CITY OF PROVIDENCE аnd CITY OF CENTRAL FALLS, Plaintiffs, Appellees, v. WILLIAM P. BARR, in his official capacity as United States Attorney General, and the UNITED STATES DEPARTMENT OF JUSTICE, Defendants, Appellants.
No. 19-1802
United States Court of Appeals For the First Circuit
March 24, 2020
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before Barron, Circuit Judge, Souter,* Associate Justice, and Selya, Circuit Judge.
Brian H. Pandya, Deputy Associate Attorney General, Civil Division, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Aaron L. Weisman, United States Attorney, and Daniel Tenny and Brad Hinshelwood, Attorneys, Appellate Staff, were on brief, for appellants.
Jeffrey Dana, City Solicitor, with whom Megan Maciasz DiSanto, Senior Assistant City Solicitor, and Etie-Lee Z. Schaub, Associate City Solicitor, were on brief, for appellee City of Providence.
Matthew Jerzyk, City Solicitor, for appellee City of Central Falls.
Peter F. Neronha, Attorney General of Rhode Island, Michael W. Field, Assistant Attorney General, Letitia James, Attorney General of New York, Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, Eric R. Haren, Special Counsel, Linda Fang, Assistant Solicitor General, Xavier Becerra, Attorney General of California, Phil Weiser, Attorney General of Colorado, William Tong, Attorney General of Connecticut, Kathleen Jennings, Attorney General of Delaware, Kwame Raoul, Attorney General of Illinois, Brian E. Frosh, Attorney General of Maryland, Maura Healey, Attorney General of Massachusetts, Dana Nessel, Attorney General of Michigan, Keith Ellison, Attorney Generаl of Minnesota, Aaron D. Ford, Attorney General of Nevada, Gurbir S. Grewal, Attorney General
Omar C. Jadwat, Lee Gelernt, Cody Wofsy, Spencer E. Amdur, My Khanh Ngo, American Civil Liberties Union, Mark Fleming, Katherine E. Melloy Goettel, National Immigrant Justice Center, Nicholas Trott Long, and ACLU Foundation of Rhode Island on brief for American Civil Liberties Union, American Civil Liberties Union of Rhode Island, National Immigrant Justice Center, National Immigration Law Center, Washington Defender Association, Southern Poverty Law Center, Northwest Immigrant Rights Project, and New Orleans Workers’ Center for Racial Justice, amici curiae.
SELYA, Circuit Judge. After a number of state and local governments refused to assist in federal enforcement of certain immigration-related laws, the United States Department of Justice (DOJ) purposed to condition some unrelated federаl law enforcement grants on the provision of such assistance. Unwilling to retreat from their so-called “sanctuary” laws and policies, several state and local governments pushed back. A rash of litigation ensued, and a circuit split has now developed. Compare New York v. U.S. Dep‘t of Justice, 951 F.3d 84, 123-24 (2d Cir. 2020) (upholding grant conditions imposed by the DOJ), with City of Philadelphia v. Attorney Gen., 916 F.3d 276, 279 (3d Cir. 2019) (invalidating such conditions). The case at hand requires us to take sides in this circuit split.
To put the critical issues into perspective, it helps to revisit the genesis of the underlying suit. Two affected Rhode Island municipalities—Providence and Central Falls (collectively, the Cities)—are among the state and local governmental entities that decided to resist the DOJ‘s actions. To that end, they repaired to the federal district court and sought to invalidate the conditions that the DOJ had imposed on grant funds allocated to them. The district court ruled in the Cities’ favor, see City of Providence v. Barr, 385 F. Supp. 3d 160 (D.R.I. 2019), and the DOJ appealed.1
At the time the parties appeared for oral argument before us, three courts of appeals had refused to enforce some or all of the challenged conditions. See City of Los Angeles v. Barr, 941 F.3d 931, 934 (9th Cir. 2019); City of Philadelphia, 916 F.3d at 279; City of Chicago v. Sessions, 888 F.3d 272, 287 (7th Cir.), reh‘g en banc granted in part on other grounds, vacated in part on other grounds, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018), reh‘g en banc vacated, No. 17-2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018). After oral argument, the plot thickened: the Second Circuit upheld all of the challenged conditions, see New York, 951 F.3d at 123-24, thus creating a circuit split. We have carefully considered the district court‘s useful rescript, the comprehensive briefs
I. BACKGROUND
For simplicity‘s sake, we bifurcate our statement of the relevant background. First, we trace the anatomy of the grant program that underlies this litigation. Second, we sketch the origins and travel of the case.
