964 F.3d 150
2d Cir.2020Background
- In 2016–2017 the Department of Justice conditioned Edward Byrne Memorial Justice Assistance Grants (Byrne JAG) on three requirements: (1) a certification of compliance with 8 U.S.C. § 1373 (Certification), (2) DHS access to detention facilities to verify immigration status (Access), and (3) advance notice to DHS of scheduled releases (Notice).
- States and New York City sued; the district court enjoined enforcement of the conditions and ordered release of 2017 Byrne funds.
- A Second Circuit panel reversed, holding the Byrne statute and the Attorney General’s authority supported the three conditions and vacating the district-court relief (New York v. DOJ, 951 F.3d 84).
- Multiple sister circuits (1st, 3d, 7th, 9th) issued contrary rulings enjoining some or all conditions, creating a clear circuit split.
- The Second Circuit declined rehearing en banc; several judges authored concurrences and dissents arguing statutory error, constitutional (Tenth Amendment) concerns, and that the panel relied on arguments not pressed by the Government.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 34 U.S.C. § 10153(a)(5)(D) (“all other applicable Federal laws”) authorizes conditioning Byrne grants on compliance with § 1373 | "Applicable" limits grant conditions to laws applicable to the grant; § 10153(a)(5)(D) does not unambiguously authorize certification of § 1373 | "Applicable" may include laws applicable to applicants or grants broadly; dictionary meaning and context permit DOJ’s interpretation | Panel: statute permits DOJ to require certification including § 1373; concurrence/dissents: disagree and would find statutory text does not unambiguously authorize it |
| Whether Notice and Access conditions are authorized by the coordination/reporting provisions or the Attorney General’s rulemaking/form authority | Coordination and reporting provisions are limited to programmatic/financial information tied to the grant; do not support ongoing access/real-time reporting unrelated to Byrne purposes | Coordination/reporting provisions plus the Attorney General’s authority over application "form" and rulemaking (34 U.S.C. § 10155) give DOJ authority to impose Notice/Access | Panel: coordination/reporting or rulemaking/form authority suffices; dissenting judges and sister circuits: statute does not authorize such broad conditions |
| Whether 8 U.S.C. § 1373 violates the Tenth Amendment (commandeering) facially or as applied | § 1373 commandeers state/local governments by forbidding them to prohibit communications and thus is unconstitutional post‑Murphy | Even if § 1373 raises commandeering questions, conditioning grants on compliance with valid federal laws is permissible; the provision can be treated narrowly/severed | Panel: did not find § 1373 facially invalid in this funding context and rejected the as‑applied Tenth Amendment challenge here; multiple other courts held § 1373 unconstitutional post‑Murphy |
| Whether the panel relied on legal bases that were waived or not advanced by the Government (form/rulemaking authority) | Government did not press or expressly disavowed reliance on AG rulemaking or expansive "form" authority; panel’s reliance on them was improper | Panel treated those authorities as available statutory bases and considered them to reinforce the outcome | Several concurring/dissenting judges criticized the panel for adopting unpressed theories; but the court declined en banc rehearing despite the critique |
Key Cases Cited
- New York v. U.S. Dep’t of Justice, 951 F.3d 84 (2d Cir. 2020) (panel decision upholding DOJ’s Byrne JAG conditions)
- City of Providence v. Barr, 954 F.3d 23 (1st Cir. 2020) (held DOJ exceeded statutory authority; disagreed with broad reading of “applicable” federal laws)
- City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019) (enjoined Notice/Access conditions as beyond reporting/coordination provisions)
- City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019) (rejected DOJ’s broad statutory reading of Byrne provisions)
- City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (enjoined Notice/Access conditions; emphasized limits of statutory authority)
- Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) (Spending Clause requires unambiguous notice of conditions on federal funds)
- Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656 (1985) (ambiguities in grant programs need not always be resolved against the Government)
- Murphy v. NCAA, 138 S. Ct. 1461 (2018) (commandeering doctrine prohibits federal direction of state legislative choices; clarified prohibition of conditional restraints)
- Printz v. United States, 521 U.S. 898 (1997) (anti-commandeering principle forbids federal compulsion of state officers)
- South Dakota v. Dole, 483 U.S. 203 (1987) (Congress may attach conditions to federal funds within limits)