Harry D. Leinenweber, Judge
Before the Court is the Attorney General's Motion to Dismiss the Complaint in its entirety and the City of Chicago's Partial Motion for Summary Judgment on Counts I, II, and V. The Court addresses both below.
I. BACKGROUND
In addition to reciting here the most relevant facts, the Court also incorporates those facts previously described in its earlier ruling. See City of Chicago v. Sessions ,
The dispute centers around the Edward Byrne Memorial Justice Assistance Grant (the "Byrne JAG grant"), a federal grant named after a fallen New York City police officer which awards funds to states and local jurisdictions to support criminal justice initiatives for personnel, equipment, training, and other community services. See
The grant conditions causing Chicago umbrage are related to federal immigration enforcement. In 2016, the Attorney General determined that various state and local policies of withholding information and other cooperation from federal immigration
1. The "Access Condition" requires that Byrne JAG recipients permit personnel of the U.S. Department of Homeland Security ("DHS") to access any detention facility to meet with undocumented immigrants and inquire as to their right to be or remain in the United States.
2. The "Notice Condition" requires that Byrne JAG recipients provide DHS at least 48 hours advance notice of the scheduled release date and time of an alien in the jurisdiction's custody whenever DHS requests such notice in order to take custody of the alien upon release. The Attorney General later amended this Condition to clarify that "[i]n the event that ...the scheduled release date and time for an alien are such as not to permit the advance notice [of scheduled release]...it shall not be a violation of this condition to provide only as much advance notice as practicable."
3. The "Compliance Condition" requires that Byrne JAG recipients certify compliance with8 U.S.C. § 1373 , a federal statute that bars local governments from restricting the sharing of immigration status information with federal law enforcement.
(See FY 2017 Local Solicitation, Ex. T to Pl.'s Request for Judicial Notice, Dkt. No. 157-20; Example Byrne JAG award documents, Exs. F, G to Jennings Decl., Dkt. No. 158.) The Attorney General added the Notice and Access Conditions for the first time in FY 2017, but the Compliance Condition also applied the previous year. (Def.'s Resp. to Pl.'s Facts ¶¶ 17-18.)
According to Chicago, these Conditions conflict with longstanding City policy of ensuring access to essential city services regardless of a resident's citizenship status and of promoting cooperation between local law enforcement and immigrant communities. (See Compl. ¶ 1, Dkt. No. 1.) Chicago's local policies protecting immigrant rights date back to 1985, when they were first embodied in executive orders and then eventually codified. (Def.'s Resp. to Pl.'s Facts ¶¶ 4-8, Dkt. No. 168.) The City's Welcoming City Ordinance, enacted in 2012, encapsulates its current policy. (Id. ¶¶ 7-8.) Though Chicago's policy and others like it are commonly referred to as "sanctuary city policies," the Seventh Circuit has recognized the inaptness of that term. See City of Chicago v. Sessions,
The Welcoming City Ordinance reflects both the City's determination that effective police work relies on willing community assistance and its 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." Chicago, Ill. Muni. Code § 2-173-005. The City intended the Welcoming City Ordinance to clarify both the
Specifically, the Ordinance prohibits all City agents and agencies from: requesting or disclosing information about an individual's immigration status,
Chicago contends that the new Conditions put it in an untenable position, forcing the City either to accept the grant funds with the attached Conditions and-the City believes-lose the trust and cooperation of its immigrant communities or decline the grant and forgo much-needed funding for critical police resources and community services. (Compl. ¶ 9.) Chicago argues that the Constitution protects it from making this Hobson's choice.
To that end, Chicago brings a seven-count Complaint, alleging constitutional infirmities and unlawful agency action. (See generally Compl., Dkt. No. 1.) Counts I and II allege the Conditions are unconstitutional because the Byrne JAG statute does not provide the Attorney General statutory authority to impose them. Count III alleges the Conditions violate the Spending Clause.
