CITY OF CHICAGO, Plaintiff-Appellee, v. WILLIAM P. BARR, Attorney General of the United States, Defendant-Appellant.
Nos. 18-2885 & 19-3290
United States Court of Appeals For the Seventh Circuit
Decided April 30, 2020
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 1:17-cv-05720 & 1:18-cv-06859 — Harry D. Leinenweber, Judge. ARGUED APRIL 10, 2019, SUBMITTED FEBRUARY 6, 2020
Before BAUER, MANION, AND ROVNER, Circuit Judges.
The Attorney General then took the rare step of seeking en banc review limited to only the nationwide scope of the injunction, excluding the determination that injunctive relief was proper as to the notice and access conditions, and we granted en banc review. During the pendency of that review, the district court granted a permanent injunction, and in light of that superseding relief we vacated the decision granting en banc review. City of Chicago v. Sessions, No. 17-2991, 2018 WL 4268814, at *2 (7th Cir. Aug. 10, 2018). The district court again determined that the notice and access conditions imposed by the Attorney General were unlawful and unconstitutional, but also determined that a third condition – the compliance condition – was unconstitutional as well. City of Chicago v. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018). The court extended the injunction to apply to all FY 2017 grant recipients program-wide, but in light of our prior grant of en banc review regarding the scope of the injunction, stayed the injunction to the extent that it applied beyond the City of Chicago.
The Attorney General appealed that determination, and while it was pending in this court, the district court granted a permanent injunction in a second case brought by the City of Chicago, this time challenging the Attorney General‘s imposition of conditions on the FY 2018 Byrne JAG grant. City of Chicago v. Barr, 405 F. Supp. 3d 748 (N.D. Ill. 2019). Those conditions included the same notice, access, and compliance conditions that the district court enjoined as to the FY 2017 grant, as well as some new conditions. The district court enjoined the imposition of all of the challenged conditions as to the FY 2018 Byrne JAG grant and all future years, and once more stayed the injunction as to grantees other than the City of Chicago. Id. at 770. The Attorney General again appealed to this court, and we consolidated the two cases for the purposes of the appeal.
The stakes in this case are high. Chicago, like many local governments, has determined that: (1) effective law enforcement requires the cooperation of its undocumented residents; (2) such cooperation cannot be accomplished if those residents fear immigration consequences should they communicate with the police; and, therefore, (3) local law enforcement must remain independent from federal immigration enforcement. The Byrne JAG grant was enacted by Congress to support the needs of local law enforcement to help fight crime, yet it now is being used as a hammer to further a completely different policy of the executive branch—presenting a city such as Chicago with the stark choice of forfeiting the funds or undermining its own law enforcement effectiveness by damaging that cooperative relationship with its residents.
The Attorney General repeatedly expresses frustration that Chicago, or any other jurisdiction, can “simultaneously accept federal law enforcement grants, yet maintain local policies that frustrate federal immigration enforcement.” Appellant‘s Brief 1-3-20 at 1. It is a sentiment echoed by the only circuit—of the five that have considered it—to uphold the challenged conditions thus far. See State of New York v. Dept. of Justice, 951 F.3d 84, 107 (2d Cir. 2020) (“there is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws, or worse, violating those laws.“) But states do not forfeit all autonomy over their own police power merely by accepting federal grants. And the Attorney General‘s perception of the urgency of immigration enforcement does not corral for the executive branch the powers entrusted to the legislative branch. The executive branch has significant powers over immigration matters; the power of the purse is not one of them. This tendency to overlook the formalities of the separation of powers to address the issue-of-the-day has been seen many times by the courts, and it is no more persuasive now than it was in those cases. As the Supreme Court has stated, repeatedly:
Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear ‘formalistic’ in a given case to partisans of the measure at issue, because such measures are typically the product of the era‘s perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.
Printz v. United States, 521 U.S. 898, 933 (1997), quoting New York v. United States, 505 U.S. 144, 187 (1992).
We conclude again today, as we did when presented with the preliminary injunction, that the Attorney General cannot pursue the policy objectives of the executive branch through the power of the purse or the arm of local law enforcement; that is not within its delegation. It is the prerogative of the legislative branch and the local governments, and the Attorney General‘s assertion that Congress itself provided that authority in the language of the statutes cannot withstand scrutiny.
I. Facts and District Court Rulings
In Chicago I, we discussed at length the Byrne JAG program and Chicago‘s Welcoming Ordinance, as well as their respective purposes. See Chicago I, 888 F.3d at 276–82. In short, the Byrne JAG grants are awarded annually to address the needs of state and local law enforcement. They are the primary source of federal criminal justice enforcement funding for state and local governments. This lawsuit stemmed initially from the Attorney General‘s decision to attach three conditions to those grants – the notice, access and compliance conditions, which as set forth by the district court provide respectively:
(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 [] access [to] 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).
City of Chicago v. Sessions, 264 F. Supp. 3d 933, 937–38 (N.D. Ill. 2017). In short:
- the notice condition requires that state or local officials honor requests to provide federal agents advance notice of the scheduled release date and time for aliens in custody;
- the access condition requires state or local correctional facilities to give federal agents access to aliens in their custody;
-
and the compliance condition requires the state or local governments to certify their compliance with 8 U.S.C. § 1373 (hereinafter “§ 1373“), which prohibits state and local governments from restricting their own officials from communicating information regarding the citizenship or immigration status of any individual to the Immigration and Naturalization Service.1
All of those conditions were imposed on applicants for the FY 2018 Byrne JAG grant as well, but three new conditions were added. The first was virtually identical to the compliance condition, except that it referenced
- the § 1644 compliance condition requires certification that the “program or activity” funded under the Byrne JAG award complies with
§ 1644 , which provides “[n]otwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.”
The Attorney General concedes that the two compliance conditions are equivalent and that our disposition as to one will control as to the other.
The Attorney General imposed two additional conditions on the FY 2018 Byrne JAG grant that were distinct from those imposed on the FY 2017 grant, which have been termed the “harboring” condition and the “additional certification” condition:
- The harboring condition prohibits the recipient jurisdiction from making any “public disclosure … of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under
18 U.S.C. ch. 49 , or any alien who has come to, entered, or remains in the United States in violation of8 U.S.C. ch. 12 —without regard to whether such disclosure would constitute (or could form a predicate for) a violation of18 U.S.C. 1071 or1072 or of8 U.S.C. 1324(a) .” - The additional certification condition requires the certification that “neither the jurisdiction nor any entity, agency, or official of the jurisdiction has in effect … any law, rule, policy, or practice that would apply to the ‘program or activity’ to be funded … that would or does—(a) impede the exercise by federal officers of authority under
8 U.S.C. § 1357(a) ; or (b) impede the exercise by federal officers of authority relating to8 U.S.C. § 1226(a) or(c) ,8 U.S.C. § 1231(a) , or8 U.S.C. § 1366(1) or(3) .”
Chicago, 405 F. Supp. 3d at 754–55.
Those conditions conflict with the Welcoming City Ordinance, which reflects Chicago‘s determination that the cooperation of all persons, whether documented or undocumented, “‘is essential to achieve the City‘s goals of protecting life and property, preventing crime and resolving problems.‘” Chicago I, 888 F.3d at 279 (quoting Chicago Municipal Code, Welcoming City
A. Challenge to FY 2017 grant
In the first of the two cases before us, Chicago challenges the conditions imposed on the FY 2017 grant, alleging: that the conditions were unconstitutional because the Byrne JAG statute does not provide the Attorney General with the statutory authority to impose the conditions, and that the imposition is therefore ultra vires and a violation of the separation of powers; that the conditions violate the Spending Clause of the Constitution; and that, independent of the Byrne JAG grant, § 1373 is an impermissible federal conscription of state power and is unconstitutional under the anticommandeering doctrine of the Tenth Amendment. Chicago also sought a declaratory judgment providing that even if § 1373 is constitutional, Chicago is in compliance with it. Finally, Chicago alleged that the imposition of the conditions was arbitrary and capricious in violation of the Administrative Procedures Act and violated the Paperwork Reduction Act.
The Attorney General sought dismissal of the complaint in its entirety, arguing that the complaint was insufficient to state a claim and that the court lacked subject matter jurisdiction. As to subject matter jurisdiction, the Attorney General asserted that the Department of Justice had not yet consummated any final agency action that was ripe for judicial review because it had not reached a final decision as to whether to award Chicago funds under the Byrne JAG grant. Chicago responded that its challenge was not to the Attorney General‘s pending decision as to whether to award the grant funds, but rather to the decision to attach the conditions to the grant in the first instance. The district court agreed with Chicago as to the nature of the challenge, noting that the complaint requested that the court “[d]eclare that all three immigration-related conditions for the FY 2017 Byrne JAG are unlawful.” City of Chicago, 321 F. Supp. 3d at 865. The court noted that in order for an agency action to be final, two criteria must be satisfied: it must mark the consummation of the agency‘s decision-making process and not merely a tentative or interlocutory decision; and it must be one by which rights or obligations of the challenging party have been determined or from which legal consequences will flow. Id. at 865 (citing Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). The court held that the action was not merely tentative or interlocutory, because the Attorney General stated in his declaration that every FY 2017 award would include conditions identical to the ones in the grant already awarded, which included all of the challenged conditions. Id. at 865. In addition, the court noted that the FY 2017 grants were awarded based on a solicitation that clearly imposed the challenged conditions. Id. The court held that the second criteria was met as well, because the conditions force Chicago to choose between accepting the award with those conditions, or forgoing the grant and the corresponding law enforcement benefit in favor of maintaining the policies that it believed would maximize law enforcement goals. Id. at 866.
Chicago moved for partial summary judgment as to three counts, arguing that the Attorney General acted ultra vires in imposing the conditions, and in violation of the separation of powers, and contending that even if the compliance condition was valid, Chicago was not in violation of § 1373. The district court granted the motion and determined that § 1373 was facially unconstitutional under the Tenth Amendment‘s anticommandeering principle, that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute,
B. Challenge to FY 2018 grant
In the second of the two cases consolidated in this appeal, Chicago raises identical challenges to the notice, access and compliance conditions, and also challenges the harboring condition and the additional certification requirement.2 The district court held that the notice, access, and compliance conditions were materially identical to the conditions it had already enjoined in the case challenging the FY 2017 grant conditions, and that the new compliance condition referencing § 1644 was indistinguishable from the § 1373 compliance condition and therefore unlawful under the same reasoning. As to the additional certification requirement, the court first recognized that the Executive possesses no inherent authority to impose conditions on the payment of federal funds authorized by the Legislature, and that the Attorney General had failed to identify any source of authority as to the imposition of the additional certification requirement. The district court nevertheless proceeded to analyze whether any statutory basis for the Attorney General‘s authority was apparent.
