“Sanctuary” Jurisdictions: Federal, State, and Local Policies and

“Sanctuary” Jurisdictions: Federal, State, and

Local Policies and Related Litigation

Updated May 3, 2019

Congressional Research Service

https://crsreports.congress.gov

R44795

“Sanctuary” Jurisdictions: Federal, State, and Local Policies and Related Litigation

Congressional Research Service

Summary

There is no official or agreed-upon definition of what constitutes a “sanctuary” jurisdiction, and

there has been debate as to whether the term applies to particular states and localities. Moreover,

state and local jurisdictions have varied reasons for opting not to cooperate with federal

immigration enforcement efforts, including reasons not necessarily motivated by disagreement

with federal policies, such as concern about potential civil liability or the costs associated with

assisting federal efforts. But traditional sanctuary policies are often described as falling under one

of three categories. First, so-called “don’t enforce” policies generally bar state or local police

from assisting federal immigration authorities. Second, “don’t ask” policies generally bar certain

state or local officials from inquiring into a person’s immigration status. Third, “don’t tell”

policies typically restrict information sharing between state or local law enforcement and federal

immigration authorities.

One legal question relevant to sanctuary policies is the extent to which states, as sovereign

entities, may decline to assist in federal immigration enforcement, and the degree to which the

federal government can stop state measures that undermine federal objectives. The Tenth

Amendment preserves the states’ broad police powers, and states have frequently enacted

measures that, directly or indirectly, address aliens residing in their communities. Under the

doctrine of preemption—derived from the Supremacy Clause—Congress may displace many

state or local laws pertaining to immigration. But not every state or local law touching on

immigration matters is necessarily preempted; the measure must interfere with, or be contrary to,

federal law to be rendered unenforceable. Further, the anti-commandeering doctrine, rooted in the

Constitution's allocation of powers between the federal government and the states, prohibits

Congress from forcing state entities to perform regulatory functions on the federal government's

behalf, including in the context of immigration. A series of Supreme Court cases inform the

boundaries of preemption and the anti-commandeering doctrine, with the Court most recently

opining on the issue in Murphy v. NCAA.

These dueling federal and state interests are front and center in numerous lawsuits challenging

actions taken by the Trump Administration to curb states and localities from implementing

sanctuary-type policies. Notably, Section 9(a) of Executive Order 13768, “Enhancing Public

Safety in the Interior of the United States,” directs the Secretary of Homeland Security and the

Attorney General to withhold federal grants from jurisdictions that willfully refuse to comply

with 8 U.S.C. § 1373—a statute that bars states and localities from prohibiting their employees

from sharing with federal immigration authorities certain immigration-related information. The

executive order further directs the Attorney General to take “appropriate enforcement action”

against jurisdictions that violate Section 1373 or have policies that “prevent or hinder the

enforcement of federal law.” To implement the executive order, the Department of Justice added

new eligibility conditions to the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG)

Program and grants administered by the Justice Department’s Office of Community Oriented

Policing Services (COPS). These conditions tied eligibility to compliance with Section 1373 and

other federal immigration priorities, like granting federal authorities access to state and local

detention facilities housing aliens and giving immigration authorities notice before releasing from

custody an alien wanted for removal.

Several lawsuits were filed challenging the constitutionality of the executive order and new grant

conditions. So far the courts that have reviewed these challenges—principally contending that the

executive order and grant conditions violate the separation of powers and anti-commandeering

principles—generally agree that the Trump Administration acted unconstitutionally. For instance,

the Ninth Circuit Court of Appeals upheld a permanent injunction blocking enforcement of

“Sanctuary” Jurisdictions: Federal, State, and Local Policies and Related Litigation

Congressional Research Service

Section 9(a) against California. Additionally, two separate district courts permanently enjoined

the Byrne JAG conditions as applied to Chicago and Philadelphia. In doing so, these courts

concluded that the Supreme Court’s most recent formulation of the anti-commandeering doctrine

in Murphy requires holding Section 1373 unconstitutional. These lawsuits notwithstanding, the

courts still recognize the federal government’s pervasive, nearly exclusive role in immigration

enforcement. This can be seen in the federal government’s lawsuit challenging three California

measures governing the state’s regulation of private and public actors’ involvement in

immigration enforcement within its border. Although a district court opined that several measures

likely were lawful exercises of the state’s police powers, it also concluded that two provisions

regulating private employers are likely unlawful under the Supremacy Clause. This ruling was

mostly upheld on appeal, in which the Ninth Circuit additionally opined that a provision requiring

the California attorney general to review the circumstances surrounding detained aliens’

apprehension and transfer to detention facilities within the state also violates the Supremacy

Clause.

“Sanctuary” Jurisdictions: Federal, State, and Local Policies and Related Litigation 
 
Congressional Research Service 
Contents 
Introduction ..................................................................................................................................... 1 
What Is a Sanctuary Jurisdiction? ................................................................................................... 3 
Legal Background ........................................................................................................................... 4 
The Supremacy Clause and Preemption.................................................................................... 4 
The Anti-Commandeering Doctrine .......................................................................................... 7 
Congress’s Spending Powers and the Anti-Commandeering Doctrine ............................. 10 
Select State and Local Limitations on Immigration Enforcement Activity ................................... 10 
Limiting Arrests for Federal Immigration Violations ............................................................... 11 
Limiting Police Inquiries into Immigration Status .................................................................. 12 
Limiting Information Sharing with Federal Immigration Authorities ..................................... 13 
Federal Measures to Counteract Sanctuary Policies ...................................................................... 14 
PRWORA and IIRIRA ............................................................................................................ 14 
Executive Order 13768 and Related Litigation ............................................................................. 16 
Section 9 of Executive Order 13768 ....................................................................................... 16 
DOJ Implementation of EO 13768 ................................................................................... 17 
Litigation Challenging EO 13768 and its Implementation ..................................................... 19 
City & Cty. of San Francisco v. Trump and Cty. of Santa Clara v. Trump ........................ 20 
City of Richmond v. Trump ................................................................................................ 21 
City of Seattle & City of Portland v. Trump ...................................................................... 22 
City of Chelsea & City of Lawrence v. Trump ................................................................... 23 
City of Chicago v. Sessions ............................................................................................... 23 
City of Evanston v. Sessions .............................................................................................. 25 
City of Philadelphia v. Sessions ........................................................................................ 26 
City & Cty. of San Francisco v. Sessions .......................................................................... 28 
States of New York v. Department of Justice ..................................................................... 29 
City of Los Angeles v. Sessions ......................................................................................... 31 
Justice Department Lawsuit Against California ...................................................................... 32 
The Challenged California Laws ...................................................................................... 33 
United States v. California ................................................................................................ 35 
Conclusion ..................................................................................................................................... 38 
 
Contacts 
Author Information ........................................................................................................................ 39 
 

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Introduction

The federal government is vested with the exclusive power to create rules governing alien entry

and removal.

However, the impact of alien migration—whether lawful or unlawful—is arguably

felt most directly in the communities where aliens reside. State and local responses to unlawfully

present aliens within their jurisdictions have varied considerably, particularly in determining the

role that state or local police should play in enforcing federal immigration law. At one end of the

spectrum, some states and localities actively assist federal immigration authorities in identifying

and apprehending aliens for removal.

For example, jurisdictions sometimes enter into “287(g)

Agreements” with the federal government, in which state or local law enforcement are deputized

to perform certain immigration enforcement activities.

Some states and localities have attempted

to play an even greater role in immigration enforcement, in many cases because of perceptions

that federal efforts have been inadequate.

In the past, some have adopted measures that

criminally sanction conduct believed to facilitate the presence of unlawfully present aliens and

have also instructed police to actively work to detect such aliens as part of their regular duties.

The adoption of these kinds of measures has waned considerably, though, after the Supreme

Court’s 2012 ruling in Arizona v. United States held that several provisions of one such

enactment, Arizona’s S.B. 1070, were preempted by federal immigration law.

Subsequent lower

court decisions struck down many other state and local measures that imposed criminal or civil

sanctions on immigration-related activity.

See, e.g., Arizona v. United States, 567 U.S. 387, 394 (2012) (“The Government of the United States has broad,

undoubted power over the subject of immigration and status of aliens.”); Toll v. Moreno, 458 U.S. 1, 10 (1982) (“Our

cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens

within our borders.”); Hampton v. Mow Sun Wong, 426 U.S. 88, 95 (1976) (“Congress and the President have broad

power over immigration and naturalization which the States do not possess.”).

See Immigration Legal Resource Center, National Map of 287(g) Agreements (Nov. 6, 2018),

https://www.ilrc.org/national-map-287g-agreements.

See 8 U.S.C. § 1357(g) (authorizing the Department of Homeland Security (DHS) to enter into written agreements

with state and local jurisdictions that enable specially trained state or local officers to perform specific functions related

to the investigation, apprehension, or detention of aliens, while under federal supervision for a predetermined time);

see also ICE, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act,

https://www.ice.gov/287g (last visited Nov. 8, 2018); ICE, Updated Facts on ICE’s 287(g) Program,

https://www.ice.gov/factsheets/287g-reform (last visited Nov. 8, 2018).

See, e.g., Marisa S. Cianciarulo, The “Arizonafication” of Immigration Law: Implications of Chamber of Commerce

v. Whiting for State & Local Immigration Legislation, 15 HARV. LATINO L. REV. 85, 88 (2012); Keith Cunningham-

Parmeter, Forced Federalism: States as Laboratories of Immigration Reform, 62 HASTINGS L.J. 1673, 1674 (2011).

Kevin J. Fandl, Putting States out of the Immigration Law Enforcement Business, 9 HARV. L. & POL’Y REV. 529,

533-35 (2015); Bianca Figueroa-Santana, Note, Divided We Stand: Constitutionalizing Executive Immigration Reform

through Subfederal Regulation, 115 COLUM. L. REV. 2219, 2219-20 (2015).

567 U.S. 387 (2012); see Stella Burch Elias, The New Immigration Federalism, 74 OHIO ST. L.J. 703, 704 (2013).

See, e.g., Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017) (applying Arizona’s preemption principles to

conclude that Arizona cannot independently classify persons as being without “authorized presence” in the United

States because the federal government is vested with the exclusive authority to classify aliens); Valle del Sol Inc. v.

Whiting, 732 F.3d 1006 (9th Cir. 2013) (upholding preliminary injunction barring enforcement of Arizona statute,

which prohibited harboring unlawfully present aliens by certain persons, on preemption and vagueness grounds), cert.

denied, 134 S. Ct. 1876 (2014); United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) (applying the Supreme

Court’s ruling in Arizona; affirming enjoinment of South Carolina criminal provisions for (1) an unlawful alien to

conceal, harbor, or shelter him or herself from detection; (2) for a third party to conceal, shelter, or transport an

unlawfully present person; (3) failing to carry an alien registration card; and (4) possessing a false identification card

for proving lawful presence); United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) (enjoining several Alabama

laws, including those that penalize (1) failing to carry registration documents; (2) working without authorization; (3)

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At the other end of the spectrum, some states and localities have been less willing to assist the

federal government with its immigration enforcement responsibilities. Often dubbed “sanctuary

jurisdictions,” some states and localities have adopted measures that limit their participation in

enforcing federal immigration laws, including, for example, prohibiting police officers from

assisting with federal efforts to identify and apprehend unlawfully present aliens within the state

or locality’s jurisdiction.

That said, there is debate over both the meaning and application of the

term “sanctuary jurisdiction.”

Additionally, state and local jurisdictions have varied reasons for

choosing not to cooperate with federal immigration enforcement efforts, including reasons not

necessarily motivated by disagreement with federal immigration enforcement policies, such as

concern about potential civil liability or the availability of state or local resources to assist federal

immigration enforcement efforts.

