THE STATE OF OREGON; KATE BROWN, Gоvernor; ELLEN ROSENBLUM, Attorney General; and THE CITY OF PORTLAND, Plaintiffs, v. DONALD J. TRUMP, President of the United States, in his official capacity; WILLIAM P. BARR, Attorney General of the United States, in his official capacity; and THE UNITED STATES OF AMERICA, Defendants.
No. 6:18-cv-01959-MC
IN
MCSHANE, Judge
OPINION AND ORDER
OPINION AND ORDER
MCSHANE, Judge:
The present dispute touches upon many of the same principles and tensions which have animated our Republic’s legal and political discourse since its founding. The President of the United States and his Attorney General seek to advance their policy priorities by pressuring states and localities to comply with two immigration-related laws and by withholding federal funds from jurisdictions which refuse to assist immigration authorities. The laws at issue,
BACKGROUND
I. The Byrne JAG Program
The present conflict centers on the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG Program”). See Pub. L. No. 109-162, § 1111, 1119 Stat. 2960, 3094 (2006) (codified as amended at
Under the Byrne JAG Program, grants are distributed directly to states and localities according to a formula, the variables of which are derived from a jurisdiction’s population and violent crime statistics.
II. History of Participation
The State of Oregon had, until 2017, received Byrne JAG funds every year since the program’s creation in 2005. Schmidt Decl. ¶ 6; Nordeen Decl. ¶ 2, ECF No. 25; see also RJN Ex. A. During that time, the State of Oregon used its more than $26 million in Byrne JAG funds to support, among other things, programs for mental health treatment, technology improvement, and drug treatment and enforcement. Schmidt Decl. ¶ 9. With respect to the contested FY 2017 award, the State of Oregon plans to use its funds to support specialty courts designed to address root causes of criminal activity and provide statewide assistance to local crime victims. Schmidt Decl. ¶¶ 12, 15, Ex. 4 at 2, 7-8, 16-17. With respect to the contested FY 2018 award, the State of Oregon plans to use its funds to support specialty court programs which target non-violent felony offenders in an integrated, systemic approach to reduce drug use and recidivism while increasing public safety. Schmidt Decl. ¶ 22, Ex. 12 at 1-2, 8-14, 20-21.
Similarly, the City of Portland had, until 2017, received Byrne JAG funds every year since the program’s creation in 2005. Nordeen Decl. ¶ 2; see also RJN, Ex. B. During that time, the City of Portland used its Byrne JAG funds to, among other things, purchase bulletproof vests and special-threat plates, acquire tactical medical kits, install Global Positioning Systems, and add two Victim Advocates to the Portland Police Bureau’s Sex Crimes Unit. Nordeen Decl. ¶ 3. In addition, the City of Portland has historically distributed funds to subrecipients Multnomah County and the City of Gresham, which have used those funds to, among other things, support a Neighborhood Deputy District Attorney, purchase police equipment, and add a full-time Parole and Probation Officer. Nordeen Decl. ¶ 4. The City of Portland plans to support similar initiatives with the contested FY 2017 and FY 2018 funds. Nordeen Decl. Exs. 2, 5.
III. FY 2017 and FY 2018 Funding Conditions
Starting in 2017, the Attorney General imposed three new immigration-related conditions on the receipt of Byrne JAG funds. See generally Schmidt Decl. Exs. 1-3; Nordeen Decl. Ex. 1; RJN Ex. D. The conditions are included in the FY 2017 state and local solicitations promulgated by the Department of Justice and, more importantly, the award agreements adopted by grantees. See, e.g., Schmidt Decl. Ex. 1; Nordeen Decl. Ex. 1; RJN Ex. D. As relevant here, a jurisdiction must formally agree to each condition prior to drawing upon an award of FY 2017 Byrne JAG funds. See, e.g., RJN Ex. D ¶ 1. The FY 2017 conditions can be summarized as follows:
- Notice Condition: A grantee must provide 48 hours’ “advance notice”—or as much advance notice as is “practicable”—of the “scheduled release date and time” of any alien in the jurisdiction’s custody if the jurisdiction
receives a “formal written request” from the United States Department of Homeland Security (“DHS”). RJN Ex. D ¶ 55; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4. - Access Condition: A grantee must allow DHS personnel to “access” any detention facility which it maintains and “meet with individuals who are (or are believed . . . to be) aliens” and “inquire as to their right to be or remain in the United States.” RJN Ex. D ¶ 55; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4.
- Compliance Condition: A grantee must certify that it complies with
8 U.S.C. § 1373 . RJN Ex. D ¶ 54; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4. Section 1373 provides that no “State[] or local government entity or official may . . . prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status . . . of any individual.”8 U.S.C. § 1373(a) .