The court first noted that the Byrne JAG statute itself provided no such authority, and in fact strictly delineated the formula for the distribution of grant funds. The court then noted that it had already held, with respect to the notice and access conditions, that
II. Analysis—Overview
As we discussed in Chicago I, this appeal is not about optimal federal or state immigration policies. That is not for the court to discuss or decide. Rather, the issues before us today concern the spheres of power that reside in the state rather than in the federal government, and the critical balance of power between the executive, legislative, and judicial branches of the federal government. Chicago, in deciding that its law enforcement needs would be better met if its undocumented residents could report crimes and communicate with its police force without fear of immigration consequences, is exercising its police power—an area of power long recognized as resting with the states. The Attorney General now seeks to pursue the federal government‘s interest in enforcing its immigration laws. Regulating immigration into this country is a legitimate federal interest, and the executive branch including the Attorney General has authority to enforce the nation‘s immigration laws. But the methods the executive employs in pursuit of those legitimate ends must be lawful and, in this case, the means the Attorney General has chosen are not lawful. The federal government cannot merely conscript the police forces of the state or local governments to achieve its ends; that would eviscerate the principles of federalism that rest at the very foundation of our government.
The Attorney General‘s use of extra-statutory conditions on federal grant awards as a tool to obtain compliance with his policy objectives strikes at the heart of another core value, which is the separation of powers among the branches of the federal government. The authority to pass laws and the power of the purse rest in the legislative not the executive branch. The composition of the legislature—with elected representatives and dual chambers—provides institutional protection from the abuse of such power. But no such institutional protection from abuse exists should such power be concentrated in the executive branch, where one individual—whether the President or the Attorney General or another official—determined to impose his or her policy preferences regardless of the will of Congress, could proceed unimpeded by the types of institutional checks present in the legislative body. Such a concentration of power would allow tyranny to flourish, and our system of government is wisely set up by the Founders to foreclose such a danger. The executive branch has significant powers of its own—particularly in matters such as immigration—but the power to wield the purse to alter behavior rests squarely with the legislative branch. Congress has thus far refused
Article I of the Constitution vests the power to legislate with Congress, not the Executive. Id. at 2123. Therefore, “when Congress confers decisionmaking authority upon agencies Congress must ‘lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.‘” (emphasis in original) Whitman v. Am. Trucking Ass‘ns, 531 U.S. 457, 472 (2001), quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
III. Notice, Access, Harboring and Additional Certification Conditions
For his authority to impose the conditions, the Attorney General points to
(a) Specific, general and delegated powers
The Assistant Attorney General shall—
(1) publish and disseminate information on the conditions and progress of the criminal justice systems;
(2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice;
(3) provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice;
(4) maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice;
(5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention; and
(6) 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, including placing special conditions on all grants, and determining priority purposes for formula grants.
The Attorney General argues that
A. Section 10102(a)(6)
We turn first to the notice and access conditions, which we previously addressed in the appeal from the grant of a preliminary injunction. Chicago I, 888 F.3d 272. The district court imposed a
Our reasoning in Chicago I established Chicago‘s entitlement to relief on the merits, not merely a likelihood of success. The Attorney General relied on
Subsection (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, including placing special conditions on all grants, and determining priority purposes for formula grants.”
We further noted that our plain reading of the statute was consistent with the structure of
‘[a] clause in a catch-all provision at the end of a list of explicit powers would be an odd place indeed to put a sweeping power to impose any conditions on any grants—a power much more significant than all of the duties and powers that precede it in the listing, and a power granted to the Assistant Attorney General that was not granted to the Attorney General. … As the Supreme Court has repeatedly held, ‘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.’
Id. at 285–87, quoting Gonzales v. Oregon, 546 U.S. 243, 267 (2006); Philadelphia, 916 F.3d at 288. We will not repeat that analysis here, but it applies equally in the context of a permanent injunction. No new meritorious arguments have been raised by the Attorney General as to those conditions in this appeal. Accordingly, we adopt and incorporate the reasoning from Section III of that opinion in this appeal. Chicago I, 888 F.3d at 282–87. For the reasons stated in Chicago I, the district court did not err in granting permanent injunctive relief as to the notice and access conditions. The Attorney General relies on
B. Sections 10102(a)(2) and (4)
The Attorney General attempts to salvage the harboring condition by pointing to a different portion of
information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice [in (a)(3),] … [and] coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention [in (a)(5)].”
Nothing in that language even references, let alone authorizes, the Assistant Attorney General to impose conditions on the distribution of funds authorized by Congress. See State of Oregon v. Trump, 406 F. Supp. 3d 940, 969 (2019) (holding that the definition of liaison does not even hint at a punitive aspect, “let alone a discretionary authority to completely dissolve relations when one side does not abide by the wishes of the other,” and that the structure of the statute also weighs against the Attorney General’s interpretation); San Francisco, 372 F. Supp. 3d at 944 (noting that “[t]he structure of Section 10102 does not support the contention that ‘maintain liaison’ in Section 10102(a)(2) provides more than a ministerial duty on the Attorney General to maintain communication
Moreover, the language in subsections (a)(2) and (4) could not support the harboring condition even if we were to ignore the problem that the language itself does not authorize the imposition of conditions. Both subsections address the power to maintain liaisons relating to criminal justice matters. But the harboring condition that the Attorney General seeks to impose on the Byrne JAG grant is explicitly not targeted to criminal matters. The harboring condition prohibits the recipient jurisdiction from making any “public disclosure … of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under
IV. Compliance Condition
We turn, then, to the compliance condition, which requires the state or local government to certify that it will not restrict its own officials from communicating information regarding the citizenship or immigration status of any individual. The burden of that requirement is not insignificant. For instance, in City & Cnty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 952 (N.D. Cal. 2018), considering only detainer requests, the district court noted that “California’s law enforcement agencies experienced double the detainer requests from ICE in one year—from 15,000 in fiscal year 2016 to 30,000 in fiscal year 2017.” Under the Attorney General’s compliance condition, a state or local government could not instruct its own employees that they must devote their time to law enforcement tasks that it deems a higher priority rather than respond to those information requests from ICE.
The compliance condition was not before this court in the prior appeal. The district court had denied preliminary relief as to that condition and Chicago did not cross-appeal that issue to this court. At the permanent injunction stage, however, the court reversed course and granted injunctive relief as to that condition as well based on the Supreme Court’s decision in Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018), which had been issued in the interim.
A. District Court Analysis
In the “Overview of Legal Requirements Generally Applicable to OJP [Office of Justice Programs] Grants and Cooperative Agreements - FY 2017 Awards,” (hereinafter “Overview of Legal Requirements”), the Attorney General declared that he was imposing the compliance condition “[c]onsistent with OJP’s statutory authority to impose grant conditions, including
Despite his declaration that the grant condition would be imposed pursuant to his power under
Section 1373 provides:
(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:
- Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
- Maintaining such information.
- Exchanging such information with any other Federal, State, or local government entity.
(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.
The district court interpreted the term “all other applicable federal laws” as encompassing all federal law. City of Chicago, 321 F. Supp. 3d at 875. The court held that if Congress wanted to limit the term to include just a specific body of federal grant-making laws, it could have done so, but that the language “all other applicable federal law” includes any federal law that applies to Chicago. Id. Because
But the district court then considered whether
B. Section 10153
The Attorney General challenges those conclusions on appeal, but we need not address the district court’s compelling analysis of that
1. Plain Language
The Attorney General argues that the term “all other applicable federal law” incorporates all federal law that applies to states or localities. The immediate problem with that interpretation is that it renders the words “other applicable” superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)) (“[i]t 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.’”); Philadelphia, 916 F.3d at 289 (“the canon against surplusage counsels us to read the term ‘applicable’ in a way that gives it some independent heft.”) If Congress meant to incorporate all law that applies to States or localities, that would be accomplished by requiring compliance with “all federal law.” Any federal laws that did not apply to states or localities would simply be irrelevant in considering compliance, in that an entity could not fail to comply with a law that does not impose any legal obligations on it, and therefore the term would not be overinclusive. By including only “applicable” federal laws, the provision encompasses only laws that apply by their terms to the award itself.
The natural reading of the phrase considers the language in the subsection as a whole:
(A) To request a grant … the … State or unit of local government 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, 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—
(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 part and all other applicable Federal laws.
2. Consistency with Other Statutes Applied
The language at issue is mirrored in a subsequent subchapter that also applies on its terms to the Byrne JAG program, and provides:
Whenever, after reasonable notice and opportunity for a hearing on the record in accordance with section 554 of Title 5, the Bureau of Justice Assistance, the National Institute of Justice, and the Bureau of Justice Statistics finds that a recipient of assistance under this chapter has failed to comply substantially with—
(1) any provisions of this chapter;
(2) any regulations or guidelines promulgated under this chapter; or
(3) any application submitted in accordance with the provisions of this chapter, or the provisions of any other applicable Federal Act;
the Director involved shall, until satisfied that there is no longer any such failure to comply, terminate payments to the recipient under this chapter, reduce payments to the recipient under this chapter by an amount equal to the amount of such payments which were not expended in accordance with this chapter, or limit the availability of payments under this chapter to programs, projects, or activities not affected by such failure to comply.
(emphasis added)
And that is true of the same language in
Such statutes directly applying to grants and grant recipients are plentiful, and the Byrne JAG program explicitly identifies a number of them in its application. In fact, a review of the other federal laws referenced in the application reveals a clear pattern of laws that explicitly apply to those receiving federal funds. The Edward Byrne Memorial Justice Assistance Grant Program FY 2017 Local Solicitation directs applicants to the web pages accessible through the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative agreements – FY 2017 Awards” for a general overview of the important statutes and regulations that apply to the grant. Appellant’s Appendix, No. 18-2885, at A175. That source identifies a number of federal laws that apply to the grant, and those laws are identified in the grant award itself as well. See
18 U.S.C. § 1913 —Lobbying with appropriated moneys, which provides that “[n]o part of the money appropriated by any enactment of Congress shall, inthe absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, [etc.] … intended or designed to influence in any manner a Member of Congress … .”
22 U.S.C. § 7104 —Prevention of trafficking, which in§ 1704(g) provides that “the President shall ensure that any grant … provided or entered into by a Federal department or agency under which funds are to be provided to a private entity, in whole or in part, shall include a condition that authorizes the department or agency to terminate the grant … if the grantee or any subgrantee … engages in … (1) severe forms of trafficking in persons … .”
41 U.S.C. § 4712(a)(1) —Enhancement of contractor protection from reprisal for disclosure of certain information, providing that “[a]n employee of a … grantee, or subgrantee … may not be discharged, demoted or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2) information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant … .”