During President Donald Trump’s first month in office, he

issued an executive order, “Enhancing Public Safety in the Interior of the United States,” which,

in part, seeks to encourage state and local cooperation with federal immigration enforcement and

disincentivize state and local adoption of sanctuary policies.

This report discusses legal issues related to state and local measures limiting law enforcement

cooperation with federal immigration authorities, as well as the federal government’s efforts to

counter those measures. It begins by providing a general explanation of the term “sanctuary

jurisdiction” for the purpose of this report. Next, it provides an overview of constitutional

principles underlying the relationship between federal immigration laws and related state and

local measures, namely, preemption and the anti-commandeering doctrine. Then, it discusses

various types of laws and policies adopted by states and localities to limit their participation with

federal immigration enforcement efforts, which may give rise to a label of “sanctuary

jurisdiction,” and federal efforts to counter those measures. Finally, the report concludes with a

discussion of the lawsuits challenging the executive order targeting sanctuary jurisdictions and

certain executive branch actions to implement the executive order.

concealing, harboring, or shielding an unlawfully present alien from detection; (4) transporting an unlawfully present

alien; (5) harboring an unlawfully present alien by entering into a rental agreement with that alien; and (6) deducting as

a business expense on state tax filings any compensation paid to unauthorized aliens, based on the Supreme Court’s

ruling in Arizona), cert. denied, 133 S. Ct. 2022 (2013); Georgia Latino Alliance for Human Rights v. Governor of

Georgia, 691 F.3d 1250 (11th Cir. 2012) (enjoining criminal provisions in Georgia for (1) transporting or moving an

illegal alien; (2) concealing or harboring an illegal alien; and (3) inducing an illegal alien to enter Georgia, based on the

Supreme Court’s ruling in Arizona); Sol v. Whiting, No. CV-10-01061-PHX-SRB, 2015 WL 12030514, at *1 (D. Ariz.

Sept. 4, 2015) (discussing the resolution of legal challenges to various provisions of Arizona immigration enforcement

measure in the aftermath of Arizona).

See, e.g., Steven Papazian, Note, Secure Communities, Sanctuary Laws, & Local Enforcement of Immigration Law:

The Story of Los Angeles, 21 S. CAL. REV. L. & SOC. JUST. 283, 290-91 (2012); Rose Cuison Villazor, What is a

“Sanctuary”?, 61 SMU L. REV. 133, 147-48 & n.91 (2008).

See infra section What Is a Sanctuary Jurisdiction?

See, e.g., Matthew Feeney, Walling Off Liberty: How Strict Immigration Enforcement Threatens Privacy and Local

Policing, CATO INSTITUTE (Nov. 1, 2018), https://www.cato.org/publications/policy-analysis/walling-liberty-how-strict-

immigration-enforcement-threatens-privacy#full (“But there are also sound law enforcement reasons for declining to

enforce immigration law. Sanctuary policies help police, allowing them to secure cooperation from crime victims and

witnesses who don’t wish to disclose their immigration status or the immigration status of a friend, spouse, or family

member.”); Raina Bhatt, Note, Pushing an End to Sanctuary Cities: Will it Happen, MICH. J. RACE & L. 139, 144-45

(2016) (collecting various rationales for states and localities adoption of sanctuary policies).

Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017).

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What Is a Sanctuary Jurisdiction?

State or local measures limiting police participation in immigration enforcement are not a recent

phenomenon.

Indeed, many of the recent “sanctuary”-type initiatives can be traced back to

church activities designed to provide refuge—or “sanctuary”—to unauthorized Central American

aliens fleeing civil unrest in the 1980s.

A number of states and municipalities issued declarations

in support of these churches’ actions.

Others went further and enacted more substantive

measures intended to limit police involvement in federal immigration enforcement activities.

These measures have included, among other things, restricting state and local police from

arresting persons for immigration violations, limiting the sharing of immigration-related

information with federal authorities, and barring police from questioning a person about his or her

immigration status.

Still, there is no official definition of a “sanctuary” jurisdiction in federal statute or regulation.

Broadly speaking, sanctuary jurisdictions are commonly understood to be those that have laws or

policies designed to substantially limit involvement in federal immigration enforcement

For example, in 1979 the Los Angeles Police Department issued Special Order 40, which (1) barred police officers

from arresting persons for suspected violations of the federal statute criminalizing illegal entry, (2) prohibited the

initiation of police action “with the objective of discovering the alien status of a person,” and (3) established a process

and criteria for notifying federal immigration officials when an unlawfully present alien was arrested on criminal

charges. OFFICE OF THE CHIEF OF POLICE, LOS ANGELES, SPECIAL ORDER 40: UNDOCUMENTED ALIENS (1979),

[hereinafter LAPD ORDER], http://www.lapdonline.org/assets/pdf/SO_40.pdf; see also Doug Smith, How LAPD’s Law-

and-Order Chief Revolutionized the Way Cops Treated Illegal Immigration, LOS ANGELES TIMES (Feb. 5, 2017, 3:00

AM), http://www.latimes.com/local/lanow/la-me-ln-special-order-40-retrospective-20170205-story.html.

See, e.g., Susan Gzesh, Central Americans & Asylum Policy in the Reagan Era, MIGRATION POLICY INST. (Apr. 1,

2006), http://www.migrationpolicy.org/article/central-americans-and-asylum-policy-reagan-era (describing the

“network of religious congregations that became known as the Sanctuary Movement” and that provided humanitarian

assistance to foreign nationals from Central America fleeing civil unrest in the 1980s).

See generally Jorge L. Carro, Municipal & State Sanctuary Declarations: Innocuous Symbolism or Improper

Dictates?, 16 PEPP. L. REV. 297 (1989) (identifying and distinguishing various state and local responses in support of

church actions).

See Villazor, supra note 8 at 142 (“In due course, what originally began with churches as proactive efforts to provide

shelter and food to immigrants led to state and local governmental efforts to assure immigrants that they too will be

safe within their borders.”).

See Orde F. Kittrie, Federalism, Deportation, & Crime Victims Afraid to Call the Police, 91 IOWA L. REV. 1449,

1455 (2006) (surveying local sanctuary policies and describing them as doing “one or more of the following:

(1) limit[ing] inquiries about a person’s immigration status unless investigating illegal activity other than mere status as

an unauthorized alien (‘don’t ask’); (2) limit[ing] arrests or detentions for violation of immigration laws (‘don’t

enforce’); and (3) limit[ing] provision to federal authorities of immigration status information (‘don’t tell’)”).

The term “sanctuary” jurisdiction is not defined by federal statute or regulation, though it has been used on occasion

by federal agencies to refer to state or local entities that have particular types of immigration-related laws or policies.

Most recently, in an executive order targeting public safety within the U.S. interior, President Trump referred to

“sanctuary jurisdictions” as those that “willfully refuse to comply with 8 U.S.C. 1373,” which, as discussed in great

detail later in this report, imposes restrictions on state and local limitations on the sharing of certain information with

immigration authorities. Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017). Before that, in a 2007 report by

the Office of the Inspector General at the U.S. Department of Justice, the agency used the term “sanctuary” to reference

“jurisdictions that may have state laws, local ordinances, or departmental policies limiting the role of local law

enforcement agencies and officers in the enforcement of immigration laws.” U.S. DEP’T OF JUSTICE, OFFICE OF THE

INSPECTOR GENERAL, AUDIT DIVISION, COOPERATION OF SCAAP RECIPIENTS IN THE REMOVAL OF CRIMINAL ALIENS

FROM THE UNITED STATES 7 N.44 (Jan. 2007), https://oig.justice.gov/reports/OJP/a0707/final.pdf (redacted public

version).

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activities,

though there is not necessarily a consensus as to the meaning of this term.

Some

jurisdictions have self-identified as a sanctuary (or some other similar term).

For other

jurisdictions, there might be disagreement regarding the accuracy of such a designation,

particularly if state or local law enforcement cooperates with federal immigration authorities in

some areas but not others.

Any reference by this report to a policy of a particular jurisdiction is

intended only to provide an example of the type of measure occasionally referenced in

discussions of “sanctuary” policies.

These references should not be taken to indicate CRS is of

the view that a particular jurisdiction is a “sanctuary” for unlawfully present aliens.

Legal Background

The heart of the debate surrounding the permissible scope of sanctuary jurisdictions centers on

the extent to which states, as sovereign entities, may decline to assist in federal efforts to enforce

federal immigration law, and the degree to which the federal government can stop state action that

undercuts federal objectives in a manner that is consistent with the Supremacy Clause and

constitutional principles of federalism. .

The Supremacy Clause and Preemption

The federal government’s power to regulate immigration is both substantial and exclusive.

This

authority derives from multiple sources, including Congress’s Article I powers to “establish a

See, e.g., H.B.C., What are Sanctuary Cities, THE ECONOMIST (Nov. 22, 2016), http://www.economist.com/blogs/

economist-explains/2016/11/economist-explains-13 (“There is no specific legal definition for what constitutes a

sanctuary jurisdiction but the term is widely used to refer to American cities, counties or states that protect

undocumented immigrants from deportation by limiting cooperation with federal immigration authorities.”); Dr.

Michael J. Davidson, Sanctuary: A Modern Legal Anachronism, 42 CAP. U. L. REV. 583, 610 (2014) (“The modern

concept of sanctuary cities now refers to jurisdictions that have adopted formal or informal policies limiting

cooperation with federal immigration authorities.” (internal quotation marks, alteration, and citations omitted)).

See, e.g., Davidson, supra note 18, at 610.

See, e.g., S.F. CAL. ADMIN. CODE §§ 12H.1, 12H.2 (declaring San Francisco a “City and County of Refuge” and

restricting cooperation with federal immigration enforcement efforts); City of Philadelphia Action Guide: Immigration

Policies, CITY OF PHILADELPHIA (Jan. 8, 2018), https://www.phila.gov/2018-01-08-immigration-policies/ (describing

Philadelphia as a “Welcoming City” in its policies toward immigrants); see also Ruairí Arrieta-Kenna, Sanctuary Cities

Stand Firm against Trump, POLITICO (Dec. 12, 2016 5:14 AM), http://www.politico.com/story/2016/12/sanctuary-

cities-trump-immigration-232449 (listing cities where municipal and police leaders have publicly affirmed or

reaffirmed sanctuary status).

See Sanctuary City? Not L.A., L.A. TIMES (Aug. 26, 2011), http://articles.latimes.com/2011/aug/26/opinion/la-ed-

sanctuary-20110825 (disputing characterization of Los Angeles as a “sanctuary” jurisdiction and noting areas in which

local police cooperate with federal immigration authorities); Villazor, supra note 8 at 154-56 (describing some

jurisdictions’ resistance to being labeled a “sanctuary”).

See, e.g., Villazor, supra note 8 (discussing the term “sanctuary” as applied to contemporary immigration issues);

Kittrie, supra note 16 (discussing and describing various state and local law enforcement “sanctuary” policies).

See, e.g., Arizona v. United States, 567 U.S. 387, 394 (2012) (“The Government of the United States has broad,

undoubted power over the subject of immigration and status of aliens.”); Toll v. Moreno, 458 U.S. 1, 10 (1982) (“Our

cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens

within our borders.”); De Canas v. Bica, 424 U.S. 351, 354 (1976) (“Power to regulate immigration is unquestionably

exclusively a federal power.”); Hampton v. Mow Sun Wong, 426 U.S. 88, 95 (1976) (“Congress and the President have

broad power over immigration and naturalization which the States do not possess.”); Sandoval-Luna v. Mukasey, 526

F.3d 1243, 1247 (9th Cir. 2008) (“Federal authority in the areas of immigration and naturalization is plenary.” (internal

quotation marks, alteration, and citation omitted)).

