al. et York New Dep’t States United Justice et al. *1 ‐ (L)
In the United States Court of Appeals for the Second Circuit A UGUST T ERM Nos. ‐ 267(L); ‐ 275(con) S TATE OF N EW Y ORK , S TATE OF C ONNECTICUT , S TATE OF N EW J ERSEY ,
S TATE OF W ASHINGTON , C OMMONWEALTH OF M ASSACHUSETTS , C OMMONWEALTH OF V IRGINIA , S TATE OF R HODE I SLAND , C ITY OF N EW
Y ORK , Plaintiffs ‐ Appellees , U NITED S TATES D EPARTMENT OF J USTICE , W ILLIAM P. B ARR , his official capacity United States, Defendants Appellants .
On Appeal United District Court Southern District New York A RGUED : J UNE D ECIDED : F EBRUARY _____ Before: W INTER C ABRANES R AGGI , Circuit Judges
_____ *2 On appeal from judgment entered United States District Court for Southern District of New York (Edgardo Ramos, Judge ), (1) mandates defendants release withheld Program Criminal Justice Assistance funds plaintiffs, enjoins defendants imposing certain ‐ related conditions on grants, defendants argue district court erred holding challenged conditions violate Administrative Procedure Act United States Constitution.
R EVERSED AND R EMANDED .
______________ B RAD H INSHELWOOD (Mark B. Stern, Daniel Tenny, brief ) for J OSEPH H. H UNT , A SSISTANT A TTORNEY G ENERAL , Appellate Staff, Civil Division, United Department of Justice, Washington, D.C., for Defendants Appellants A NISHA S. D ASGUPTA for L ETITIA J AMES , A TTORNEY G ENERAL OF THE S TATE OF N EW Y ORK New York, New York (Barbara D. Underwood, Eric R. Haren, Linda Fang, New York State Office of Attorney General, New York, New York; Mark Francis Kohler, Michael Skold, for William Tong, Attorney General State of Connecticut, Hartford, Connecticut; Jeremy Feigenbaum, for Gurbir S. Grewal, Attorney General State New Jersey, Trenton, New Jersey; Luke Alexander Eaton, for Robert W. Ferguson, Attorney General Washington, Olympia, Washington; David Urena Maura Healey, Commonwealth Massachusetts, Boston, Massachusetts; Victoria Pearson, Mark R. Herring, *3 Attorney General of Commonwealth of Virginia, Richmond, Virginia; Michael W. Field, for Peter F. Neronha, of Rhode Island, Providence, Rhode Island, brief ) for Plaintiffs ‐ Appellees New York, Connecticut, New Jersey, Washington, Rhode Island, Commonwealths Massachusetts Virginia. Jamison Davies, Richard Dearing, Devin Slack, for Zachary W. Carter, Corporation Counsel City New York, New York, New York for Plaintiff Appellee City New York.
Adam Lurie, Caitlin Potratz Metcalf, Linklaters LLP, Washington, D.C., Counsel for Amicus Curiae American Jewish Committee.
S PENCER E. A MDUR Lee Gelernt, Omar C. Jadwat, American Civil Liberties Union Foundation, New York, New York; Christopher Dunn, New York Civil Liberties Union, New York, New York; Mark Fleming, Heartland Alliance, Chicago, Illinois; Cody H. Wofsy, American Civil Liberties Union California Immigrants’ Rights Project, San Francisco, California; Counsel Amici Curiae American Civil Liberties Union, New York Civil Liberties Union, National Immigrant Justice Center, National Immigration Law Center, Immigrant Legal Resource Center, Asian Americans Advancing Justice— Asian Law Caucus, Washington Defender Association, New Orleans Workers’ Center Racial Justice. *4 R EENA R AGGI Circuit Judge :
INTRODUCTION The principal legal question presented this appeal is whether federal government may deny grants of money and local governments would eligible such awards but their refusal comply with three immigration related conditions imposed of United States. Those conditions require grant applicants certify they will (1) comply with federal prohibiting restrictions on communication of citizenship and alien status information with federal immigration authorities, see 1373; (2) provide federal authorities, upon request, release dates incarcerated illegal aliens; afford federal immigration officers access incarcerated illegal aliens. case implicates several most divisive issues
confronting our country and, consequently, filling daily news headlines: national immigration policy, enforcement immigration laws, status illegal aliens country, ability States localities adopt policies matters contrary to, odds with, those government.
Intertwined these issues foundational legal question: how, if all, should federal, State, local governments coordinate carrying out nation’s policy? There also corollary question: what extent may localities seeking money facilitate enforcement own laws *5 adopt policies extricate themselves from, hinder, even frustrate the enforcement of federal immigration laws?
At core, this appeal presents questions of statutory construction. In proceedings below, the United District Court the Southern District New York (Edgardo Ramos, Judge ) determined the Attorney General was statutorily authorized impose the challenged conditions and, therefore, enjoined application. New York Dep’t Justice F. Supp. 3d (S.D.N.Y. 2018). thoughtful opinion the district court requires us examine the authorization question detail. For reasons explained opinion, we conclude the plain language the relevant statutes authorizes Attorney General impose challenged conditions. concluding otherwise, district court relied on, among
other things, opinion Seventh Circuit City Chicago Sessions (7th Cir. 2018). While mindful respect owed our sister circuits, we cannot agree federal government must enjoined imposing challenged conditions on grants here issue. These conditions help government enforce national laws policies supported successive Democratic Republican administrations. But more authorization point, they ensure applicants satisfy particular requirements imposed Congress subject oversight.
Nor can agree district court challenged conditions impermissibly intrude powers reserved States.
*6
See U.S. C ONST Amend. X. As the Supreme Court has repeatedly observed, realm policy, it is government maintains “broad,”
Arizona v. United States
,
BACKGROUND Invoking court’s interlocutory jurisdiction pursuant 1292(a)(1), defendants United States Department Justice United (hereinafter, collectively, “DOJ”) appeal award partial summary judgment entered November New York Dep’t Justice F. Supp. 3d (S.D.N.Y. 2018). That judgment grants *7 plaintiffs, States of New York, Connecticut, New Jersey, Rhode Island, Washington, Commonwealths of Massachusetts Virginia (hereinafter, collectively, “States”), City New York (the “City”), injunctive relief from three immigration ‐ related conditions imposed DOJ on receipt 2017 Byrne Program Criminal Justice Assistance grants (“Byrne grants”). Those conditions required 2017 Byrne grant applicants (1) to certify willingness to comply which precludes government entities officials from prohibiting restricting sharing citizenship alien status information federal immigration authorities (the “Certification Condition”); (2) provide assurance that, upon written request authorities, grant recipients would provide notice incarcerated alien’s scheduled release date (the “Notice Condition”); certify recipients would afford authorities access ‐ incarcerated suspected aliens order those authorities determine aliens’ right remain United (the “Access Condition”). district court’s judgment only enjoins DOJ enforcing these three requirements plaintiffs’ grants (which DOJ has otherwise awarded), but also mandates DOJ release withheld funds plaintiffs without regard challenged conditions. id. 245–46; App. (modifying mandate).
Three of our sister circuits now upheld injunctions precluding enforcement some all the challenged conditions as to other jurisdictions applying for grants.
City Los Angeles v. Barr,
For reasons explained herein, conclude challenged conditions do violate either APA Constitution. We therefore reverse challenged judgment in favor of plaintiffs remand case district court for further proceedings consistent this opinion. I. The Byrne Justice Assistance Grant Program
The Edward Byrne Memorial Justice Assistance Grant Program (“Byrne Program”), codified at 34 §§ 10151–10158, is vehicle through which Congress annually provides more than $250 million in funding for State local criminal justice efforts. [2] The Byrne Program was created in part Violence Against Women Department Justice Reauthorization Act 2005, Pub. L. No. ‐ 162, 1111, Stat. 2960, (2006). That Act amended provisions Omnibus Crime Control Safe Streets Act 1968, Pub. L. No. 351, tit. I, Stat. 197, itself had *10 provided funding for State and local enforcement initiatives.
The Byrne Program a formula program, i.e. Congress appropriates a fixed amount funding for program and specifies “how funds will allocated among eligible recipients, as well method applicant must demonstrate eligibility funding.” Office Justice Programs, Grant Process Overview The Byrne Program’s formula awards States 50% allocated funds based on their relative populations, see § 10156(a)(1)(A), and other 50% based relative rates violent crime, see id. 10156(a)(1)(B). formula further provides that, total Byrne funds awarded State, itself keeps 60%, remaining 40% percent allocated local governments within State. id. 10156(b).
Congress affords localities wide discretion using grants. While awarded funds cannot substitute state’s own expenditures, see id. 10153(a)(1), grants may used support diverse needs “additional personnel, equipment, supplies, contractual support, training, technical assistance, information systems,” pertaining broad range criminal justice initiatives:
(A) Law enforcement programs. (B) Prosecution court programs. (C) Prevention education programs. (D) Corrections community corrections
programs. (E) Drug treatment and enforcement programs. (F) Planning, evaluation, and technology improvement programs. (G) Crime victim and witness programs (other than compensation). (H) Mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams,
id. 10152(a). As Congress explained, intent was thus afford and localities “flexibility spend money for programs work for them rather than impose a ‘one ‐ size fits all’ solution.” H.R. R EP N O . ‐ (2005), reprinted U.S.C.C.A.N.
Plaintiffs have received Byrne grants each year since program’s inception. They used these grants for a variety purposes, including, but limited to, supporting various investigative task forces, funding both prosecutors’ and public defenders’ offices, paying operators, improving criminal records systems forensic laboratories, identifying and mentoring criminally ‐ risk youth young adults, operating drug courts diversion programs nonviolent felony offenders, mitigating gang violence prison, funding prisoner re ‐ entry services.
While Byrne fund ‐ distribution formula is statutorily mandated, while Byrne applicants can use funds almost enforcement ‐ related purpose, no locality automatically entitled receive grant. Rather, a jurisdiction seeking funding must submit application satisfying host requirements. For example, jurisdiction statutorily *12 required to make its Byrne Program application public and to afford an opportunity public comment before submitting final application Attorney General. See 34 U.S.C. § 10153(a)(3)(A)– (B). Also, Byrne grant application must include “comprehensive Statewide plan” detailing, as specified § 10153(a)(6)(A)–(E), how awarded grants will used improve jurisdiction’s criminal justice system. A Byrne applicant must satisfy these, and all other statutory requirements, “in such form as Attorney General may require,” id. § 10153(a), and subject such “rules” Attorney General “shall issue” carry out program, id. § [4]
Three requirements grants are particularly relevant this appeal. First , an applicant must certify it “will comply all provisions part [ i.e. , part of chapter pertaining Program] and all other applicable Federal laws.” Id. § 10153(a)(5)(D). Second , an applicant must provide assurance “shall maintain report data, records, and information (programmatic financial) may reasonably require.” Id. 10153(a)(4). Third , an applicant must certify *13 “there has been appropriate coordination with affected agencies.” Id. § 10153(a)(5)(C).