28 C.F.R. § 54.100 —Title IX regulation “designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution … .”
28 C.F.R. § 42.102-42.105 —Title VI of the Civil Rights Act—prohibits discrimination on the ground of race, color, or national origin and “applies to any program for which Federal assistance is authorized under a law administered by the Department,” with Federal financial assistance defined as including “grants and loans of Federal funds.” It also requires that “[e]very application for Federal financial assistance to which this subpart applies … shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this subpart.”
31 U.S.C. § 1352 —Limitation on use of appropriated funds to influence certain Federal contracting and financial transactions, providing that “[n]one of the funds appropriated by any Act may be expended by the recipient of a Federal … grant … to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with [federal contracts].”
(emphasis added). Those statutes and regulations also provide specific remedies tailored to each provision for violations—ranging from civil penalties to abatement measures to grant termination—in contrast to
C. Problems with AG’s Interpretation
The Attorney General’s interpretation of the compliance provision, in contrast, would expand that provision far beyond the context of the grant and its application, to encompass the broad, unrelated array of federal laws that apply to states or local governments regardless of their connection to this or any grant. Moreover, as we will explain, the Attorney General’s interpretation would: (1) allow the executive to impose conditions that Congress repeatedly declined to institute itself; (2) allow the Attorney General in his discretion to impose a substantive qualifying condition on a grant that Congress explicitly established as a formula rather than a discretionary grant; (3) render irrelevant or illogical other provisions in the Byrne JAG statute and raise constitutional concerns; and (4) conflict with another statutory provision. As such, it is inconsistent with the bedrock principles of separation of powers and federalism, and the district court properly granted injunctive and declaratory relief.
1.
Although the Attorney General interprets
In the past few years, numerous pieces of legislation were introduced in the House and Senate seeking to condition federal funding on compliance with
8 U.S.C. § 1373 —which was intended to address “sanctuary cities” and prohibit federal, state or local government officials or entities from restricting the exchange of information with the immigration authorities regarding citizenship or immigration status. None of those efforts were passed by Congress. See, e.g., Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. § 4 (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. § 4 (2016); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. § 3 (2015); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2 (2015); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. § 3(a) (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 2 (2015) (all available at https://www.congress.gov). see also Annie Lai & Christopher N. Lasch, Crimmigration Resistance and the Case of Sanctuary City Defunding, 57 Santa Clara L. Rev. 539, 553 n. 87 (2017) (listing eight pieces of legislation introduced during that time, all of which were unsuccessful).
Chicago I, 888 F.3d at 277–78. The Attorney General’s reading would thus allow the Executive Branch to override Congress’ refusal to endorse
2.
Second, the Attorney General’s interpretation would vest the executive branch with unbridled power to identify select federal laws and impose them as a precondition for the receipt of federal grant money allocated by Congress. That discretionary authority is fundamentally inconsistent with the nature of the Byrne JAG grant as a formula grant, located in a separate section of the Act than the discretionary grants. See generally Bureau of Justice Assistance Grant Program,
The Attorney General dismisses this as a non-issue, declaring that the States and local governments were already subject to those laws and therefore the certification of compliance imposes no burden or barrier. He disclaims any role in determining which laws will be applied, stating that his interpretation “does not require compliance with laws ‘selected at the Attorney General’s uncabined discretion.’” Reply Brief, No. 18-2885, at 5. Instead, he declares that he is “not urging that the Attorney General has discretion to select applicable laws; rather, Congress has made laws applicable to Chicago, and Chicago must comply with them.”
First, the grant application does not purport to track compliance with the entire universe of federal law. Instead, the Attorney General has singled out particular federal laws which act as a gatekeeper to control and limit access to the grant. That is apparent in the language of the application—which identifies specific statutes—and also in the Attorney General’s apparent absence of concern with the multitudes of other federal laws that apply by their terms to states and cities, such as OSHA requirements or EPA regulations or any other federal constitutional, statutory or regulatory law. In fact, the Attorney General has singled out
Alert: New Requirements for Certain FY 2017 Programs
Consistent with OJP’s statutory authority to impose grant conditions, including
42 U.S.C. 3712 , OJP will include—in an award document sent to a prospective FY 2017 Edward Byrne Justice Assistance Grant (“Byrne JAG”) recipient for acceptance—express award conditions concerning ongoing compliance with8 U.S.C. 1373 , throughout the award period, in the “program or activity” funded by the award. (In general, section 1373 bars restrictions on communication between State and local agencies and officials and the Department of Homeland Security (and certain other entities) with respect to information regarding the citizenship or immigration status of any individual.) States and units of local
government that apply for awards under
In addition, consistent with OJP’s statutory authority, OJP will include in any FY 2017 Byrne JAG award (as part of the award document) additional express conditions that, with respect to the “program or activity” that would be funded by the FY 2017 award, are designed to ensure that States and units of local government that receive funds from the FY 2017 Byrne JAG award: (1) permit personnel of the U.S. Department of Homeland Security (“DHS“) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States; and (2) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.
Overview of Legal Requirements, Dist. Ct. R. 26, Exh. M. That alert to future grant applicants expressly recognizes that the OJP has selected one federal statute to impose as a grant condition with requirements of certification that are specific to that statute. Its contention that Congress, rather than the Attorney General, has selected the laws that will constitute conditions of the grant is patently false.
The argument that the certificate of compliance imposes no burden because government entities were already required to follow the law fails for an additional reason. The identification of a federal law as an “other applicable law” for receipt of the grant imposes a penalty on the violation of that law that would otherwise not exist. It transforms every federal legal obligation into a potential basis to withhold funding that has been designated by Congress for disbursement to state and local governments for law enforcement. Yet that penalty for non-compliance is not a penalty set forth by Congress in those other statutes. Therefore, the interpretation by the Attorney General which could transform any federal law into a condition of the grant would indeed impose a burden not already provided by the federal law itself, in the form of a steep financial penalty. In fact, that “penalty” could extend well beyond the denial of the Byrne JAG grant if the Attorney General’s interpretation of “all other applicable federal law” is adopted. It would allow the Attorney General to withhold myriad other grants that have been authorized by Congress because that precise term is used in numerous other statutes—often as part of a statutory section that mirrors the one in the Byrne JAG grant at issue here—including statutes providing grants under: the Comprehensive Opioid Abuse Grant Program,
Interpreting that language as potentially incorporating any federal law would vest the Attorney General with the power to deprive state or local governments of a wide variety of grants, based on those entities’ failure to comply with whatever federal law the Attorney General deems critical. Yet there is nothing in those statutes that even hints that Congress intended
The potential for abuse is apparent. Here, the Attorney General has used the broad interpretation of “other applicable law” as a means of hijacking the legislatively-established Byrne JAG program to further particular policy goals of the Executive, despite the repeated refusal of Congress to impose such a prerequisite itself. The open-ended ability to choose federal laws at will would allow the targeting of states or policy issues if the Attorney General chose to do so. For instance, the Attorney General could effectively isolate specific states by requiring certification of compliance with federal law regarding controlled substances, thus disqualifying states or local governments that have legalized or decriminalized marijuana, or by requiring a certification of compliance with federal constitutional law such as Roe v. Wade, 410 U.S. 113 (1973), thus eliminating grant funding for states that recently have passed “heartbeat bills” and other legislation designed to challenge Roe. That would transform the highly-structured formula grant into one that vested total in the Attorney General to impose barriers to the grant through his choice as to which other federal laws to target as grant conditions.6
3.
The Attorney General’s identification of a specific law—and the conditioning of the grant on compliance with it—falls far astray from the language, context and structure of the statute itself. And a reading of the statutory language in a manner promoted by the Attorney General would raise potential constitutional and statutory concerns. First, as we have already discussed, the statute cited as providing the authority for the imposition of the condition grants no such power to the Attorney General. Moreover, the vesting of such discretionary authority in the hands of the Attorney General would render irrelevant or illogical the statute’s exacting delineation of the formula for grant awards and the precise limits on the extent to which the Attorney General can deviate from that distribution, as we discussed in Chicago I, 888 F.3d at 286:
The ability of the Attorney General to depart from the distribution mandated by the formula is strictly circumscribed. For instance, of the total amount available in a given fiscal year, the Attorney General is authorized to reserve “not more than 5 percent, to be granted to 1 or more States or units of local government” for one or more of the allowed statutory purposes, “pursuant to his determination that the same is necessary (1) to combat, address, or otherwise respond to precipitous or extraordinary
increases in crime, or in a type or types of crime; or (2) to prevent, compensate for, or mitigate significant programmatic harm resulting from operation of the formula … .” 34 U.S.C. § 10157(b) . Moreover, the Attorney General is authorized by other statutes to reduce the funding in certain circumstances, but even then the amount of the reduction is set by statute. For example, the Sex Offender Registration and Notification Act mandates a 10 percent reduction in JAG funding if a state fails to substantially implement its provisions.34 U.S.C. § 20927(a) . And the Prison Rape Elimination Act of 2003 stipulates that a state that does not certify full compliance with its national standards can forfeit 5 percent of JAG funds unless it certifies that no less than 5 percent of such funds will be used solely to achieve compliance.34 U.S.C. § 30307(e)(2)(A) .
In contrast to those carefully delineated reductions for specific circumstances, the Attorney General’s interpretation would allow the Attorney General to withhold 100% of funds based on his determination as to which federal law to target.
In addition to the dissonance with the statutory structure, the selective targeting of specific statutes without regard to the statute’s relation to the grant or its purposes could present constitutional concerns. First, we note that as the Supreme Court reaffirmed in Gundy, 139 S. Ct. at 2129, a statutory delegation of authority “is constitutional so long as Congress has set out an ‘intelligible principle’ to guide the delegee’s exercise of authority … [o]r in a related formulation, the Court has stated that a delegation is permissible if Congress has made clear to the delegee ‘the general policy’ he must pursue and the ‘boundaries of [his] authority.‘” Although courts rarely second-guess the degree of policy judgment left by Congress to those responsible for executing the law, the term “applicable” by itself is so devoid of any definition or guidance that, if the Attorney General were relying on that provision as a delegation of authority to impose the conditions, it would vest discretion unmoored by any legislative general policy or boundaries of authority.