After filing its Complaint, Chicago moved for a preliminary injunction as to all three Conditions. This Court found that Chicago was likely to succeed on its argument that the Attorney General lacked the statutory grant of authority to impose the Notice and Access Conditions and accordingly enjoined those Conditions nationwide. See City of Chicago v. Sessions ,
Turning to the matters now before the Court: The Attorney General moves to dismiss Chicago's Complaint in its entirety, and Chicago cross-moves for partial summary judgment. The Attorney General moves to dismiss the Complaint on two grounds, raising challenges to both this Court's subject matter jurisdiction and to the sufficiency of Chicago's Complaint. See FED. R. CIV. P. 12(b)(1), (6). For its part, Chicago moves for summary judgment on only Counts I, II, and V. The City requests, first, a finding that all three Conditions are not authorized by the Byrne JAG statute and are thus ultra vires (Count I) and in violation of the separation of powers (Count II). With that request, the City urges the Court to reconsider its earlier-expressed belief that Chicago was not likely to succeed on this argument as to the Compliance Condition. Second, Chicago requests a declaratory judgment that, assuming the Compliance Condition is valid, the City complies with Section 1373 (Count V).
II. STANDARDS OF REVIEW
As already described, the Attorney General moves to dismiss both by challenging jurisdiction and by asserting that the Complaint fails to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(1), (6). To survive a 12(b)(1) motion, the plaintiff must carry the burden of providing sufficient evidence to establish a prima facie case for personal jurisdiction. RAR, Inc. v. Turner Diesel, Ltd. ,
Chicago cross-moves for summary judgment, which is proper where the record shows no genuine issue of material
III. DISCUSSION
A. Jurisdiction
Before the Court turns to the merits of this dispute, it must address the threshold objection raised by the Attorney General in his 12(b)(1) motion. In short, the Attorney General argues that because the DOJ has not yet reached a final decision on whether to award Chicago funds under the Byrne JAG grant, the DOJ has not yet consummated any "final agency action" that is ripe for judicial review.
"[T]wo conditions must be satisfied for agency action to be 'final': First, the action must mark the 'consummation' of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.' " Bennett v. Spear ,
The second requirement is met as easily as the first. The Conditions attached to the Byrne JAG funds trigger important legal and practical consequences: They force Chicago to choose between accepting the award with the Conditions or forgoing the award in favor of maintaining the City's policy preferences. See City of Chicago v. Sessions ,
Finally, the Court notes that all of its sister courts in parallel cases have reached the same conclusion. See, e.g. , City of Philadelphia v. Sessions,
For reasons that will become clear, the Court considers Chicago's claims out of order.
B. Anticommandeering Doctrine (Count IV)
The Attorney General moves to dismiss Count IV, in which Chicago alleges that Section 1373 unconstitutionally tramples upon the Constitution's anticommandeering doctrine by robbing local policymakers of the option to decline to administer the federal immigration programs Section 1373 supports. See New York v. United States ,
Murphy concerned the Professional and Amateur Sports Protection Act ("PASPA"), a federal law that prevented states both from legalizing sports gambling and from repealing existing state laws prohibiting it.
But before delving further into the anticommandeering analysis, the Court must first dispose of a threshold argument. The Attorney General argues that no anticommandeering claim exists here because compliance with Section 1373 is merely a condition on grant funds which Chicago is free to refuse. This argument ignores that Section 1373 is an extant federal law with which Chicago must comply, completely irrespective of whether or not the City accepts Byrne JAG funding. And the City's Count IV clearly recites Chicago's anticommandeering challenge to the law itself , not to the law as a condition imposed on the grant. (See Compl. ¶¶ 132-135 " Section 1373 is...facially unconstitutional").) This distinction is important. No Tenth Amendment problem exists when a federal agency imposes grant conditions, because the Spending Clause empowers the federal government to offer funds in exchange for state action it could not otherwise demand. See NFIB v. Sebelius ,
The Court now turns to the statute itself: Section 1373. Congress enacted Section 1373 in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (included as part of the Omnibus Consolidated Appropriations Act, Pub. L. No. 104-208, 110 Stat 3009 (1996) ). The Act is part of a comprehensive federal statutory scheme to regulate immigration. See Arizona v. United States ,
(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 anyway 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.
The Court's inquiry "begin[s] with the time-honored presumption that [a statute] is a constitutional exercise of legislative power." Reno v. Condon ,
The question under Murphy, Reno, and Printz is whether Section 1373"evenhandedly regulates an activity in which both States and private actors engage," as opposed to regulating activities undertaken by government entities only, thus conscripting state action in the implementation of a federal scheme. Murphy ,
The import is clear: Section 1373 does not evenhandedly regulate activities in which both private and government actors engage. Thus, the saving grace of Reno does not apply here. Rather, this statute mandates that local government employees have the option of furnishing immigration information to the INS while acting in their official, state-employed capacities. Unlike in Reno, the anticommandeering doctrine applies, and here it is offended in four ways.