In 2018, the Attorney General again imposed immigration-related conditions on the receipt of Byrne JAG funds. See generally Schmidt Decl. Ex. 11; Nordeen Decl. Ex. 4; RJN Exs. E, F. Two of those conditions are substantively indistinguishable from the Notice and Access Conditions described above. RJN Ex. E ¶¶ 45-46; see also Schmidt Decl. ¶ 22, Ex. 11 at 1, 35-37, 42-43; Nordeen Decl. Ex. 4 at 36-37, 42-43. A third condition merely expands the Compliance Condition to include
- Disclosure Condition: A grantee must not publicly disclose “federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice” or any “alien who has come to, entered, or remains in the United States” in violation of federal law. RJN Ex. E ¶ 44.1
As with FY 2017 Byrne JAG awards, grantees must formally agree to each of the immigration-related conditions prior to drawing upon their FY 2018 funds. See, e.g., RJN Exs. E, F. Thus, even if a jurisdiction receives a notice of award from the Department of Justice, it may not draw upon those funds until it agrees to the conditions listed in the award document.
IV. FY 2017 and FY 2018 Awards
Plaintiffs applied in August 2017 for a FY 2017 Byrne JAG award and in August 2018 for a FY 2018 Byrne JAG award. See Schmidt Decl. ¶¶ 15, 22, Exs. 4, 11; Nordeen Decl. ¶¶ 6, 12, Exs. 2, 5. Based on the statutory formula, the State of Oregon expected to receive $2,034,945 for FY 2017 and $2,092,704 for FY 2018, Schmidt Decl. Ex. 13 at 1, Ex. 14 at 1, while the City of Portland expected to receive $385,515 for FY 2017 and $391,694 for FY 2018, see Nordeen Decl. ¶ 11, Ex. 2. Defendants anticipated issuing Byrne JAG award notifications by September 30, 2017 for FY 2017 grantees and September 30, 2018 for FY 2018 grantees. See Schmidt Decl. Ex. 1 at 31, Ex. 11 at 35; Nordeen Decl. Ex. 1 at 29, Ex. 4 at 35
As represented at oral argument, however, the State of Oregon did not receive notice of its FY 2017 or FY 2018 Byrne JAG awards until July 2019. That delay was the result of concerns within the Department of Justice that at least one Oregon law,
The City of Portland is in a similar position. Although the City of Portland received its FY 2017 Byrne JAG award on October 10, 2018, Defendants only issued the award pursuant to a preliminary injunction in City of Evanston v. Sessions, No. 18-cv-4853 (N.D. Ill. Aug. 9, 2018). Defendants have yet to issue the City of Portland its FY 2018 Byrne JAG award. Nordeen Decl. ¶ 14. Despite multiple inquiries from the City of Portland, the Department of Justice has offered no explanation for the ten-month delay. Nordeen Decl. Exs. 6-7. As a political subdivision of the State of Oregon, however, the City of Portland is subject to Section 181A.820. Its Police Bureau is also bound by an internal rule, Directive 810.10, which mirrors Section 181A.820 and prohibits personnel from “enforcing or assisting in the enforcement of federal immigration laws.” RJN Ex. G at 2; see also Nordeen Decl. ¶ 17. Thus, even if Defendants were to issue a FY 2018 award to the City of Portland, it would be unable to accept or draw upon those funds without risking penalties for
V. Conflicting Policy Priorities
Defendants maintain that the contested сonditions and statutes—and, by implication, the pressure on Plaintiffs to repeal their allegedly incompatible laws and policies—are essential to a properly functioning system of federal immigration laws. See Defs.’ Mot. Dismiss 1, ECF No. 14. They point in particular to the extensive intergovernmental coordination and cooperation contemplated by the Immigration and Nationality Act (“INA”),
Plaintiffs, however, believe that the health, welfare, and public safety of their residents is best served by refraining from the enforcement and administration of federal immigration laws. See Shah Decl. Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8. That determination, they explain, is reflected in the laws and policies targeted by Defendants. See Shah Decl. Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8. According to Plaintiffs, those laws and policies are instrumental to ensuring that all members of their communities feel safe cooperating with and obtaining the assistance of law enforcement agencies. See Shah Decl. ¶¶ Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8. In pаrticular, Plaintiffs believe that, when state and local officials are associated with federal immigration enforcement, vulnerable victims and witnesses are less likely to come forward and report crimes, creating a danger to all members of their communities. See Shah Decl. Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8. Plaintiffs have, as such, declined to change their laws and policies in the face of funding pressures from the President and his Attorney General.