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uniform Rule of Naturalization”

and to “regulate commerce with foreign nations, and among the

several states,”

as well as the federal government’s “inherent power as sovereign to conduct

relations with foreign nations.”

Rules governing the admission and removal of aliens, along

with conditions for aliens’ continued presence within the United States, are primarily contained in

the Immigration and Nationality Act of 1952, as amended (INA).

The INA further provides a

comprehensive immigration enforcement regime that contains civil and criminal elements.

Arizona v. United States reinforced the federal government’s pervasive role in creating and

enforcing the nation’s immigration laws. The ruling invalidated several Arizona laws designed

“to discourage and deter the unlawful entry and presence of aliens and economic activity by

persons unlawfully present in the United States”

as preempted by federal law.

In doing so, the

Court declared that “[t]he Government of the United States has broad, undoubted power over the

subject of immigration and the status of aliens.”

As Arizona highlights, the doctrine of preemption is relevant in assessing state policies related to

immigration. The preemption doctrine derives from the Constitution’s Supremacy Clause, which

states that the “Constitution, and the laws of the United States ... shall be the supreme law of the

land.”

Therefore, Congress, through legislation, can preempt (i.e., invalidate) state law.

Preemption can be express or implied. Express preemption occurs when Congress enacts a law

that explicitly expresses the legislature’s intent to preempt state law.

Preemption may be implied

in two ways: (1) when Congress intends the federal government to govern exclusively, inferred

from a federal interest that is “so dominant” and federal regulation that is “so pervasive” in a

particular area (called “field preemption”);

or (2) when state law conflicts with federal law so

that it is impossible to comply with both sovereigns’ regulations, or when the state law prevents

the “accomplishment and execution” of Congress’s objectives (called “conflict preemption”).

Accordingly, any preemption analysis of the relationship between a federal statute and a state

measure must be viewed through the lens of congressional intent.

U.S. CONST. art. I., § 8, cl. 4

U.S. CONST. art. I., § 8, cl. 3.

See Arizona, 567 U.S. at 394-95; see also Toll, 458 U.S. at 10 (citing the Naturalization Clause and Commerce

Clause, along with the federal government’s broad authority over foreign affairs, as three of the primary sources for

federal authority to regulate the status of aliens); The Chinese Exclusion Case, 130 U.S. 581, 604 (1889) (identifying

the powers to “declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure

republican governments to the States, and admit subjects of other nations to citizenship” as authorizing Congress to

enact legislation barring certain aliens from admission).

8 U.S.C. §§ 1101-1537.

In some cases, criminal and civil enforcement measures may be relevant to similar activities. For instance, unlawful

entry into the United States is a criminal offense subject to imprisonment. See 8 U.S.C. §§ 1325-1326. But the removal

proceedings that may follow an unlawful entry (or any violation of U.S. immigration laws) are civil in nature, see

Arizona, 567 U.S. at 396, designed “to put an end to a continuing violation of the immigration laws,” rather than “to

punish an unlawful entry,” see INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984).

See ARIZ. S.B. 1070 § 1, amended by H.B. 2162 (2010), http://www.azleg.gov/alispdfs/council/SB1070-

HB2162.PDF.

Arizona, 567 U.S. at 416.

Id. at 394.

U.S. CONST. art. VI, cl. 2.

Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015).

Id. at 1595.

Arizona, 567 U.S. at 399 (internal quotation marks and citations omitted).

Id.

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The Supremacy Clause establishes that lawful assertions of federal authority may preempt state

and local laws, even in areas that are traditionally reserved to the states via the Tenth

Amendment.

One notable power reserved to the states is the “police power” to promote and

regulate public health and safety, the general welfare, and economic activity within a state’s

jurisdiction.

Using their police powers, states and municipalities have frequently enacted

measures that, directly or indirectly, address aliens residing in their communities.

Yet despite the federal government’s sweeping authority over immigration, the Supreme Court

has cautioned that not “every state enactment which in any way deals with aliens is a regulation

of immigration and thus per se preempted” by the federal government’s exclusive power over

immigration.

Accordingly, in Arizona the Supreme Court reiterated that, “[i]n preemption

analysis, courts should assume that the historic police powers of the States are not superseded

unless that was the clear and manifest purpose of Congress.”

For example, in Chamber of

Commerce of the United States v. Whiting, the Supreme Court upheld an Arizona law—related to

the states’ “broad authority under their police powers to regulate the employment relationship to

protect workers within the State”

—that authorized the revocation of licenses held by state

employers that knowingly or intentionally employ unauthorized aliens.

Even though the

Immigration Reform and Control Act of 1986 (IRCA) expressly preempted “any State or local

law imposing civil or criminal sanctions ... upon those who employ, or recruit or refer for a fee for

U.S. CONST. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively, or to the people.”). For example, Congress, acting under its

Commerce Clause power, may displace state and local laws that were enacted under their police powers. See, e.g.,

Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 291-92 (1981) (“The Court long ago rejected the

suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its

authority under the Commerce Clause in a manner that displaces the States’ exercise of their police powers.”).

See, e.g., Bond v. United States, 572 U.S. 844, 854 (2014) (“The States have broad authority to enact legislation for

the public good—what we have often called a ‘police power.’”); Kelley v. Johnson, 425 U.S. 238, 247 (1976) (“The

promotion of safety of persons and property is unquestionably at the core of the State’s police power.”); City of New

Orleans v. Dukes, 427 U.S. 297, 303 (1976) (“States are accorded wide latitude in the regulation of their local

economies under their police powers.”); Western Turf Ass’n v. Greenberg, 204 U.S. 359, 363 (1907) (“Decisions of

this court ... recognize the possession, by each state, of powers never surrendered to the general government; which

powers the state, except as restrained by its own Constitution or the Constitution of the United States, may exert not

only for the public health, the public morals, and the public safety, but for the general or common good, for the well-

being, comfort, and good order of the people.”).

See NAT’L CONFERENCE OF STATE LEGISLATORS, IMMIGRANT POLICY PROJECT, REPORT ON 2015 STATE IMMIGRATION

LAWS [hereinafter NCSL 2015 REPORT], http://www.ncsl.org/research/immigration/report-on-2015-state-immigration-

laws.aspx (discussing state legislation enacted in 2015 concerning non-U.S. citizens).

De Canas v. Bica, 424 U.S. 351, 355 (1976) (holding—before the INA was amended to comprehensively regulate

alien employment and expressly preempt most state sanctions for unauthorized alien employment—that a state law

regulating employment of unauthorized aliens was not preempted by federal law); see also Arizona, 567 U.S. at 407-16

(finding many provisions of an Arizona immigration enforcement law preempted but rejecting facial preemption

challenge to provision requiring police to verify immigration status of lawfully stopped persons who were suspected of

unlawful status); Chamber of Commerce of the United States v. Whiting, 563 U.S. 582 (2011) (holding that federal law

did not preempt an Arizona law that authorized or required the suspension or termination of business licenses for

employers that knowingly or intentionally hired unauthorized aliens); Lopez-Valenzuela v. Cty. of Maricopa, 719 F.3d

1054, 1070-73 (9th Cir. 2013) (upholding Arizona law that barred state courts from setting bail for unlawfully present

aliens charged with certain felonies).

Arizona, 567 U.S. at 400 (internal quotation marks and citations omitted).

Whiting, 563 U.S. at 588 (quoting De Canas, 424 U.S. at 356).

Id. at 611.

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employment, unauthorized aliens,” the Supreme Court concluded that Arizona’s law fit within

IRCA’s savings clause for state licensing regimes and thus was not preempted.

The Anti-Commandeering Doctrine

Although the federal government’s power to preempt state or local activity touching on

immigration matters is extensive, this power is not absolute. The U.S. Constitution establishes a

system of dual sovereignty between the federal government and the states, including by creating a

national legislature with enumerated powers and reserving most other legislative powers to the

states by way of the Tenth Amendment.

The anti-commandeering doctrine derives from this

structural allocation of power, which “withholds from Congress the power to issue orders directly

to the [s]tates”

and prevents Congress from directly compelling states “to enact and enforce a

federal regulatory program.”

Thus, the federal government cannot “issue directives requiring the

[s]tates to address particular problems, nor command the [s]tates’ officers, or those of their

political subdivisions, to administer or enforce a federal regulatory program.”

Several Supreme Court rulings inform the boundaries of the anti-commandeering doctrine. First,

in New York v. United States, the Court reviewed a constitutional challenge to provisions of a

federal law that created a series of incentives for states to dispose of radioactive waste.

The

statute provided states the option of (1) regulating according to Congress’s direction, or (2) taking

title to, and possession of, the low-level radioactive waste generated within their borders and

becoming liable for all damages suffered by waste generators resulting from the state’s failure to

timely do so.

The law, in the Court’s view, gave states a “choice” between two options

concerning their maintenance of radioactive waste disposal, neither of which the Constitution

authorized Congress, on its own, to impose on the states.

By offering this “choice,” Congress

had, in the Court’s view, “crossed the line distinguishing encouragement from coercion,” and in

doing so acted “inconsistent[ly] with the federal structure of our Government established by the

Constitution.”

In so holding, the Court declared that “[t]he Federal Government may not compel

the States to enact or administer a federal regulatory program.”

Then, in Printz v. United States, the Supreme Court reviewed whether certain interim provisions

of the Brady Handgun Violence Prevention Act (Brady Act)

violated the anti-commandeering

doctrine.

The relevant provisions required state and local law enforcement officers to conduct

background checks (and other related tasks) on prospective handgun purchasers.

The Court

8 U.S.C. § 1324(a)(h)(2); Whiting, 563 U.S. at 587.

See generally CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview,

coordinated by Andrew Nolan and Kevin M. Lewis.

Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018).

New York v. United States, 505 U.S. 144, 175, 176-78 (1992).

See Printz v. United States, 521 U.S. 898, 935 (1997).

New York, 505 U.S. at 149-51, 169-77 (discussing the Low-Level Radioactive Waste Policy Amendments Act of

1985, P.L. 99-240, 99 Stat. 1842).

New York, 505 U.S. at 174-175.

Id. at 174-76 (“A choice between two unconstitutionally coercive regulatory techniques is no choice at all.”).

Id. at 177.

Id. at 188 (emphasis added).

P.L. 103-159, 107 Stat. 1536 (1993).

Printz v. United States, 521 U.S. 898 (1997).

Id. at 902-04.

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rejected the government’s position that the challenged Brady provisions—which directed states to

implement federal law—were distinguishable from the law at issue in New York—which directed

states to create a policy—and thus was constitutionally permissible.

Rather, the Court concluded

that a federal mandate requiring state and local law enforcement to perform background checks

on prospective handgun purchasers violated the anti-commandeering doctrine.

Accordingly, the

Court announced that “Congress cannot circumvent” the Constitution’s prohibition against

compelling states to enact or enforce a federal regulatory scheme “by conscripting the State’s

officers directly.”

But not every federal requirement imposed on the states necessarily violates the anti-

commandeering principles identified in Printz and New York. A number of federal statutes

provide that certain information collected by state entities must be reported to federal agencies.

And the Court in Printz expressly declined to consider whether these kinds of requirements were

constitutionally impermissible, distinguishing reporting requirements from the case before it,

which involved “the forced participation of the States ... in the actual administration of a federal

program.”

Additionally, in Reno v. Condon, the Supreme Court unanimously rejected an anti-

commandeering challenge to the Driver’s Privacy Protection Act (DPPA),

which barred states

from disclosing or sharing a driver’s personal information without the driver’s consent, subject to

specific exceptions.

The Court distinguished the DPPA from the federal laws struck down in

New York and Printz because, in the Court’s view, the DPPA sought to regulate states “as owners

of databases” and did not “require the States in their sovereign capacity to regulate their own

citizens ... [or] enact any laws or regulations ... [or] require state officials to assist in the

enforcement of federal statutes regulating private individuals.”