In fact, the Supreme Court in Gundy recognized the constitutional issues presented by statutory provisions vesting such broad discretion, in considering the Sex Offender Registry Notification Act (“SORNA“) which provided that “[t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter … and to prescribe rules for the registration of any such sex offender.” Id. at 2122. Although the Justices in the plurality decision in Gundy could not agree as to the outcome, a majority recognized that such a provision, if read as granting the Attorney General discretion to determine whether to apply SORNA to offenders rather than the mechanics of how to apply it, would present constitutional nondelegation problems. See Gundy, 139 S. Ct. at 2123, 2128 (plurality) (discussing the whether/how distinction and noting that it would present a nondelegation question if, as Gundy argued, the provision in the SORNA statute “grants the Attorney General plenary power to determine SORNA’s applicability to pre-Act offenders—to require them to register, or not, as she sees fit, and to change her policy for any reason and at any time“) and 139 S. Ct. at 2143, 2145 (dissenting) (noting that the provision “gave the Attorney General unfettered discretion to decide which requirements to impose on which pre-Act offenders” and that “[m]ost everyone, the plurality included, concedes that if SORNA allows the Attorney General as much authority as we
Here, the Attorney General’s interpretation of the “other applicable federal law” language would grant the type of unfettered discretion to determine whether a particular federal law will be a precondition of the grant that seven Justices of the Gundy Court recognized presents a constitutional nondelegation issue. Accordingly, the language of the statute, if read as delegating the authority to the Attorney General to choose which federal laws would constitute conditions of the grant, would raise grave constitutional concerns.
But the Attorney General has not relied on that language in that manner. Instead, the Attorney General asserts that Congress, with the “other applicable law” provision, itself imposed the condition on the grant under its Spending Clause power because Congress thereby incorporated all federal laws as grant conditions. Yet among the requirements for the constitutional exercise of such spending power, is the requirement that Congress, if it desires to condition the receipt of federal funds, “‘must do so unambiguously …, enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.‘” South Dakota v. Dole, 483 U.S. 203, 207 (1987), quoting Pennhurst, 451 U.S. at 17. A state cannot knowingly accept the conditions of the federal funding if that state is unaware in advance of the conditions or unable to ascertain what is expected of it, and therefore we insist that Congress must speak with a clear voice. Pennhurst, 451 U.S. at 17. An interpretation of “other applicable federal laws” that is limited to laws that expressly apply to grantees is clearly ascertainable, in contrast to the broader interpretation of the Attorney General which is unbounded—which would literally include thousands of federal statutes and regulations.
The Second Circuit, in adopting the broad interpretation of the language that the Attorney General seeks, acknowledges—even celebrates—the unbounded authority that such an interpretation would provide, and makes clear that the interpretation will allow denial of the grant for federal laws entirely unrelated to the purposes of the grant such as environmental laws:
Indeed, whether a grant is awarded by formula or by discretion, there is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws, or worse, violating those laws. One has only to imagine millions of dollars in Byrne funding being sought by a locality that is simultaneously engaged in persistent, serious violations of federal environmental laws. The formula nature of the Byrne Program does not dictate that such an applicant must be given federal money even as it continues to flout federal law. To the contrary, § 10153(a)(5)(D) authorizes the Attorney General to condition the locality’s receipt of a Byrne grant on its certified willingness to comply with all federal laws applicable to that locality, which includes environmental laws.
We do not agree with that interpretation of the language. Congress, under its spending power, can attach only conditions that “bear some relationship to the purpose of the federal spending,” and the universe of all federal laws as promoted by the Attorney General would necessarily include many laws that fail to meet that standard—once again rendering the conditions ambiguous. New York v. United States, 505 U.S. 144, 167 (1992), citing South Dakota, 483 U.S. at 207–08 and n.3. Thus, the more narrow reading of the language is not only more consistent with the structure of the statute, but it avoids potential constitutional questions.
4.
Moreover, the narrower interpretation that we adopt today also avoids a conflict with
(a) General rule
Nothing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.
The incorporation of
Accordingly, based on the language, structure, and purpose of the Act, the reference to “all other applicable federal laws” in
V. Relief
We turn, then, to the final issue in this case, which is whether the district court erred in extending the injunction beyond the City of Chicago. In its Final Judgment and Order in the FY 2017 litigation, the district court granted declaratory and injunctive relief to Chicago. The district court ordered that “the Attorney General’s decision to attach the Conditions to the FY
The court declared that
The district court’s decision to extend the injunctive relief to include future years reflected the history of litigation and the positions taken by the Attorney General. In the litigation challenging the FY 2017 injunction, the Department of Justice attorney representing the Attorney General [hereinafter “DOJ attorney“], asserted that it would be premature to enjoin conditions in FY 2018 or the years to follow because those conditions were “still in formation and … will be different in some respects from the 2017 conditions.” Dist. Ct. Transcript of Proceedings, Doc. 213 at 5. The DOJ attorney then stated that although disagreeing with the district court’s analysis, “we’ve certainly taken it to heart. And so we are looking at the conditions for next year against the backdrop of your prior decision.” Id. He argued to the district court that relief beyond the specific year was improper because the issue was not yet ripe, arguing:
[DOJ attorney]: Your Honor, two things. One, the solicitation is not – are not the actual conditions. This is an invitation to seek a grant. It doesn’t expressly state what the conditions are. Two, I’ve told you that we’re looking at those conditions and that we are taking to heart your prior decision. And three, I think your point about, if we impose the exact same conditions without notice and force them to affirmatively file a case, there might be other remedies available to the plaintiffs in that context.
[District court]: That would mean their lawyers would get paid.
Id. at 5–6. Despite these assurances made by the DOJ attorney to Judge Leinenweber, the Attorney General nevertheless imposed the very same conditions again in the FY 2018 grant application, and indeed also added yet another condition that was identical to the
The temporal scope of the injunctive relief in this case is proper. Injunctive relief is forward-looking, and a plaintiff injured by an unconstitutional or unlawful action in one year does not need to suffer injuries repeatedly in each ensuing year—and separately sue after each injury—to obtain relief from the unlawful actions. See United States v. Oregon State Med. Soc., 343 U.S. 326, 333 (1952) (” [t]he sole function of an action for injunction is to forestall future violations“); see generally § 2942 Availability of Injunctive Relief—In General, 11A Fed. Prac. & Proc. Civ. § 2942 (3d ed.) (noting that injunctive relief looks to the future and is designed to deter rather than punish, and that even if the defendant claims the conduct has been discontinued, the court will deny injunctive relief only if there is no reasonable expectation of future injurious conduct). Injunctive relief is designed to prevent precisely that scenario. Once an injury is shown in the imposition of the grant conditions sufficient to demonstrate standing, Chicago can challenge the imposition of those conditions in the Byrne JAG grant, and that challenge is not temporally limited—at least where, as here, the challenge is not in any way related to the timing of the conditions. And of course, the Attorney General’s indication to the district court that it would alter the conditions in future grants proved false. See Oregon State Med. Soc., 343 U.S. at 333 (“It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.“). The district court need not await yet another round of the same conditions and the same rejected justifications before enjoining the future conduct.
A. Injunctive Relief Beyond City of Chicago
The Attorney General argues that, even if we agree with the district court on the merits, the court erred in extending injunctive relief beyond the City of Chicago. In Chicago I, 888 F.3d 272, the panel addressed a similar issue as to the preliminary injunctive relief, with the majority holding that nationwide injunctive relief was proper and with one panel member dissenting. Our court granted rehearing en banc to consider only the issue of the proper scope, but that rehearing was vacated when the district court’s grant of the permanent injunction
At the outset, we note that a remand is necessary for the district court to consider whether any additional injunctive relief is appropriate as to the unlawful imposition of the compliance condition. The court imposed declaratory relief as to the constitutionality of
That FY 2018 condition leaves no doubt that the Attorney General intends to continue to interpret
1. Authority of the Court
Courts and commentators, particularly recently, have recognized serious concerns with imposing injunctive relief that extends beyond the parties before the court to include third parties. In fact, the question as to the authority of a court to issue such nationwide, or universal, injunctions, as well as the propriety of such injunctions, has spawned a veritable cottage industry of scholarly articles in the past few years. See e.g. Mila Sohoni, The Lost History of the “Universal” Injunction, 133 HARV. L. REV. 920, 924–25 N. 16 (2020) [hereinafter Sohoni, Lost History], citing: Spencer E. Amdur & David Hausman, Response, Nationwide Injunctions and Nationwide Harm, 131 HARV. L. REV. F. 49 (2017) [hereinafter Amdur & Hausman, Nationwide Injunctions]; Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 HARV. L. REV. 417, 419 (2017) [hereinafter Bray,
As to the authority to issue such injunctions, some urge that injunctions extending beyond the parties before the court are a recent invention, first appearing in the 1960s, and that the absence of such equitable relief before that time should cause us to question the legitimacy of that remedy. See e.g. Trump v. Hawaii, 138 S. Ct. 2392, 2425 & 2428 (2018) (Thomas, J. concurring) (indicating that the first universal injunction emerged “a century and a half after the founding,” in 1963, and “appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts“); see also Bray, Multiple Chancellors at 437–38; Wasserman, Nationwide Injunctions at 353.
But recent scholarship casts doubt on that constricted window of universal injunctions, exhaustively documenting the use of injunctions that extend beyond the plaintiff going back over a century, from a Supreme Court decision in 1913 to the present. See Sohoni, Lost History, 133 Harv. L. Rev. 920, 924 (2020); see also Samuel Bray, A Response to The Lost History of the “Universal” Injunction, 36 Yale J. on Reg.: Notice & Comment (Oct. 6, 2019) available at: https://www.yalejreg.com/nc/a-response-to-the-lost-history-of-the-universal-injunction-by-samuel-bray/ (last visited 4/7/2020) (discussing “four serious problems” with Sohoni’s analysis), and Mila Sohoni, A Reply to Bray’s Response to The Lost History of the “Universal” Injunction, 36 Yale J. on Reg.: Notice & Comment (October 10, 2019) (http://perma.cc/P8BA-2UJ6 (last visited 4/7/2020) (refuting Bray’s concerns). Sohoni meticulously examines equitable remedies in the past century, documenting the equitable relief that extended to non-parties throughout that history, and reaching the conclusion that universal injunctions are consistent with those traditional equitable remedies. Id.
That conclusion has found support as well in an amicus brief submitted to this court by a group of legal historians, professors
including injunctions to abate nuisances, and concluded that “equity courts had the equitable powers to issue nationwide injunctions in the early republic,” and “have long issued injunctions that protect the interests of non-parties.” Amicus at 6, 8. In fact, the historians noted periods of time in which the equitable remedies were much more drastic, extending as far as enjoining non-parties (which it noted would not be accepted today) and including a period of time in which injunctions were so broad they were called “omnibus injunctions” and “Gatling-gun injunctions.” Amicus at 16–17. They noted that those omnibus injunctions were repeatedly upheld by the Supreme Court, and ultimately Congress used its power to restrain their issuance. Amicus at 17. Although concluding that nationwide injunctions are historically grounded, the legal historians cautioned against an approach that would anchor equitable remedies too closely to the “notoriously difficult subject” of history, noting that the continuity of some traditional equity practices should not foreclose adapting equitable remedies to modern circumstances. Amicus at 25; see also Frost, In Defense at 1081.