VI. Procedural History of the Lawsuit
The State of Oregon initiated the present action on November 9, 2018. Shortly thereafter, the City of Portland joined in the suit and, together, the State of Oregon and the City of Portland submitted an amended complaint on November 21, 2018. In their First Amended Complaint (“FAC”), ECF No. 3, Plaintiffs challenge Defendants’ authority to impose the Notice, Access, and Disclosure Conditions. They also bring a facial constitutional challenge to Sections 1373 and 1644, the statutes on which the Compliance Condition is based. To remedy their injuries, Plaintiffs seek declaratory, injunctive, and mandamus relief. On March 5, 2019, Defendants filed a Motion to Dismiss. In response, on April 8, Plaintiffs filed a Motion for Summary Judgment, ECF No. 21. After briefing and oral argument, both motions are now before the Court.
STANDARDS
I. Motion to Dismiss Under Rule 12(b)(1)
A motion to dismiss under
II. Motion to Dismiss Under Rule 12(b)(6)
To survive a motion to dismiss under
III. Motion for Summary Judgment Under Rule 56(a)
A district court must award summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Plaintiffs challenge the Notice, Access, Compliance, and Disclosure Conditions on three main grounds. First, Plaintiffs argue that Defendants are without constitutional or statutory authority to impose the Notice, Access, and Disclosure Conditions upon recipients of Byrne JAG funds and that the promulgation of those conditions therefore infringes on the power vested in Congress under the Spending Clause of the U.S. Constitution. Second, Plaintiffs contend that, insofar as the Compliance Condition is premised on a valid congressional delegation of condition-making authority, that authority cannot include the conditioning of funds on compliance with statutes which violate the Tenth Amendment. Finally, Plaintiffs argue that, even if they possess the statutory authority to impose all four of the challenged conditions, Defendants run afoul of limitations inherent in the Spending Clause. Defendants contest each of Plaintiffs’ legal arguments and move to dismiss the FAC on standing and ripeness grounds. Because the standing and ripeness requirements of Article III are jurisdictional, the Court addresses them first.
I. Justiciability: Standing and Ripeness
Defendants argue that the Court is without jurisdiction to resolve the present dispute. See
Under Article III of the U.S. Constitution, the “judicial Power” of federal courts is limited to “Cases” and “Controversies.”
The “Case” or “Controversy” limitation of Article III also mandates that a plaintiff’s claim be “ripe” fоr judicial review. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 579 (1985). The ripeness inquiry aims to ensure that any “harm asserted has matured sufficiently to warrant judicial intervention.” Warth, 422 U.S. at 499 n.10 (citations omitted). A claim is ripe within the meaning of Article III if it presents “concrete legal issues” in the context of “actual cases, not abstractions.” United Pub. Workers, 330 U.S. at 89 (internal quotation marks and citations omitted). In evaluating ripeness, the core Article III inquiry is whether a claim “involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks and citation omitted). To that end, the “constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing’s injury in fact prong.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2009); see also Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1234 (10th Cir. 2004) (“Standing and ripeness are closely related in that each focuses on whether the harm asserted has matured sufficiently to warrant judicial intervention.”).
Here, the Court agrees with Plaintiffs, as well as every other court to have examined similar standing and ripeness challenges, that Plaintiffs have standing to pursue their claims and that those claims are ripe for judicial review. See City & Cty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 966 (N.D. Cal. 2018) (finding that the plaintiffs had “demonstrated Article III standing to challenge the conditions” and that their claims were “ripe for review”); State ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015, 1026-31 (N.D. Cal. 2018) (finding the same but addressing only the Compliance Condition); City & Cty. of San Francisco v. Sessions, No. 17-cv-04642-WHO, 2018 WL 6267848, at *1 (N.D. Cal. Mar. 5, 2018) (same); City of Philadelphia v. Sessions, 309 F. Supp. 3d 271, 279-80 (E.D. Pa. 2018) (addressing ripeness but not expressly reaching the issue of standing); City of Chicago v. Sessions, 321 F. Supp. 3d 855, 865-66 (N.D. Ill. 2018) (same); cf. also City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1235-38 (9th Cir. 2018) (rejecting the defendants’ ripeness and standing arguments in pre-enforcement challenge to an executive order which conditioned federal funds on compliance with Section 1373); Cty. of Santa Clara v. Trump, 275 F. Supp. 3d 1196, 1208-11 (N.D. Cal. 2017) (same); City of Seattle v. Trump, No. 17-497-RAJ, 2017 WL 4700144, at *5-7 (W.D. Wash. Oct. 19, 2017) (same).