A. The Edward Byrne Memorial Justice Assistance Grant Program.
Congress established the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG) in 2006 through the merger of two preexisting grant programs. See Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006); see also
The DOJ administers Byrne JAG funding through its Office of Justice Programs (OJP), which also oversees other federal law enfоrcement grant programs. See
Importantly, Congress structured Byrne JAG as a formula grant program. Rather than exercising its own discretion as to which jurisdictions receive grants and in what amounts, the DOJ is obliged to distribute funding pursuant to a statutory formula. See
Congress has allowed a carefully circumscribed number of deviations from this formula.
To receive its share of funding, a state or local government must apply annually to the DOJ. See
After it approves a Byrne JAG application, the DOJ issues a grant award letter that the designated government entity must sign to receive its grant. In this letter, the DOJ typically lists a few so-called “special conditions” with which the designated grant recipient must comply. Some conditions relate to the recipient‘s administration of the grant (such as collecting and maintaining data on the funded programs, cooperаting with the DOJ‘s monitoring of the grant, and attending DOJ events and conferences). Others require that recipients that use their funding for certain purposes (including purchasing police equipment and developing training materials) adhere to federal guidelines. Recipients likewise must obey federal information technology, training, and nondiscrimination regulations and policies. Every grant award letter states that the DOJ may either withhold or terminate funding if the recipient does not comply with these conditions.
B. The Origins and Travel of the Case.
This appeal arises indirectly from long-simmering tensions between the federal government and various states and localities that have refused to assist wholeheartedly in the enforcement of certain federal immigration laws and policies—and it arises directly from those tensions involving the federal government and the Cities. In order to limit such assistance, a number of state and local governments have enacted sanctuary laws and policies, which prohibit their officials from taking certain actions that would help federal immigration authorities locate and detain potentially deportable noncitizens. Such laws and policies include bans on notifying federal immigration authorities when a law enforcement officer takes into custody or releases a noncitizen. So, too, some jurisdictiоns
In May of 2016, the DOJ‘s Inspector General issued a report identifying several state and local governments that were receiving federal law enforcement grants (including Byrne JAG grants) and had enacted sanctuary policies that, in one way or another, limited their cooperation and information sharing with federal immigration authorities. The Inspector General suggested that many of these policies violated
These legislative initiatives stymied, the DOJ notified Byrne JAG grant recipients that it had determined that section 1373 was an “applicable federal law” for purposes of the program. Going forward, state and local governments would, therefore, have to certify compliance with section 1373 as part of the Byrne JAG application process. See
The Cities have received Byrne JAG grants annually since the program‘s inception. Each of them applied for Byrne JAG grants for FY2017. Providence planned to use its grant to cover overtime expenses for officers conducting patrols in “hotspot” areas, hire a part-time bilingual police liaison, and place an advertisement in a local newspaper. Central Falls sought funding to upgrade its police department‘s information technоlogy systems.
On June 26, 2018, the DOJ notified the Cities that it had approved their applications and awarded Providence and Central Falls grants of $212,112 and $28,677, respectively. In the grant award letters, the DOJ included three conditions tailored to compel cooperation with federal immigration authorities, none of which had been a condition on Byrne JAG grants in prior fiscal years:
- The notice condition: Grant recipients must implement a law, policy, or practice that ensures that their correctional facilities will “honor” any “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.”