2. Consistency with Supreme Court Law
Therefore, there is a substantial historical basis for the concept of injunctive relief that extends to the benefit of non-parties. The Attorney General and the dissent in this case nevertheless argue that universal injunctions are inconsistent with the Supreme Court’s decision in United States v. Mendoza, 464 U.S. 154 (1984). The Mendoza Court held that the government in that case should not be subjected to nonmutual offensive collateral estoppel because the “economy interests underlying a broad application
There are, however, important distinctions between nonmutual offensive collateral estoppel and a universal injunction. First, as is obvious, the legal concepts at issue here are not identical, so the Court’s decision as to an estoppel issue is in no way dispositive of the question as to the availability of universal injunctions. The significance of Mendoza must come from its reasoning, then. But the very different contexts make Mendoza of less relevance to this question. As to collateral estoppel, “once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation.” Id. at 158. The principle would apply to litigation remote in time, involving different underlying causes of actions, and regardless of whether the litigant in the subsequent suit was similarly situated to the one in the past case.
That expansive reach presented issues uniquely problematic for the government. Whereas in disputes over private rights between private litigants, there was “’no sound reason for burdening the courts with repetitive litigation,’” the position of the government is not identical to that of the private litigant. Id. at 159–60., quoting Standefer v. United States, 447 U.S. 10, 24 (1980). The government is more likely to be involved in cases with significant legal issues and is likely to be sued more often than a private party, thus increasing the potential for estoppel to be invoked. Id. at 160. In addition to depriving the government of the benefit of multiple courts of appeal weighing in on the issue, the application of estoppel would force the government to appeal every time it disagreed with a legal issue regardless of the significance of the case in which it was presented, or risk being bound by that holding in a later case of more importance to the government. Id. at 160–61. Finally, the use of estoppel would prevent subsequent Administrations from altering the government’s position on a legal issue, thus upsetting the ability of the Executive Branch to adapt to the changing philosophies of subsequent political leaders. Id. at 161–62. In light of those concerns unique to the government as a litigant, the Court held that “[t]he conduct of government litigation in the courts of the United States is sufficiently different from the conduct of private civil litigation in those courts so that what might otherwise be economy interests underlying a broad application of collateral estoppel are outweighed by the constraints which peculiarly affect the government.” Id. at 162–63.
The concerns expressed by the Court as to the use of estoppel against the government are not equally present in the context of the universal injunction. Of course, both situations present the concern with one court’s decision preventing the percolation of the issue in different courts. But unlike the collateral estoppel context, the universal injunction by its nature will concern an issue that is common to all parties bound by it who will be similarly-situated, will involve an issue of obvious and significant impact (thus not presenting the government with the need to appeal every adverse legal decision in even minor
And the decisions of numerous courts post-Mendoza, including the Supreme Court itself, support that conclusion. The historical underpinning for the argument that courts have the power to issue universal injunctions is complemented by the actual allowance of injunctions benefitting non-parties more recently. As we noted in Chicago I, the Supreme Court in Trump v. Intern. Refugee Assistance Project, 137 S. Ct. 2080 (2017) (“IRAP”), allowed an injunction to remain in place that applied to non-parties. 888 F.3d at 289. In IRAP, the Court denied in part a request for a stay of a nationwide injunction in a challenge to an Executive Order that suspended entry of foreign nationals from seven countries. The Court recognized that “[c]rafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” IRAP, 137 S. Ct. at 2087. The Court granted the government’s request to stay the injunction as to foreign nationals who lacked any bona fide relationship with a person or entity in the United States, but refused to stay the injunction not only as to the respondents in the case, but also as to persons not parties to the case who were similarly situated. Id. at 2088. If the lower court was without the power to impose an injunction that provided relief to non-parties, and thus relief greater than that necessary for the parties before the court, then the Supreme Court’s decision to allow the injunction to remain in place as to those non-parties would be inexplicable.
The concurring and dissenting justices in IRAP would have stayed the injunction entirely, but particularly argued that the injunctions should not have remained in place as to “an unidentified, unnamed group of foreign nationals abroad” for whom no class had been certified and in a case in which neither party had asked for the scope of relief applied by the Court. Id. at 2090 (Thomas, J. concurring in part, dissenting in part). They further asserted that the role of courts was to provide complete relief only to the plaintiffs, and not to non-parties. Id. The IRAP Court’s refusal to stay the injunction as to similarly-situated individuals, in light of those arguments in the dissent, should put to rest any argument that the courts lack the authority to provide injunctive relief that extends to non-parties. See Frost, In Defense at 1086.
3. Propriety of Injunctive Relief
Therefore, both historical and current practice lends support to a determination that the courts possess the authority to impose injunctions that extend beyond the parties before the court. The propriety of
Such injunctions present real dangers, and will be appropriate only in rare circumstances. For instance, a nationwide injunction can truncate the process of judicial review, elevating the judgment of a single district court. That effect, however, is not absolute. As a practical matter, the issuance of such an injunction is unlikely to dramatically foreclose all other review, because the possibility of a stay while seeking review in the court of appeals—as happened here—limits the immediate impact on litigation in other jurisdictions, and ensures review by multiple judges in short order. See Amdur & Hausman, Nationwide Injunctions at 53 n.27 (providing examples in which nationwide injunctions did not foreclose percolation). But even if the impact is not absolute, it is nonetheless a concern and has the clear potential to narrow the input from different judicial panels. Moreover, the potential for forum shopping is a real hazard and alone should caution against such broad injunctive relief. See e.g. Bray, Multiple Chancellors at 457; Frost, In Defense at 1104.
That does not, however, mandate a conclusion that universal injunctions are never proper. See Frost, In Defense at 1105 (noting that “[a]bolishing nationwide injunctions is both an over- and under-inclusive response to that problem”). In some circumstances, universal injunctions can be necessary “to provide complete relief to plaintiffs, to protect similarly situated nonparties, and to avoid the chaos and confusion that comes from a patchwork of injunctions.” Id. at 1101. Just as the percolation through the courts is a valid consideration, so too the desire to avoid a multiplicity of suits has long been a consideration in equity, which even the opponents of universal injunctions acknowledge. See Bray, Multiple Chancellors at 426; Hawaii, 138 S. Ct. at 2427 (Thomas, J, concurring).
An outright prohibition of such injunctions, however, would handcuff the ability of courts to determine the relief that is proper in exceptional circumstances. Any number of factors could influence a court’s determination as to the proper scope of an injunction, including the nature of the violation, the extent of the impact, the urgency of the situation, the multiplicity of litigation, and the ability of others to even access the courts. IRAP presented the type of situation in which the remedy of a universal injunction can be particularly crucial. 137 S. Ct. 2080. As we stated above, in that case, the Supreme Court denied in part a request for a stay of a nationwide injunction in a challenge to an Executive Order that suspended entry of foreign nationals from seven countries. The travel ban was imposed suddenly, impacting an immense number of people immediately—including people who were already on planes to the United States—and the ability of persons affected by the ban to access the courts individually for redress was extremely limited. In such a circumstance, a court that in its discretion determines that the equities of the case and the substance of the legal issues justifies an injunction, should not be limited to imposing that relief only as to those few persons who could obtain attorneys or present themselves in court.
Nor is the presence of the vehicle of a class action a realistic alternative in such a case. The difficulties, expense and delay inherent in pursuing a class action would render it inadequate for the type of situation presented in IRAP. As noted by Frost,
[d]emonstrating these prerequisites [of numerosity, commonality and typicality and the adequacy of the named plaintiff to represent the class] is difficult and
time consuming and has been getting harder as a result of recent court decisions and federal legislation. Courts have heightened the evidentiary standard for class certification, requiring hearings and sometimes significant amounts of evidence on the merits of the case before certifying the class. In recent years, courts have started to deny class certification if they think there has been a flaw in class definition. These courts typically deny certification without first allowing the plaintiffs to amend that definition in response to the court’s concerns. Under Federal Rule of Civil Procedure 23(f) , defendants can seek interlocutory review of a court’s decision to certify a class, adding further delay and expense to the certification process. Noting these difficulties, one commentator has described the class certification process as a “drawn-out procedural bog,” which comes with significant expense and delay for the would be class member.
(footnotes omitted) Frost, In Defense at 1096–97, quoting Samuel Issacharoff, Private Claims, Aggregate Rights, 2008 SUP. CT. REV. 183, 208; see also Malveaux, Class Actions at 59 (describing the increasing hurdles to class actions and arguing that “Bray’s concession that ‘the requirements for a class action will not always be easy to meet’ understates the significant hurdles erected over the last fifty years”). The class action mechanism is not an adequate substitute for a universal injunction in the proper case.
Absent the ability to grant injunctive relief that extends beyond the particular party, courts will have little ability to check the abuse of power that presents the most serious threat to the rule of law – such as that which is swift in implementation, widespread in impact, and targeted toward those with the least ability to seek redress. Although circumspection is appropriate in ascertaining whether such relief is appropriate, an outright ban of such injunctions is neither required by history nor desirable in light of the range of situations—some as unpredictable and impactful as the sudden travel ban—that courts may confront.
That said, it is a more difficult question as to whether the nationwide injunction is proper in this case. In exercising its discretion to impose the permanent injunction nationwide, the district court identified a number of factors that strongly weighed in favor of an injunction that included more comprehensive relief. The court first noted that compliance with the Attorney General’s conditions would damage the relationship between local law enforcement and immigrant communities, and would decrease the cooperation with those communities that is critical to preventing and to solving crimes. The court held that the loss of trust, which once lost is not easily restored, would cause irreparable harm that could not be remedied with money damages. Moreover, the court held that the balance of hardships favored Chicago, noting that the Attorney General could distribute the funds without imposing the conditions, and nothing in the injunction would prevent any state or local government from coordinating its local law enforcement with the federal authorities absent those unlawful conditions. Finally, the court recognized that the public interest was served by an injunction in that it acts as a check on the executive’s encroachment of congressional power that violates the separation of powers.
The Attorney General does not address those factors and does not question the court’s determination that injunctive relief is proper. Instead, the Attorney General focuses his challenge on the scope of the injunction, asserting injunctive relief must
The district court identified a number of considerations that supported extending injunctive relief in this case program-wide and to include future years. Among those considerations was the Attorney General’s repeated imposition of the conditions despite adverse court rulings. Upon our decision affirming the grant of the preliminary injunction in this case, the Attorney General took the highly unusual step of seeking en banc review only as to the scope of the injunction, declining to present for en banc consideration our holding that the Attorney General’s claim to lawful authority was unfounded. And despite his failure to seek rehearing as to the preliminary injunctive relief to Chicago itself, the Attorney General continued to refuse to release the grant funds to Chicago, choosing instead to withhold the grant of all funds to all recipients. See U.S. Department of Justice FY 2020 Performance Budget Office of Justice Programs March 2019, https://www.justice.gov/file/1144566/download, at 99–100 (last visited 4-8-20) (noting that of the $403 million available for Byrne JAG grants in FY 2017, only $254.4 million had been awarded and similarly only $256 million of the $415.5 million available had been awarded in FY 2018, and explaining in a footnote that some FY 2017 and FY 2018 formula grants had not been released to grantees as a result of “concerns regarding compliance with federal immigration laws and ongoing litigation related to those matters.”) Because of that conduct, the district court explicitly enjoined the Attorney General from denying or delaying the issuance of the grant funds in the permanent injunction.