The Court declined to address

the state’s argument that Congress may only regulate the states through generally applicable laws

Id. at 926-30.

Id. at 933.

Id. at 935.

See, e.g., 42 U.S.C. § 5779 (providing that, when a missing child report is submitted to state or local law

enforcement, the agency shall report the case to the National Crime Information Center of the Department of Justice).

For discussion of various federal reporting requirements applicable to states, see Robert A. Mikos, Can States Keep

Secrets from the Federal Government?, 161 U. PA. L. REV. 103 (2012).

Printz, 521 U.S. at 918; see also id. at 936 (O'Connor, J., concurring) (describing the Court as having refrained “from

deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities

pursuant to its Commerce Clause powers are similarly invalid”). For criticism of the distinction made in Printz between

reporting requirements and situations where the federal government directly compels states to administer federal

regulatory programs, see generally Mikos, supra note 60.

18 U.S.C. §§ 2721 to 2725.

Reno v. Condon, 528 U.S. 141, 143-45 & n.1 (2000).

Reno, 528 U.S. at 151.The Court also noted that, even though compliance with the DPPA would require “time and

effort” by state officials, this did not mean that the law violated anti-commandeering principles. Id. at 150. “That a

State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with

federal standards regulating that activity is a commonplace [situation] that presents no constitutional defect.” Id. at 150-

51 (quoting South Carolina v. Baker, 485 U.S. 505, 514-515 (1988) (upholding federal prohibition on states’ issuance

of unregistered bonds in the face of a Tenth Amendment challenge)); see also Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528 (1985) (holding that extending overtime and minimum wage requirements of the Fair Labor

Standards Act to public transit authority did not violate the Tenth Amendment).

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that apply to individuals as well as states, given that the Court deemed the DPPA to be a generally

applicable law.

The Supreme Court recently clarified the scope of the anti-commandeering doctrine in its 2018

ruling, Murphy v. National Collegiate Athletic Association.

Murphy involved a challenge under

the anti-commandeering doctrine to the Professional and Amateur Sports Protection Act (PASPA),

which, as relevant here, prohibited states from “authorizing” sports gambling “by law.”

(This is

sometimes referred to as PASPA’s “anti-authorization” provision.

) In 2012—20 years after

PASPA’s enactment—New Jersey eliminated its constitutional ban on sports gambling and then,

two years later, repealed state laws that prohibited certain sports gambling.

Invoking PASPA’s

civil-suit provision, several sports leagues sued to enjoin New Jersey from enforcing its new law,

arguing that it violated PASPA.

The Third Circuit Court of Appeals, sitting en banc, agreed.

Further, the Third Circuit rejected New Jersey’s counterargument that PASPA unlawfully

commandeered state legislatures.

The Supreme Court concluded otherwise, holding that PASPA’s anti-authorization provision

violated the anti-commandeering doctrine.

The sports leagues (and the United States, which

appeared as amicus curiae) had argued that under the anti-commandeering doctrine, Congress

cannot compel states to enact certain measures, but it can prohibit states from enacting new laws,

as PASPA does.

The Court described this distinction as “empty,” emphasizing that “[t]he basic

principle—that Congress cannot issue direct orders to state legislatures—applies in either

event.”

Further, the Court elucidated two situations in which the anti-commandeering doctrine is

not implicated. First, the doctrine does not apply “when Congress evenhandedly regulates an

activity in which both States and private actors engage” (as the Court characterized the situation

in Reno).

Second, the federal government does not commandeer states when it enacts a scheme

involving “cooperative federalism,” in which a state is given a choice either to implement, on its

own, a federal program, or opt-out and yield to the federal government’s administration of that

program.

Finally, the Court rejected the sports leagues and the government’s contention that PASPA validly

preempts state and local gambling laws.

The Court announced that “regardless of the language

sometimes used by Congress and this Court, every form of preemption is based on a federal law

Reno, 528 U.S. at 151.

138 S. Ct. 1461 (2018).

Professional and Amateur Sports Protection Act, P.L. 102-559, 106 Stat. 4227 (Oct. 28, 1992); Murphy, 138 S Ct. at

1468.

See Murphy, 138 S. Ct. at 1473.

Id. at 1471-72. The law does not permit placing bets on a New Jersey college team of a college event taking place in

New Jersey. 2014 N.J. Laws p. 602.

Murphy, 138 S. Ct. at 1471-72; 28 U.S.C. § 3703.

NCAA v. Governor of N.J., 832 F.3d 389, 395-98 (3d Cir. 2016).

Id. at 398-402.

Murphy, 138 S. Ct. at 1478.

Id. The sports leagues and the United States also unsuccessfully argued that the anti-authorization provision was a

valid preemption provision under the Constitution’s Supremacy Clause. See id. at 1479.

Id. at 1478.

Id. at 1478-79.

Id. at 1479 (relying on Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981)).

Id. at 1479-81.

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that regulates the conduct of private actors, not the States.”

But PASPA neither imposes federal

restrictions, nor confers federal rights, on private actors, and so, the Court concluded, PASPA can

be construed only as a law that regulates state actors and not as a valid preemption provision.

Congress’s Spending Powers and the Anti-Commandeering Doctrine

Congress does not violate the Tenth Amendment or anti-commandeering principles more

generally when it uses its broad authority to enact legislation for the “general welfare” through its

spending power,

including by placing conditions on funds distributed to the states that require

those accepting the funds to take certain actions that Congress otherwise could not directly

compel the states to perform.

However, Congress cannot impose a financial condition that is “so

coercive as to pass the point at which ‘pressure turns into compulsion.’”

For example, in

National Federation of Independent Business v. Sebelius, the Supreme Court struck down a

provision of the Patient Protection and Affordable Care Act of 2010 (ACA) that purported to

withhold Medicaid funding to states that did not expand their Medicaid programs.

The Court

found that the financial conditions placed on the states in the ACA (withholding all federal

Medicaid funding, which, according to the Court, typically totals about 20% of a state’s entire

budget) were akin to “a gun to the head” and thus unlawfully coercive.

Select State and Local Limitations

on Immigration Enforcement Activity

Several states and municipalities have adopted measures intended to limit their participation in

federal immigration enforcement efforts. These limitations take several forms.

For example,

some states and localities have sought to restrict police cooperation with federal immigration

Id. at 1481 (emphasis added).

Id.

See U.S. CONST. art. I, § 8, cl. 1 (“The Congress shall have power to lay and collect taxes, duties, imposts and

excises, to pay debts and provide for the common defense and general welfare of the United States.”); Agency for Int’l

Dev. v. All. for Open Society Int’l, Inc., 570 U.S. 205, 213 (2013) (noting that the Spending Clause “provides Congress

broad discretion to tax and spend for the ‘general Welfare,’ including by funding particular state or private programs or

activities”); Nat’l Fed’n of Indep. Bus. v. Sebelius [NFIB], 567 U.S. 519, 579 (2012) (“Congress may attach

appropriate conditions to federal taxing and spending programs to preserve its control over the use of federal funds.”);

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (“Congress has broad power to set the

terms on which it disburses federal money to the States.”); Sabri v. United States, 541 U.S. 600, 605 (1941) (“Congress

has authority under the Spending Clause to appropriate federal moneys to promote the general welfare.”).

See NFIB, 657 U.S. at 536 (“[I]n exercising its spending power, Congress may offer funds to the States, and may

condition those offers on compliance with specified conditions,” which “may well induce the state to adopt policies that

the federal Government itself could not impose”); see also South Dakota v. Dole, 483 U.S. 203, 201-11 (1987).

See Dole, 483 U.S. at 211 (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937)).

NFIB, 567 U.S. at 588.

NFIB, 132 S. Ct. at 2604.

See, e.g., Tal Kopan, What are Sanctuary Cities, & Can They be Defunded?, CNN POLITICS (Jan. 25, 2017, 5:09

PM), http://www.cnn.com/2017/01/25/politics/sanctuary-cities-explained/; IMMIGRANT LEGAL RESOURCE CTR.,

SEARCHING FOR SANCTUARY: AN ANALYSIS OF AMERICA’S COUNTIES & THEIR VOLUNTARY ASSISTANCE WITH

DEPORTATIONS (Dec. 2016), https://www.ilrc.org/sites/default/files/resources/sanctuary_report_final_1-min.pdf; NAT’L

COUNCIL OF STATE LEGISLATURES, WHAT’S A SANCTUARY POLICY? FAQ ON FEDERAL, STATE, AND LOCAL ACTION ON

IMMIGRATION ENFORCEMENT (July 28, 2017), http://www.ncsl.org/research/immigration/sanctuary-policy-

faq635991795.aspx; NCSL 2015 REPORT, supra note 39; CTR. FOR IMMIGRATION STUDIES, Maps: Sanctuary Cities,

Counties and State (last updated May 30, 2018), http://cis.org/Sanctuary-Cities-Map.

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authorities’ efforts to apprehend removable aliens, sometimes called “don’t enforce” policies.

Other measures may restrict certain state officials from inquiring about a person’s immigration

status, sometimes referred to as “don’t ask” policies.

Still others restrict information sharing

between local law enforcement and federal immigration authorities, sometimes described as

“don’t tell” policies.

The following sections discuss some state and local restrictions on law

enforcement activity in the field of immigration enforcement along those lines, including the

relationship between these restrictions and federal law.

Limiting Arrests for Federal Immigration Violations

Violations of federal immigration law may be criminal or civil in nature. Removal proceedings

are civil,

although some conduct that makes an alien removable may also warrant criminal

prosecution.

For example, an alien who knowingly enters the United States without

authorization is not only potentially removable,

but could also be charged with the criminal

offense of unlawful entry.

Other violations of the INA are exclusively criminal or civil in nature.

Notably, an alien’s unauthorized immigration status makes him or her removable but, absent

additional factors (e.g., having reentered the United States after being formally removed),

unlawful presence on its own is not a criminal offense.

Some jurisdictions have adopted measures that restrict its police officers from making arrests for

violations of federal immigration law. In some jurisdictions restrictions prohibit police from

detaining or arresting aliens for civil violations of federal immigration law, like unlawful

presence.

Other jurisdictions prohibit police from making arrests for some criminal violations of

federal immigration law, like unlawful entry.

Still others prohibit law enforcement from

assisting federal immigration authorities with investigating or arresting persons for civil or

criminal violations of U.S. immigration laws.

And some other jurisdictions have prohibitions

See, e.g., JESSICA SAUNDERS, NELSON LIM & DON PROSNITZ, ENFORCING IMMIGRATION LAW AT THE STATE AND LOCAL

LEVELS: A PUBLIC POLICY DILEMMA, RAND CTR. OF QUALITY POLICING (2010),

https://www.rand.org/content/dam/rand/pubs/occasional_papers/2010/RAND_OP273.pdf (describing types of limited-

cooperation policies); Kittrie, supra note 16, at 1455.

Kittrie, supra note 16, at 1455.

See id.

See Padilla v. Kentucky, 559 U.S. 356, 365 (2010); INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984).

For more information on criminal grounds for removal, see CRS Report R45151, Immigration Consequences of

Criminal Activity, by Sarah Herman Peck and Hillel R. Smith.

See INA § 212(a)(6)(A)(i); 8 U.S.C. §1182(a)(6)(A)(i) (providing that an alien is inadmissible and subject to removal

if present in the United States without have been admitted or paroled, or if the alien arrives in the United States at any

time or place other than as designated).