The Attorney General’s authority to disapprove Byrne applications satisfying the program’s statutory requirements is implicit the statutory provision tempering authority with required opportunity for correction: Attorney General “shall finally disapprove” deficient application “without first affording applicant reasonable notice deficiencies application opportunity for correction reconsideration.” Id. § The authority to deny funds is further evident Congress’s instruction how appropriated funds are be distributed if Attorney General determines “that will unable qualify receive [Byrne Program] funds”: State’s allocation under statutory formula “shall awarded Attorney General units local government, combinations thereof, within State,” giving priority those highest reported number violent crimes. Id. § 10156(f). Such denial authority is, moreover, consistent discretion Congress has afforded Attorney General waive certain program requirements, see id. 10152(c)(2), develop “guidelines” statutorily required “program assessment component” every awarded, id. 10152(c)(1). statutorily authorized delegate “powers functions” thus vested him Title AAG responsible DOJ’s Office Justice Programs, office now administers Program. Id. 10102(a)(6). Congress made *14 plain powers and functions may so delegated “includ[e] placing special conditions on all grants, and determining priority purposes for formula grants.” Id.
II. The Challenged Immigration ‐ Related Conditions soliciting applications Program grants, then ‐ Attorney General Jefferson B. Sessions III, July 25, 2017, announced three immigration ‐ related conditions at issue case.
First Certification Condition requires a applicant execute “Certification Compliance U.S.C. § 1373.” App. 288, ¶¶ 52–53. That statute, which identified “applicable Federal law” purposes certification requirement U.S.C. 10153(a)(5)(D), see supra 12, states, pertinent part, follows:
Notwithstanding any other provision Federal, State, or local law, Federal, State, or local government entity or official may prohibit, or any way restrict, any government entity or official sending to, or receiving from, Immigration and Naturalization Service information regarding citizenship status, lawful unlawful, individual.
*15 U.S.C. 1373(a). Certification Condition thus requires that, respect the “program or activity” funded in
whole or part under award (including any such “program or activity” of any subrecipient any tier), throughout period performance for award, no State or local government entity, ‐ agency, or ‐ official may prohibit or in way restrict—(1) any government entity or ‐ official from sending or receiving information regarding citizenship or immigration status as described in U.S.C. 1373(a); or a government entity or ‐ agency from sending, requesting or receiving, maintaining, or exchanging information regarding status described in 1373(b). App. 288–89, ¶¶ 52–53.
Second Notice Condition requires grant recipients place throughout period a law, rule, or policy for informing authorities, upon request, scheduled release date alien recipient’s custody. It states that, date recipient accepts [a Byrne] award,
throughout remainder period performance award— . . A State statute, a State rule, ‐ regulation, ‐ policy, ‐ practice, must place designed ensure that, when (or State contracted) correctional facility receives DHS formal written request authorized Immigration Nationality Act seeks advance notice scheduled release date time particular alien facility, then such facility will *16 honor such request and—as early as practicable . . .— provide requested notice to DHS .
Id. ¶ 55(1)(B).
Finally Access Condition requires recipients to have law, rule, or policy in place allowing federal authorities to meet incarcerated aliens order inquire about rights to remain United States. It states that, date recipient accepts [a Byrne] award,
throughout remainder period performance award— . . .
A State statute, State rule, ‐ regulation, ‐ policy, or practice, must place designed ensure agents United acting under color law . . are given . . . access [to] (or State ‐ contracted) correctional facility purpose permitting such agents meet individuals who are (or are believed such agents be) aliens inquire individuals’ rights remain United States. Id. ¶ 55(1)(A). announcing these conditions, Attorney General Sessions
stated intent “increase information sharing between federal, state, local enforcement, ensuring immigration authorities information they need enforce laws keep our communities safe.” Press Release, Sessions Announces Immigration Compliance Requirements *17 Edward Memorial Justice Assistance Programs (July 25, 2017). [6] was specifically critical “[s]o ‐ called ‘sanctuary’ policies [that] make all us less safe because they intentionally undermine our laws and protect illegal aliens who committed crimes.” Id. He stated that DOJ needed “encourage these ‘sanctuary’ jurisdictions change their policies partner with federal enforcement remove [alien] criminals.” Thus, “[f]rom now on,” DOJ would “only provide JAG grants cities states comply federal law, allow federal immigration access detention facilities, provide 48 hours[’] notice before they release an illegal alien wanted authorities.” Id. [7] III. Title 8 U.S.C. 1373
Because understanding how 8 1373 became focus Certification Condition useful consideration plaintiffs’ challenge condition, set forth history here.
Section 1373 was enacted 1996, when Congress took notice certain states localities were restricting officials’ cooperation immigration authorities. generally H.R. R EP N O . ‐ at (Conf. Rep.), reprinted U.S.C.C.A.N. (noting various state statutes local *18 laws prevent disclosure of individuals’ immigration status to officials). [8]
Members of the Senate Judiciary Committee voiced particular concern with granting funds “State and local governments passing ordinances and rules which prohibit State and local agencies from cooperating or communicating INS.” See Impact of Immigration on the United States Proposals Reform U.S. Immigration Laws: Hearing Before Subcomm. on Immigration Refugee Affairs of Comm. on Judiciary 103d Cong. 45 [hereinafter Immigration Reform Hearings ] (statement of Sen. Simpson, R. Wyo. (“I believe cooperation has [a] condition[] any Federal reimbursement. other words, you are going get bucks from Federal Government if local governments can’t communicate INS about illegal immigration those who are involved it.”)); see also id. 26 (statement Sen. Feinstein, D. *19 Cal. (signaling that she would support providing immigration “impact aid” “States and local governments that declined cooperate in enforcement of [federal immigration] laws”)); id. (statement Committee Chairman Sen. Kennedy, D. Mass. (acknowledging concerns some mayors that cooperation with federal immigration authorities could be counterproductive local enforcement efforts, and observing that aid had provided “in ways that are going get the[ir immigration] cooperation but also, . . . [allow them] deal with . . . violence and gangs drug problems and rest. We are looking for balance . . . .”)). report accompanying proposed legislation
would become Senate Judiciary Committee expressly recognized “acquisition, maintenance, exchange *20 immigration ‐ related information State and local agencies consistent with, and potentially of considerable assistance to, Federal regulation immigration and achieving of purposes objectives Immigration and Nationality Act.” S. R EP . N O . 104 249, at 19–20 (quoted in City New York United States F.3d at 32–33). Thus, enacting 1373, enacting 1644, Congress sought “to give State local officials authority communicate with [federal immigration authorities] regarding presence, whereabouts, activities illegal aliens,” notwithstanding local laws contrary. H.R. R EP N O . ‐ at (Conf. Rep.), reprinted U.S.C.C.A.N. at (quoted City New York United 32).
In twenty years followed, political debates over federal immigration policies grew more contentious, number local jurisdictions limiting official cooperation with immigration authorities increased. February Representative John Culberson (R. Tex.), then Chairman House Appropriations Subcommittee Commerce, Justice, Science, Related Agencies, forwarded Loretta E. Lynch report Center Immigration Studies, concluded “over ‘sanctuary’ jurisdictions [were] refus[ing] comply [federal immigration] detainers [were] otherwise imped[ing] information sharing officials.” App. *21 134. [10] Representative Culberson asked the General investigate whether DOJ “grant recipients were complying with federal law, particularly . . ” Id. (emphasis added).
The ensuing investigation was conducted by DOJ’s Inspector (“IG”) who, May reported a significant, decade ‐ long decline state and local cooperation with federal immigration authorities. He reported a 2007 congressionally mandated IG audit of seven jurisdictions then receiving federal funds pursuant Criminal Alien Assistance Program (“SCAAP”) revealed all but one (San Francisco) were accepting federal detainers providing federal authorities timely notice of aliens’ release dates. See App. 134–35 n.1. By contrast, IG’s 2016 examination of ten jurisdictions receiving combined 63% of relevant DOJ grants, *22 revealed “all . . had ordinances or policies placed limits on cooperation” with federal immigration authorities. Id.; see id. at 145–49 (detailing limitations found). [12] IG observed insofar County, Florida; Milwaukee County, Wisconsin; Orleans Parish, Louisiana; New York, New York; Philadelphia, Pennsylvania.” App. at 136. To illustrate with some examples, IG reported Cook County, Illinois
(Chicago), prohibited its on duty employees from communicating with federal immigration authorities “regarding individuals’ incarceration status or release dates.” Id. at (internal quotation marks omitted). Similarly, Orleans Parish, Louisiana (New Orleans) prohibited its officials from “provid[ing] information on an inmate’s release date” federal authorities. Id. By executive order, Philadelphia employees were prohibited from providing federal authorities release date information about subject an immigration detainer unless person was incarcerated “for a first or second degree felony involving violence detainer is supported by a judicial warrant,” merely an administrative one. Id. (internal quotation marks omitted).
New York City appears placed restrictions employees’ cooperation immigration authorities as early as City New York United (discussing executive order prohibiting city officials or employees communicating individual’s immigration status authorities unless (1) required do so by law, (2) expressly authorized do so by alien, or alien is suspected criminal behavior). Then, Executive Order, City established “General Confidentiality Policy” summarized by district court as follows:
City employees may disclose an individual’s status, except limited circumstances, as when disclosure authorized individual, is required law, is another City employee necessary fulfill governmental purpose, pertains an individual suspected illegal activity (other than mere status undocumented immigrant), or necessary investigate apprehend persons suspected terrorist illegal activity (other than mere documented status). Additionally, police *23 these limitations “may be causing local officials believe apply the[se] policies in a manner that prohibits or restricts cooperation with [federal immigration officials] all respects,” that would “inconsistent with prohibited by Section 1373.” Id. at 141. Thus, “to extent [DOJ]’s focus is ensuring grant applicants comply with Section 1373,” IG stated could consider taking “several steps,” including (1) clarifying “is ‘applicable law’” DOJ grant recipients “would expected comply with order satisfy relevant grant rules regulations”; “[r]equir[ing] applicants provide certifications specifying applicants’ compliance Section 1373, along documentation sufficient support certification.” Id. at 142.
