Tag: jurisdiction

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.

Surveillance Court Rulings Subject to Judicial Review (UKSC)

On 15 May 2019, the UK Supreme Court ruled 4-3, in R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22, that rulings of the Investigatory Powers Tribunal are subject to the supervisory jurisdiction of the High Court on the point of law. In its ruling, the Supreme Court discusses a common law presumption against clauses restricting access to judicial review and, more crucially, the limits of the doctrine of parliamentary sovereignty.

The Investigatory Powers Tribunal is a specialist tribunal created by the Regulation of Investigatory Powers Act 2000 (RIPA 2000) and tasked with supervising intelligence surveillance and other conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (GCHQ). Under RIPA 2000, s 67(8), rulings of the Investigatory Powers Tribunal seem to be final:

“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”

However, Lord Carnwath, in his Majority Opinion, held that judgments containing errors of law were not ‘determinations’ within the meaning of RIPA 2000, s 67(8) and the supervisory jurisdiction was therefore not ousted. This interpretation flows from the old decisions of the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 14 and O’Reilly v Mackman [1983] UKHL 1 which established that:

“…If a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie, one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported ‘determination’, not being a ‘determination’ within the meaning of the empowering legislation, was accordingly a nullity…” [para 54]

Therefore, Lord Carnwath held that ‘…a determination arrived at on an erroneous view of the relevant law was not a “determination” within the meaning of an ouster clause...’ [para 54]. This approach is consistent with a general common law presumption against ousting the jurisdiction of the High Court [para 107].

However, in his Majority Opinion, Lord Carnwath moves beyond the common law presumption against clauses restricting access to judicial review and the concept of ‘nullity’ determinations and suggests that the question of the supervisory jurisdiction of the High Court should come down to the concept of the rule of law:

“This proposition should be seen as based, not on such elusive concepts as jurisdiction (wide or narrow), ultra vires, or nullity, but rather as a natural application of the constitutional principle of the rule of law (as affirmed by section 1 of the [Constitutional Reform Act] 2005), and as an essential counterpart to the power of Parliament to make law. The constitutional roles both of Parliament, as the maker of the law, and of the High Court, and ultimately of the appellate courts, as the guardians and interpreters of that law, are thus respected…” [para 132]


“…Arguably, following the logic of the reasoning in R (Cart) [v Upper Tribunal [2011] UKSC 28], it may be thought implicit in the constitutional framework for the rule of law, as established by the Senior Courts Act 1981 and the Constitutional Reform Act 2005, that legal issues of general importance should be reviewable by the appellate courts; and that an ouster clause which purports to exclude that possibility cannot, consistently with the rule of law, be upheld…” [para 142]

Consequently, Lord Carnwath concluded that:

“…[A]lthough it is not necessary to decide the point, I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.” [para 144]

The Majority Opinion in R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22 constitutes a vital part of UK constitutional jurisprudence on the doctrine of parliamentary sovereignty as it seems to suggest that there are some ultimate limits as to what Parliament can and cannot do. The Supreme Court appears to suggest that the concept of the rule of law might pose limits to the Parliament’s power to regulate access to judicial review. It is not clear what those limits are but the Court points to the fact that unlike the Court of Appeal and the Supreme Court, which are the creation of statutes, the High Court enjoys the original common law jurisdiction [para 141] and, although there is no constitutional right of appeal form the High Court, its supervisory jurisdiction is somehow special because ‘[a]t least since the time of Blackstone, this has been a central part of the function of the High Court as constitutional guardian of the rule of law’ [para 139]. The Supreme Court therefore recognises the long history of the supervisory jurisdiction of the High Court which was established at the end of the 13th century as the King’s Bench and its ‘supervisory role was preserved by section 16 of the Judicature Act 1873 which vested the common law powers of the Queen’s Bench in the newly created High Court. Those powers were in turn preserved by section 19 of the Senior Courts Act 1981‘ [para 33].

Although the Supreme Court points to the Judicature Act 1873the Senior Courts Act 1981 and the Constitutional Reform Act 2005 as a potential source of the rule of law, those statutes only recognised the powers of the High Court and the concept of the rule of law, rather than created them. The Judicature Act 1873 combined the Court of Chancery, the Court of Queen’s / King’s Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate and the Court of Divorce and Matrimonial Causes into the Supreme Court of Judicature, composed of the High Court with original jurisdiction and the Court of Appeal with appellate jurisdiction. The Senior Courts Act 1981, s 19 provided that ‘(2) [s]ubject to the provisions of this Act, there shall be exercisable by the High Court – (b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act…’  while the Constitutional Reform Act 2005, s 1 provided that ‘[t]his Act does not adversely affect – (a) the existing constitutional principle of the rule of law…” None of these Acts created supervisory jurisdiction of the High Court, nor did they established the rule of law as one of the principles of UK constitutional law but rather recognised what had already existed.

Finally, the Supreme Court confirmes that as ‘constitutional statutes’, the Judicature Act 1873the Senior Courts Act 1981 and the Constitutional Reform Act 2005 are immune to implied repeal by Parliament [para 120]. Consequently, Parliament cannot implicitly modify rules governing the supervisory jurisdiction of the High Court. The question remains, what would happen if Parliament was to expressly abolish that jurisdiction or the concept of the rule of law in its entirety. It is not clear from the judgment whether Parliament can abolish something that it has not created but only recognised as already in existence.