With respect to standing, Plaintiffs identify at least two injuries-in-fact. The first injury is financial in nature. Defendants continue to withhold the award
Plaintiffs’ second injury stems from infringements upon their sovereign interests.4 A state or locality has standing to challenge interference with its operational and governance decisions. See, e.g., New York v. United States, 505 U.S. 144, 187-88 (1992) (exercising jurisdiction based on sovereign injury from federal commandeering); Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 601 (1982) (noting that states have standing to challenge federal laws which hinder their “sovereign power” to “create and enforce a legal code”); see also Bowen v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 50 n.17 (1986) (finding “no question” that a state’s sovereignty is “diminished” and standing therefore exists when federal law alters the state’s ability to “structure its relationship with its employees”). The challenged statutes and conditions not only appeаr to conflict with Plaintiffs’ laws and policies but aim to force or pressure Plaintiffs to change the same. Plaintiffs, to that end, challenge Defendants’ conduct based not on the derivative interests of their citizens or an abstract interest in the rule of law; rather, they bring the present action to vindicate their own sovereign powers and rights as accorded by Congress and the Tenth Amendment. Because the challenged statutes and conditions are presently undermining Plaintiffs’ “exercise of . . . sovereign power to create and enforce a legal code,” as well as interfering with at least one aspect of relations with their employees, Plaintiffs have standing.
The same facts support the ripeness of Plaintiffs’ claims. As noted above, the instant dispute “presents concrete legal issues”—not “abstractions”—framed within the context of an “actual case[].” Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1123 (9th Cir. 2009) (internal quotation marks and citations
Nevertheless, the Court agrees with Defendants that Plaintiffs lack standing to seek an injunction against all future “conditions relating to federal immigration laws and policy.” FAC at 32. Plaintiffs cannot show any injuries from conditions which do not yet exist. As the Supreme Court has made clear, speculation or “subjective apprehension” about future harm is insufficient to support standing. Friends of the Earth v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 184 (2000) (internal quotation marks and citation omitted). Instead, “[o]nce a plaintiff has been wronged, he is entitled to [seek] injunctive relief only if he can show that he faces a real or immediate threat that he will again be wronged in a similar way.” Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010) (internal quotation marks and citation omitted); see also Susan B. Anthony List, 573 U.S. at 158 (“An allegation of future injury may suffice if . . . there is a substantial risk that the harm will occur.” (internal quotation marks and citation omitted)). Plaintiffs are entitled to seek prospective relief from the existing conditions because their injuries are ongoing and there is a substantial risk that Defendants will continue to renew the same or similar conditions. It is pure speculation, however, that Defendants will impose different conditions in the future and that Plaintiffs’ laws or policies would conflict with them. Until such conditions are imposed, or at least threatened, Plaintiffs lack standing to seek declaratory or injunctive relief from the same.
II. Conditioning of Byrne JAG Funds
Moving to the merits, Plaintiffs challenge each of the FY 2017 and FY 2018 conditions imposed on the receipt of Byrne JAG funds. They argue that Defendants are without statutory or constitutional authority to impose the Notice, Access, and
A. Deference to Defendants’ Statutory Interpretations
Prior to examining the parties’ dueling statutory interpretations, the Court first considers whether Defendants’ interpretations are entitled to any level of deference. Typically, a reviewing court must give effect to an agency’s reasonable interpretation of any statute which it is tasked with administering. Chevron, 467 U.S. at 842-45. That general rule, however, is subject to an important limitation: an agency’s interpretation is entitled to no deference if Congress has clearly spoken to the question at issue. Id. at 842. Instead, when a statute is unambiguous as to a specific matter, such that “the intent of Congress is clear,” a court must “give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. When reviewing an agency’s interpretation, a court must therefore first employ the “traditional tools of statutory construction” to determine whether “Congress had an intention on the precise question at issue.” Id. at 843 n.9. If it did, then “that is the end of the matter” and no deference is owed to the agency. Id. at 843.
Interestingly, Defendants make no аttempt to persuade the Court that their interpretations are entitled to deference under Chevron. Whether an agency may forfeit Chevron deference is the subject of some debate. See generally Note, Waiving Chevron Deference, 132 Harv. L. Rev. 1520 (2019). The weight of authority suggests that an agency may forfeit or waive its right to any deference available under Chevron. See, e.g., Neustar, Inc. v. FCC, 857 F.3d 886, 893-94 (D.C. Cir. 2017); Commodity Futures Trading Comm’n v. Erskine, 512 F.3d 309, 314 (6th Cir. 2008); cf. also Humane Soc’y of the U.S. v. Locke, 626 F.3d 1040, 1054 n.8 (9th Cir. 2010) (assuming without deciding that Chevron deference applied based on a stipulation of the parties). The Supreme Court has also hinted in dicta that Chevron deference may be waived. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 480 (1992) (“[I]t would be quite inappropriate to defer to an interpretation which has been abandoned by the policymaking agency itself.”); cf. also United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (explaining that Supreme Court dicta has “a weight that is greater than ordinary judicial dicta”).