Following IG report, July DOJ, then still headed by Lynch, specifically identified “an officers may not inquire about person’s immigration status unless
investigating illegal activity other than mere undocumented status, may inquire about immigration status crime victims or witnesses at all. Other city employees may inquire about person’s immigration status unless inquiry is required by law necessary determine eligibility provide government services.
New York Dep’t Justice F. Supp. 3d (citations omitted). IG reported enacted November New York City further prohibited Corrections personnel communicating inmate release dates authorities unless inmate subject detainer supported judicial warrant. App.
applicable law” purposes both Byrne and SCAAP grants and began providing applicants and recipients with guidance requirements that statute. That guidance explained that § 1373 imposed no affirmative obligation on localities but, rather, prohibited such entities from taking actions restrict exchange immigration information with authorities. [13] For some jurisdictions identified IG, notably plaintiff New York City, DOJ conditioned continuance their 2016 grants on submission documentation validating their compliance with 1373. [14] *25 October 2016, DOJ published further guidance stating that henceforth, “all” grant applicants “must certify compliance with all applicable laws, including Section 1373.” App. at 182. Grant applicants were advised “to examine their policies and procedures ensure they will able submit required assurances” their 2017 applications. Id. at 183.
Thus, when July 2017, new General, serving new, Republican administration, announced that applicants 2017 grants would certify compliance with § 1373, he was putting into effect same condition earlier announced DOJ under preceding, Democratic administration.
recipient determines that it compliance with 1373
at time review, then it must take sufficient effective steps bring into compliance therewith thereafter submit documentation details steps taken, contains validation recipient come into compliance, includes an official legal opinion counsel (including related legal analysis) adequately supporting validation. Documentation must submitted . . . June 30, 2017. Failure comply condition could result withholding funds, suspension or termination grant, ineligibility future [grants], other administrative, civil, criminal penalties appropriate.
App. ¶ 53. By letter dated June 27, 2017, City stated “[n]otwithstanding [its] position applicable . . City certifies laws policies comply operate within constitutional bounds 1373.” Compliance Validation New York Dep’t Justice F. Supp. 3d (No. cv ‐ 6474), ECF No. ‐ *26 IV. Plaintiffs’ Byrne Grant Awards
On June 26, 2018, DOJ applied the Byrne Program formula to award the plaintiff States Byrne grants totaling $25 million—subject to acceptance the three related conditions at issue. As New York City, DOJ reiterated, both October and January the concerns it had first expressed 2016, i.e. , certain the City’s laws policies appeared violate could render ineligible for Byrne grants. supra at n.14.
In response these DOJ actions, the plaintiff and City filed the instant related actions, challenging, inter alia the Certification, Notice, Access Conditions for grants violative both the APA the Constitution.
V. Award Summary Judgment Plaintiffs
On parties’ cross motions summary judgment, district court granted partial judgment plaintiffs, enjoining enforcement challenged conditions them mandating release funds plaintiffs. so ruling, district court held challenged conditions violated APA two respects: (1) lacked authority impose conditions, see New York Dep’t Justice F. Supp. 3d 31; defendants’ failure consider conditions’ potential negative ramifications plaintiffs’ enforcement efforts rendered conditions arbitrary capricious, see id.
While the district court could stopped there, it proceeded also rule on certain plaintiffs’ constitutional challenges. As particular, the district court ruled DOJ could identify as an “applicable law” requiring compliance certification under 10153(a)(5)(D) because, on face, violates the anticommandeering principle the Tenth Amendment the Constitution. See id. 37. Further, district court concluded that, absence authority impose challenged conditions, all three violated separation legislative executive powers mandated Articles I II Constitution. See id.
Defendants timely appealed.
D ISCUSSION We review an award summary judgment de novo , construing record light most favorable non moving party. See, e.g. Bentley Autozoners (2d Cir. 2019). We will uphold award only if there no genuine dispute material fact, movant entitled judgment matter law. id.
I. Statutory Authorization To Impose Challenged Conditions
Except when acting pursuant powers expressly conferred Executive Branch Constitution—which are asserted here—an executive department agency “literally no power act . . unless until Congress confers power upon it.”
Louisiana
*28
Pub. Serv. Comm’n v. FCC
,
DOJ maintains was statutorily authorized impose each of challenged conditions. Whether Congress conferred authority depends statutory text, construe
de novo
.
See Kidd v. Thomson Reuters Corp.
, 925 99,
*29
103 (2d Cir. 2019);
United States v. Shyne
,
A. Title 34 U.S.C. 10102(a)(6) Does Not Itself
Authorize the Challenged Conditions
Because DOJ devotes considerable energy on this appeal, did district court, arguing challenged conditions are authorized by 34 10102(a)(6), we explain outset why argument does not persuade. We will then discuss sections Title 34 do authorize conditions issue.
At conclusion list criminal justice ‐ related duties assigned AAG, 10102(a)(6) authorizes AAG,
[to] exercise such other powers functions may vested Assistant Attorney pursuant this chapter by delegation General, including placing special conditions on all grants, determining priority purposes formula grants.
*30 3 4 U.S.C. 10102(a)(6) (emphasis added). Focusing the highlighted language, DOJ argues that 10102(a)(6) does not merely authorize the Attorney General delegate powers functions the AAG, but also grants “addition[al]” authority, supports the three challenged conditions. Appellant Br. at 22; see Reply Br. at 4–5. rejecting this argument, district court held highlighted text “‘stand alone of authority Assistant Attorney General attach conditions any grants.’” New York v. Dep’t Justice, F. Supp. 3d at 228 (quoting City of Chicago v. Sessions, F.3d at 285). Rather, introductory word “including” signals ensuing phrase necessarily cabined by what went before it.
Thus, Assistant Attorney General can only place special conditions determine priority purposes extent power already “may vested Assistant Attorney pursuant chapter delegation Attorney General[,]” . . who may only delegate extent he power himself.
Id. (quoting 10102(a)(6)).
This conclusion finds support only City Chicago v. Sessions, Seventh Circuit decision quoted district court, but also subsequent decisions Third Ninth Circuits. City Los Angeles Barr F.3d 39; City Philadelphia Gen. We agree much these courts’ decisions.
Depending on context, word “including” can either illustrative or enlarging. Compare Federal Land Bank St. Paul v. Bismarck Lumber Co. , U.S. 95, (1941) (construing word illustrative preceding section), American Sur. Co. N.Y. Marotta U.S. (observing that, “[i]n definitive provisions statutes,” word frequently signifies extension rather than limitation), Adams Dole 776–77 (4th Cir. 1991) (noting dual meaning word). The context here signals illustration rather than enlargement. It is “other powers functions” that may vested delegated AAG can “include” authority impose special conditions set priority purposes Program grants. Thus, 10102(a)(6) does itself confer authority Attorney General (or AAG) impose conditions here issue. The authority must originate other provisions law. That is case here.
B. Statutory Provisions Authorizing Attorney General To Impose Challenged Conditions Other Circuits Identify No Such Authority looking whether otherwise authorized impose challenged conditions, are mindful three sister circuits have considered question before us concluded he not. Their reasons so holding been uniform. Seventh Circuit so ruled respect Notice
Access Conditions, reasoning no provision outside 10102(a)(6) specifically mentions “special conditions” “priority *32 purposes” Byrne grants. See City Chicago Sessions , F.3d at 285.
The Ninth Circuit did not think that omission determinative. Reasoning that Congress could not enacted § 10102(a)(6) “for the purpose expressly authorizing Assistant AG to exercise powers do not exist,” that court construed 10102(a)(6) as effectively “confirming” what had been implicit overall scheme, i.e. Attorney General authority to impose special conditions on, identify priority purposes for, Byrne grants, authority he can delegate AAG. City Los Angeles Barr at We agree much Ninth Circuit’s reasoning. court goes on, however, construe terms “special conditions” “priority purposes” narrowly and, from that, concludes Attorney not statutorily authorized impose challenged Notice Access Conditions. id. (construing “special conditions” used 10102(a)(6) reference only “tailored requirements” necessary particular circumstance “such when grantee [at] ‘high risk’” violating grant’s terms, general conditions applicable all grants); id. (limiting “priority purposes” awards purposes set out 10152(a)).
We cannot adopt Seventh Ninth Circuit’s conclusions because we do think General’s authority impose three challenged conditions here derives words “special conditions” “priority purposes.” Rather, locate authority other provisions law, specifically, those requiring *33 applicants satisfy program’s statutory requirements such “form” and according such “rules” as Attorney General prescribes. See §§ 10153(a), 10153(a)(5), 10155. Considering that form ‐ rule making authority light three particular statutory requirements—(1) for certification willingness comply “applicable Federal laws,” id. 10153(a)(5)(D); (2) assurance that required information will be maintained reported, see id. 10153(a)(4); coordination affected agencies, see id. 10153(a)(5)(C)—we conclude that Attorney General statutorily authorized impose challenged conditions.
Before explaining that conclusion, acknowledge that Third Circuit, considering these same three statutory requirements, held none supports challenged conditions. See City Philadelphia Attorney Gen. at 91. The Third Circuit, however, viewed Attorney General’s statutory authority respecting Byrne Program grants “exceptionally limited.” Id. 85. We do not. Third Circuit emphasized Program awards formula grants. id. We agree Attorney General’s authority depart formula when awarding grants qualified applicants extremely limited. But before there can award, there must demonstrated showing qualification. Repeatedly throughout pronouncement Program statutory requirements, Congress makes clear applicant demonstrates qualification satisfying requirements form according such rules *34 establishes. This confers considerable authority Attorney General.
To be sure, Attorney General’s authority identifying qualified applicants limitless but, rather, a function particular requirements prescribed Congress. Not surprisingly, however, Congress prescribed those requirements broadly, enlisting Attorney General delineate rules forms them be satisfied. generally United Haggar Apparel Co. U.S. (explaining because “Congress need not, likely cannot, anticipate all circumstances a general policy must be given specific effect[,]” agency may issue rules so statute “may applied . . . manner consistent Congress’ general intent”). While certainly cannot exercise authority arbitrarily or capriciously, see infra Point II, authority itself cannot fairly characterized “exceptionally limited.”