- The access condition: Grant recipients must implement a law, policy, or
practice that gives federal immigration agents access to “correctional facilit[ies] 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.” - The certification condition: Grant recipients “must submit the required ‘Certification of Compliance with
8 U.S.C. [§] 1373 ‘” and ensure “[o]ngoing compliance with8 U.S.C. [§] 1373 .”
The Cities took issue with the notice, access, and certification conditions (collectively, the challenged conditions), which conflicted with specific sanctuary policies that they had embraced. For instance, neither of the Cities allows its law enforcement officers to retain custody of a noncitizen based solely on an immigration detainer or other request from immigration authorities, absent a court-issued warrant. A Providence ordinance forbids police officers from even inquiring about any individual‘s immigration status. Similarly, police officers in Central Falls do not stop or question individuals based on their immigration status. The Cities believe that these policies build trust between their law enforcement agencies and immigrant communities and ensure that noncitizens feel comfortable reporting crimes, cooperating with investigators, and serving as witnesses.
Dismayed by the DOJ‘s attempt to superimpose its policy views on their law enforcement efforts, the Cities decamped to the federal district court and sued the DOJ. They sought to enjoin the DOJ from imposing the challenged conditions on their FY2017 Byrne JAG grants. In relevant part, the Cities alleged that the DOJ did not possess statutory authority to impose the challenged conditions, that the imposition of the challenged conditions was arbitrary and capricious, and that the challenged conditions were unconstitutional.
After some procedural skirmishing not relevant here, the parties filed cross-motions for summary judgment. The district court granted summary judgment for the Cities, holding that the DOJ exceeded its statutory authority in imposing the challenged conditions on their Byrne JAG grants. See City of Providence, 385 F. Supp. 3d at 164-65. The court permanently enjoined the DOJ from enforcing the challenged conditions and—in aid of that injunction—issued a writ of mandamus directing the DOJ to disburse the Cities’ FY2017 grant funds to them. This timely appeal ensued.2
II. ANALYSIS
We review the district court‘s entry of summary judgment de novo, taking the facts and all reasonable inferences therefrom in the light most agreeable to the nonmovant. See Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011). “We will affirm only if the record reveals ‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.‘” Id. (quoting
The briefs in this case mix policy arguments with legal arguments. The Cities view their sanctuary policies as consistent with the best traditions of a free and open society. The DOJ, however, views those policies as antithetic to its efforts to enforce a series of validly enacted immigration-related laws. We need not plunge into these troubled waters. The issue before us is not whether sanctuary policies are good or bad—that issue is for the political branches, not for the courts. Instead, we focus on the parties’ legal arguments, which coalesce into a single dispositive issue: did the DOJ lawfully impose thе challenged conditions on the Cities’ FY2017 Byrne JAG grants?
The court below adopted the Cities’ theory that the DOJ exceeded its statutory authority in imposing the challenged conditions. In this venue, the Cities reiterate this theory and argue, in the alternative, that the DOJ acted arbitrarily and capriciously when it imposed the challenged conditions. Finally, they argue that the challenged conditions violate the Spending Clause of the United States Constitution. See
When an executive agency administers a federal statute, the agency‘s power to act is “authoritatively prescribed by Congress.” City of Arlington v. FCC, 569 U.S. 290, 297 (2013). It is no exaggeration to say that “an agency literally has no power to act . . . unless and until Congress confers power upon it.” La. Pub. Serv. Comm‘n v. FCC, 476 U.S. 355, 374 (1986). Any action that an agency takes outside the bounds of its statutory authority is ultra vires, see City of Arlington, 569 U.S. at 297, and violates the Administrative Procedure Act, see
The DOJ advances two sources of purported statutory authority for the challenged conditions: the Byrne JAG statute itself,
A court‘s lodestar in interpreting a statute is to effectuate congressional intent. See Passamaquoddy Tribe v. Maine, 75 F.3d 784, 788 (1st Cir. 1996). It is axiomatic that the quest to determine this intent must start with the text of the statute itself. See Stornawaye Fin. Corp. v. Hill (In re Hill), 562 F.3d 29, 32 (1st Cir. 2009). When Congress uses a term in a statute and does not define it, we generally assume that the term carries its plain and ordinary meaning. See id. The context surrounding a statutory provision and the structure of the statutory scheme as a whole often provide useful indicators of congressional intent. See Atl. Fish Spotters Ass‘n v. Evans, 321 F.3d 220, 224 (1st Cir. 2003); Sterling Suffolk Racecourse Ltd. P‘ship v. Burrillville Racing Ass‘n, 989 F.2d 1266, 1270 (1st Cir. 1993). If the language employed by Congress evinces a plausible meaning for the disputed provision, our inquiry normally ends there. See In re Hill, 562 F.3d at 32. Other tools of statutory interpretation, such as legislative history, customarily carry significant weight only when the text is ambiguous or
Against this backdrop, we proceed to examine the statutory provisions that the DOJ identifies as authorizing the imposition of the challenged conditions.