The issue is more than academic here. Article I of the Constitution
As a result, much of the present dispute turns upon the interpretation of statutory provisions which Defendants believe embody broad delegations of spending authority. Although several other courts have examined the same or similar сlaims, each has thus far been silent on the issue of deference. The most likely explanation is that the courts—every one of which has rejected the interpretations offered by Defendants—employed the “traditional tools of statutory construction” and determined that Congress had a clear intent not to delegate the condition-making authority claimed by Defendants. Chevron, 467 U.S. at 483 n.9. Indeed, several courts have hinted at this rationale in passing. See, e.g., City of Philadelphia v. Attorney Gen. of the United States, 916 F.3d 276, 286 (3d Cir. 2019) (examining whether any of the statutory language is “ambiguous” and concluding that “it is not”); City & Cty. of San Francisco, 349 F. Supp. 3d at 945 (starting its inquiry with whether “Congress ha[d] directly spoken to the precise question at issue” (quoting Chevron, 467 U.S. at 842)); cf. also City of Chicago, 888 F.3d at 284-85 (holding that the clear “intent” of Congress was “alone sufficient to end the inquiry”). As discussed below, the Court agrees that Congress was, indeed, clear in its intent to withhold the condition-making authority claimed by Defendants. There is no ambiguity in the contested provisions. It therefore follows that Defendants’ interpretations are not entitled to deference under Chevron.
The same conclusion follows for a second reason. An agency’s interpretation is entitled to “Chevron-style deference” only if it carries the “force of law.” Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (citations omitted). To carry the force of a law, not only must Congress have delegated rulemaking authority to an agency, the agency must have exercised that authority when interpreting an ambiguous statute. United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). An agency interpretation may carry the force of law if it is reached through a “means less formal than ‘notice and comment’ rulemaking,” Barnhart v. Walton, 535 U.S. 212, 221 (2002), but such instances are generally limited to resolving “interstitial” ambiguities and accompanied by a “thorough[ ]” explanation, Fox v. Clinton, 684 F.3d 67, 78 (D.C. Cir. 2012). Here, although the Byrne JAG statute allows the Attorney General to “issue rules,” Defendants do not suggest that he exercised that authority. The challenged conditions,
B. Statutory Authorization for the Notice and Access Conditions
Plaintiffs challenge the Notice and Access Conditions as an unauthorized exercise of the congressional spending power. They argue that, because Congress has never delegated to Defendants a broad discretionary authority to condition the receipt of Byrne JAG funds, Defendants’ efforts to impose the Notice and Access Conditions usurp the powers granted to Congress under the Spending Clause of the
The Court agrees with Plaintiffs, as well as every other court to have examined the issue, that Defendants lack the delegated authority to impose the Notice and Access Conditions. See City of Philadelphia v. Attorney Gen. of the United States, 916 F.3d 276, 284-91 (3d Cir. 2019) (“Congress has not empowered the Attorney General to enact the Challenged Conditions.“); City using immigration as one of many scoring factors and, if it did not, whether doing so was based on a reasonable interpretation of the term under Chevron. Id. at *9-11.
The Byrne JAG statute, by contrast, does not create a competitive grant program—Congress appropriates money which must be divided, if not necessarily distributed, among all of the states according to a formula—and the powers of the Attorney General to administer the program and withhold funds is carefully circumscribed. See
of Chicago v. Sessions, 888 F.3d 272, 283-87 (7th Cir. 2018) (“[T]he Attorney General lacked the authority to impose the notice and access conditions on receipt of the Byrne JAG grants.“); City & Cty. of San Francisco, 349 F. Supp. 3d at 945-49 (finding that the Attorney General is without authority to “impose the notice and access conditions“); City of Chicago v. Sessions, 321 F. Supp. 3d at 873-74 (“[N]either Byrne JAG nor any other statute grants the Attorney General the authority to impose [the] conditions . . . .“); New York v. United States Dep‘t of Justice, 343 F. Supp. 3d 213, 227-31 (S.D.N.Y. 2018) (holding that
As an initial matter, the Court notes, and Defendants do not contest, that the Byrne JAG Program is a formula grant program. See
The text and structure of the Byrne JAG statute, as well as its place within the broader statutory scheme governing Justice System Improvement, make clear that Congress did not intend to delegate the authority claimed by Defendants. See Negusie v. Holder, 555 U.S. 511, 542 (2009) (“[We] must begin with the plain meaning of the statute.“); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.“). As the Third Circuit recently observed, Defendants only halfheartedly advance the argument that authorization for the Notice and Access Conditions can be found in the text of the Byrne JAG statute itself. City of Philadelphia, 916 F.3d at 284. That is because, on its face, the statute indisputably does not authorize the Attorney General to place conditions on the recipients of
Defendants instead contend that, given the lack of an express delegation, Section 10153(a) should be construed as impliedly delegating the claimed authority. Section 10153(a) requires Byrne JAG applications to include both “[a]n assurance that . . . the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require” and “[a] certification that . . . there has been appropriate coordination with affected agencies.”