8 U.S.C. § 1325.

8 U.S.C. § 1326.

See, e.g., SAN JOSE, CA, POLICE DEP’T DUTY MANUAL 581 (2018) (public version) (“Officers will not detain or arrest

any person on the basis of the person’s citizenship or status under civil immigration laws.”), http://www.sjpd.org/

Records/DutyManual.asp; Washington, DC, Mayor’s Order 2011-174 (Oct. 19, 2011) (hereinafter “DC Mayor’s

Order”) (“No person shall be detained solely on the belief that he or she is not present legally in the United States or

that he or she has committed a civil immigration violation.”), http://www.dclc.org/docs/10-18-

2011%20Mayors%20oder.pdf; OR. REV. STAT. §181A.820 (“No law enforcement agency of the State of Oregon or of

any political subdivision of the state shall use agency moneys, equipment or personnel for the purpose of detecting or

apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United

States in violation of federal immigration laws.”).

See, e.g., LAPD ORDER, supra note 12 (barring arrests for federal crime of unlawful entry).

TAKOMA PARK, MD MUN. CODE § 9.04.010 (“No agent, officer or employee of the City, in the performance of

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that are broader in scope, such as a general statement that immigration enforcement is the

province of federal immigration authorities, rather than that of local law enforcement.

State or local restrictions on police authority to arrest persons for federal immigration law

violations do not appear to raise significant legal issues. Even though the INA expressly allows

state and local law enforcement to engage in specified immigration enforcement activities,

nothing in the INA compels such participation. Indeed, any such requirement likely would raise

anti-commandeering issues.

100

Moreover, after Arizona, it appears that states and localities are

generally preempted from making arrests for civil violations of the INA in the absence of a

specific federal statutory authorization or the “request, approval, or other instruction from the

Federal Government.”

101

Limiting Police Inquiries into Immigration Status

Many sanctuary-type policies place restrictions on police inquiries or investigations into a

person’s immigration status.

102

Some policies provide that police may not question a person about

his or her immigration status except as part of a criminal investigation.

103

Others bar law

enforcement from initiating police activity with an individual for the sole purpose of discovering

official duties, shall assist the United States Bureau of Immigration and Customs Enforcement in the investigation or

arrest of any persons for civil or criminal violation of the immigration and nationality laws of the United States.”).

PHOENIX, AZ POLICE DEP’T OPERATIONS ORDER MANUAL 1.4 (rev. 2015) (“The investigation and enforcement of

federal laws relating to illegal entry and residence in the United States is specifically assigned to [Homeland Security

Investigations]”), https://www.phoenix.gov/policesite/Documents/operations_orders.pdf.

See e.g., INA § 287(g); 8 U.S.C. § 1357(g).

100

See supra section “The Anti-Commandeering Doctrine.”

101

Arizona v. United States, 567 U.S. 387, 410 (2012); see also Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d

451, 464 (4th Cir. 2013) (“Lower federal courts have universally—and we think correctly—interpreted Arizona v.

United States as precluding local law enforcement officers from arresting individuals solely based on known or

suspected civil immigration violations.”). Arizona’s discussion of state authority to enforce federal immigration law

was related to arrests for non-criminal, immigration status violations. Arizona, 567 U.S. at 407-11. The Supreme Court

did not opine on whether state law enforcement agencies are also precluded from making arrests for criminal violations

of federal immigration law. However, some lower courts have generally recognized that state and local police are not

constitutionally forbidden from making such arrests. See, e.g., United States v. Argueta-Mejia, 615 F. App’x 485, 488

(10th Cir. 2015) (“The federal constitution allows a state law enforcement officer to make an arrest for any crime,

including federal immigration offenses.”); Villas at Parkside Partners v. City of Farmers Branch, Tex., 726 F.3d 524,

530-31 (5th Cir. 2013) (observing that 8 U.S.C. § 1324(c), a federal statute that criminalizes harboring unlawfully

present aliens, permits state and local law enforcement to make arrests for criminal violations); Gonzales v. City of

Peoria, 722 F.2d 468, (9th Cir. 1983) (“We therefore hold that federal law does not preclude local enforcement of the

criminal provisions of the [Immigration and Nationality] Act.”), overruled on other grounds in Hodgers-Durgin v. de la

Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999); United States v. Vasquez-Alvarez, 176 F.3d 1294, 1299 n.4 (10th Cir.

1999) (“[S]tate law-enforcement officers have the general authority to investigate and make arrests for criminal

violations of federal immigration laws.”).

102

See, e.g., City of Philadelphia Action Guide: Immigration Policies, CITY OF PHILADELPHIA (Jan. 8, 2018),

https://www.phila.gov/2018-01-08-immigration-policies/ (“We do not allow our City employees, including police

officers, to ask about the documentation status of people they encounter.”); Christina M. Rodriguez, The Significance of

the Local in Immigration Regulation, 106 MICH. L. REV. 567, 602 (2008) (describing New York City’s sanctuary

policies).

103

DC Mayor’s Order, supra note 95 (declaring that public safety employees “shall not inquire about a person’s

immigration status ... for the purpose of initiating civil enforcement of immigration proceedings that have no nexus to a

criminal investigation”); N.Y.C. Exec Order No. 34, http://www1.nyc.gov/site/immigrants/about/local-laws-executive-

orders.page (“Law enforcement officers shall not inquire about a person’s immigration status unless investigating

illegal activity other than mere status as an undocumented alien.”).

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immigration status.

104

And other policies prohibit law enforcement from questioning crime

victims and witnesses about their immigration status.

105

Still other policies more broadly limit

officials from gathering information about persons’ immigration status, except as required by

law.

106

Restricting the authority of police to question a person about his or her immigration status helps

ensure that law enforcement lacks any information that could be shared with federal immigration

authorities. As explained in the “PRWORA and IIRIRA” section below, two federal laws prevent

state or local restrictions on sharing information about a person’s immigration status with federal

immigration authorities, but the provisions do not require state or local police to actually collect

such information.

107

Murphy has raised questions, though, about the continuing constitutional

viability of these statutes.

108

Limiting Information Sharing with Federal Immigration

Authorities

Some states and localities have restricted government agencies or employees from sharing

information with federal immigration authorities.

109

For instance, some jurisdictions prohibit law

enforcement from notifying federal immigration authorities about the release status of

incarcerated aliens, unless the alien has been convicted of certain felonies.

110

Similarly, other

jurisdictions prohibit their employees from disclosing information about an individual’s

immigration status unless the alien is suspected of engaging in illegal activity that is separate

from unlawful immigration status.

111

Some jurisdictions restrict disclosing information except as

104

See, e.g., LAPD ORDER, supra note 12 (“Officers shall not initiate police action with the objective of discovering the

alien status of a person.”).

105

See, e.g., DC Mayor’s Order, supra note 92 (“It shall be the policy of Public Safety Agencies not to inquire about

the immigration status of crime victims, witnesses, or others who call or approach the police seeking assistance.”); New

Haven Dep’t of Police Service General Order 06-2 (2006) (“Police officers shall not inquire about a person’s

immigration status unless investigation criminal activity.”), https://www.newhavenct.gov/gov/depts/nhpd/division/

internal_affairs/general_orders.htminternal_affairs/general_orders.htm; N.Y.C. Exec Order No. 34, supra note 103 (“It

shall be the policy of the Police Department not to inquire about the immigration status of crime victims, witnesses, or

others who call or approach the police seeking assistance.”).

106

See, e.g., CHI., ILL. MUN. CODE ch. 2-173-020 (declaring that “[n]o agent or agency shall request information about

or otherwise investigate or assist in the investigation of the citizenship or immigration status of any person,” subject to

exceptions, including as required by law).

107

See 8 U.S.C. §1373(b) (barring state or local restrictions on sending, maintaining, or exchanging immigration status

information with federal immigration authorities).

108

See supra notes 62 to 72 and accompanying text.

109

See, e.g., S.F. ADMIN CODE § 12H.2 (“No department, agency, commission, officer, or employee of the City and

County of San Francisco shall use City funds or resources to assist in the enforcement of Federal immigration law or to

gather or disseminate information regarding release status of individuals or any such personal information . . . unless

such assistance is required by Federal or State statute, regulation, or court decision.”); N.Y.C. Executive Order 124

(Aug. 7, 1989) [hereinafter 1989 New York City Order] (limiting transmission of information about an alien to federal

immigration authorities except in certain circumstances, including when the alien was suspected of criminal activity),

http://www.nycourts.gov/library/queens/PDF_files/Orders/ord124.pdf (revoked and replaced in 2003 by N.Y.C.

Executive Order 34, as amended by N.Y.C. Executive Order 41, to permit information sharing in a broader range of

circumstances, but not on the basis of alien’s unlawful immigration status); Governor of Maine Executive Order 13 FY

04/05, Concerning Access to State Services By All Entitled Maine Residents (Apr. 9, 2004) (limiting the sharing of

information about aliens with federal immigration authorities, except when an alien is involved in illegal activity other

than unlawful status; rescinded by Exec. Order 08 FY 11/12 (Jan. 6, 2011)).

110

See, e.g., S.F. ADMIN CODE §§ 12H.2, 12I.3.

111

See, e.g., N.Y.C. Exec Order No. 41 (Sept. 17, 2003), http://www1.nyc.gov/site/immigrants/about/local-laws-

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required by federal law

112

—sometimes referred to as a “savings clause”—although it appears that

the Department of Justice has interpreted those provisions as conflicting with federal information-

sharing provisions.

113

Federal Measures to Counteract Sanctuary Policies

Over the years the federal government has enacted measures designed to counter certain

sanctuary policies. Notably, in 1996 Congress enacted Section 434 of the Personal Responsibility

and Work Opportunity Reconciliation Act (PRWORA), and Section 642 of the Illegal

Immigration Reform and Immigrant Responsibility Act (IIRIRA), to curb state and local

restrictions on information sharing. Most recently, the President issued Executive Order 13768,

“Enhancing Public Safety in the Interior of the United States,” which, as relevant here, seeks to

encourage state and local cooperation with federal immigration enforcement and disincentivize

state and local adoption of sanctuary policies that hinder federal immigration enforcement. These

federal initiatives—and related legal issues—are described below.

PRWORA and IIRIRA

In 1996 Congress sought to end state and local restrictions on information sharing through

provisions in PRWORA

114

and IIRIRA.

115

Neither PRWORA nor IIRIRA requires state or local

government entities to share immigration-related information with federal authorities.

116

Instead,

these provisions bar restrictions that prevent state or local government entities or officials from

voluntarily communicating with federal immigration authorities regarding a person’s immigration

status.

117

IIRIRA § 642, codified at 8 U.S.C. § 1373, bars any restriction on a federal, state, or local

governmental entity or official’s ability to send or receive information regarding “citizenship or

immigration status” to or from federal immigration authorities.

118

It further provides that no

person or agency may prohibit a federal, state, or local government entity from (1) sending

information regarding immigration status to, or requesting information from, federal immigration

authorities; (2) maintaining information regarding immigration status; or (3) exchanging such

information with any other federal, state, or local government entity.

119

PRWORA § 434, codified

executive-orders.page.

112

CHI., ILL. MUN. CODE ch. 2-173-030 (“Except as otherwise provided under applicable federal law, no agent or

agency shall disclose information regarding the citizenship or immigration status of any person unless required to do so

by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains,

or if such individual is a minor or is otherwise not legally competent, by such individual’s parent or guardian.”).

113

See MICHAEL R. HOROWITZ, INSPECTOR GENERAL, DEP’T OF JUSTICE REFERRAL OF ALLEGATIONS OF POTENTIAL

VIOLATIONS OF 8 U.S.C. § 1373 BY GRANT RECIPIENTS (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf.

114

P.L. 104-193, § 434 (1996); 8 U.S.C. § 1644.

115

P.L. 104-208, § 642 (1996); 8 U.S.C. § 1373.