With understanding, proceed consider each challenged condition provisions supporting it. The Certification Condition Is Statutorily
Authorized U.S.C. 10153(a)(5)(D) a. The Statutory Text Requires Applicants To Certify Willingness To Comply With “All . . Applicable Federal Laws” Certification Condition requires grant applicant certify that, throughout period, will comply prohibiting government entity or official restricting receipt, maintenance, exchange information regarding citizenship status specified *36 statute. supra (quoting condition). The Attorney General’s authority impose this condition derives U.S.C. § 10153(a)(5)(D). Therein, Congress specifically requires a Byrne grant applicant include its application “[a] certification, made in form acceptable Attorney General” stating “the applicant will comply with all provisions this part all other applicable Federal laws .” 10153(a)(5)(D) (emphasis added).
The conjunctive structure 10153(a)(5)(D) makes plain Byrne applicant must certify its willingness comply with more than those provisions specifically pertaining Program (“this part”). It must also certify its willingness comply with “all other applicable Federal laws.” Id. At same time phrase expands an applicant’s certification obligation, word “applicable,” as used phrase, serves limiting function. A applicant is required certify its willingness comply United Code its entirety well all accompanying regulations. Rather, an applicant must certify willingness comply those laws—beyond those expressly stated Chapter 34—that can reasonably deemed “applicable.” This raises two questions: What “applicable” law? And who identifies it? We answer second question first because seriously disputed and, thus, requires only brief discussion. Is Authorized To
Identify “Other Applicable Federal Laws” Requiring 10153(a)(5)(D) Compliance Certification *37 text signals that Attorney General identifies laws requiring § 10153(a)(5)(D) compliance certification. This is
evident in requirement that grant applicants provide certification in a “form acceptable to Attorney General.” Id. § 10153(a)(5). A “form” is commonly understood be a “document” for providing “required or requested specific information.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY (1986). By requiring 10153(a)(5)(D) certification in a “form acceptable Attorney General,” statute makes clear is Attorney General who authority “require[] request[] specific information,” ensure a applicant’s intended compliance all other applicable laws. id. Thus, 10153(a)(5)(D) authorizes Attorney General decide only style ( e.g. , format typeface) 10153(a)(5)(D) certification, but also specificity content, i.e. , whether certification “acceptable” a form references “all other applicable Federal laws” generally, whether such certification needs a form identifies specific applicable laws.
That Congress would vest authority makes sense several reasons. First, while Congress itself requires compliance certification “all other applicable Federal laws,” number laws could apply localities seeking funding large, variable, easily identified *38 single statutory provision. Second, Attorney General, as the nation’s chief federal law enforcement official, particularly suited to identify laws applicable to persons circumstances. Third, having Attorney General identify specific laws requiring § 10153(a)(5)(D) certification serves salutary purpose affording applicants clear notice what expected them as grant recipients [20]
2. “All Other Applicable Federal Laws” Encompasses Both Laws Applying To Entity Seeking Grant Laws Applying To Proposed Grant Program
The district court nevertheless concluded Attorney was not authorized identify
§ 1373
as an applicable law. It held “‘applicable Federal laws’ purposes 10153(a)(5)(D) means laws applicable grant,” not grant applicant.
New York v. Dep’t Justice
, F. Supp. 3d at 230–
31. Because it thought applies only applicants their capacities as local governments, grants, district court ruled statute could “applicable” requiring 10153(a)(5)(D) certification.
Id.
at 231. Third Circuit subsequently reached same conclusion.
See City Philadelphia Gen.
at so ruling, both courts acknowledged would reasonable construe text mean laws applicable applicant well requested grant.
id.
288;
New York Dep’t Justice
F. Supp.
*39
3d at 230 31. Nevertheless, Third Circuit concluded narrower construction was required canon against surplusage, structure of statute, historical practice of DOJ, formula ‐ nature program.
See City of Philadelphia v. Gen.
,
First
foremost, do think text admits narrowing.
generally Connecticut Nat’l Bank v. Germain
,
To extent district court might understood construed “all other applicable laws” mean only laws applying localities recipients grants, nothing text suggests Congress there used word “applicable” only limited sense. To contrary, Congress’s use adjective “all” introduce phrase “ all other applicable Federal laws” signals intent give word “applicable” full effect, narrow it. See Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass ʹ n , U.S. 117, 128–29 (1991) (explaining phrase “all other law” “clear, broad, unqualified” “indicates no limitation” (internal quotation marks omitted)).
Second , cannot agree Third Circuit redundancy surplusage problem arises if “all other applicable Federal laws” construed mean laws pertaining both applicants grants they seek. See City Philadelphia Gen. (concluding construction effectively equates phrase “other Federal laws,” making word “applicable” mere surplusage). As explained supra word *41 “applicable” does serve a limiting function in the statutory text—even if not as limiting as plaintiffs might wish. Thus, raise a redundancy concern, the Third Circuit must imply if Congress had used the phrase “all other Federal laws” in 10153(a)(5)(D), then courts would have infer word “applicable” because improbability Congress requiring certification for entirety law. But Congress did not use broader phrase 10153(a)(5)(D). And we do think use a modifying word—“applicable”—to make explicit actual text what our sister circuit thinks would have implied a hypothetical alternative manifests surplusage. Rather, think demonstrates clear drafting.
Third formula nature Byrne Program does warrant limiting phrase “all other applicable Federal laws.” While Congress’s intent appropriating funds for formula (as distinct from discretionary) grants all money distributed, even formula grant applicant must satisfy program’s requirements before being entitled receive funding. Cf Richard B. Cappalli, Rights Remedies Under Federal Grants (remarking states typically qualify for formula grants after submitting document statutorily described “state plan,” which serves “vehicle which state commits itself abide conditions Congress attaches funds”). As Byrne Program, evident fact Congress expressly provided for alternative distributions appropriated funds if “a will unable qualify” matter Congress also leaves “the [to] determine[].” 10156(f); see supra Thus, Program formula funding can *42 be denied to an applicant that fails to provide the required § 10153(a)(5)(D) certification as to any “applicable Federal law[],” whether that pertains to the particular grant sought or to the applicant seeking it.
Indeed, whether a grant is awarded formula discretion, there is something disquieting in the idea of and localities seeking funds to enforce their own laws while themselves hampering the enforcement of laws, worse, violating those laws. One has only to imagine millions of dollars in *43 Byrne funding being sought by a locality that simultaneously engaged persistent, serious violations of federal environmental laws. The formula nature of Byrne Program does dictate that an applicant must given federal money even as continues flout federal law. To contrary, § 10153(a)(5)(D) authorizes General condition locality’s receipt of a grant on certified willingness comply with all federal laws applicable that locality, which includes environmental laws.
The conclusion obtains with even more force here, where enactment at issue, was informed by Congress’s concern localities receiving federal grants were hampering enforcement federal immigration laws. See supra at 17–20. Subsequent reports increasing numbers grant recipients were limiting cooperation with authorities prompted a congressional request for DOJ investigation, results led two successive Attorneys serving different administrations identify “applicable Federal law” requiring compliance certification. supra at 20–25. We are satisfied these identifications are authorized plain *44 language § 10153(a)(5)(D), formula nature Program requires no contrary conclusion.
Fourth , Third Circuit observes that certain § 10153(a)(5) certification requirements appear, on face, pertain requested grant rather than grant applicant. See City Philadelphia Gen. (citing § 10153(a)(5)(A) (requiring certification that “the programs funded meet all requirements this part”); § 10153(a)(5)(B) (requiring certification “all information contained application correct”); 10153(a)(5)(C) (requiring certification “there has been appropriate coordination affected agencies”)). That, however, insufficient reason impose similar limitation 10153(a)(5)(D), when plain language provision—“all other applicable Federal laws”—reaches more broadly. generally Norfolk & W. Ry. Co. Am. Train Dispatchers Ass’n U.S. (rejecting argument exemption “antitrust laws from all other law” was limited antitrust related laws; ejusdem generis canon does apply where neither text nor context supports urged limitation (emphasis added) (internal quotation marks omitted)). urging otherwise, plaintiffs point
states “[n]othing chapter or any other Act shall construed authorize any department, agency, officer, or employee United exercise any direction, supervision, or control over any police force any other criminal justice agency any political subdivision thereof.” As Fourth Circuit
*45
observed construing § 10228’s predecessor statute, provision intended “to guard against any tendency towards federalization of local police law enforcement agencies.”
Ely v. Velde
,
Fifth DOJ’s own focus on laws pertaining to grants rather than applicants in its past identifications “applicable” federal laws does not itself limit word. Given scope local programs that can be funded with Byrne grants, surprising that DOJ would most frequently identify laws applicable to particular program in specifying form an acceptable § 10153(a)(5)(D) certification. generally City Philadelphia Attorney Gen. (observing if requested was be used body armor purchases human research, applicants were expected certify willingness comply with applicable federal regulations those areas). Far fewer, one expects, will occasions when localities seeking grants are themselves violators laws applicable them. Nevertheless, such circumstances, violated laws fall within plain meaning phrase “all other applicable Federal laws” used 10153(a)(5)(D). To illustrate, while can—and has—required applicants proposing use grants construction renovation projects comply environmental laws specifically applicable such work, hardly means he cannot also require an applicant history violating environmental laws generally certifying willingness going forward comply laws. laws are applicable *47 former instance to grant purpose; in latter, to grant applicant. either case, Attorney is requiring compliance certification as to “applicable Federal laws.”
Sixth , Congress’s duty to speak unambiguously imposing conditions on federal grant money also does not require “all other applicable Federal laws” to construed to mean only laws pertaining to grants not to grant applicants. New York Dep’t Justice F. Supp. 3d 231. The duty derives Pennhurst State School & Hospital Halderman U.S. (1981). Supreme Court there analogized federal spending legislation to “a contract: return for funds, agree comply with federally imposed conditions.” Id. It concluded therefrom Congress must “speak with a clear voice” placing conditions grants because there “can . . no knowing acceptance [of putative contract] if is unaware conditions is unable ascertain what expected it.” Id.
“Knowing acceptance” no concern here. Section 10153(a)(5)(D) provided plaintiffs with clear notice their grant applications had include certification, form acceptable General, willingness comply only laws specifically applicable Program, but also “all other applicable Federal laws.” To extent quoted phrase fails specify precisely laws are “applicable,” uncertainty can pertain much laws applicable requested grants those applicable applicants. Thus, district court’s Pennhurst reasoning does support conclusion “applicable Federal *48 laws” can pertain only requested grants, grant applicants.