Defendants’ interpretation would do violence to the plain meaning of both provisions. By its terms, the reporting requirement applies only to “programmatic and financial” information.
The unbounded authority claimed by Defendants also stands in stark contrast to the narrow grants of ministerial and supervisory authority expressly provided for in the statute. See City of Chicago, 888 F.3d at 283-84 (detailing the Attorney General‘s express grants of authority and concluding that none approach the purported authority to “impose conditions that require states or local governments to assist in immigration enforcement“); City of Philadelphia, 916 F.3d at 285 (same). The provisions cited by Defendants, for instance, are nested under a principle clause which permits the Attorney General to
The instances where the Attorney General may depart from that presumption and “withhold or re-allocate” funds were carefully delineated by Congress. City of Philadelphia, 916 F.3d at 287. The Attorney General may, for example, re-allocate funds to “address . . . precipitous or extraordinary increases in crime” or “mitigate significant programmatic harm resulting from operation of the formula.”
The apparent reluctance of Congress to delegate greater discretion makes sense given the detailed formula it provided. See
Perhaps recognizing the shortcomings of their Section 10153 argument, Defendants direct the Court to Section 10102—a provision outside of the Byrne JAG statute. Section 10102, located in a separate subchapter,
Defendants’ interpretation of the provision is once again at odds with the plain meaning of its text. The syntax of the text—namely its use of a subordinate clause preceded by the word “including“—is dispositive. “In both legal and common usage, the word ‘including’ is ordinarily defined as a term of illustration, signifying that what follows is an example of preceding principle.” Arizona State Bd. for Charter Schools v. United States Dept. of Educ., 464 F.3d 1003, 1008 (9th Cir. 2006) (citations omitted). Here, the independent clause modified by “including” lists the two sources from which the Assistant Attorney General “shall” derive his or her power: authorities expressly described elsewhere in the chapter and delegations from the Attorney General. See
Two additional aspects of the provision‘s text and structure evidence that Congress never intended Section 10102 to be a carte blanche delegation of authority. First, as several courts have noted, “special conditions” is a term оf art referring to high-risk grantees. See, e.g., City of Philadelphia, 280 F. Supp. 3d at 617; see also Kenneth J. Allen, Federal Grant Practice §§ 25:1 to 25:13 (2019). Indeed, when Congress enacted the current version of
Defendants nevertheless argue that the Court‘s reading would render the “special conditions” and “priority purposes” language surplusage. They maintain that, because the language was added to the first
Lastly, Congress knew how to provide for condition-making authority over grant funds and did so in a neighboring subchapter. See
In sum, the Court finds that Defendants are without the delegated authority to impose the Notice and Access Conditions and that, by doing so, Defendants infringed upon the authority reserved to Congress under the Spending Clause of the
C. Statutory Authorization for the Disclosure Condition
Plaintiffs likewise challenge the Disclosure Condition as an unauthorized exercise
With respect to the procedural issue, Defendants’ argument misconstrues contemporary pleading standards. The “[f]ederal pleading rules call for a ‘short and plain statement of the claim showing that the pleader is entitled to relief‘; they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, 135 S. Ct. 346, 346 (2014) (emphasis added) (citing
Defendants’ substantive arguments fare no better.
There are several problems with that interpretation. The first is that it is unsupported by the text of the provision itself. Defendants hang their hat entirely on the dictionary definition of “liaison.” See Merriam-Webster‘s Collegiate Dictionary (10th ed. 1998) (defining “liaison” as a “close bond or connection” or “a person who establishes and maintains communication for mutual understanding and cooperation“). There is, however, no portion of that definition which even hints at a punitive aspect to the act of liaising, let alone a discretionary authority to completely dissolve relations when one side does not abide by the wishes of the other. In fact, based on the definition offered by Defendants, that would seem to be antithetical to the relation-building function of a liaison. The remainder of the text is also silent as to any specific powers the Assistant Attorney General might wield in carrying out his liaison duties and Defendants cite no authority to suggest that “liaison[s]” are generally understood to have implied powers. In the end, Defendants once again ask too much of a pedestrian fragment of text—there is simply no portion of
The structure of
Finally, the condition-making power claimed by Defendants is at odds with the Byrne JAG statute and its relation to other portions of the chapter. As already discussed, instances when the Attorney General may “withhold or re-allocate” Byrne JAG funds were carefully delineated by Congress. City of Philadelphia, 916 F.3d at 287. When Congress wanted grantees to engage in or refrain from certain types of conduct—even information sharing—it provided for specific and measured penalties. See, e.g.,
As with the Notice and Access Conditions, the Court finds that Defendants are without the delegated authority to impose the Disclosure Condition and that, by doing so, they infringed upon the authority reserved to Congress under the Spending Clause оf the
D. Tenth Amendment and the Compliance Condition
Finally, Plaintiffs challenge two federal statutes,
Here, the Court agrees with Plaintiffs, as well as every other court to have considered the issue after Murphy, that Sections 1373 and 1644 violate the Tenth Amendment. See City & Cty. of San Francisco, 349 F. Supp. 3d at 949-53 (“I find that Section 1373 is unconstitutional.“); City of Chicago, 321 F. Supp. 3d at 866-73 (“Section 1373 is unconstitutional and cannot stand.“); New York, 343 F. Supp. 3d at 232-38 (“[Section] 1373[], in so far as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment.“); see also City of Philadelphia, 309 F. Supp. 3d at 286-88 (denying the defendants’ motion to dismiss an as-applied Tenth Amendment challenge to Section 1373); City of Philadelphia, 280 F. Supp. 3d at 651 (declining to base a preliminary injunction on the Tenth Amendment, but observing “that the effect of Section 1373 compliance may be to thwart policymakers’ ability to extricate their state or municipality from involvement in a federal program” (citation omitted)).