Moreover, as described earlier, the Attorney General assured the district court that the permanent injunction need not cover future years, because the conditions imposed in future years would reflect a careful consideration of the court’s holdings as to their legality. The court accepted that assurance, and yet the Attorney General proceeded to impose the identical conditions on the grants for the next year, issuing an award to Chicago that was not dependent on satisfaction of the unlawful conditions only after Chicago filed suit yet again. See City & Cty. of San Francisco, 372 F. Supp. 3d at 940–41 (“There is no dispute that certain challenged conditions in the fiscal year 2018 Byrne JAG Program are functionally the same as the notice, access, and Section 1373 certification conditions in the fiscal year 2017 Byrne JAG program at issue in the previous related litigation.”). Despite choosing to forgo en banc review as to the unlawfulness of the grant conditions, and with no change in the legal basis for those conditions, the Attorney General persists in his determination to impose conditions on the Byrne JAG grant that we held unlawful and that Congress itself has failed to impose. Those actions make manifest that each and every state and local government will have to bring its own suit in order to obtain relief (and possibly for each new grant year, given the Attorney General’s penchant for adding new statutory authorizations – even ones identical in language to rejected ones), leaving behind those who cannot afford such litigation. The concern with multiplicity of litigation is a valid factor in assessing the appropriate scope of injunctive relief.
As the district court held, the nature of the violation also supports the scope of the injunction here, in that it involves a violation of the separation of powers doctrine. The nature of the injury is a valid consideration in determining the proper scope of
At its core, this case implicates principles of federalism—involving federal intrusion into spheres of power possessed by states—and, more directly, principles of the separation of powers between the executive, the legislative, and the judicial branches.
Why did the framers insist on this particular arrangement? They believed the new federal government’s most dangerous power was the power to enact laws restricting the people’s liberty…. Some occasionally complain about Article I’s detailed and arduous processes for new legislation, but to the framers these were bulwarks of liberty.
…
If Congress could pass off its legislative power to the executive branch, the “[v]esting [c]lauses, and indeed the entire structure of the Constitution,” would “make no sense.” Without the involvement of representatives from across the country or the demands of bicameralism and presentment, legislation would risk becoming nothing more than the will of the current President. And if laws could be simply declared by a single person, they would not be few in number, the product of widespread social consensus, likely to protect minority interests, or apt to provide stability and fair notice. Accountability would suffer too.
…
[E]nforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of “fortitude … to do [our] duty as faithful guardians of the Constitution.”
Gundy, 139 S. Ct. at 2134–35 (Gorsuch, J., joined by the Chief Justice and Thomas, J., dissenting). In our case, the executive branch has usurped the power of the legislature to determine spending and to set conditions on that spending. It has done so to conscript the police power of the states to serve the civil immigration goals of the federal government. The challenged actions strike at the heart of the vital principles of separation of powers and federalism and comity for state’s rights.
That is particularly true in this case where the revolving door of statutory provisions relied upon by the Attorney General as authorization for the withholding of funds upends the process. Like a whack-a-mole game at a carnival, the Attorney General has presented the courts with one statutory “authorization” after another for the decision to withhold all Byrne JAG funding from sanctuary cities—from
B. Injunction as Providing Complete Relief to Plaintiff
But we should avoid deciding that more expansive issue if a more narrow approach is available, and it is available here. It is widely accepted—even by self-professed opponents of universal injunctions—that a court may impose the equitable relief necessary to render complete relief to the plaintiff, even if that relief extends incidentally to non-parties. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Wasserman, Nationwide Injunctions at 360–61; see, e.g., McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997) (noting that “in reapportionment and school desegregation cases, for example, it is not possible to award effective relief to the plaintiffs without altering the rights of third parties”); Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018) (recognizing, for instance, in two malapportionment cases, that “the only way to vindicate an individual plaintiff’s right to an equally weighted vote was through a wholesale ‘restructuring of the geographical distribution of seats in a state legislature’”).
The Byrne JAG grant is a formula grant, not a discretionary grant. The determination of the funds that will be provided to a grantee is based upon a very structured, precise calculation that is set forth by Congress at
Before delving into the minutia as to the structure of the Byrne JAG awards and the interrelationship of the grants, it might be helpful to provide a brief overview. If every grantee was allocated a set grant amount, independent from each other, then relief for Chicago could be calculated and awarded in a vacuum. There would be no need to enjoin the conditions beyond Chicago to redress the monetary injury, because the imposition of the conditions beyond Chicago would not impact Chicago’s grant award. But that is not the case. The slice of the Byrne JAG pie that Chicago
The Byrne JAG program allocates grant amounts to some localities directly, and also allocates grant amounts to each state, which then must pass on a certain percentage to other localities. If a state is unable to qualify to receive funds under the program, that state’s award is redistributed to the localities. In that way, the amount a locality can receive is connected to the amount the state is awarded and to the ability of the state to participate in the program. And the amount that the state is awarded is itself impacted by the amounts awarded to other states. In a number of ways, Byrne JAG funds can be redistributed from some states to other states, thus decreasing some states’ awards and increasing the award for the other states.
The Byrne JAG conditions challenged here disrupt the entire distribution plan, because they can prevent the states from even applying for an award—and clearly prevent the states from receiving a Byrne JAG award—if they cannot comply with the unlawful conditions at issue in this case. Because the awards to states are interrelated, and the award for localities is also related to the award to states, the imposition of the unlawful conditions impacts the proper calculation of all awards, including awards to localities such as Chicago.
As we will see, the Attorney General does not really contest that Chicago’s award could be impacted by the imposition of conditions on states. Instead, the Attorney General argues that we need not be concerned with that because the imposition of the unlawful conditions on other grant applicants would be a windfall to Chicago, resulting in a higher grant amount than it would otherwise receive, and Chicago cannot complain of receiving a higher amount. As we will discuss, the impact on Chicago if the unlawful conditions are applied to the states would not necessarily be an increase in its grant amount; it could operate to decrease the grant to Chicago as well. Moreover, even an improper increase in its award would be problematic. Once we have concluded that the Attorney General is without the authority to impose the challenged conditions, the court’s role should be to ensure that Chicago receives the grant it would have been entitled to absent the unlawful conditions. Courts should not impose relief that makes Chicago an involuntary beneficiary of the very conduct that it seeks to enjoin. That can only be assured if the Byrne JAG awards as a whole are calculated absent the imposition of the conditions, and therefore program-wide injunctive relief was appropriate.
1. Statutory Formula for Allocation
That is the overview. We turn, now, to the details. As an initial matter, it is important to understand the statutory formula for calculating grants, with its awards to states and localities. In this subpart, we describe the statutory formula for the initial allocations of funds as to states and localities. That is the base, from which subsequent redistributions will occur, which we discuss in subsections 2 and 3. The dissent argues that we misunderstand
Consideration of the precise formula delineated by Congress in
The formula for grant distribution also recognizes that, in some circumstances, a disparity can exist between the funding eligibility of a county and its associated municipalities. The three types of disparity include: a zero-county disparity, when one or more municipalities within a county are eligible for a direct award but the county is not, yet the county is responsible for providing criminal justice services for the municipality and therefore should be entitled to part of the municipality’s award; a disparity in which both a county and a municipality within it qualify for a direct award, but the award amount for the municipality exceeds 150% of the county’s award amount; and a disparity in which a county and multiple municipalities within that county are all eligible for direct awards, but the sum of those awards exceeds 400% of the county’s award amount.
The statute therefore employs a precise formula for determining the amounts to be awarded to applicants, including states and units of local governments. Because the amounts allocated are based on percentages, the actual amount that a unit of local government such as Chicago will receive is dependent on the number of applicants and the local government‘s share of all violent crimes reported in the state relative to those other applicants. Nor is the award a static one that, once awarded, is automatically and permanently distributed to the applicants. The awards themselves are for a four-year period of time. During that time, the award requires of each applicant ongoing compliance with the terms of the award, which according to the Attorney General, includes the requirement of compliance with
Essentially, application of the unlawful conditions to the Byrne JAG program can impact Chicago‘s grant in any of three different ways: (1) if applied to Chicago, it will eliminate its grant entirely; (2) if applied to Illinois, it could disqualify Illinois from receiving a grant and increase Chicago‘s grant award as described in subsection 2; (3) if applied to other states, it can impact Illinois’ award either by increasing or decreasing the award that Illinois otherwise would get as described in subsection 3. And again, that altered amount can impact Chicago‘s award as described in subsection 2—even if the unlawful conditions were not applied to Illinois.
2. Redistribution from State to Locality
First, a state‘s inability to participate in the Byrne JAG program for any reason, including the inability to comply with the unlawful conditions, can result in an increase in the grant received by the locality. In that way, the grant for the locality is interconnected with the grant to the state.
Section 10156(f) explicitly provides for additional funding to units of local government, where a state is unable or unwilling to comply with the program‘s requirements during that time, as follows:
(f) Funds not used by the State
If the Attorney General determines, on the basis of information available during any grant period, that any allocation (or portion thereof) under this section to a State for such grant period will not be required, or that a State will be unable to qualify or receive funds under this part, or that a State chooses not to participate in the program established under this part, then such State‘s allocation (or portion thereof) shall be awarded by the Attorney General
to units of local government, or combinations thereof, within such State, giving priority to those jurisdictions with the highest annual number of part 1 violent crimes of the Uniform Crime Reports reported by the unit of local government to the Federal Bureau of Investigation for the three most recent calendar years for which such data are available.
(emphasis added). Thus, even after the initial award, during that four-year period of the grant the Attorney General could determine that a State no longer qualifies to receive funds, and those funds will be redistributed to the units of local government, as long as that allocation does not exceed the local government unit‘s total expenditure on criminal justice services for the most recently completed fiscal year for which such data is available.