116

Whether Congress could permissibly require states and localities to submit collected information to federal

immigration authorities is an open question. As previously noted, the Supreme Court in Printz distinguished federal

laws requiring states to report certain information to federal agencies from those that compel state authorities to

administer a federal regulatory program as to private parties, and declined to opine on whether reporting requirements

violated the anti-commandeering doctrine. See Printz v. United States, 521 U.S. 898, 918 (1997).

117

8 U.S.C. §§ 1373, 1644.

118

8 U.S.C. § 1373(a).

119

Id. § 1373(b). Federal immigration authorities are also required to respond to immigration status or citizenship

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at 8 U.S.C. § 1644, similarly bars state and local governments from prohibiting or restricting state

or local government entities from sending or receiving information, to or from federal

immigration authorities, regarding the “immigration status” of an individual.

120

Related Litigation

Shortly after Congress enacted these information-sharing restrictions, New York City, which had

a policy limiting information sharing with federal immigration authorities,

121

brought suit

challenging the constitutionality of Sections 1373 and 1644. Among other things,

122

New York

City alleged that the provisions facially violated the Tenth Amendment by barring states and

localities from controlling the degree to which their officials may cooperate with federal

immigration authorities.

123

A federal district court dismissed this claim in City of New York v.

United States,

124

and the U.S. Court of Appeals for the Second Circuit affirmed the judgment.

125

The Second Circuit observed that, unlike the statutes struck down on anti-commandeering

grounds in New York and Printz, the information-sharing provisions in PRWORA and IIRIRA did

not directly compel state authorities to administer and enforce a federal regulatory program.

126

Instead, the court reasoned, these provisions prohibited state and local governments from

restricting “the voluntary exchange” of immigration information between federal and state

authorities.

127

Further, the court added, “informed, extensive, and cooperative interaction of a

voluntary nature” between states and federal authorities is an integral feature of the American

system of dual sovereignty, and, in any event, the Supremacy Clause “bars states from taking

actions that frustrate federal laws and regulatory schemes.”

128

Accordingly, the Second Circuit

concluded that the Tenth Amendment does not provide states and municipalities with the

“untrammeled right to forbid all voluntary cooperation by state or local officials with particular

federal programs.”

129

The court therefore rejected New York City’s constitutional challenge to the

information-sharing provisions of PRWORA and IIRIRA, holding that that they did not violate

the Tenth Amendment or principles of federalism.

130

New York City sought to appeal the decision to the Supreme Court, but its petition for certiorari

was denied.

131

A few months later, though, the Court handed down Reno, which, as explained

verification requests made by state or local authorities pertaining to persons within their jurisdiction. Id. § 1373(c).

120

Id. § 1644.

121

1989 New York City Order, supra note 109.

122

New York City also unsuccessfully argued that the information-sharing provisions in PRWORA and IIRIRA

violated the Guarantee Clause of the Constitution, U.S. CONST. art. IV, § 4, by interfering with the city’s oversight of its

employees, City of New York v. United States [City of New York I], 971 F. Supp. 789 (S.D.N.Y. 1997) (holding that

Guarantee-Clause claim was nonjusticiable); City of New York v. United States [City of New York II], 179 F.3d 29 (2d

Cir. 1999) (assuming that Guarantee-Clause claim was justiciable and concluding that PRWORA and IIRIRA

information-sharing provisions were permissible).

123

City of New York I, 971 F. Supp. at 791.

124

Id. at 789.

125

City of New York II, 179 F.3d 29 (2d Cir. 1999).

126

See id. at 34-35.

127

Id. at 35.

128

Id.

129

Id.

130

Id. at 31.

131

528 U.S. 1115 (2000).

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earlier, held that the DPPA (a federal statute regulating the dissemination of certain personal

information collected by state authorities) did not violate federalism principles embodied in the

Tenth Amendment.

132

Since the Second Circuit’s ruling, questions about Section 1373’s constitutionality remained

relatively quiet until President Trump issued the executive order targeting jurisdictions that do not

comply with Section 1373. This sparked new litigation challenging Section 1373, some of which

invoked Murphy after the ruling came down.

Executive Order 13768 and Related Litigation

Shortly after taking office, President Trump issued Executive Order (EO) 13768, “Enhancing

Public Safety in the Interior of the United States,”

133

which, in Section 9, addresses sanctuary

jurisdictions. Specifically, Section 9(a) of the EO seeks to encourage state and local cooperation

with federal immigration enforcement and disincentivize—by threatening to withhold federal

grant money—state and local adoption of sanctuary policies.

134

Although EO 13768 did not

explicitly define “sanctuary jurisdiction,” later interpretive guidance from the Department of

Justice (DOJ or Justice Department) defined the term, as it is used in the executive order, as a

jurisdiction that willfully refuses to comply with 8 U.S.C. § 1373 (IIRIRA § 642).

135

This section discusses recent litigation concerning efforts by the Trump Administration to deter

the implementation of state or local “sanctuary” policies. It begins by providing a brief

description of Section 9(a) of EO 13768 and the DOJ’s implementation of its requirements. Next,

it discusses ongoing litigation involving challenges to Section 9(a). Several of these cases involve

direct challenges to the executive order. Other lawsuits involve challenges to the Justice

Department’s decision, in implementing the executive order, to attach new conditions for grant

eligibility under the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) program and

Community Oriented Policing Services (COPS) program,

136

all of which are designed to

encourage state and local law enforcement cooperation with federal immigration enforcement.

Finally, this section discusses a lawsuit filed by the United States against California, claiming that

three new state laws obstruct the federal government’s immigration enforcement efforts and, as a

result, violate the Constitution’s Supremacy Clause.

137

Section 9 of Executive Order 13768

On January 25, 2017, the President signed EO 13768, “Enhancing Public Safety in the Interior of

the United States.”

138

Section 9 of the executive order seeks to encourage state and local

132

528 U.S. 141 (2000).

133

Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017).

134

Id.

135

Memorandum from Att’y Gen. Jeff Sessions, Implementation of Executive Order 13768, “Enhancing Pub. Safety in

the Interior of the U.S.” (May 22, 2017) [hereinafter DOJ Implementation Memo], https://www.justice.gov/opa/press-

release/file/968146/download.

136

See Dep’t of Justice, Office of Justice Programs, Edward Byrne Memorial Justice Assistance Grant Program,

https://www.bja.gov/jag/ (last visited Nov. 7, 2018); CRS In Focus IF10691, The Edward Byrne Memorial Justice

Assistance Grant (JAG) Program, by Nathan James.

137

“This Constitution, and the laws of the United States . . . shall be the supreme Law of the Land . . . .” U.S. CONST.

art. VI.

138

Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017).

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cooperation with federal immigration enforcement and disincentivize state and local adoption of

sanctuary policies.

139

In particular, Section 9 declares that “[i]t is the policy of the executive

branch to ensure, to the fullest extent of the law, that a State, or political subdivision of a State,

shall comply with 8 U.S.C. 1373.”

140

To implement the policy set forth in the executive order, the President instructs the Attorney

General and the Secretary of the Department of Homeland Security (DHS) under Section 9(a) to

ensure that jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373 (sanctuary

jurisdictions) are not eligible to receive Federal grants,” subject to limited exception.

141

The

executive order authorizes the DHS Secretary to designate a jurisdiction she determines to be a

“sanctuary,” and directs the Attorney General to take “appropriate enforcement actions” against

“any entity” that violates Section 1373 or that “has in effect a statute, policy, or practice that

prevents or hinders the enforcement of Federal law.”

142

Under Section 9(b), the President directs

the DHS Secretary to publish, weekly, a list of jurisdictions that ignore or fail to honor detainer

requests for incarcerated aliens, “[t]o better inform the public regarding the public safety threats

associated with sanctuary jurisdictions.”

143

DOJ Implementation of EO 13768

A few months later, on May 22, 2017, Attorney General Sessions issued a memorandum

interpreting EO 13768.

144

First, he announced that “sanctuary jurisdictions,” for the purposes of

enforcing the executive order, are “jurisdictions that ‘willfully refuse to comply with 8 U.S.C.

1373.’”

145

Further, the Attorney General stated that the executive order applies only to grants that

the DOJ or DHS administer. As a result, the Attorney General announced that the DOJ would

“require jurisdictions applying for certain Department grants to certify their compliance with

federal law, including 8 U.S.C. § 1373, as a condition for receiving an award.”

146

In addition, the

certification requirement would apply to all existing grants administered by the DOJ’s Office of

Justice Programs and Office of Community Oriented Policing Services (COPS) that expressly

contain the certification condition, and to future grants for which the DOJ has statutory authority

to impose such conditions.

147

Further, the Attorney General added that “[s]eparate and apart from

the Executive Order, statutes may authorize the Department to tailor grants or to impose

additional conditions on grantees to advance the Department’s law enforcement priorities.”

148

Accordingly, “[g]oing forward,” the Attorney General announced, “the Department, where

authorized, may seek to tailor grants to promote a lawful system of immigration.”

149

As a follow up to that interpretive memorandum, two months later on July 25, 2017, the DOJ

issued a press release and accompanying background document announcing new conditions for

139

Id. at 8,801.

140

Id.

141

Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017).

142

Id.

143

Id.

144

DOJ Implementation Memo, supra note 135; 8 U.S.C. § 1373.

145

Id. (quoting Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017)).

146

Id.

147

Id.

148

Id.

149

Id.

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recipients of the Byrne JAG program.

150

The Byrne JAG program provides federal funds to the

states, District of Columbia, Puerto Rico, and other territories for various nonfederal criminal

justice initiatives.

151

The press release announced three new conditions:

1. Compliance Condition.

152

Byrne JAG program grant recipients must certify

compliance with Section 1373, which would notify the federal government that

the jurisdiction does not restrict its offices and personnel from sending or

receiving citizenship or immigration status to or from federal immigration

authorities.

153

2. Access Condition. Grant recipients that have detention facilities housing aliens

(e.g., local jails or state prisons where aliens may be confined) must permit DHS

immigration enforcement personnel (i.e., enforcement officers with DHS’s U.S.

Immigration and Customs Enforcement [ICE]) to access those facilities to meet

with housed aliens and inquire into their eligibility to remain in the country.

3. Notice Condition. When DHS believes that an alien in state or local custody is

removable from the United States for a violation of federal immigration law, ICE

officers may issue a “detainer” requesting that the state or local entity give notice

of the alien’s pending release from custody so that ICE may take control of the

alien for possible removal proceedings.

154

To be eligible for grants under the

Byrne JAG program, DOJ announced that recipients generally must give DHS 48

hours’ advance notice before releasing from custody an alien wanted for

removal.

155

These requirements were made applicable to Byrne JAG applications that were due six weeks

later, on September 5, 2017, meaning that applying jurisdictions would need to be in compliance

with all three conditions within six weeks.

Additionally, the Justice Department announced a requirement for applicants seeking grants

administered by the COPS Office to certify compliance with Section 1373.

156

COPS grants are

used to advance community policing, for example, through training, technical assistance, and

developing “innovative policing strategies”

157

in a number of “topic areas” selected by the

DOJ.

158

For FY2018, in the topic area for “Field Initiated Law Enforcement,” priority

150

Press Release, Dep’t of Justice, Attorney General Sessions Announces Immigration Compliance Requirements for

Edward Byrne Memorial Justice Assistance Grant Programs (July 25, 2017), https://www.justice.gov/opa/pr/attorney-

general-sessions-announces-immigration-compliance-requirements-edward-byrne-memorial.

151

See CRS In Focus IF10691, The Edward Byrne Memorial Justice Assistance Grant (JAG) Program, by Nathan

James.

152

For the sake of brevity and clarity, throughout the memorandum the conditions will be referred to as the

“compliance condition,” the “access condition,” and the “notice condition.”