A. The Byrne JAG Statute.
Our starting point is the Byrne JAG statute. See
1. The Information-Reporting and Coordination Provisions.
The information-reporting provision of
The DOJ‘s contentions stretch the statutory language beyond hope of recognition. Under the DOJ‘s interpretation, the term “programmatic” in the information-reporting provision apparently would refer to any activity that a grant reсipient undertakes within the eight categories of “programs” that the Byrne JAG statute allows grants to fund, without regard to whether the recipient‘s grant in fact funds that particular activity. Throughout the Byrne JAG statute, though, Congress used the term “program” in only two ways: to refer to Byrne JAG itself, see, e.g.,
“not lightly assume that Congress silently attaches different meanings to the same term in the same or related statutes“).
The DOJ‘s definition of “programmatic” is inconsistent with the plain language of the statute in another way. The information-reporting provision requires that a grant applicant assure that it will maintain and report programmatic information “for each fiscal year covered by an application.”
Turning to the coordination provision, we find once again that the DOJ‘s broad interpretation conflicts with the plain meaning of the statutory text. The DOJ reads the phrase “coordination with affected agencies” to refer to coordination with all law enforcement agencies affected by any activity of the grant applicant. It attempts to justify this interpretation by invoking a goal of the Byrne JAG program, which is also an objective of the OJP‘s work more generally: the promotion of law enforcement cooperation. See, e.g.,
(directing Assistant AG for OJP to “maintain liaison with ... State and local governments ... relating to criminal justice“); Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 197 (listing purposes of predecessor grant program as including increasing “coordination of law enforcement and criminal justice systems at all levels of government“).
The text of the provision itself belies this jerry-built justification. The statute requires an applicant to certify only that there “has been” coordination,
If more were needed — and we doubt that it is — both the statutory context and the formulaic nature of the Byrne JAG program undermine the DOJ‘s expansive construction of the information-reporting and coordination provisions. To begin, the canon of noscitur a sociis teaches that “statutory words are often known by the company they keep.” Lagos v. United States, 138 S. Ct. 1684, 1688-89 (2018); see Wheeling & Lake Erie Ry. Co. v. Keach (In re Montreal, Me. & Atl. Ry., Ltd.), 799 F.3d 1, 8 (1st Cir. 2015). Under this canon, “a string of statutory terms raises the implication that the ‘words grouped in a list should be given related meaning.‘” S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 378 (2006) (quoting Dole v. United Steelworkers, 494 U.S. 26, 36 (1990)).