But more point, no Pennhurst concern arises here because plaintiffs were given advance notice their 2017 grant applications had certify willingness comply with 1373. Indeed, they were given notice twice, first in 2016, again in supra at 23–25. To sure, notice was provided DOJ rather than Congress. But Supreme Court has recognized that, establishing federal grant programs, Congress cannot always “prospectively resolve every possible ambiguity concerning particular applications of [program’s statutory] requirements.” Bennett Kentucky Dep’t of Educ. U.S. 666, (1985) (making point context of education program). Thus, upheld an administering agency’s clarifying interpretations, even violation determinations, as long they were grounded “statutory provisions, regulations, other guidelines provided Department” time grant. Id. 670–71; see also United O’Hagan U.S. (recognizing agency authority prescribe legislative rules consistent statute). Plaintiffs here may disagree identification an “applicable Federal law,” but they can hardly complain inadequate notice. final argument support APA challenge General’s identification applicable
law, plaintiffs point Congress’s rejection various legislative proposals impose related conditions receipt *49 funds. As the Supreme Court cautioned, “subsequent legislative history a hazardous basis inferring the intent an earlier Congress.” Pension Ben. Guar. Corp. LTV Corp. U.S. (1990) (internal quotation marks omitted). Such legislative history “is particularly dangerous ground” construction where, here, the “proposal[s] . . do[] not become law.” Id. Indeed, “several equally untenable inferences may drawn from” congressional inaction, “including the inference that the existing legislation already incorporated the offered change.” Id. (internal quotation marks omitted). Thus, this challenge Attorney General’s § 10153(a)(5)(D) authority identify § “applicable” law also fails. sum, conclude that plain language 10153(a)(5)(D),
authorizes Attorney General require certification form specifically references laws applicable either sought or locality seeking grant. Because U.S.C. law applicable all plaintiffs action, was authorized impose challenged Certification Condition did not violate either APA separation powers doing so.
b. Tenth Amendment Challenge “As Applied” Review district court ruled not only Certification
Condition
was
statutorily authorized, but also
could
so authorized without violating Constitution. Specifically, district court held condition
*50
required certification, “is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment,” and, such, “drops out of the possible pool of ‘applicable laws’” requiring 10153(a)(5)(D) certification.
New York v. Dep’t of Justice
,
For reasons briefly explained herein, think district court’s reasoning insufficient support declaration facial unconstitutionality. We do not pursue matter detail, however, because 1373’s constitutionality properly assessed here not face statute, but applied clarify funding requirement. context, does constitute commandeering violation Tenth Amendment.
To extent district court thought that § 1373 had be constitutional in all applications be identified as “applicable Federal law[]” warranting 10153(a)(5)(D) certification, it was mistaken. Even assuming
arguendo
1373 can constitutionally applied States localities only when they are seeking funding—a matter do not here decide—the principle severability would warrant upholding statute as so narrowed.
See Alaska Airlines, Inc. v. Brock
,
funding were hindering cooperation authorities. See supra 17–20. Nor there reason to think the would not operate Congress intended as applied the funding context. See generally Alaska Airlines, Inc. v. Brock , U.S. 684–85 (discussing two factors informing severability).
With this understanding, that, end, the proper scope constitutional inquiry “as applied,” briefly discuss concerns raised by district court’s facial assessment before explaining our conclusion does not violate Tenth Amendment applied here States localities seeking Program grants.
(2) The District Court’s Identification Facial
Unconstitutionality Tenth Amendment states: “The powers delegated United States Constitution, nor prohibited
States, are reserved States respectively, or people.” U.S. C ONST amend. X. From text, Supreme Court has derived “anticommandeering principle,” prohibits federal government compelling States enact or administer regulatory program. See Printz United States U.S. (“The Federal Government may neither issue directives requiring States address particular problems, nor command States’ officers, those political subdivisions, administer enforce regulatory program.”).
This court already considered, rejected, facial commandeering challenge City New York United (2d Cir. 1999). We reasoned does *53 “compel[] state local governments enact or administer federal regulatory program.” Id. 35. Nor does it “affirmatively conscript[] states, localities, or employees into federal government’s service.” Id. Rather, prohibits state local governments officials “only from directly restricting voluntary exchange immigration information” federal immigration authorities. Id.
The district court acknowledged this precedent, but concluded it does not survive
Murphy National Collegiate Athletic Association
S. Ct. (2018). The Supreme Court there held federal legislation prohibiting States from authorizing sports gambling violates Tenth Amendment’s anticommandeering rule because it “unequivocally dictates what a state legislature may may do.”
Id.
The Court explained it did matter whether Congress issued dictate by commanding affirmative action or imposing prohibition: “The basic principle—that Congress cannot issue direct orders state legislatures—applies either event.”
Id.
district court concluded
Murphy
’s reasoning required hold facially violative Tenth Amendment because statute’s proscriptions prevent from “adopting [immigration] policies contrary those preferred government,” “extricating themselves
*54
enforcement.”
New York v. Dep’t Justice
,
Murphy may well have clarified that prohibitions well as mandates can manifest impermissible commandeering. But the conclusion that on its face, violates the Tenth Amendment does not follow.
A commandeering challenge federal statute depends on there being pertinent authority “reserved States.” Murphy , there was no question that, but challenged federal law, States’ police power allowed them decide whether permit sports gambling within their borders. That conclusion is so obvious immigration context where is federal government holds “broad,” Arizona v. United States , U.S. at and “preeminent” power, Toll Moreno , U.S. at 10. Title United States Code, commonly known Immigration Nationality Act (“INA”), see et seq. Congress’s “extensive complex” codification power, Arizona United States U.S.
This does mean States can never enact laws pertaining aliens. id. (observing “[w]hen there was no comprehensive federal program regulating employment unauthorized aliens . . had authority pass own laws on subject”). But courts must carefully identify powers reserved States area extensive complex legislation effect exercise laws policies. It doubtful reserved power adopt—in words district court—immigration policies “ contrary those preferred *55 by the federal government.” New York v. Dep’t Justice , F. Supp. 3d at (internal quotation marks omitted) (emphasis added). As Chief Justice Marshall famously pronounced, “The states have no power, by taxation or otherwise, retard, impede, burden, or manner control, the operations the constitutional laws enacted by congress carry into execution powers vested the general government.” McCulloch v. Maryland, U.S. at 436. Supreme Court recently made same point immigration context. While acknowledging State’s “understandable frustrations problems caused by illegal immigration,” Court held that “State may pursue policies undermine federal law.” Arizona United States U.S. 416.
Here, district court declared facially violative Tenth Amendment without identifying what reserved power have enact laws policies seemingly foreclosed i.e. laws prohibiting officials agencies engaging even voluntary communications about citizenship immigration status federal authorities. A court undertaking inquiry would have recognize, Supreme Court has, “[c]onsultation between state officials important feature immigration system” established INA. Id. A court would then consider how various INA provisions establish consultation feature. Arizona United States, Supreme Court discussed various INA provisions encouraging prohibiting restrictions state sharing ‐ status information before concluding “federal scheme thus leaves room [State] policy requiring state officials contact [federal *56 immigration authorities] as a routine matter.” Id. at 413 (emphasis added). same conclusion may not so easy reach, however, with respect a State policy prohibiting information sharing. Among the statutes cited Arizona United States illustrate the importance placed on federal state consultation the INA 8 U.S.C. § 1644. See U.S. 412–13. As discussed supra at 17–20, § like § prohibits restricting local government entities communicating federal immigration authorities “‘regarding immigration status, lawful unlawful, alien United States.’’’ Id. (quoting 1644). Further, even outside immigration context, Supreme Court not decided whether federal imposing “purely ministerial reporting requirements” on States violates Tenth Amendment. Printz United States U.S. (O’Connor, J. concurring) (noting open question regarding statute’s missing child reporting requirement).
While authority casts doubt on district court’s identification facial unconstitutionality, we do not ourselves pursue point further because, even assuming some power reserved prohibit information sharing federal authorities, we conclude does not violate Tenth Amendment applied here funding requirement.
(3) Section 1373 Raises No Commandeering Concerns Applied a Federal Funding Requirement
While Congress cannot regulate States, its constitutional powers, notably under Spending Clause,
see
U.S. C ONST . art. I, 8, cl. 1, do allow it “fix terms on which it shall disburse federal money States,”
Pennhurst Sch. & Hosp. v. Halderman,
451 U.S. at By setting terms, Congress can “influenc[e] State’s policy choices,”
New York v. United States,
clarifying authority to an executive agency—there is no commandeering of reserved State power so long the State “a legitimate choice whether accept the federal conditions in exchange federal funds.” NFIB v. Sibelius , U.S. at [28]
A State is deprived of “legitimate choice” only when the federal government imposes grant conditions that pass the point at “pressure turns into compulsion.” Id. at 577–78 (internal quotation marks omitted). On this point, even the NFIB dissenters agreed. id. at (Scalia, J. , Kennedy, Thomas, Alito, JJ. , dissenting) (observing that “courts should conclude that legislation is unconstitutional . . . unless the coercive nature offer is unmistakably clear”). Pressure can turn into compulsion when *59 amount of funding that a would lose not acceding to the federal conditions is so significant to the States’ overall operations as to leave it with no real choice but to agree.
Such was case with Medicaid expansion provision of Affordable Care Act, which Supreme Court held invalid in NFIB Sebelius because it threatened States rejecting expansion with withholding of 100% of Medicaid funding, constituted 10% to 16% of most States’ total budgets. The Supreme Court concluded that “[t]he threatened loss over percent a State’s overall budget . . economic dragooning leaves with no real option but acquiesce Medicaid expansion.” Id. at 581– (describing condition “a gun head”). funding loss associated most conditions, however, does raise coercion concerns. id. 684–85 (Scalia, J. , Kennedy, Thomas, Alito, JJ. , dissenting) (observing Medicaid expansion provision was “quite unlike anything seen a prior spending power case” “threatened withhold 42.3% all outlays States”). South Dakota Dole Supreme Court described a threatened loss 5% highway funding—less than 0.5% South Dakota’s budget—if state did raise legal drinking age only “mild encouragement” “a valid use spending power.” U.S. 211–12.
