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Federal Court Accuses AG Barr of ‘Hijacking’ the Law to Further Trump Policy of Punishing Sanctuary Cities


A federal appeals court handed the Trump administration another loss in its battle to defund sanctuary cities on Thursday, ruling that the Department of Justice does not have the authority to withhold federal law enforcement funds from “sanctuary” cities and states that protect undocumented immigrants from deportation.

The dispute stemmed from a controversial DOJ directive which conditioned millions of dollars in Justice Assistance Grants (JAGs) – also known as “Byrne Grants” – on state and local governments agreeing to comply with a series of immigration-related conditions designed to assist federal immigration officers in apprehending illegal immigrants. Government bodies that refused to certify compliance with the DOJ’s conditions, which essentially guarantee federal agents would be given advance notice of the date and time aliens in custody were to be released, would see their applications for the Byrne JAG grant denied.

A three-judge panel on the U.S. Court of Appeals for the Seventh Circuit found that by adding “extra-statutory conditions” on federal grants authorized by Congress, Attorney General William Barr and the DOJ had violated constitutional separation of powers principles. The circuit judges on the case: William J. Bauer (a Gerald Ford appointee), Ilana D. Rovner (a George H.W. Bush appointee), and Daniel A. Manion (a Ronald Reagan appointee). The court granted a nationwide injunction, with Manion dissenting only that such an order was too broad in scope (“Broad, sweeping relief of such nature is rarely appropriate, and nothing indicates Chicago needs a nationwide injunction to preserve its Byrne JAG award.”).

“The Attorney General’s use of extra-statutory conditions on federal grant awards as a tool to obtain compliance with his policy objectives strikes at the heart of another core value, which is the separation of powers among the branches of the federal government. The authority to pass laws and the power of the purse rest in the legislative not the executive branch,” the court wrote.

The court further noted that where Congress had refused to pass legislation requiring those conditions the DOJ sought to impose, allowing the executive branch to unilaterally make them mandatory would concentrate a dangerous amount of power within a single branch of government.

“The composition of the legislature—with elected representatives and dual chambers—provides institutional protection from the abuse of such power,” the court wrote. “But no such institutional protection from abuse exists should such power be concentrated in the executive branch, where one individual—whether the President or the Attorney General or another official—determined to impose his or her policy preferences regardless of the will of Congress, could proceed unimpeded by the types of institutional checks present in the legislative body. Such a concentration of power would allow tyranny to flourish, and our system of government is wisely set up by the Founders to foreclose such a danger.”

The DOJ argued the proposed conditions were authorized by language in the JAG grant statute requiring applicant to comply with “all other applicable Federal law,” which it claimed incorporated “all federal law that applies to states or localities.” But the court concluded that such an interpretation was far too broad, writing that, “if Congress meant to incorporate all law that applies to States or localities, that would be accomplished by requiring compliance with ‘all federal law.’”

According to the court, under the DOJ’s interpretation of such language the “potential for abuse is apparent.”

“Here, the Attorney General has used the broad interpretation of ‘other applicable law’ as a means of hijacking the legislatively-established Byrne JAG program to further particular policy goals of the Executive, despite the repeated refusal of Congress to impose such a prerequisite itself,” the court wrote. “That would transform the highly-structured formula grant into one that vested total in the Attorney General to impose barriers to the grant through his choice as to which other federal laws to target as grant conditions.”

The court concluded by emphasizing the importance of maintaining the separation of powers.

“The separation of powers is a foundation of our government, not a formality to be swept aside on the path to achieving goals that the executive branch deems worthy,” read the decision. “The Attorney General’s nod to checks and balances rings hollow in light of the changing justifications provided here for the conditions, with a new purported legislative ‘authorization’ whenever another is deemed baseless by the court. Rather than an exercise of authority granted to it by the legislature, the conditions imposed here are an executive usurpation of the power of the purse.”

Five challenges to the DOJ’s Byrne grant conditions have reached the circuit courts, with the Second Circuit ruling in favor of the department.

See below for the full 111-page decision.

Byrne Grant Order by Law&Crime on Scribd

[image via Drew Angerer/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.