As an initial matter, the voluntary nature of the Byrne JAG Program cannot save Sections 1373 and 1644 from Tenth Amendment scrutiny. Defendants are correct to note that the Spending Clause allows Congress and, when authorized, the Executive Branch to impose conditions on the receipt of federal funds. Nat‘l Fed‘n of Indep. Bus. v. Sebelius, 567 U.S. 519, 576 (2012). That authority permits the federal government to reward states and localities who decide to voluntarily act or refrain from acting in ways which the government could not directly compel. Id. Although Defendants argue that they are merely asking Plaintiffs to accept conditions which mirror the terms of Sections 1373 and 1644, they are in fact asking Plaintiffs to directly comply with those statutes because any authority to condition Byrne JAG funds is limited to enforcing other “applicable” laws. See
Sections 1373 and 1644, in turn, fail under a straightforward application of anti-commandeering principles. As discussed above, both provisions provide that states and localities “may not” enact rules which “in any way restrict[]” their officials from sharing a person‘s citizenship or immigration status with federal authorities.
Defendants attempt to avoid that conclusion by characterizing Sections 1373 and 1644 as “valid preemption provision[s],” but they are “no such thing.” Murphy, 138 S. Ct. at 1479. Under the Supremacy Clause of the
Defendants attempt to distinguish the present case by arguing that Plaintiffs are actively thwarting the enforcement of federal immigration laws. That argument “is a red herring.” City of Chicago, 888 F.3d at 282. “[N]othing in this case involves any affirmative interference with federal law enforcement at all, nor is there any interference whatsoever with federal immigration authorities.” Id. (emphasis in original). Instead, “[t]he only conduct at issue here is the refusal of local law enforcement to aid in civil immigration enforcement.” Id. Although a state or locality‘s decision to refrain from assisting in federal enforcement may frustrate the efforts of immigration authorities, “[s]tanding aside does not equаte to standing in the way.” United States v. California, 314 F. Supp. 3d 1077, 1105 (E.D. Cal. 2018). States and localities have “the right, pursuant to the anticommandeering rule, to
Finally, Defendants argue that Sections 1373 and 1644 fall within an information-sharing carveout to the anti-commandeering doctrine. But there is no such carveout. The authority relied upon by Defendants is based entirely on dicta from Printz and does not encompass the type of statute at issue here. See Printz, 521 U.S. at 917-18 (noting that some federal laws “require only the provision of information,” but emphasizing that they “are not before us“). Unlike the statutes described in Printz, Sections 1373 and 1644 are “more than just . . . information-sharing provision[s],” New York, 343 F. Supp. 3d at 236, which require local officials to engage in “purely ministerial reporting,” Printz, 521 U.S. at 936 (O‘Connor, J., concurring). They instead “prevent state and local policymakers from enacting a wide range of information-governance rules,” New York, 343 F. Supp. 3d at 236, and force them “to stand aside and allow the federal government to conscript the time and cooperation of local employees,” City of Chicago, 321 F. Supp. 3d at 873. As the Supreme Court emphasized in Murphy, the anti-commandeering doctrine applies “not only to state officers with policymaking responsibility but also to those assigned more mundane tasks.” Murphy, 138 S. Ct. at 1477. Sections 1373 аnd 1644 therefore violate the Tenth Amendment.