The information-reporting and coordination provisions appear in a list of assurances and conditions that a Byrne JAG applicant must make with respect to the application and programs to be funded. See
In addition, it is nose-on-the-face plain that Congress intended Byrne JAG to operate as a formula grant program. See
Congress did not make an allowance for any deviation that would justify the actions undertaken by the DOJ in this case. And reading the information-reporting and coordination provisions as broadly as does the DOJ would destabilize the statutory formula. In the DOJ‘s view, it can condition Byrne JAG grants on state and local governments assisting with unrelated federal law enforcement priorities through mandatory disclosure of information and coordination. But the statutory formula is not so elastic: it simply does not allow the DOJ to impose by brute force conditions
To sum up, we hold that the information-reporting provision authorizes the DOJ to require a Byrne JAG applicant only to assure that it will maintain and report information about its grant and the programs that the grant funds. See City of Los Angeles, 941 F.3d at 944-45; City of Philadelphia, 916 F.3d at 285. We further hold that the coordination provision authorizes the DOJ only to require a certification that the applicant has coordinated in the preparation of its application with agencies affected by the programs for which the applicant seeks funding. See City of Los Angeles, 941 F.3d at 945; City of Philadelphia, 916 F.3d at 285.
None of the challenged conditions falls within the compass of this authority. With respect to the information-reporting provision, only the notice condition requires the disclosure of information to the federal government. That condition, however, calls for the Cities to report the release dates of noncitizens in their custody — information that does not pertain either to the Cities’ Byrne JAG grants or to the police-related programs for which the Cities sought funding. The release dates of noncitizens do not, therefore, qualify as “programmatic” information. So, too, the purported reach of the challenged conditions exceeds the authority conferred upon the DOJ by the coordination provision: they mandate that the Cities cooperate with federal immigration authorities in manifold ways that are, without exception, unrelated either tо their Byrne JAG grants or to the programs for which the Cities sought funding. The challenged conditions also require coordination on an ongoing basis during the term of the Cities’ grants, not merely past coordination relative to the preparation of their applications.
We add a coda. Although the Second Circuit reached a similar conclusion about the meaning of the information-reporting and coordination provisions, it held that those provisions authorize the imposition of the notice and access conditions on any grant that funds a program “relate[d] in any way to the criminal prosecution, incarceration, or release of persons.” New York, 951 F.3d at 116-22. The court explained that such programs include those for police task forces, prosecutors’ and defenders’ offices, and incarceration facilities. See id. at 117-18. The DOJ advances a similarly expansive notion of the scope of a funded program. For example, it suggests that even if the term “programmatic” refers only to a Byrne JAG grant and the programs that the grant supports, the challenged conditions seek “programmatic” information from any grant recipient that uses its funding for a law enforcement or corrections program.
We reject this capacious view of the types of funded programs that wоuld permit the imposition of the challenged conditions — a view that covers most (if not all) criminal justice activities that a state or local government may undertake. For the reasons previously discussed, we think it would be wrong to hold that Congress gave the DOJ free rein to insist that Byrne JAG applicants furnish information and engage in coordination with respect to all of their law enforcement operations. And
2. The “Applicable Federal Laws” Provision.
We turn next to the DOJ‘s asseveration that the certification condition is authorized by
The dictionary defines “applicable” to mean “capable of being applied” or “fit, suitable, or right to be applied.” Webster‘s Third New International Dictionary of the English Language Unabridged 105 (Philip Babcock Gove ed., 2002). Relying heavily on this generic definition, the Second Circuit interpreted the phrase “applicable Federal laws” to encompass all federal laws “pertaining either to the State or locality seeking a Byrne grant or to the grant being sought.” New York, 951 F.3d at 106. The court reasoned that a statute “can” or “may” be capable of being applied or fit to be applied both to persons (such as the grant applicant) and to circumstancеs (such as the grant itself). Id.