153

8 U.S.C. § 1373(a). In March 2016, the DOJ had previously notified grant recipients under the Byrne JAG program

that they had an obligation to comply with Section 1373, but the agency did not establish a formal certification

requirement. See Dep’t of Justice, Backgrounder on Grant Requirements (attached to July 25, 2017 press release)

https://www.justice.gov/opa/press-release/file/984346/download [hereinafter Grant Requirement Backgrounder].

154

U.S. Immigration & Customs Enforcement, Detainer Policy, https://www.ice.gov/detainer-policy (last visited Nov.

8, 2018).

155

Grant Requirement Backgrounder, supra note 153.

156

See Dep’t of Justice, Office of Community Oriented Policing Services, Certification of Compliance with 8 U.S.C.

1373, https://cops.usdoj.gov/pdf/2017AwardDocs/cpd/Certification_of_Compliance.pdf.

157

See Dep’t of Justice, Grants, https://www.justice.gov/grants (last visited Nov. 8, 2018).

158

See U.S. DEP’T OF JUSTICE, OFFICE OF COMMUNITY ORIENTED POLICING SERVICES, FY 2018 COMMUNITY POLICING

DEVELOPMENT (CPD) APPLICATION GUIDE 2, 67, https://cops.usdoj.gov/pdf/2018AwardDocs/cpd/App_Guide.pdf

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consideration could be given to applicants that cooperate with federal immigration authorities “to

address illegal immigration.”

159

Further, the COPS Office notified potential applicants that

additional consideration would be given to applicants that partner with federal law enforcement to

combat illegal immigration.

160

To obtain that special consideration, applicants could sign a form

certifying that they follow practices mirroring those of the notice and access conditions of Byrne

JAG program: (1) allowing federal immigration authorities to access detention facilities where

they may question known or suspected aliens about their immigration status; and (2) providing at

least 48 hours’ notice of those persons’ expected custodial release.

161

Litigation Challenging EO 13768 and its Implementation

The lawsuits challenging Section 9(a) of EO 13768 and its implementation came in two waves.

The first wave came shortly after President Trump signed the executive order, when several

jurisdictions sued for injunctive relief. The second, larger wave of litigation came after the DOJ

announced the new Byrne JAG and COPS conditions. In the litigation challenging the EO’s

implementation, the various challengers have brought arguments raising similar statutory and

constitutional concerns, chiefly:

 the DOJ lacked statutory authority to impose the new conditions;

 the DOJ imposed the conditions arbitrarily and capriciously in violation of the

Administrative Procedure Act;

 the executive branch violated principles of separation of powers by usurping the

legislature’s spending power; and

 the government violated the anti-commandeering doctrine by unconstitutionally

conscripting the states into federal immigration enforcement.

The County and City of San Francisco and the County of Santa Clara (collectively, the

“Counties”), for example, filed suit within days of each other, and those lawsuits were considered

jointly by a district judge in the Northern District of California.

162

The district court presiding

over the Counties’ challenges ultimately issued an injunction blocking nationwide enforcement of

Section 9(a).

163

The Ninth Circuit agreed with the lower court that Section 9(a) violates the

Constitution’s principles of separation of powers.

164

However, while agreeing that the injunction

was appropriate to prevent Section 9(a) from having effect in California, the appellate court

concluded that the current factual record was insufficient to support a nationwide injunction and

remanded the case to the district court for further factfinding.

165

(2018) (listing topic areas).

159

See id. at 2, 67. Application solicitations for the Field-Initiated Law Enforcement Microgrants topic area is currently

on hold, however, on account of ongoing litigation. Id. at 2; see also U.S. DEP’T OF JUSTICE, Community Policing

Development (CPD), https://cops.usdoj.gov/cpd (last visited Nov. 8, 2018).

160

See City of Los Angeles v. Sessions, 293 F. Supp. 3d 1087, 1093 (C.D. Cal. 2018).

161

Id.

162

Complaint, City & Cty. Of San Francisco v. Trump, No. 3:17-cv-00485-WHO (N.D. Cal. Jan. 31, 2017); Complaint,

Cty. of Santa Clara v. Trump, No. 3:17-cv-00574-WHO, (N.D. Cal. Feb. 3, 2017).

163

Order Granting Motion for Summary Judgment, City & Cty. of San Francisco v. Trump, No. 3:17-cv-00485-WHO

& Cty. Of Santa Clara v. Trump, No. 17-cv-00574-WHO (N.D. Cal. Nov. 20, 2017).

164

City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1231-35 (9th Cir. 2018).

165

Id. at 1245.

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As for the litigation challenging new Byrne JAG and COPS conditions, in one case, the U.S.

District Court of the Northern District of Illinois enjoined the Byrne JAG conditions as applied to

Chicago.

166

The court held that, in imposing those conditions, the DOJ exceeded the statutory

authority Congress delegated to implement the Byrne JAG program.

167

In another case, the U.S.

District Court for the Eastern District of Pennsylvania enjoined the federal government from

enforcing the three Byrne JAG conditions against Philadelphia.

168

The district court concluded,

among other things, that the conditions were imposed arbitrarily and capriciously in violation of

the Administrative Procedure Act (APA) because the government had failed to adequately justify

imposing the new conditions.

169

For reasons similar to the federal district courts in Chicago and

Pennsylvania, a district court in New York enjoined the government from enforcing the new

conditions against the City of New York and the States of New York, Connecticut, New Jersey,

Rhode Island, Washington, Massachusetts, and Virginia (the collective plaintiffs in that case).

170

Notably, all of the district judges held, post-Murphy, that Section 1373 violates the anti-

commandeering doctrine.

171

Finally, in another lawsuit brought by the City of Los Angeles,

California, a district judge permanently enjoined the new considerations for COPS grant

selections, concluding that they were imposed without statutory authority, violated the Spending

Clause, and were arbitrarily and capriciously imposed in violation of the APA.

172

City & Cty. of San Francisco v. Trump and Cty. of Santa Clara v. Trump

Shortly after President Trump issued EO 13768, the City and County of San Francisco and the

County of Santa Clara, California, filed suit, asking a federal court to enjoin Section 9(a) of the

order.

173

The Counties principally argued that Section 9(a) is unconstitutional in three ways.

174

First, the Counties contended that the funding restrictions, by purporting to withhold, or impose

new eligibility conditions on, congressional appropriations, violated the separation of powers by

usurping the legislature’s spending power granted in Article I, Section 8 of the Constitution.

175

Alternatively, even assuming that the President had lawful authority to withhold, or impose

conditions on, congressionally appropriated funds, the Counties argued that Section 9(a) would

still violate the Spending Clause because it surpasses the constitutional limits of the Spending

166

City of Chicago v. Sessions, 321 F. Supp. 3d 855 (E.D. Ill. 2018). The district court technically issued a nationwide

injunction but stayed its nationwide effect until the Seventh Circuit rules. Id. at 880.

167

Id. at 873-76.

168

City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 296 (E.D. Pa. 2018).

169

Id. at 323-25. Under the Administrative Procedure Act, a court may set aside executive actions that are “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2).

170

States of New York v. Dep’t of Justice, 343 F.Supp.3d 213, 245-46 (S.D.N.Y. 2018).

171

City of Philadelphia, 309 F. Supp. 3d at 329-31; City of Chicago, 321 F. Supp. 3d at 872; States of New York, 343

F.Supp.3d at 234-38.

172

City of Los Angeles v. Sessions, 293 F. Supp. 3d. 1087, 1095-1100 (C.D. Cal. 2018).

173

Complaint, City & Cty. Of San Francisco v. Trump, No. 3:17-cv-00485-WHO (N.D. Cal. Jan. 31, 2017); Complaint,

Cty. of Santa Clara v. Trump, No. 3:17-cv-00574-WHO, (N.D. Cal. Feb. 3, 2017). These cases were filed separately

but considered together.

174

Motion for Summary Judgment, City & Cty. of San Francisco v. Trump, No. 3:17-cv-00485-WHO (N.D. Cal. Aug.

30, 2017); Motion for Summary Judgment, Cty. of Santa Clara v. Trump, No. 3:17-cv-00574-WHO (N.D. Cal. Aug.

30, 2017).

175

Motion for Summary Judgment at 12-13, City & Cty. Of San Francisco v. Trump, No. 3:17-cv-00485-WHO (N.D.

Cal. Aug. 30, 2017) (“The Constitution grants Congress—not the President—the federal spending power, including the

power to impose conditions on federal funds.”). The Spending Clause states that “[t]he Congress shall have Power To

lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general

Welfare of the United States ....” U.S. CONST. art I, § 8, cl. 1.

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Clause set forth by the Supreme Court.

176

Finally, the Counties argued that Section 9(a) violates

the anti-commandeering doctrine, contending, for instance, that Section 9(a) coerces jurisdictions

into complying with ICE-issued immigration detainers by threatening to withhold federal funding

and take unspecified enforcement action against jurisdictions that “‘hinder the enforcement of

federal law.’”

177

The district judge ultimately agreed with all three arguments and permanently enjoined—

nationwide—Section 9(a) of the executive order.

178

The Ninth Circuit, in a 2-1 ruling, affirmed

the district court’s judgment on the ground that Section 9(a) violates the separation of powers by

usurping Congress’s spending power.

179

The Ninth Circuit vacated the injunction’s nationwide

application, however, and remanded for further factfinding on whether the injunction ought to be

nationwide in scope.

180

In holding that EO Section 9(a) violates the separation of powers, the Ninth Circuit recounted that

“when it comes to spending, the President has none of his own constitutional powers to rely

upon.”

181

That power, the court explained, is exclusively Congress’s domain, subject to

delegation.

182

Yet, the court opined, Congress had not authorized the executive branch “to

withdraw federal grant moneys from jurisdictions that do not agree with the current

Administration’s immigration strategies.”

183

Further, the court pointed to nearly a dozen failed

congressional proposals to do just that during the 114th Congress.

184

Thus, the Ninth Circuit

concluded, “[n]ot only has the Administration claimed for itself Congress’s exclusive spending

power, it also attempted to coopt Congress’s power to legislate.”

185

City of Richmond v. Trump

Another California city unsuccessfully tried to challenge EO 13768 as it relates to sanctuary

jurisdictions. Richmond, California, like Santa Clara and San Francisco, argued that (1) the

President exceeded his constitutional authority by purporting to appropriate federal funds; (2)

even assuming that the President has such spending authority, the conditions set forth in the

executive order violate the Spending Clause’s lawful parameters; and (3) the executive order

unlawfully commandeers the states.

186

The district court denied Richmond’s request for injunctive

176

Motion for Summary Judgment at 13-17, City & Cty. Of San Francisco v. Trump, No. 3:17-cv-00485-WHO (N.D.

Cal. Aug. 30, 2017).

177

Id. at 18-20 (quoting Section 9(a) of EO 13768).

178

Cty. of Santa Clara v. Trump, 275 F. Supp. 3d 1196 (N.D. Cal. 2017).

179

City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1231-35 (9th Cir. 2018). In dissent, Judge Fernandez

disagreed with the majority’s characterization of Section 9(a)’s savings clause—directing the Attorney General or

Secretary of Homeland Security to take actions “consistent with law” to ensure compliance with Section 1373—as

“implausible, or boilerplate.” Id. at 1249-50 (Fernandez, J., dissenting). Judge Fernandez also contended that the

plaintiffs’ claims were not ripe for review. Id. at 1247-48.

180

Id. at 1231.

181

Id. at 1233-34 (internal quotation marks and citation omitted).

182

Id. at 1233.

183

Id. at 1234.

184

Id. at 1234 & n.4.

185

Id. at 1234.

186

Complaint for Injunctive & Declaratory Relief at 18-21, City of Richmond v. Trump, No. 3:17-cv-01535 (N.D. Cal.