As unconstitutional laws, Sections 1373 and 1644 “automatically drop[]” from the pool of “applicable” laws on which funding conditions may be based. City of Chicago, 321 F. Supp. 3d at 875; cf. also Branch v. Smith, 538 U.S. 254, 281-81 (2003) (finding that the phrase “as state law requires” does not include unconstitutional state laws because such laws are a “legal nullity“). This means that the Compliance Condition fails for the same reason as the Notice, Access, and Disclosure Conditions: its promulgation is an unauthorized exercise of the congressional spending power. See City of Chicago, 321 F. Supp. 3d at 876 (explaining that the Compliance Condition “does not fail” because it violates the anti-commandeering doctrine; rather, it fails “because the authority on which it depends . . . has been stripped away“). Defendants, moreover, cannot remedy this infirmity simply by transferring the substance of Sections 1373 and 1644 into stand-alone funding conditions because, as discussed above, there are presently no open-ended delegations of spending authority which could independently support such conditions. Thus, not only are both provisions facially unconstitutional and unenforceable against Plaintiffs, the Compliance Condition itself is invalid under separation of powers principles.12
Plaintiffs seek declaratory, injunctive, and mandamus relief. Defendants contest only the nationwide scope of the requested injunction and the propriety of mandamus relief. They do not object to Plaintiffs’ request for a declaration as it relates to the FY 2017 and FY 2018 conditions. As such, Plaintiffs may rely upon the Court‘s analysis in Part II as satisfaction of its request for a declaration or, in the alternative, include a more concise restatement of the Court‘s conclusions in a proposed form of order. The parties’ remaining arguments are addressed below.
A. Permanent Injunction
Plaintiffs argue that they are entitled to a permanent injunction with nationwide effect. Defendants do not contest that Plaintiffs are entitled to permanent injunctive relief but argue that any such relief should be limited to the parties in the case. A plaintiff seeking a permanent injunction must show: “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156 (2010). Plaintiffs satisfy each element.
As to the first two elements, Plaintiffs have demonstrated irreparable constitutional injuries which cannot adequately be remedied with monetary damages. See Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008) (“Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm.“), rev‘d on other grounds, 562 U.S. 134 (2011); Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (“We have stated that an alleged constitutional infringement will often alone constitute irreparable harm.” (internal quotation marks and citation omitted)). In the absence of an injunction, Plaintiffs would not only face the continued operation of unconstitutional statutes and funding conditions, they would be forced to either change their policies, forgo critical law enforcement funds, or risk federal sanctions. See, e.g., City of Philadelphia, 309 F. Supp. 3d at 340-41 (discussing irreparable harm). Plaintiffs would, under any of these circumstances, risk public safety by eroding trust with immigrant communities or abandoning critical law enforcement initiatives funded by the Byrne JAG Program. See, e.g., City of Chicago, 321 F. Supp. 3d at 877-78 (“Trust once lost is not easily restored, and as such, is an irreparable harm for which there is no adequate remedy at law.“).
As to the third element, Defendants do “not even attempt[] to argue that
That injunction, however, must be limited to Plaintiffs and their political subdivisions. It is hornbook law that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). “Where relief can be structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown.” City & Cty. of San Francisco, 897 F.3d at 1244 (citation omitted). Here, Plaintiffs will receive complete relief from an injunction limited to the boundaries of this District. As already discussed at length, the award and size of Byrne JAG grants is non-discretionary and based on a detailеd formula. See
B. Writ of Mandamus
Finally, Plaintiffs argue that they are entitled to a writ of mandamus compelling Defendants to disburse their Byrne JAG funds without the challenged conditions. In response, Defendants contend that mandamus relief would be inappropriate because ordering the disbursement of funds would interfere with their lawful discretion under the Byrne JAG statute and because Plaintiffs’ injuries are adequately remedied by the permanent injunction. A federal court may “compel an officer or employee of the United States or any agency therefor to perform a duty owed to the plaintiff.”
First, Plaintiffs’ claims are clear and certain. Sections 1373 and 1644 plainly violate the Tenth Amendment and there is no colorable argument that Defendants have the delegated authority to impose the challenged conditions. Second, as previously described at length, the award and size of Byrne JAG grants is nondiscretionary. Although the Attorney General is empowered to dictate the “form” of an application and enforce the Byrne JAG statutes unambiguous reporting, coordination, and programmatic requirements, see
CONCLUSION
Based on the foregoing, Defendants’ Motion to Dismiss, ECF No. 14, is DENIED and Plaintiffs’ Motion for Summary Judgment, ECF No. 21, is GRANTED in part. Within 14 days, the parties shall confer on a proposed form of judgment and a proposed form of order with specific language for a permanent injunction, writ of mandamus, and, if desired, a declaration. The proposed form of order and proposed form of judgment shall be submitted within 21 days of this Opinion and Order. If the parties cannot agree on proposed language for either document, each shall submit its own version, with Defendants’ proposed language shown in redline. The parties shall also submit a joint statement of no more than 10 pages explaining any disagreements.15
IT IS SO ORDERED.
DATED this 7th day of August, 2019.
/s/ Michael J. McShane
Michael J. McShane
United States District Judge