First, Section 1373 supplants local control of local officers; the statute precludes Chicago, and localities like it, from limiting the amount of paid time its employees use to communicate with INS. This weighs heavily on the constitutionality analysis. A state's ability to control its officers and employees lies at the heart of state sovereignty: "To say that the Federal Government cannot control the State, but can control all of its officers, is to say nothing of significance. Indeed, it merits the description 'empty formalistic reasoning of the highest order.' " Printz ,
Second, the statute indirectly constrains local rule-making by precluding city lawmakers from passing laws, like the Welcoming City Ordinance, that institute locally-preferred policies which run counter to Section 1373. This was the concern squarely addressed in Murphy , where the Court observed that a "more direct affront to state sovereignty is not easy to imagine" than in a federal law that "dictates what a state legislature may and may not do." Murphy ,
Third, Section 1373 redistributes local decision-making power by stripping it from local policymakers and installing it instead in line-level employees who may decide whether or not to communicate with INS. This effects a federally-imposed restructuring of power within state government. See Spencer E. Amdur, The Right of Refusal: Immigration Enforcement and the New Cooperative Federalism ,
Finally, because Section 1373 eliminates the City's ability to control its employees' communications with INS, the statute prevents Chicago from extricating itself from federal immigration enforcement. Section 1373 thus impermissibly forecloses New York's "critical alternative": the option of non-participation in a federal program. New York ,
Beyond this, the policy rationales undergirding the anticommandeering principle further counsel its application in this case. Murphy articulated three such rationales: First, the principle protects individual liberty by dividing authority between federal and state governments; second, it promotes political accountability by clarifying whether laws and policies are promulgated by federal or state actors; and third, it prevents Congress from shifting the costs of regulation to the states. Murphy ,
Despite all this, the Attorney General contends that Section 1373 does not pose nearly the regulatory imposition Chicago claims. Instead, he says, the dictates of Section 1373 boil down to mere information sharing, which the Attorney General believes to be exempt from Tenth Amendment scrutiny. To that end, the Attorney General opines that "the analysis in
The Attorney General contends that information sharing is immune from challenge under the anticommandeering doctrine. From the Attorney General's view, Congress could constitutionally require states to provide the federal government with immigration-related information. And if that is constitutional, then surely a statute merely requiring that states allow their employees to provide immigration-related information is also constitutional. Cf. Freilich v. Upper Chesapeake Health, Inc. ,
Still, the Attorney General argues that policy rationales bolster his argument: Federal immigration efforts could be frustrated if localities may prohibit their employees from sharing immigration-related information with federal authorities. But these rationales do not advance his position. First, the Seventh Circuit has already rejected the Attorney General's argument that finding the Conditions unlawful allows the City to "thwart federal law enforcement," characterizing such argument as a "red herring." See City of Chicago v. Sessions ,
Granted, the concern that federal enforcement efforts will be impeded
Furthermore, Section 1373 is more than just an information-sharing provision. As described above, Section 1373 prohibits certain rule making by state policymakers. In doing so, Section 1373 presents more like the statute in Murphy and less like the innocuous missing-children law mentioned in Justice O'Connor's Printz concurrence. Compare Murphy ,
In sum, Section 1373 impermissibly directs the functioning of local government in contravention of Tenth Amendment principles, and the Attorney General's reliance on the purported information sharing carve-out-which is not confirmed in Printz nor in any other controlling case-cannot save it. Section 1373 is thus unconstitutional on its face. See United States v. California , No. 2:18 CV 490,
In so holding, this Court must respectfully disagree with City of New York v. United States ,
First, the Supreme Court has explicitly approved of the type of passive resistance criticized in City of New York , finding that states have the prerogative to "not yield[ ] to federal blandishments when they do not want to embrace the federal policies as their own." NFIB ,
C. Ultra Vires and Separation of Powers (Counts I and II)
In Counts I and II, Chicago claims that Congress did not confer authority on the Attorney General to impose the Conditions, so his imposition treads upon the separation of powers and is ultra vires . City of Arlington v. FCC ,
1. Notice and Access Conditions
The Attorney General moves to dismiss Counts I (ultra vires ) and II (separation of powers), arguing that the Byrne JAG statute provides authority to impose the Conditions, and Chicago moves for summary judgment on the same counts. This Court previously granted Chicago a preliminary injunction as to the Notice and Access Conditions, finding that Chicago was likely to succeed on its argument that the Byrne JAG statute does not authorize them. City of Chicago v. Sessions ,
In affirming, the Seventh Circuit found Chicago likely to succeed in arguing that neither Byrne JAG nor any other statute grants the Attorney General "the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or local governments for the failure to comply with those conditions."