The possibility of that provision impacting Chicago‘s grant amount is far from negligible. The State of Illinois, for instance, recently passed the Keep Illinois Families Together Act,
Regardless of whether the State of Illinois is in compliance with the unlawful conditions, the point here is that the award to a unit of local government such as the City of Chicago can be impacted by the award and compliance status of the state and the other units of local government, not just in the grant year but in the three years following it. That would require, at a minimum, that injunctive relief extend to the state level. But an injunction prohibiting the application of the unlawful conditions to Illinois would not itself ensure that Chicago receives the proper grant amount because, under
3. Redistribution from State to State
Byrne JAG grant awards to each state are not determined in isolation from each other. First, the awards are based on the statistics of each state relative to that of the others. If states are no longer eligible for the grant program based on the unlawful conditions, the allocations could be calculated excluding those states, resulting in a higher amount for the remaining states. That is a hypothetical possibility, not a certainty, because it is possible that the
What is clear, even without factfinding, is that other statutorily-mandated redistributions of Byrne JAG funds among states will be upended by the imposition of the unlawful Byrne JAG conditions. Just as recipients of Byrne JAG grants have to certify compliance with anti-lobbying statutes and other grant-related requirements in order to be eligible for their grant award, grantees also can have their grant award reduced or increased based on their compliance with the Sex Offender Registration and Notification Act (SORNA),
As described above, in the Byrne JAG program, initial allocations of Byrne JAG funds are made to states and, after the states submit their applications with the required certifications, awards of the grant are issued. If a state seeking a Byrne JAG grant is non-compliant with the requirements of SORNA, then its Byrne JAG grant award is reduced by 10 percent. Those funds are then reallocated as an addition to the Byrne JAG grant award to other, SORNA-compliant states in the following fiscal year unless the non-compliant state seeks reallocation of those funds to its own Byrne JAG grant award by certifying that the funds will be used solely to obtain SORNA compliance and that request is approved.
Accordingly, a state‘s Byrne JAG award can be increased or decreased based on that state‘s own compliance with SORNA and based on whether other states are non-compliant. Because the penalty is assessed when the Byrne JAG grant is awarded, it will not be assessed as to states that either cannot even apply for the award because they cannot certify that they are in compliance with the unlawful conditions, or that apply and are denied an award because they are not in compliance with those conditions. See Office of Justice Programs SMART, Byrne JAG Grant Reductions Under SORNA at https://smart.gov/byrneJAG_grant_reductions.htm (last visited 4-8-2020)(noting that the 10 percent reduction is imposed when the awards are made).
That is a real problem if the unlawful Byrne JAG conditions challenged in this case are imposed upon the states. States that cannot or will not comply with those unlawful conditions will not be able to receive
If states cannot apply for or receive Byrne JAG awards, then that impacts the SORNA penalties collected from and redistributed to the remaining states in the Byrne JAG grants. For instance, if SORNA-non-compliant states can no longer qualify for Byrne JAG funds because of the unlawful conditions challenged here, then the 10 percent SORNA penalty will not be assessed as to them because they will have no award. Therefore the penalty amounts will not be redistributed to the Byrne JAG grant the following year to SORNA-compliant states, thus lowering the Byrne JAG grant awards that the remaining states would have received. Those SORNA-compliant states will not receive the additional funds that would have been reallocated from the award of those non-compliant states. Similarly, if SORNA-compliant states are unable to participate in the Byrne JAG program because they cannot comply with the unlawful conditions, then the remaining SORNA-compliant states will receive a larger share of the SORNA penalty funds solely because the unlawful conditions forced the exclusion of those states and impacted the number of SORNA-compliant states left in the redistribution mix. The inability of SORNA-non-compliant states to seek reallocation of the penalty to their own Byrne JAG award, in years for which the unlawful conditions deprive them of any award, will also skew the calculations.
Whether states experience a loss or a windfall, the result is that the imposition of the unlawful Byrne JAG conditions, by precluding states from eligibility for Byrne JAG awards, will alter the Byrne JAG grant amounts for other states, and therefore can alter amounts for localities as well. In other words, if the unlawful conditions are imposed upon the states so as to render some of them ineligible for the Byrne JAG award, the Byrne JAG award for other states will be impacted because
A similar redistribution of funds between states occurs based on compliance with the PREA. The PREA stipulates that a state that does not certify full compliance with its national standards can forfeit 5 percent of Byrne JAG funds unless it certifies that no less than 5 percent of such funds will be used solely to achieve compliance. See
States that are ineligible for Byrne JAG funds because they cannot comply with the challenged conditions will not be awarded Byrne JAG funds, and therefore the redistribution of Byrne JAG funds that would occur for non-compliance with the PREA will be disrupted. Once again, the impact of the challenged conditions will impact not only the individual state‘s Byrne JAG grant amount, but will impact the grant amount of other states as well. Just as the Byrne JAG grants for localities are impacted by the grants for states and each state‘s ability to comply with the challenged Byrne JAG conditions, so too the grants for states are impacted by the ability of each other state to comply with those Byrne JAG conditions.
4. Complete Relief to Plaintiff
The only way to ensure that the plaintiff receives, now and in the future, the Byrne JAG grant amount that it would be entitled to in the absence of the unlawful conditions, is to calculate the amounts for grant recipients as a whole absent the unlawful conditions. Like a river that flows throughout an entire region, in which an impact on one part cannot be separated from the whole and relief for injury to the part must target the whole, relief for one grantee in the Byrne JAG program must target the whole program. Complete relief to Chicago requires that the unlawful grant conditions are not applied to the program at all. In that context, a program-wide injunction is appropriate.
The dissent asserts that SORNA and PREA are irrelevant to a claim involving the Byrne JAG grant. But the focus here is not on the source of the redistribution of Byrne JAG funds; rather, the relevant question is whether that required redistribution renders Byrne JAG funding intertwined, such that the elimination of some states from the Byrne JAG program as a result of the unlawful conditions can impact the funds received by other states and localities in that program. The relevant question is whether the formula for calculating the Byrne JAG award renders one state‘s and one locality‘s award dependent on the award for other states, and whether the imposition of the unlawful conditions challenged in this lawsuit disrupts that calculation. If the imposition of the unlawful Byrne JAG conditions on the states as a whole could alter the award that a state (and therefore a locality) would receive, then a program-wide injunction is necessary in order for Chicago to receive the award that it would be entitled to in the absence of the unlawful conditions. Chicago‘s award is impacted not only
Notably, the Attorney General has never tried to establish that the grant awards are not interdependent. In his brief, the Attorney General addressed “the panel majority‘s belief that ‘the structure of the Byrne JAG program itself’ supports entry of nationwide injunction.” Appellant‘s Brief, No. 18-2885, at 54. But rather than challenge the assumption that the Byrne JAG funds would be redistributed from jurisdictions that lost funding, the Attorney General declared that the panel majority “failed to explain how that redistribution required a nationwide injunction to protect Chicago‘s interests,” because such redistribution would benefit Chicago by increasing its grant.
Courts have an obligation to award proper relief, and a windfall achieved by the imposition of unlawful conditions on other applicants is not proper relief. This is not a situation in which it is impossible to ensure that Chicago receives the award it would be entitled to without the unlawful conditions; it requires only that the unlawful conditions not be applied to the Byrne JAG awards at all. That relief is the proper and complete relief here, and it does not cease to be proper merely because other, non-plaintiffs, will thereby be relieved of the unlawful conditions that would otherwise be applied to their grant awards. In fact, relief that requires consistency in the application of conditions to all Byrne JAG grants is truer to the statutory structure. Particularly where, as discussed above, the other equitable factors also weigh in favor of broad relief, there is no reason in equity to deny the remedy that will provide complete relief to Chicago.
Moreover, as discussed above, the impact of the unlawful conditions on the other states would not necessarily result in a windfall. It could also result in a lower grant award than would be proper absent the impact of those unlawful conditions. If, for example, SORNA-non-compliant states cannot receive a grant award, then the 10
We have determined that the Attorney General lacked the authority to impose the challenged conditions. The proper relief to Chicago is to enjoin the imposition of the conditions to the extent necessary to ensure that Chicago receives the grant award that it would be entitled to if the unlawful conditions were not imposed. In a formula grant structure such as the one presented here, in which grant amounts are based on percentages and the award amounts are interrelated and interdependent, a program-wide injunction is necessary to ensure that Chicago itself receives proper relief. Therefore, even considering only the relief necessary to the plaintiff itself, the district court did not abuse its discretion in imposing a program-wide injunction. Because we so hold, we need not consider Chicago‘s argument that program-wide relief is proper under the Administrative Procedure Act‘s authorization that unlawful agency actions should be “set aside.” See D.C. v. U.S. Dep‘t of Agric., ___ F.3d ___, 2020 WL 1236657, at *34 (D.D.C. Mar. 13, 2020) and cases cited therein (discussing a line of cases all holding that “the APA‘s instruction that unlawful agency actions be ‘set aside’ is ordinarily read as an instruction to vacate, wherever applicable, unlawful agency rules“); see also Sohoni, Lost History at 991 n.466.
VI. Conclusion
Once again, we address the need to preserve the separation of powers between the legislative and executive branch. The separation of powers is a foundation of our government, not a formality to be swept aside on the path to achieving goals that the executive branch deems worthy. The Attorney General‘s nod to checks and balances rings hollow in light of the changing justifications provided here for the conditions, with a new purported legislative “authorization” whenever another is deemed baseless by the court. Rather than an exercise of authority granted to it by the legislature, the conditions imposed here are an executive usurpation of the power of the purse. See Providence, 2020 WL 1429579 at *8 (“[i]t is nose-on-the-face plain that [C]ongress intended Byrne JAG to operate as a formula grant program . ... Congress did not make an allowance for any deviation that would justify the actions undertaken by the DOJ in this case.“)
The imposition of the challenged conditions in this manner is an abrogation of the legislative process. Preservation of the separation of powers is paramount if our democracy is to survive.
Accordingly, we affirm the grants of declaratory relief as to the declarations that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute,
MANION, Circuit Judge, concurring in the judgment in part and dissenting in part.
Today‘s opinion holds unlawful several conditions attached to the Byrne JAG program and affirms the imposition of a nationwide injunction with respect to those conditions. My concurrence addresses all parts except the court‘s approval of a nationwide injunction. Broad, sweeping relief of such nature is rarely appropriate, and nothing indicates Chicago needs a nationwide injunction to preserve its Byrne JAG award.
I.
The Attorney General challenges the district court‘s conclusion that the notice, access, and
We already addressed the notice and access conditions in City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (“Chicago I“), where we rejected the Attorney General‘s reliance on
That still leaves the Attorney General‘s
There are thousands of federal laws. Adopting the Attorney General‘s literal position would condition a grant award on certifying compliance with each and every one of them. That cannot be the case. Under its spending power, Congress can attach only those conditions that “bear some relationship to the purpose of the federal spending” and must do so unambiguously. New York v. United States, 505 U.S. 144, 167, 172 (1992) (citations omitted). The Attorney General‘s unbounded interpretation ignores this concept. His oversight makes a difference because the relevant statutory context limits
The Attorney General‘s conditions, viewed in isolation, are perfectly reasonable. Federal officers have a basic duty to ensure enforcement of and compliance with our country‘s immigration laws. That the federal government would require cooperation with its agencies in exchange for grant funds should come as no surprise. Nevertheless, the Constitution places the power to spend money in the legislative branch. See
II.