This case much more akin Dole than NFIB. While plaintiffs emphasize failure provide 10153(a)(5)(D) certification form acceptable General, i.e. form *60 certifying a willingness to comply with 8 U.S.C. 1373, can result in denial Byrne funding year, plaintiffs do not—and cannot—claim loss represents so significant a percentage their annual budgets cross line pressure to coercion. For example, New York’s anticipated 2017 Byrne award $8,879,161, significant amount money sure, but one representing less than 0.1% State’s annual $152.3 billion budget, smaller percentage loss even than Dole [29] Massachusetts’ anticipated 2017 award $3,453,006, also representing less than 0.1% annual $38.92 billion budget. [30] Thus, however much plaintiff States would prefer receive awards without having certify willingness comply with 8 U.S.C. they cannot complain consequences failing do so are so severe leave them no real choice matter. As Supreme Court observed connection conditions attached most funding programs: “The are separate independent sovereigns. Sometimes they act like it.” NFIB Sebelius 567 U.S. at sum, district court erred holding 1373
unconstitutional because statute does violate *61 anticommandeering principle Tenth Amendment as applied here a funding requirement. absence such Tenth Amendment concern, and
light our holding challenged Certification Condition statutorily authorized U.S.C. 10153(a)(5)(D), we conclude condition does violate either APA or Constitution. Accordingly, vacate district court’s injunction prohibiting application Certification Condition.
3. The Notice Condition Is Statutorily Authorized U.S.C. §§ 10153(a)(4), 10153(a)(5)(C), and The challenged Notice Condition requires localities accepting grants effect during grant period a “statute, state rule, ‐ regulation, ‐ policy, or ‐ practice” criminal detention facilities respond “as early as practicable” written requests from authorities notice identified aliens’ scheduled release dates. Supra 15–16 (quoting condition). Attorney General’s authority impose condition derives §§ 10153(a)(4), 10153(a)(5)(C),
Section 10153(a)(4) requires locality seeking funding include application, “in such form Attorney General may require,” “[a]n assurance” throughout period, “the applicant shall maintain report data, records, information (programmatic financial) may reasonably require.” Section 10153(a)(5)(C) requires *62 grant applicant to provide “[a] certification, made in form acceptable Attorney General,” “there been appropriate coordination affected agencies.” Section authorizes Attorney “issue rules carry out” these requirements other parts Program.
The district court did not discuss these statutory conditions. It concluded simply Notice Condition was not authorized 10102(a)(6), DOJ maintained. Third Circuit, however, did consider §§ 10153(a)(4) 10153(a)(5)(C). It concluded 10153(a)(4) did not authorize Notice Condition because “[its] data reporting requirement expressly limited ‘programmatic financial’ information— i.e. information regarding handling funds programs those funds are directed. It does not cover Department priorities unrelated grant program.” City Philadelphia Gen. As 10153(a)(5)(C), Third Circuit concluded did authorize Notice Condition because “coordination requirement” operated only past tense, i.e, “to require certification there was appropriate coordination connection grantee’s application. This does serve basis impose ongoing requirement coordinate matters unrelated use funds.” Id. (emphases original).
To explain why conclude otherwise, we discuss each requirement turn. *63 a. Section 10153(a)(4)’s Reporting Requirement plain language of 10153(a)(4) authorizes the to decide both what data, records, and information Byrne grant recipient must maintain and report and form of an applicant’s assurance will do so. This authority is cabined only by parenthetical modifier “(programmatic financial),” which serves to limit referenced data, records, information to those pertaining particular program being funded Byrne related financial matters. this respect, at least, we agree Third Circuit. id.
But unlike court, think release information required Notice Condition is “programmatic,” least for funded programs relate in way criminal prosecution, incarceration, release of persons, some of whom will inevitably be aliens subject removal. This includes most, if all, programs for which plaintiffs seek funding, for example, (1) programs task forces targeting certain crimes, object undoubtedly arrest, prosecution, eventual incarceration perpetrators; programs prosecutors’ offices, whose attorneys decide when pursue (or forego) prosecution incarceration *64 criminal suspects; (3) programs for defenders’ offices, whose attorneys work to secure persons’ release from criminal detention to avoid their conviction incarceration; (4) diversion programs for persons who might otherwise remain in criminal custody; (5) programs for persons while incarcerated or for facilities maintaining them; (6) programs for persons upon their release incarceration. As to programs, we conclude Attorney statutorily authorized U.S.C. 10153(a)(4) to require Byrne grant recipients to report when identified aliens their custody will be released.
Insofar Notice Condition specifically requires a grant applicant have statute, rule, regulation, policy, practice place criminal detention facilities report identified aliens’ release dates “as early practicable” after receipt written request, we are satisfied requirement falls within Attorney General’s authority determine “form” an acceptable grant application, necessarily includes form acceptable assurance. 10153(a). That conclusion reinforced General’s authority “issue rules carry out this part.” Id. generally Federal Election Campaign Comm’n Democratic Senatorial Campaign Comm. U.S. (“[D]eference should be presumptively afforded” *65 agency authorized make rules in administering statute.); National Broad. Co. United U.S. (explaining that statute delegating authority, inter alia “[m]ake rules regulations . . as may necessary carry out provisions Act” gave agency “expansive powers” (internal quotation marks omitted)).
b. Section 10153(a)(5)(C)’s Coordination Requirement
Further authority for Notice Condition supplied 10153(a)(5)(C)’s requirement certification, “a form acceptable Attorney General,” that “there been appropriate coordination affected agencies.” The Third Circuit observed Congress’s use past tense quoted text signals “appropriate coordination” must occurred time locality formally files Program application. See City Philadelphia Gen., 285. While we agree construction, we do not think means required coordination need continue into future. id. Rather, think appropriate coordination frequently, perhaps invariably, must determine future conduct.
The plain meaning “coordination” “the functioning parts cooperation normal sequence.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY “Coordination” strives bring “combination [of parts] suitable relation most effective harmonious results.” Id. definition does describe static concept ends soon suitable relation parts *66 sequence their operation determined. Rather, coordination contemplates relation and sequence are agreed upon order to establish how parts will operate going forward to achieve effective and harmonious results. “parts” pertinent to 10153(a)(5)(C)’s coordination
requirement are grant applicant agencies will affected grant. Thus, certification required 10153(a)(5)(C) demands that, advance Byrne award, localities coordinate with affected agencies to determine their relationship sequence conduct as necessary throughout grant period to ensure effective harmonious results.
Put more concretely, if a State were seek Byrne Program funding its State police pursue enforcement initiative involving undercover operations across several municipalities, “appropriate coordination” might well require State reach an understanding with affected localities as how notice will given them when those undercover activities are occurring within borders, thus ensuring local authorities do misidentify State undercover officers real criminals, possibly tragic consequences both sides. sum, parties reach understanding about necessary coordination before State files formal grant application, parties’ conduct during funding period coordinated thus agreed upon.
Similarly, were locality seek modernize equipment used track terrorist threats, “appropriate coordination” might require applicant consult other state *67 agencies engaged similar tracking and reach agreement type of compatible equipment be acquired how obtained information will be shared secured. Such coordination before formal application then determines parties’ conduct after receipt of grant.
So, here, when a seeks funding programs that relate prosecution, incarceration, release of persons, some of whom will removable aliens, there must be coordination affected agency, Department Homeland Security (“DHS”), before a formal application is filed, but what makes coordination “appropriate” will establish parties’ relationship sequence conduct throughout period.
To explain what makes DHS an affected agency, begin ordinary clear meaning “affect,” “produce material influence upon.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 35; see B LACK ’ S L AW D ICTIONARY (9th ed. 2009) (defining “affect” mean “to produce effect on; influence some way”). degree influence need significant recognize something been “affected” range contexts. See, e.g. Jones United States , U.S. (holding “statutory term ‘affecting . . commerce,’ . . . when unqualified, signal[s] Congress’ intent invoke full authority under Commerce Clause”); United Wiant (6th Cir. 2003) (holding, context “affected financial institution” “breadth [its] definition indicates that” word “affect” “is intended *68 to encompass even minimal impacts”); United States SKW Metals & Alloys, Inc. 195 90 (2d Cir. 1999) (“The sum of what dictionaries say about the relevant meaning is the verb ‘to affect’ expresses broad open ‐ ended range of influences.”).
When States use grants ways related the prosecution, incarceration, or release of aliens, the DHS Secretary’s performance of numerous statutory responsibilities respect such aliens is affected. For example, the Secretary must “begin removal proceeding” an alien convicted of deportable offense “as expeditiously possible after the date of the conviction,” 8 U.S.C. § 1229(d)(1); must effect the removal of an alien “within . . . 90 days” after an order removal becomes final, see id. § 1231(a)(1)(A)– (a)(1)(B)(i)–(ii); must detain the alien during 90 ‐ day period, see id. 1231(a)(2). Secretary, however, “may remove alien who sentenced imprisonment”—whether State authorities— ʺ until the alien released.” Id. 1231(a)(4)(A). case, day removal period starts run from the date the alien’s release custody. See id. 1231(a)(1)(B)(iii). Moreover, *69 circumstances where a removable alien released from custody before a final removal order has been obtained, authorizes Secretary issue a warrant alien’s arrest detention, see id. 1226(a), (with limited exceptions) requires Secretary do so if alien a certain criminal history has engaged terrorist activities, see id. 1226(c)(1), (2).
As even brief review makes plain, removable alien’s State incarceration release incarceration will affect DHS’s performance its own duties throughout grant period. In these circumstances, “appropriate coordination” requires that, time State locality files grant application, it reached agreement DHS as mutual relationship sequence conduct throughout period. Any less coordination would “appropriate”; indeed, would meaningless.
1231(i). It appears that, 2017, plaintiff New York received $13.9 million compensation pursuant SCAAP program referenced supra See Bureau Justice Assistance, Fiscal Year SCAAP Award Details, available https://bja.ojp.gov/program/state criminal ‐ alien ‐ assistance ‐ program ‐ scaap/archives (last visited Feb. 2020) (follow “FY 2017” hyperlink below “SCAAP Awards” subheading). New York attempted sue authorities failing comply predecessor statute requiring them take into custody, upon release, aliens
convicted aggravated felonies under state well law. Cuomo Barr F. Supp. (N.D.N.Y. 1993), appeal dismissed (2d Cir. 1993). *70 Notice Condition serves to ensure such appropriate coordination. It advises States that, at the time they file a Byrne grant application, they must agree to respond as soon as practicable to a written DHS request for release date an identified ‐ incarcerated alien to have statute, rule, policy force throughout grant period.