In light of the Seventh Circuit's reasoning and considering that the Attorney General has not mustered any other convincing argument in support of greater statutory authority, nothing has shaken this Court from the opinion it expressed at the preliminary injunction stage. As such, for the same reasons stated in this Court's preliminary injunction ruling and the Seventh Circuit's opinion, the Court holds that the Notice and Access Conditions are unlawful. The Attorney General's Motion to Dismiss is denied, and Chicago's Motion for Summary Judgment is granted on Counts I and II as to the Notice and Access Conditions.
2. Compliance Condition
The Attorney General's authority to impose grant conditions extends only as far as Congress allows. See Alexander v. Sandoval ,
We start with the text:
(A) ...To request a grant under this part, the chief executive officer of a State...shall submit an application to the Attorney General...in such form as the Attorney General may require. Such application shall include the following:
[...]
(5) A certification...that-
(A) the programs to be funded by the grant meet all the requirements of this part;
(B) all the information contained in the application is correct;
(C) there has been appropriate coordination with affected agencies; and
(D) the applicant will comply with all provisions of this partand all other applicable Federal laws .
The Court already dealt with this question once, in its preliminary injunction ruling, and sees no convincing reason to depart from the analysis conducted there. Simply put, this statute is most consistent and coherent when "all other applicable Federal laws" is "read to mean what it literally says." Ali v. Fed. Bureau of Prisons ,
If the Court were conducting this ultra vires inquiry in a vacuum, it would conclude that because Section 1373 is generally applicable to Chicago, Section 1373 falls within the "applicable Federal laws" described in the Byrne JAG statute and thus counts among those statutes with which the Attorney General may lawfully demand compliance as a condition for funding.
It is worth emphasizing a key constitutional distinction between Section 1373 and the Compliance Condition. Even though the Compliance Condition is substantively the same as Section 1373 because the Condition was designed to reinforce Section 1373's requirements, the two are constrained by different constitutional limitations. The former is a federal statute carrying the force the law, while the latter is merely a condition imposed on a federal grant that Chicago may freely decline. This distinction matters because, as already described, the anticommandeering doctrine does not limit the conditions agencies may attach to federal grants. See Dole ,
Accordingly, the Attorney General's Motion to Dismiss must be denied, and Chicago's Motion for Summary Judgment must be granted on Counts I and II as to the Compliance Condition.
* * *
Granting Chicago summary judgment on Counts I and II affects the balance of Chicago's claims. It renders the remaining counts-Counts III, V, VI, and VII-moot. The Court dismisses them as such.
D. Injunctive Relief
1. Permanent Injunction
As discussed above, this Court grants Chicago's Motion for Partial Summary Judgment on Counts I and II as to all three Conditions. With the merits decided, Chicago asks the Court to issue a permanent nationwide injunction. The Court may issue permanent injunctive relief if the moving party demonstrates:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, LLC ,
First, Chicago's harm is irreparable and cannot be compensated by monetary damages. Chicago submits an affidavit from Lieutenant Kevin Hannigan, a longtime Chicago police officer, explaining that if the City complies with the Conditions, undocumented immigrants will be less likely to interact and cooperate voluntarily with local police, believing that such contacts could put them or their families at risk of deportation. (Def.'s Resp. to Pl.'s Facts ¶¶ 7, 11, Dkt. No. 168; Hannigan Decl. ¶¶ 2, 5, Dkt. No. 155.) In Lieutenant Hannigan's view, informed by twenty-nine years of experience, "requiring Chicago's police officers to request immigration status would drive a wedge between [the CPD] and the local communities." (Hannigan Decl. ¶ 5, Dkt. No. 155.) Doing so "would run the risk of alienating portions of the Chicago population; could increase hostility toward law enforcement in vulnerable areas of the City; and could deprive officers of valuable sources of information."