I respectfully dissent, however, from my colleagues’ view that the injunction here should be applied beyond Chicago, nationwide.4 I departed from the panel on this same issue in our prior opinion, see Chicago I, 888 F.3d at 293-300 (Manion, J., concurring in the judgment in part and dissenting in part), and for similar reasons here, I reiterate my disagreement.5
A. The Byrne JAG Statute
In Chicago I, 888 F.3d at 291–92, the court justified a nationwide preliminary injunction to avoid “simultaneous litigation of [a] narrow question of law in countless jurisdictions” and because the Attorney General imposed unlawful conditions that applied “uniformly” to all grant applicants. This time around, it seeks to affirm the same scope of relief on narrower grounds. In a nutshell, the court claims the Byrne JAG statute’s structure permits a nationwide injunction because all applicants—localities and states—are interconnected regarding how much funding they receive. Therefore, according to the court, a nationwide injunction is needed to prevent the Attorney General from enforcing his unlawful conditions in other jurisdictions (beyond Chicago) because if those jurisdictions are denied funding for failing to comply, then that will affect Chicago’s
The court misinterprets the statute. With one exception, none of the provisions invoked by the court—read singly or in combination—make Chicago’s award contingent on any other governing body’s compliance with the Attorney General’s conditions. See generally
Furthermore, the court theorizes that the disqualification of a given locality (for failing to comply with the Attorney General’s conditions) can alter Chicago’s award amount because Chicago’s funds depend on both “the number of applicants” and its “share of all violent crimes reported in the state relative to those other applicants.” Maj. Op. at 81 (emphasis added). That’s not what the statute says. Subsection
The one exception, foreshadowed above, is
If the Attorney General determines . . . that a State will be unable to qualify or receive funds under this part . . . then such State’s allocation (or portion thereof) shall be awarded by the Attorney General to units of local government, or combinations thereof, within such State . . . .
The court showcases the Keep Illinois Families Together Act,
My colleagues’ reliance on the reallocation clauses in SORNA and PREA similarly falls short of justifying nationwide relief. SORNA and PREA each provide that jurisdictions failing to implement the statutes’ mandates will be penalized with a reduction to their Byrne JAG award.
But Illinois and Chicago are not guaranteed reallocated funds in the first place; that depends on whether any other jurisdictions fail to implement SORNA and PREA. Even still, how much money would Chicago stand to receive? Any reallocated penalties, while not small sums themselves, are a drop in the bucket compared to all Byrne JAG funds. As the court notes, in FY 2016, reallocated SORNA penalties exceeded $6 million across the country. Reallocated PREA penalties in FY 2019 totaled nearly $3 million. Compare those amounts with nearly $275 million in Byrne JAG funds distributed for FY 2016 and over $252 million for FY 2019.7 Describing the reallocated SORNA and PREA penalties as “significant” overstates the matter, yet the court’s analysis of SORNA and PREA is a key player in its approval of injunctive relief that stretches beyond Chicago.
Since other state and local governments’ compliance with the Attorney General’s conditions does not affect Chicago’s award amount, the purported need for a nationwide injunction disappears as Chicago cannot prove (and has not done so here) how an injunction imposed throughout the country—upon every state and locality—is necessary to protect its own interests. See California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) (Nationwide injunctive relief “must be necessary to give prevailing parties the relief to which they are entitled.”) (internal quotations and citation omitted). Indeed, if granted injunctive relief for just Chicago, then Chicago cannot lose; it is guaranteed at least the same amount of grant money, if not more should the State of Illinois fail to qualify for funding. This outcome stays the same under the court’s statutory interpretation, too, where Chicago’s funds can be altered by the noncompliance of other states or localities in other states. Even then, a limited injunction would ensure Chicago receives either the same or more funding.
The court deems this relief not “proper” because it fears Chicago could receive a windfall when the would-be awards of other unlawfully denied applicants make their way into Chicago’s grant. First of all, this still does not justify nationwide relief. At best, it serves as a basis for an Illinois-wide injunction because, again, nothing indicates the noncompliance of local governments or states outside Illinois will result
More importantly, the “proper” relief the court speaks of is not for Chicago’s redress, but for that of unrelated nonparties; the relief here ensures other applicants receive their deserved slice of the pie. This approach oversteps the narrow and well-established maxim that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” not to non-litigant third parties. Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (emphasis added); see also Int’l Kennel Club of Chi., Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1094 (7th Cir. 1988) (holding that the geographic scope of an injunction “must not exceed the extent of the plaintiff’s protectable rights.”) (emphasis added); Azar, 911 F.3d at 584 (“The scope of [injunctive relief] must be no broader and no narrower than necessary to redress the injury shown by the plaintiff[s].”) (emphasis added).
The “usual rule,” after all, is “that litigation is conducted by and on behalf of the individual named parties only.” Califano, 442 U.S. at 700–01. Thus, the court’s approach also breaks with “American courts’ tradition of providing equitable relief only to parties . . . .” Trump v. Hawaii, 138 S. Ct. 2392, 2427 (2018) (Thomas, J., concurring) (emphasis added). As Justice Thomas outlined:
For most of our history, courts understood judicial power as fundamentall[y] the power to render judgments in individual cases. Misuses of judicial power, Hamilton reassured the people of New York, could not threaten the general liberty of the people because courts, at most, adjudicate the rights of individual[s].
Id. at 2427–28 (alterations in the original) (internal quotation marks and citations omitted).8 Chicago has failed to show why a nationwide injunction—and nothing less—is necessary to preserve its Byrne JAG award, and the court’s statute-based explanation is, in my view, inadequate to rescue the city’s request.
B. Mendoza Concerns
Even were the court’s statutory interpretation sound, I would still dissent because its reasoning necessarily depends on the following assumptions: that the parties presented the district court with the very best arguments on the merits; that no other jurisdictions’ standards for injunctive relief would yield different results than in this case; that what goes for a Chicago-specific ordinance goes for all others; and that no trial judge sitting in the 93 other districts could possibly reach a different decision on these issues.
The Supreme Court cautioned against these same kinds of assumptions in United States v. Mendoza, determining that a judicial holding against the federal government in one case could not be used by another party in another case “to preclude relitigation of issues . . . .” 464 U.S. 154, 162 (1984). The Court was concerned that allowing parties to use preclusion in this way “would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue,” thereby depriving
While the Court in Mendoza did not address its concerns within the framework of nationwide injunctions, its reasoning nonetheless applies here. Indeed, the Fourth and Ninth Circuits have overruled nationwide injunctions as preventing the development of divergent views and outcomes. See Va. Soc’y for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 393 (4th Cir. 2001) (remanding nationwide injunction in favor of more limited relief because such a broad measure encroaches on other circuits’ ability to develop their own precedent, relying on Mendoza), overruled on other grounds by Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 550 n.2 (4th Cir. 2012); East Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029–30 (9th Cir. 2019) (criticizing nationwide injunctions for depriving other parties of the ability to litigate issues in other jurisdictions, interfering with judicial decisionmaking, and preventing the percolation of legal issues and the development of the law, citing accordance with Mendoza in a footnote); Azar, 911 F.3d at 583–84 (determining nationwide injunction overbroad, citing Mendoza’s concerns).9
By affirming the nationwide scope of relief here, the court blocks the underlying issues from percolating through the lower courts and thereby hinders the issues’ development, prevents divergent legal views and opinions from coming to the fore, and forces all future litigants in this country to accept the determination of one district judge who was presented with one city’s ordinance and who took arguments from one set of parties. These are real, tangible harms that impair our federal legal system. See Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring) (“[Nationwide] injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.”). And the fact that five circuits have now sounded off on the Attorney General’s conditions does not lessen the need for other courts to do so. Diversity of thought and opinion that flows from percolation is meant to benefit not only the Courts of Appeals, but our Supreme Court as well. See Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting) (“[W]hen frontier legal problems are presented, periods of ‘percolation’ in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring final pronouncement by this Court.”). Why should the judiciary call it a day after only five circuits weigh in, especially when they are split?
III.
The phenomenon of nationwide injunctions began to emerge in the latter half of the twentieth century but has “exploded in popularity” in recent years. Hawaii, 138 S. Ct. at 2429 (Thomas, J., concurring). Indeed, in the public domain, the Attorney General has represented that, as of September 2019, the current administration had already faced at least forty such injunctions, compared with twenty total throughout the previous administration’s eight years. William Barr, End Nationwide Injunctions, The Wall Street Journal, Sept. 5, 2019, http://www.wsj.com/articles/end-nationwide-injunctions-11567723072 (last visited April 24, 2020). That figure has since gone up. The nationwide injunction trend has also received scrutiny from the academy, and as Justice Thomas cautioned, the Supreme Court will be “dutybound to adjudicate” the lower courts’ authority to issue such “legally and historically dubious” injunctions should the practice continue. Hawaii, 138 S. Ct. at 2429 (Thomas, J., concurring).
Last year, when ordering a limited injunction to ensure relief to the sole plaintiff before him, Judge Bennett of the District of Maryland observed:
It is clear that most of the nationwide injunctions issued against the federal government in the past two years have come from United States District Courts in states less favorably inclined politically to the current administration. It is also clear that most of the nationwide injunctions against the federal government in the years before also came from United States District Courts in states less favorably inclined politically to the previous administration. It is important that the federal judiciary not allow itself to become part of underlying policy debate.
Mayor & City Council of Baltimore v. Azar, 392 F. Supp. 3d. 602, 619 n.12 (D. Md. 2019) (emphasis added) (internal quotations and citations omitted). Considering the recent flood of nationwide injunctions, I echo Judge Bennett in emphasizing this final point: we must not allow nationwide injunctions to serve as pretext for judicial activism.
An injunction is a “drastic and extraordinary” remedy, Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010), outdone only by an injunction issued on a national scale. This type of relief should be issued only when absolutely necessary, and it is far from necessary here. This is a funding case at its core, not an immigration case, where a nationwide injunction may, in very limited circumstances, be appropriate. See, e.g., Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017) (upholding a nationwide injunction on the President’s “travel ban” because plaintiffs were “dispersed throughout the United States” and there existed a need to apply immigration laws uniformly). Those circumstances are not present here. Therefore, once again, I would remand this issue in its entirety to the district court with instructions to curtail its injunction so as to prevent the Attorney General from enforcing the unlawful conditions with respect to Chicago’s funds only.