawful authority, violated the Spending Clause and were also arbitrary and capricious under the Administrative Procedure Act (p11). The lawsuit was successful but Attorney General Barr appealed to the Court of Appeals for the 9th Circuit.

In its judgment, the Court of Appeals for the 9th Circuit first made clear that the question was “whether DOJ’s scoring practice of giving these additional points is unconstitutional or exceeds DOJ’s authority in administering the grant program“; therefore distinguishing between awarding additional points for cooperation on illegal immigration and entirely disqualifying applicants for sanctuary policies (p15).

Then, the Court considered the Spending Clause. It explained that Congress had the power “to grant federal funds to the States, and may condition such a grant upon the States’ ‘taking certain actions that Congress could not require them to take.’” (per National Federation of Independent Business vSebelius567 U.S. 519 (2012)). However, this power was not unlimited becuase “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion” (per South Dakota v. Dole, 483 U.S. 203) (pp16-17). In this respect, the Majority held that awarding additional points for cooperation in the area of illegal immigration, when considering grants awarded on a competitive basis, was not the same as withholding available federal funding or disqualifying for federal funding otherwise available. The Court considered it to be far less coercive than the the requirement for States to introduce a minimum drinking age of twenty-one years or otherwise suffer a 5% cut in the federal highway funding (upheld by the US Supreme Court in South Dakota v. Dole, 483 U.S. 203) or the requirement to implement an expansion of Medicaid coverage under the ObamaCare or otherwise lose the entire Medicaid funding (struck down by the US Supreme Court in National Federation of Independent Business vSebelius567 U.S. 519 (2012)) (pp18-19).

Furthermore, under the Spending Clause, there must be some link between the conditions imposed and the purpose for which funds are to be allocated. The Majority found that in this case the link existed between cooperation on illegal immigration and the purposes of VCCLEA 1994 such as to “address crime and disorder problems, and otherwise . . . enhance public safety” (p19).

At this point, the Court considered whether, by awarding points for cooperation on illegal immigration, the DOJ exceeded its statutory authority under VCCLEA 1994. The Majority held that, in passing VCCLEA 1994, Congress left the executive a considerable leeway in its implementation. This triggered the Chevron deference doctrine stipulating that rules set by the executive in the course of implementation of statutes must be declared lawful “unless they are arbitrary, capricious or manifestly contrary to the statute” (per Chevron U.S.A.Incv. Natural Resources Defense CouncilInc., 467 U.S. 837 (1984)) (p21). In this respect, the Court ruled that “DOJ’s inclusion of immigration-related scoring factors as a component of its implementation of its grant program is well within DOJ’s broad authority to carry out the Act” and that “nothing in the Act precludes DOJ from allocating federal funds to state or local governments to focus on problems raised by the presence of illegal aliens within their jurisdictions.” This is because “DOJ’s understanding that illegal immigration presents a public safety issue has been acknowledged by the Supreme Court” (per Arizona v. United States, 567 U.S. 387 (2012)) (p22-28).

Finally, the Court held that, by including factors concerned with cooperation in the field of illegal immigration, the DOJ did not act arbitrarily or capriciously under the Administrative Procedure Act. In fact, the DOJ explained its new policy in clear terms and linked it to the issue of public safety directly relevant under VCCLEA 1994. The fact that Los Angeles did not agree with the explanation did not render it invalid. The Majority stated that “Los Angeles may believe that addressing illegal immigration is not the most effective way to improve public safety, but the wisdom of DOJ’s policy is not an element of our arbitrary and capricious review” (p30-32).

The case of City of Los Angeles v Barr, D.C. No. 2:17-cv-07215-R-JC, is a first major case concerning sanctuary cities under the Trump Administration. Although its scope is limited only to using cooperation on illegal immigration as one of the factors in awarding federal funding on a competitive basis, it indicates that the federal Government might, at least in some circumstances, use its funding as a leverage against sanctuary jurisdictions. This, however, is by no means the end of litigation concerning sanctuary policies. The Courts are yet to decide whether disqualifying sanctuary cities altogether from obtaining federal funding is constitutional. In any event, the City of Los Angeles can also appeal the ruling to the en benc panel of the Court of Appeal for the 9th Circuit or try to appeal directly to the US Supreme Court.