Courts must be wary of simplistic solutions and, unlike the Second Circuit, we do not believe that the dictionary definition clarifies the meaning of the term “applicable” as used in this context. After all, “words are like chameleons; they frequently have different shades of meaning depending upon the circumstances.” Doe v. Leavitt, 552 F.3d 75, 83 (1st Cir. 2009) (quoting United States v. Romain, 393 F.3d 63, 74 (1st Cir. 2004)). A federal law may be “capable of being applied” or “fit to be applied” in an infinite number of ways, and the range of interpretations advanced by the Second Circuit, the DOJ, and the Cities are all consistent with this definition. Instead of assuming (as the Second Circuit did) that Congress meant to imbue “applicable Federal laws” with its broadest possible meaning, we think that
At the outset, a close reading of the statutory text casts grave doubt on the Second Circuit‘s extravagant interpretation. The canon against surplusage teaches that “[w]e must read statutes, whenever possible, to give effect to every word and phrase.” Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 26 (1st Cir. 2006) (en banc). Courts generally ought not to interpret statutes in a way that renders words or phrases either meaningless or superfluous. See United States v. Walker, 665 F.3d 212, 225 (1st Cir. 2011). The Second Circuit‘s interpretation оf the phrase “applicable Federal laws” — which encompasses all federal laws that apply to state and local governments in any capacity — flouts this principle by effectively reading the term “applicable” out of the statute. For instance, a local government hardly can certify that it will comply with a law that does not apply to local governments in the first place. Congress obviously could have written this provision to require Byrne JAG applicants to certify compliance with “all other Federal laws,” but it did not. In our view, the fact that Congress included the word “applicable” strongly implies that the provision must refer to a subset of all federal laws that apply to state and local governments. See City of Philadelphia, 916 F.3d at 289.
To its credit, the DOJ does not ask us to adopt the expansive interpretation of the “applicable Federal laws” phraseology proposed by the Second Circuit. The DOJ argues instead that its somewhat narrower construction of the phrase does not render the word “applicable” meaningless because that word limits the relevant category of federal laws to those that are “germane” to the Byrne JAG program (and, thus, may constitutionally serve as conditions on Byrne JAG grants). See New York v. United States, 505 U.S. 144, 171-72 (1992). Such a limitation gets the DOJ where it wants to go since it dеems all laws that govern cooperation between the federal government and states and localities on any law enforcement issue to be “germane” to the Byrne JAG program.
This argument has a patina of plausibility. The words “applicable” and “germane” both can mean “relevant.” See Webster‘s Third New International Dictionary of the English Language Unabridged, supra, at 105, 951. But as with the Second Circuit‘s blind allegiance to the dictionary definition of the word “applicable,” the DOJ‘s use of a handy synonym for the same word does not answer the critical question: in what sense must a federal law be relevant in order to qualify as an “applicable Federal law” under
There is more. Under the DOJ‘s interpretation of the “applicable Federal laws” provision, it would have substantial discretion to deviate from the statutory formula in order to enforce its own priorities. After all, it would be able to withhold a grant in its entirety based on the recipient‘s failure to certify compliance with any of the wide array of federal laws that touch upon law enforcement cooperation.6 See id. at 290. Given the formulaic nature of the Byrne JAG program, we doubt that Congress intended to give the DOJ so universal a trump card.
The DOJ strives to persuade us that this reasoning is faulty. It serves up a list of other statutes that it contends more clearly limit the phrase “applicable Federal laws” to laws that apply in the context of federal funding. See
We are not convinced. As the DOJ‘s examples demonstrate, Congress could have used clearer language to indicate its desire to limit “applicable Federal laws” to those that apply to state and local governments in their capacities as Byrne JAG grant recipients. But the perfect is often the enemy of the good, and Congress cannot always be expected to speak in the сlearest possible terms. In this instance, what counts is that the language that Congress did use, coupled with the neighboring statutory provisions and the formulaic nature of the grant program, leaves little doubt that Congress meant for the phrase “applicable Federal law” to have this circumscribed scope.
We add — without taking a position as to whether any laws not at issue here are
We find equally unconvincing the Second Circuit‘s asserted justification for interpreting the phrase “applicable Federal laws” to include laws beyond those that apply to state and local governments in their capacities as Byrne JAG grant recipients. See New York, 951 F.3d at 105-11. In addition to the generic dictionary definition of the term “applicable,” the Second Circuit mentioned what it considered the DOJ‘s broad statutory authority to determine whether a state or local government qualifies for Byrne JAG funding in the first place. See id. at 103-04, 107 & n.22.