We conclude Attorney General is authorized to impose condition by § 10153(a)(5)(C), which empowers him determine acceptable form for certifying appropriate coordination. See supra (discussing dictionary definition “form” something requiring “specific information”). It is further supported authorizes Attorney General issue rules for carrying out Program requirements. Of course, recognize plaintiffs would prefer coordinate all DHS, but option is denied them 10153(a)(5)(C) when seek grants programs relating prosecution, incarceration, release will affect DHS’s performance own duties. *71 sum, we conclude Notice Condition is statutorily authorized § 10153(a)(4)’s reporting requirement, § 10153(a)(5)(C)’s coordination requirement, § 10155’s rule ‐ making authority for Byrne Program applications relating prosecution, incarceration, release. That being purpose for plaintiffs have generally sought Byrne funding, vacate district court’s injunction barring application Notice Condition. The Access Condition Is Statutorily Authorized U.S.C. §§ 10153(a)(5)(C)
Title U.S.C. 10153(a)(5)(C)’s coordination requirement 10155’s rule making provision also authorize challenged Access Condition, for much same reason they authorize challenged Notice Condition. Access Condition requires applicants agree place throughout grant period “statute, State rule, ‐ regulation, ‐ policy, or ‐ practice” ensures officials “access” correctional facilities so these officials can meet detained aliens (or suspected aliens) determine legal status country. supra (quoting condition).
As explained discussing Notice Condition, when seek funding programs related prosecution, incarceration, release persons, some whom will inevitably removable aliens, DHS an “affected agency” purposes 10153(a)(5)(C). That because State’s incarceration alien requires DHS delay acting own obligations *72 arrest, detain, remove certain aliens until the State releases the alien. supra 67–69. such circumstances, coordination between the State DHS is not only appropriate, but necessary, to allow agency effectively to resume its obligations when State achieved penal ones.
For DHS to be able to do so, it needs to ascertain not only when removable alien will released (the object Notice Condition), but also what aliens incarcerated State are removable. DHS does ask State to provide latter information. Rather, it asks to afforded access to State incarcerated aliens (or suspected aliens) so DHS can itself ascertain their potential removability before release. That is what challenged Access Condition ensures.
Affording access constitutes “appropriate coordination” it allows both seeking purposes relating prosecution, incarceration, release an affected agency, DHS, carry out respective duties with respect incarcerated aliens orderly sequence. Thus, Notice Condition, conclude statutorily authorized impose Access Condition pursuant 10153(a)(5)(C), which empowers him determine acceptable form certifying appropriate coordination, authorizes him issue rules carry out coordination *73 requirement. Accordingly, vacate the injunction prohibiting application Access Condition.
II. The Attorney General’s Imposition Challenged Conditions Was Not Arbitrary Capricious
Plaintiffs argue that, even if was statutorily authorized impose challenged conditions, district court correctly concluded was arbitrary capricious him do so here without considering conditions’ negative consequences, particularly undermining relationships between immigrant communities local enforcement.
See New York v. Dep’t Justice
,
While agency action may overturned arbitrary capricious if agency “entirely failed consider important aspect problem” issue, Motor Vehicle Mfrs. Ass’n U.S., Inc. v. Farm Mut. Auto. Ins. Co. , U.S. 29, (1983), court will “lightly” reach conclusion, Islander East Pipeline Co., LLC McCarthy F.3d (2d Cir. 2008) (citing approvingly Patterson Caterpillar, Inc. (7th Cir. 1995) (stating court “must very confident decisionmaker overlooked something important”)).
Here, DOJ did overlook something important. As district court acknowledged, DOJ was aware detrimental effects *74 plaintiffs fear from the three challenged conditions. The court also acknowledged that the weight be given these effects compared conditions’ perceived benefits was at least arguable. See New York Dep’t Justice F. Supp. 3d at 241. sole ground on district court concluded that DOJ arbitrarily capriciously “ignored” these detrimental effects imposing challenged conditions was its failure mention effects any proffered document. See id. (observing that documents “do reflect that [DOJ] way considered whether jurisdictions’ adherence conditions would undermine trust cooperation between local communities government”). fact, there was no need for DOJ discuss relative
detriments benefits Certification Condition. That condition identifies specific statute, U.S.C. § an “other applicable Federal law[]” purposes compliance certification requirement U.S.C. 10153(a)(5)(D). Thus, sole question DOJ decide was whether an applicable law. Having made decision—which uphold, see supra 35–61— nothing statute authorized DOJ excuse applicant certifying willingness comply applicable finding detrimental effects compliance outweigh benefits. Indeed, would particularly unwarranted here where legislative history shows Congress was itself aware very detrimental effects raised plaintiffs when enacted supra (quoting Senator Kennedy’s acknowledgment mayors’ concerns cooperating authorities could counterproductive). Thus, DOJ’s failure discuss *75 detrimental effects does not show that it arbitrarily or capriciously imposed Certification Condition.
As for Notice Access Conditions, these apply only persons custody, i.e. , persons found guilty beyond reasonable doubt of charged crimes, or persons for whom there is at least probable cause think that they committed crimes. Such conditions do not put law ‐ abiding undocumented aliens who been crime victims or witnesses at risk of removal and, thus, should dissuade aliens reporting crimes or cooperating investigation. [38] Thus, was hardly arbitrary or capricious for DOJ impose these conditions without discussing detrimental effects that they were unlikely cause.
Nor are we persuaded plaintiffs’ further argument challenged conditions are arbitrary capricious because DOJ failed *76 “display awareness it [was] changing position” did not show “good reasons new policy.” Encino Motorcars, LLC Navarro S. Ct. (2016) (internal quotation marks omitted). DOJ did not change position; rather, Attorney General exercised his authority grant applicants satisfy §§ 10153(a)(4), 10153(a)(5)(C), 10153(a)(5)(D) requirements more specific form. Even if was necessary show “good reasons” decision, however, is satisfied here by IG Report’s findings significant, decade ‐ long decline cooperation between local enforcement officials authorities, some achieved through policies tension with, if actually violative of, U.S.C. §
C ONCLUSION To summarize, conclude follows:
(1) The was statutorily authorized impose all three challenged conditions applications. a. The Certification Condition (1) statutorily authorized U.S.C. § 10153(a)(5)(D)’s requirement applicants comply “all other applicable Federal laws,” does violate Tenth Amendment’s anticommandeering principle; b. Notice Condition statutorily authorized 10153(a)(4)’s reporting requirement, 10153(a)(5)(C)’s coordination requirement, 10155’s rule making authority; *77 c. The Access Condition statutorily authorized 10153(a)(5)(C)’s coordination requirement, 10155’s rule ‐ making authority. (2) did overlook important detrimental effects challenged conditions so as make imposition arbitrary capricious. Accordingly,
(1) We REVERSE district court’s award partial summary judgment plaintiffs;
(2) We VACATE district court’s mandate ordering defendants release withheld Byrne funds plaintiffs, well as injunction barring defendants imposing three challenged immigration ‐ related conditions on grants; We REMAND case district court,
a. directions enter partial summary judgment favor defendants on plaintiffs’ challenge three related conditions imposed on Program grants; b. insofar there remains pending district court plaintiffs’ challenge conditions imposed defendants Program grants, further proceedings consistent opinion.
Notes
[1] Defendants imposed still further conditions on grants, plaintiffs also challenge before district court. Because no judgment yet been entered on part plaintiffs’ case, do address plaintiffs’ challenge those conditions appeal.
[2] The Program named for New York City Police Officer Edward who, at age 22, was shot death while guarding home a Guyanese immigrant cooperating authorities investigating drug trafficking. case well known circuit, where five persons were convicted Eastern District New York roles Byrne’s murder. Among these was Howard “Pappy” Mason, drug dealer who, his New York prison cell, ordered subordinates kill police officer retaliation Mason’s own incarceration. Joseph P. Fried, Officer Guarding Drug Witness Is Slain N.Y. Times, Feb. 27, 1988, A1, 34; Leonard Buder, Trial Is By Defendant Police Slaying N.Y. Times, Nov. B5.
[3] Available http://go.usa.gov/xPmkA (last visited Feb. 2020).
[4] APA defines term “rule” broadly mean “the whole or part an agency statement general or particular applicability future effect designed implement, interpret, prescribe or policy or describing organization, procedure, practice requirements agency . . .” U.S.C. 551(4); see Safari Club Int’l Zinke F.3d (D.C. Cir. 2017) (recognizing APA defines “rule” “very broadly” (internal quotation marks omitted)). At same time, APA exempts rules pertaining grants notice ‐ ‐ comment procedures generally attending rule making. 553(a)(2); City Los Angeles McLaughlin (9th Cir. 1989); cf. Richard B. Cappalli, Rights Remedies Under Federal Grants (observing “a significant number formula [grant] programs contain no mention Due Process rights”).
[5] Immigration and Naturalization Service, had been part DOJ, see 1101(a)(34), was disbanded 2002, see U.S.C. 291, duties divided among three services operating within new cabinet level Department Homeland Security: United Citizenship Immigration Service, Immigration Customs Enforcement Service, Customs Border Protection Service, see id §§ 251–52,
[6] Available https://www.justice.gov/opa/pr/attorney ‐ general ‐ sessions ‐ announces ‐ ‐ compliance ‐ requirements ‐ edward ‐ byrne ‐ memorial.
[7] As indicated text quoted supra 15–16, actual Notice Condition sets no firm hour deadline but, rather, requires notification “as early practicable.”
[8] This conference report specifically pertains 8 § 1644, provision Personal Responsibility Work Opportunity Reconciliation Act (Pub. L. 193), states that, “notwithstanding any other provision Federal, State, or local law, no or local government entity may prohibited, or any way restricted, from sending or receiving from Immigration Naturalization Service information regarding immigration status, lawful or unlawful, alien United States.” As court recognized, § enacted month after part Immigration Reform Act, “expands” earlier statute insofar provides generally no Federal, State, local government entity may restrict another government entity sending to, receiving from INS, status information. City New York United (2d Cir. 1999) (rejecting constitutional challenge both laws). Thus, conference report pertaining relevant
[9] Senator Feinstein’s comment was made signaling agreement with a recommendation Commission Immigration Reform, body created by Congress “evaluate impact of” changes immigration law. relevant exchange is follows: Commissioner Teitelbaum: There further condition [on recommended immigration impact aid] was unanimously supported Commission . . [and] should highlighted, requirement cooperation local governments Federal authorities enforce laws United States. I don’t think Commission would support notion impact aid local governments declined cooperate enforcement laws. Senator Feinstein: Nor would I, sir, so I agree you. Immigration Reform Hearings 103d Cong.