The Attorney General takes the contrary view, arguing that so-called sanctuary policies increase crime and make cities that implement them less safe. Of this the Court is not convinced. Chicago points out that not only are there no peer-reviewed studies supporting the AG's proposed correlation, the scholarship on the subject actually suggests that such policies do not affect, and might even lower, crime rates. (See Def.'s Resp. to Pl.'s Facts ¶¶ 24-25 (noting University of California Riverside study found "no support" for proposition that "sanctuary policies lead to increased crime" and Center for American Progress study found "crime [ ] statistically significantly lower in sanctuary counties compared to nonsanctuary counties").) But the Court need not delve into this factual determination. Cf. City of Chicago v. Sessions ,
The balance of hardships weighs in Chicago's favor as well. As already explained, Chicago will suffer irreparable harm if the Attorney General's imposition of the Conditions is not enjoined. If Chicago accepts the Byrne JAG funds and its Conditions, the City's relationship with its immigrant communities will be degraded, making the City's task of preventing and prosecuting crime more difficult. (Def.'s Resp. to Pl.'s Facts ¶¶ 5, 7, 11.) The picture is no brighter if Chicago declines the funds. If it does so, it will do so only to avoid the Conditions which the Attorney General has no authority or right to impose. Chicago intends to use the FY 2017 funds to expand its use of the ShotSpotter acoustic-surveillance technology into two communities plagued by high rates of gun violence. (Id. ¶ 15.) According to Chicago's submissions, implementing this technology has a direct and positive effect on public safety. (See
On the other side of the scale, the Attorney General experiences little hardship from the imposition of this injunction. First, as the Seventh Circuit recognized, Chicago, "like other 'welcoming' or 'sanctuary' cities or states, does not interfere in any way with the federal government's lawful pursuit of its civil immigration activities, and presence in such localities will not immunize anyone to the reach of the federal government. The federal government can and does freely operate in 'sanctuary' localities." City of Chicago v. Sessions ,
Finally, the public interest is served by issuing a permanent injunction. The Attorney General must administer the Byrne JAG grant program in conformance with the limited statutory authority Congress affords him. As explained at length, Congress provided the Attorney General no authority to impose the Conditions. The role of the judiciary to enjoin conduct by the executive that crosses its constitutionally-imposed limits is as essential to our form of government as it is well-established:
The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken....It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever-vigilant in that endeavor.
City of Chicago v. Sessions ,
In conclusion, Chicago has demonstrated all four requirements for permanent injunctive relief: (1) Chicago's harm is irreparable; (2) such harm cannot be fully remedied by monetary damages; (3) the balance of hardships favors Chicago; and (4) a permanent injunction will not undermine the public interest. See eBay,
2. Scope of the Permanent Injunction
The scope of the preliminary injunction is currently on appeal before the Seventh Circuit sitting en banc . This Court entered the preliminary injunction on September 15, 2017, enjoining the Attorney General from imposing Conditions nationwide. See City of Chicago v. Sessions ,
And yet, though the en banc rehearing is pending, these district court proceedings do not freeze in place. When a preliminary injunction goes up on appeal, the district court retains the power to reach the merits of a case and, in fact, is duty-bound to do so. See 16 Wright & Miller, Federal Practice & Procedure § 3921.2 (3d ed.) (collecting cases and recognizing "cases involving injunctive relief are apt to present an urgent need for action"); Staffa v. Pollard ,
Even so, the weight of practice and respect for both judicial efficacy and higher authorities dictate that district courts should use such power only in a manner that preserves the status quo and thus the integrity of the appeal. See Aljabri v. Holder ,
However, recognizing and deferring to the Seventh Circuit's stay of the preliminary injunction as to all parts of the country beyond Chicago, this Court stays the nationwide scope of the permanent injunction in the same fashion. "Stays, like preliminary injunctions, are necessary to mitigate the damage that can be done during the interim period before a legal issue is finally resolved on its merits. The goal is to minimize the costs of error." In re A & F Enters., Inc. II ,
IV. CONCLUSION
For the reasons stated herein, the Court grants the City of Chicago's Motion for Summary Judgment on Counts I and II and correspondingly denies the Attorney General's Motion to Dismiss Counts I, II, and IV. The Court enters and immediately stays permanent injunctive relief as detailed above. The remaining claims are dismissed as moot.
IT IS SO ORDERED.