We do not read the Byrne JAG statute to grant the DOJ such sweeping authority. We recognize, of course, that Congress said that a state or local government may not qualify for its share of Byrne JAG funding in some circumstances. See
That ends this aspect of the matter. We hold that “applicable Federal laws” under
B. The Duties and Functions of the Assistant Attorney General.
We now reach what may be the DOJ‘s strongest argument: its assertion that it possessed statutory authority to impose the challenged conditions under
Seizing on this language, the DOJ submits that
As we have explained, see supra Part II(A), the DOJ has not pointed to any provision in the Byrne JAG statute that allows either the Assistant AG or the Attorney General to impose the challenged conditions on Byrne JAG grants. Nor has the DOJ identified any other statute or regulation that gives such authority to either official. It necessarily follows that the DOJ‘s thesis rests on the notion that
Our analysis of this provision starts, as it must, with the statutory text. See In re Hill, 562 F.3d at 32. Congress prefaced the phrase “placing special conditions on all grants” with the word “including.” In both lay and legal usage, “include” generally signifies that what follows is a subset of what comes before. See Include, Black‘s Law Dictionary (8th ed. 2004) (defining “include” as “[t]o contain as a part of something“); Webster‘s Third New International Dictionary of the English Language Unabridged, supra, at 1143 (defining “include” as “to place, list, or rate as a part or component of a whole or of a larger group, class, or aggregate“). In the same vein, the word “including” most commonly “connotes ... an illustrative application of the general principle.” Reich v. Cambridgeport Air Sys., Inc., 26 F.3d 1187, 1191 (1st Cir. 1994) (quoting Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941)). This plain meaning indicates, as the Cities posit, that “placing
What is more, each subsection of
The statutory context surrounding
in mouseholes.“). Examples of more explicit language that Congress could have employed to give the Assistant AG the power to impose conditions abound in statutes that authorize other grant programs. See, e.g.,
An additional point is worth mentioning. The DOJ‘s proposed construction of
To cinch the matter, Congress added the “including” language to
The DOJ‘s arguments for reading
A divided panel of the Ninth Circuit relied on this reasoning to hold that
In all events, there is less to the DOJ‘s argument that the canon against surplusage supports its position than meets the eye. Although we aspire to give statutory language more than an illustrative function when the plain meaning of the text admits, we recognize that sometimes
Here, moreover, the canon against surplusage is a double-edged sword. The DOJ‘s reading of
Specifically, we believe that Congress meant to clarify that the Assistant AG, when vested with such authority pursuant to statute or through delegation by the Attorney General, may impose individualized special conditions on an award to a high-risk grantee to ensure compliance with the existing terms of the award. At the time Congress amended
We assume — in the absence of some indication to the contrary — that when Congress uses a term of art, it intends the term to carry its established meaning. See McDermott Int‘l, Inc. v. Wilander, 498 U.S. 337, 342 (1991). Because Congress did not define “special conditions” as used in
This construction finds support in a neighboring provision in the same 2006 legislation. That provision directs the new Office of Audit, Assessment, and Management — which is tasked with ensuring compliance with various DOJ-administered grants — to “take special conditions of the grant into account.”
Subsequent to the repeal of
The DOJ offers yet another line of argument. To bolster its reading of
Finally, the DOJ compiles a compendium of other requirements, all of which it has styled as “special conditions” and imposed on Byrne JAG grants since the inception of the program. It boasts that these conditions have been neither questioned by Congress nor challenged by grant recipients. This is thin gruel: the lawfulness of these other special conditions
Nor does the bare fact that Congress in 2016 codified requirements related to body armor that the DOJ had previously imposed as special conditions on Byrne JAG grants, see
To say more would be to paint the lily. We conclude that
III. CONCLUSION
We need go no further. When the federal government deals with state and local governments, it must turn square corners. Here, the DOJ took an impermissible shortcut when it attempted to impose the challenged conditions on the Cities’ FY2017 Byrne JAG grants — conditions that Congress had not vested the DOJ with authority to impose. Consequently, the judgment of the district court is
Affirmed.