[10] An detainer instrument by federal authorities formally “advise another enforcement agency [they] seek[] custody of an alien presently custody of agency, purpose of arresting removing alien.” C.F.R. 287.7(a). Supported administrative warrant issued showing probable cause, detainer generally requests agency then having custody alien provide federal authorities advance notice alien’s intended release date detain alien brief time allow authorities assume custody. U.S. Immigration Customs Enf’t, Fiscal Year ICE Enforcement Removal Operations Report 7–8 (2017); see also Hernandez United States (2d Cir. 2019).
[11] IG reviewed ten jurisdictions receiving grants administered DOJ’s Office Justice Programs ( e.g. Program grants) and/or DOJ’s Office Violence Against Women: “the Connecticut California; City Chicago, Illinois; Clark County, Nevada; Cook County, Illinois; Miami Dade
[13] respect, DOJ stated, Section does impose on states localities affirmative obligation collect information from private individuals regarding status, nor does it require states localities take specific actions upon obtaining such information. Rather, statute prohibits government entities officials from taking action prohibit or way restrict maintenance or intergovernmental exchange information, including through written unwritten policies practices. App. (internal quotation marks omitted).
[14] The validation requirement imposed DOJ New York City’s stated follows: recipient agrees undertake review validate compliance U.S.C. If recipient determines it compliance time review, then must submit documentation contains validation effect includes official legal opinion counsel (including related legal analysis) adequately supporting validation. If
[15] The relevant statutory text states follows: [t]o extent necessary decision and when presented, reviewing court shall decide all relevant questions of law, interpret constitutional statutory provisions, and determine meaning or applicability of terms of an agency action. reviewing court shall . . . hold unlawful set aside agency action, findings, conclusions found . . . excess of statutory jurisdiction, authority, limitations, short statutory right . . . . 706(2)(C).
[16] generally New York United U.S. (1992) (“[S]eparation powers . . . violated where one branch invades territory another.”). But see Dalton Specter U.S. (explaining every action “in excess . . statutory authority ipso facto violation Constitution,” distinguishing between “claims constitutional violations claims official acted excess his authority”).
[17] Defendants not claimed Chevron deference own interpretation authority conferred statutes pertaining grants and, thus, on appeal, we do consider whether deference might warranted. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc ., U.S. 837, (1984); compare Neustar, Inc. FCC F.3d (D.C. Cir. 2017) (holding Chevron deference “forfeited” where claimed on appeal), Sierra Club United Dep’t Interior (4th Cir. 2018) (explaining case where parties assumed Chevron deference parties “cannot waive proper standard review failing argue it” (internal quotation marks omitted)). Rather, conclude de novo review challenged conditions are statutorily authorized.
[18] following sections confer on, confirm, Attorney General’s authority this respect: • § 10152(c)(1) – Requiring every program funded with a Byrne grant to “program assessment component, developed pursuant to guidelines established Attorney General” together with National Institute Justice. • Id. § 10152(d)(2) – Authorizing Attorney General to certify extraordinary exigent circumstances warrant using Byrne grant funds generally prohibited expenditures. • Id. § 10152(f) – Affording Attorney General discretion extend grants beyond normal four year period. • Id. § 10153(a) – Requiring applicants submit application Attorney General “in form Attorney General may require,” including statutorily required certifications assurances. • Id. § 10153(a)(5)(C) – Requiring certification “in form acceptable Attorney General” “there been appropriate coordination affected agencies.” • Id. 10153(a)(5)(D) – Requiring certification “in form acceptable Attorney General” “applicant will comply all provisions this part all other applicable Federal laws.” • Id. Requiring Attorney General afford applicant notice opportunity correct application deficiencies before finally disapproving application. • Id. – Requiring “issue rules carry out part.”
[19] While matters “substance” are frequently distinguished matters “form,” see, e.g. PPL Corp. Comm’r Internal Revenue U.S. 340–41 (distinguishing between form substance tax), form serves ensure communication required substance.
[20] We discuss notice point further infra 47–49.
[21] Ransom FIA Card Servs., N.A. U.S. 69–70 (using both dictionary definitions construing phrase “debtor’s applicable monthly expense amounts” provision Bankruptcy Code (emphasis added) (quoting 707(b)(2)(A)(ii)(I))).
[22] Third Circuit inferred from the fact qualifying Byrne (and other federal) grant recipients could lose a specified (often small) percentage annual distribution if they fail to comply with certain other statutes, the Attorney General was not statutorily authorized “to withhold all a [Byrne] grantee’s funds for any reason the Attorney General chooses.” City Philadelphia Attorney Gen. (emphases in original) (citing U.S.C. § 20927(a) (providing mandatory 10% penalty for failure to comply Sex Offender Registration Notification Act); id. § 30307(e)(2) (mandating 5% penalty for failure to comply Prison Rape Elimination Act); id. § 40914(b) (withholding up 4% funding for failure meet requirements National Instant Criminal Background Check System)). That reasoning does apply here, where issue is whether Attorney General can withhold Byrne funding any reason qualifying applicants, but whether he can deny any such funding an applicant fails demonstrate qualification under Program’s statutory requirements, indeed, fails satisfy them in “form acceptable Attorney General,” Congress mandated. 10153(a)(5). To sure, form acceptable Attorney General must grounded in qualifying requirements serves, but where case, applicant’s failure—or refusal—to satisfy requirement form can result denial grant. While Attorney General cannot “finally disapprove” deficient grant application “without first affording applicant reasonable notice deficiencies . . opportunity correction reconsideration,” id. if those deficiencies persist after notice opportunity, then authorized deny entirety reallocate funds provided 10156(f).
[23] IG’s findings, see supra 21–23 , might well found demonstrate “high risk” identified Ninth Circuit imposing “special conditions” grants, see City Los Angeles Barr (holding “special conditions,” referenced 10102(a)(6), means “unusual” “extraordinary” conditions “high risk grantee,” i.e. a grantee “a history noncompliance requirements, financial stability issues, other factors suggest[] propensity toward violation grant’s terms” (internal quotation marks omitted)).
[24] Insofar plaintiffs rely only but also on Tenth Amendment argue cannot “applicable” requiring Compliance Certification, discuss constitutional point infra 49–61.
[25] As Supreme Court long recognized, “as applied challenges are basic building blocks constitutional adjudication,” court’s “traditional institutional role resolve questions constitutionality respect each potential situation might develop.” Gonzales Carhart U.S. (2007) (internal quotation marks alterations omitted); see Village Hoffman Estates Flipside, Hoffman Estates, Inc. U.S. 494–95 (holding courts
[26] It long been rule circuit panel decision controls “unless until . . reversed en banc Supreme Court.” re Arab Bank, PLC Alien Tort Statute Litig. (2d Cir. 2015) (internal quotation marks omitted).
[27] For same reason, need conclusively decide preemptive effect We note only that, insofar district court concluded statute could claim no preemptive effect because confers “purported right transmit information only government entities officials,” on private
[28] law further requires federal grant conditions (1) promote “general welfare,” “unambiguously” inform States what is demanded them, (3) reasonably relate “to federal interest in particular national projects programs,” “induce engage activities would themselves unconstitutional.” South Dakota Dole , U.S. at 207–08, (internal quotation marks omitted). None these requirements is issue appeal. Section 10153(a)(5)(D)’s requirement applicants certify willingness comply “all . . applicable Federal laws” promotes respect law necessary general welfare. See, e.g. City Los Angeles Barr (9th Cir. 2019) (“[C]ooperation relating enforcement law pursuit general welfare, meets low bar being germane interest providing funding.”). Such certification condition reasonably relates Program, whose focus, after all, enforcement. For reasons discussed supra 47–48, Congress avoids ambiguity itself stating 10153(a)(5)(D) certification must made all applicable Federal laws, then authorizing require certification form references specifically identified applicable laws. Finally, nothing about 10153(a)(5)(D) induces unconstitutional conduct applicants.
[29] See N EW Y ORK D IVISION OF THE B UDGET FY E NACTED B UDGET F INANCIAL P LAN (May 2016), available https://www.budget.ny.gov/pubs/ archive/fy17archive/enactedfy17/FY2017FP.pdf.
[30] Press Release, Governor Baker Signs Fiscal Year Budget (July 2016), available https: www.mass.gov/news/governor baker ‐ signs ‐ fiscal ‐ year ‐ ‐ budget.
[31] As this court observed Cuomo Barr (2d Cir. 1993), plaintiff “New York houses many illegal aliens prison system. As March New York held approximately 60,000 prisoners state correctional facilities, 8% whom were known aliens additional 4% whom were suspected aliens. Of number, 6,096 had been convicted aggravated felonies, making them subject deportation.” Id. While record appeal does provide current statistics, there no reason suspect marked decline these percentages.
[32] Because plaintiffs have sought distinguish among purposes defending challenged injunction judgment, no occasion appeal consider whether Program funding could sought purpose so unrelated prosecution, incarceration, release Notice Condition would statutorily authorized those circumstances.
[33] While these statutory sections refer General, removal responsibilities stated therein other provisions referenced part opinion been transferred Secretary DHS. U.S.C. §§ 251(2), 552(d).
[34] are under no obligation incarcerate criminal aliens convicted state felony crimes, but if they do so, they may then request government either (1) pay “compensation . . may appropriate” “with respect incarceration” alien, “take undocumented criminal alien into custody Federal Government incarcerate alien.”
[36] Where, here, affected agency is federal, Attorney can expected particular insights into what coordination is appropriate establish relationship sequence conduct necessary applicant affected agency both perform respective duties effective harmonious manner. But even where affected agency is federal, General’s form ‐ rule authority may allow him help parties resolve coordination disputes surface after application made public but before approved. 10153(a)(3)(B).
[37] What does ensure incarcerated aliens will then agree talk authorities.
[38] City of Philadelphia Gen. F.3d at (citing Philadelphia’s rationale policy limiting employee cooperation federal immigration authorities: “foster trust between immigrant community law enforcement,” “critical reassure ‐ abiding residents contact City government will lead deportation” authorities (internal quotation marks omitted)); City Chicago Sessions (observing “City recognized . . . maintenance public order safety required cooperation witnesses victims, whether documented not”); Michael R. Bloomberg, Mayor Michael R. Bloomberg Signs Executive Order Regarding City Services For Immigrants (Sept. 2003) (remarking public speech “[w]hen parents an immigrant child forego vaccination fear being reported authorities, all lose . . . Likewise, we all suffer when immigrant afraid tell police she been victim sexual assault domestic violence”), available https://www1.nyc.gov/office ‐ ‐ ‐ mayor/news/262 ‐ 03/mayor ‐ michael ‐ bloomberg ‐ signs ‐ executive ‐ order ‐ ‐ city services ‐ immigrants.