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Reagan-Appointed Judge Scorches DOJ’s Justification for Denying Funds to Sanctuary Cities


A federal appellate court handed the Trump administration a stinging loss in its ongoing battle against sanctuary cities on Tuesday. A three-judge panel in the Court of Appeals for the First Circuit ruled that Attorney General William Barr does not have the authority to deny federal law enforcement grants to states and cities that maintain laws protecting undocumented immigrants from deportation.

The controversy stems from a Department of Justice (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 three immigration-related conditions designed to assist federal immigration officers in apprehending illegal immigrants.

Two federal appeals courts heard challenges to Barr’s authority, resulting in the circuit split we now discuss.

Under the DOJ’s conditions, issued in June of 2018, state and local governments would not be eligible for the grants unless they:

  • implemented a regulation ensuring correctional facilities would “honor” any request from federal authorities regarding the release date of particular undocumented immigrants
  • implement a regulation giving federal immigration authorities access to meet with any person held in a correctional facility and inquire as to their immigration status, and
  • submit a “Certifiation of Compliance” and ensure ongoing compliance with the conditions.

In a 50-page decision penned by 85-year-old Ronald Reagan-appointed Senior U.S. Circuit Judge Bruce M. Selya, the panel upheld a lower court’s ruling that the DOJ “lacked authority to impose the challenged conditions.”

Selya scorched the DOJ attempting to twist the text of the statute–which required state and local governments to “maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require”– to authorize the imposition of the required conditions.

“The DOJ’s contentions stretch the statutory language beyond hope of recognition,” Selya wrote. “Under the DOJ’s interpretation, the term ‘programmatic’ in the information-reporting provision apparently would refer to any activity that a grant recipient undertakes within the eight categories of ‘programs’ that the Byrne JAG statute allows grants to fund, without regard to whether the recipient’s grant in fact funds that particular activity.”

Selya unleashed on the DOJ, saying its broad interpretation of the law was entirely baseless.

“The DOJ’s contrary interpretation is little more than an ipse dixit (a dogmatic assertion without proof); the DOJ advances no principled reason why we should interpret the term in so unorthodox a manner when construing the information-reporting provision,” he wrote.

The decision was equally as harsh regarding the DOJ’s attempt to broadly interpret the statutory text requiring state and local agencies to proffer “coordination with affected agencies,” in grant applications to refer to coordination with “all law enforcement agencies” affected by “any activity” of the grant applicant.

“The text of the provision itself belies this jerry-built justification,” Selya wrote, adding that “both the statutory context and the formulaic nature of the Byrne JAG program undermine the DOJ’s expansive construction of the informationreporting and coordination provisions.”

The court concludes the decision by noting that the DOJ compiled several other grant requirements styled as “special conditions,” calling the argument “thin gruel” derived through “mysterious alchemy.”

“Finally, the DOJ compiles a compendium of other requirements, all of which it has styled as ‘special conditions’ and imposed on Byrne JAG grants since the inception of the program. It boasts that these conditions have been neither questioned by Congress nor challenged by grant recipients,” Selya wrote. “This is thin gruel: the lawfulness of these other special conditions is well beyond the scope of this appeal. And to the extent that the DOJ argues that its longstanding practice must signify, through some mysterious alchemy, that section 10102(a)(6) gives it the authority to impose special conditions on Byrne JAG grants at its discretion, we disagree. An agency’s implementation of a statute has scant value in determining the actual authority that the statute confers upon the agency, at least where — as here — the plain text of the statute contradicts the agency’s praxis.”

University of Texas law professor Stephen Vladeck noted that the First Circuit’s opinion “deepen[s] and existing circuit split.”

See below for the full opinion:

First Circuit’s sanctuary city opinion by Law&Crime on Scribd

[Image via Chip Somodevilla/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.