Mar. 21, 2017). The same judge presided over this case and the lawsuits brought by San Francisco and Santa Clara. The

Richmond lawsuit was resolved after the judge issued a preliminary injunction in the cases brought by San Francisco

and Santa Clara but before the permanent injunction was issued in that case.

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relief, however, after concluding that the city could not establish pre-enforcement standing to

challenge the executive order.

187

In dismissing Richmond’s suit, the district court applied the framework that the Supreme Court

set forth in Babbitt v. Farm Workers National Union to determine whether a plaintiff has standing

to challenge a statute before it is enforced against the plaintiff.

188

Under Babbitt, the plaintiff must

demonstrate “an intention to engage in a course of conduct arguably affected with a constitutional

interest, but proscribed by a statute, and there exists a credible threat of prosecution

thereunder.”

189

The district court assumed without deciding that Richmond had policies

proscribed by the executive order, could lose federal funding if the order was enforced against it,

and put forward claims that implicated constitutional interests. So the ruling on whether

Richmond had pre-enforcement standing ultimately hinged on whether Richmond had

demonstrated a “well-founded fear” that the executive order would be enforced against it, and the

court concluded the city had not.

190

The court opined that “[t]he likely targets of enforcement

under the [Executive] Order are jurisdictions that have actually refused to cooperate with ICE and

that ICE believes are hindering its immigration enforcement efforts.”

191

But according to

Richmond’s own complaint, the court found, the federal government had never asked Richmond

to assist in enforcing immigration policy, nor had it been identified as a locality that restricts

cooperation with ICE or regularly declines immigration detainers.

192

Thus, the court decided that

Richmond had “no real-world friction with ICE or the defendants over its policies” and thus was

unlikely to be subjected to the executive order’s funding restrictions.

193

City of Seattle & City of Portland v. Trump

The Cities of Seattle, Washington, and Portland, Oregon, jointly challenged President Trump’s

executive order.

194

The cities asked a district court to declare that Section 9(a) of EO 13768 is

unconstitutional under the Tenth Amendment, the Spending Clause, and separation-of-power

principles, principally for the same reasons as the other jurisdictions challenging the executive

order.

195

Soon after the plaintiffs brought suit, though, the district court stayed the case, pending

the resolution of the appeal in the Ninth Circuit of the injunction issued in the Santa Clara/San

Francisco litigation.

196

After the Ninth Circuit concluded that Section 9(a) was unconstitutional,

the district judge in this case also ruled that Section 9(a) unconstitutionally violated the separation

of powers.

197

187

Order Granting Motion to Dismiss at 1, City of Richmond v. Trump, No. 3:17-cv-01535 (N.D. Cal. Aug. 21, 2017).

188

Id. at 4.

189

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).

190

Order Granting Motion to Dismiss at 4, City of Richmond v. Trump, No. 3:17-cv-01535 (N.D. Cal. Aug. 21, 2017).

191

Id. at 5.

192

Id.

193

Id. at 6.

194

First Amended Complaint, City of Seattle v. Trump & City of Portland v. Trump, No. 2:17-cv-00497-RAJ (W.D.

Wash. June 26, 2017).

195

Id. at 37-49.

196

Order, City of Seattle v. Trump & City of Portland v. Trump, No. 2:17-cv-00497-RAJ (W.D. Wash. Oct. 31, 2017).

197

Order & Judgment Granting Declaratory Relief, City of Seattle v. Trump & City of Portland v. Trump, No. 2:17-cv-

00497-RAJ (W.D. Wash. Oct. 24, 2018). The parties stipulated to this result. Stipulation & Proposed Order &

Judgment Granting Declaratory Relief, City of Seattle v. Trump & City of Portland v. Trump, No. 2:17-cv-00497-RAJ

(W.D. Wash. Oct. 19, 2018).

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City of Chelsea & City of Lawrence v. Trump

Two cities in Massachusetts, Chelsea and Lawrence, also filed suit shortly after President Trump

issued EO 13768, challenging Section 9(a). Chelsea and Lawrence principally argued that that

Section 9(a) violates the Tenth Amendment and the Constitution’s separation-of-power principles,

for reasons substantially similar to those argued by Santa Clara, San Francisco, and Richmond.

198

However, after the district court in the Santa Clara/San Francisco litigation issued a nationwide

preliminary injunction blocking the executive order, the parties agreed to stay the proceedings

unless and until the injunction is lifted.

199

City of Chicago v. Sessions

After the Justice Department announced the new Byrne JAG conditions, the City of Chicago,

Illinois, sued, asking a district court to enjoin the Attorney General from imposing them.

200

Chicago’s suit challenged each of the three conditions that the Justice Department imposed for

grant eligibility (compliance with the information-sharing requirements of Section 1373, DHS

access to state and local detention facilities, and providing notice to DHS when an alien wanted

for removal is released from custody).

201

First, Chicago argued that the DOJ lacked statutory authority to impose the new conditions

because the Byrne JAG statute does not confer agency discretion to add substantive conditions to

the receipt of those federal funds.

202

And even though the Byrne JAG statute requires that

recipients certify compliance with “all other applicable Federal laws,”

203

Chicago contended that

conditioning the receipt of the grant on state and local compliance with Section 1373 is a new

condition nevertheless.

204

This is so because, Chicago asserted, Section 1373 is not an

“applicable” law as intended by the JAG statute; rather, Chicago argued that the word

“applicable” necessarily narrows the phrase from one that includes the entire body of federal law,

to one that includes a subset of laws that “make[s] clear to grant recipients that their receipt of

money is conditioned on compliance.”

205

In Chicago’s view, the correct set of “applicable” laws

is “the specialized body of statutes that govern federal grantmaking.”

206

Second, Chicago argued that the notice and access conditions violate the Constitution’s

separation-of-power principles because the DOJ—an executive branch agency—unlawfully

exercised the spending authority exclusively granted to the legislative branch.

207

Third, Chicago

198

Complaint at 38-41, City of Chelsea & City of Lawrence v. Trump, No. 1:17-cv-10214-GAO (D. Mass. Feb. 8,

2017).

199

Plaintiff’s Unopposed Motion to Stay Proceedings, City of Chelsea & City of Lawrence v. Trump, No. 1:17-cv-

10214-GAO (D. Mass. May 2, 2017). The case was administratively closed on December 29, 2017. Order, City of

Chelsea & City of Lawrence v. Trump, No. 1:17-cv-10214-GAO (D. Mass. Dec. 29, 2017).

200

Complaint at 1, City of Chicago v. Sessions, No. 1:17-cv-05720 (N.D. Ill. Aug. 7, 2017).

201

Id. at 19-23.

202

Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction at 10-13, City of Chicago v.

Sessions, No. 1:17-cv-05720 (N.D. Ill. Aug. 10, 2017) (citing 42 U.S.C. § 3752(a), subsequently reclassified as 34

U.S.C. § 10153(a)).

203

34 U.S.C. § 10153(a)(5)(D).

204

Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction at 19, City of Chicago v. Sessions,

No. 1:17-cv-05720 (N.D. Ill. Aug. 10, 2017).

205

Id.

206

Id.

207

Id. at 17-18.

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asserted that, even if the DOJ had been given the discretion to condition grant eligibility, the

notice and access conditions exceeded constitutional spending authority.

208

According to Chicago,

the new conditions (1) are not germane to the federal interest in the Byrne JAG funds Chicago

receives,

209

and (2) by requiring grant recipients to provide immigration authorities with 48 hours’

notice before releasing an alien in custody, would induce Chicago to engage in activities that

violate the Fourth Amendment because, in practice, Chicago would have to hold detainees longer

than constitutionally permitted.

210

Finally, Chicago alleged that Section 1373, on its face, violates

the Tenth Amendment, and thus the DOJ cannot condition the receipt of federal funds on state and

local compliance with it.

211

The district court initially granted a nationwide, preliminary injunction concerning the notice and

access conditions.

212

The Seventh Circuit upheld this ruling on interlocutory appeal

213

but stayed

its nationwide effect,

214

making the injunction applicable to only Chicago.

215

Before the district

court made its final ruling, the Supreme Court issued Murphy, prompting the court to reconsider

its earlier conclusion that the compliance condition was lawful.

216

Ultimately, the court issued a

nationwide, permanent injunction, holding that Section 1373 is unconstitutional on its face and

blocking the enforcement of all three Byrne JAG conditions.

217

However, because the en banc

Seventh Circuit previously had stayed the nationwide effect of the preliminary injunction, the

district court stayed the nationwide effect of the permanent injunction, pending appeal, in

deference to the Seventh Circuit’s earlier order.

218

Turning to the merits of the district court’s order, the court first concluded that Section 1373

violates the anti-commandeering doctrine.

219

The court recounted that in Murphy, the Supreme

Court held that, under the anti-commandeering doctrine, “Congress cannot issue direct orders to

state legislatures” through a federal law that compels state action or that prohibits state action.

220

Thus, because Section 1373 prohibits state policymakers from forbidding its employees to share

immigration-status information with immigration authorities, the court concluded that this federal

208

Id. at 13-17. For more information on the Spending Clause, see CRS Report R44797, The Federal Government’s

Authority to Impose Conditions on Grant Funds, by Brian T. Yeh.

209

Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction at 13-14, City of Chicago v.

Sessions, No. 1:17-cv-05720 (N.D. Ill. Aug. 10, 2017). In particular, Chicago asserted that “the sweeping tools for

federal immigration enforcement imposed by the new conditions are not reasonably relevant to the objectives of the

Byrne JAG program.” Id. at 14.

210

Id. at 14-17. For instance, Chicago asserted that “[a] warrantless arrest initially reasonable for Fourth Amendment

purposes becomes unreasonable once the ‘mission’ that occasioned the original seizure is complete.” Id. at 16 (citing

Illinois v. Caballes, 543 U.S. 405, 407 (2005)). Chicago declared that those subject to a warrantless arrest are usually

released from custody within 24 hours. Id. at 15. Accordingly, Chicago argued that holding warrantless arrestees longer

than necessary to complete the “mission” of the original arrest to allow DHS to investigate unrelated immigration

violations would violate the arrestee’s Fourth Amendment rights. Id. at 15-16.

211

Id. at 20-21. Chicago argued that “Section 1373 is particularly problematic because it prohibits state and local

governments from engaging in a core aspect of governing: controlling the actions of their employees.” Id. at 20.

212

City of Chicago v. Sessions [City of Chicago I], 264 F. Supp. 3d 933 (N.D. Ill. 2017).

213

City of Chicago v. Sessions [City of Chicago II], 888 F.3d 272 (7th Cir. 2018).

214

City of Chicago v. Sessions, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018).

215

City of Chicago v. Sessions [City of Chicago III], 321 F. Supp. 3d 855, 880 (N.D. Ill. 2018).

216

Id. at 866-67.

217

Id. at 882.

218

Id. at 881-82.

219

Id. at 872.

220

Id. at 867 (quoting Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018)).

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prohibition on state action runs afoul of the anticommandeering doctrine.

221

The court further

rejected the government’s request to carve out an exception to the anti-commandeering doctrine

for laws requiring states to share information with the federal government “in the face of clear

guidance from Murphy” and without the Supreme Court ever creating such an exception.

222

Next, the district court concluded that the notice, access, and compliance conditions were

imposed without statutory authority and thus unlawful.

223

The court’s conclusion that Section

1373 is unconstitutional doomed the compliance condition. The Byrne JAG statute requires

compliance with “all other applicable Federal laws.”

224

But, “[a]s an unconstitutional law,” the

court explained, “Section 1373 automatically drops out of the possible pool of ‘applicable Federal

laws.’”

225

For the notice and access conditions, the court principally relied on the Seventh Circuit’s

reasoning in its order affirming the preliminary injunction, adding that “the Attorney General

ha[d] not mustered any other convincing argument in support of greater statutory authority” and

that “nothing ha[d] shaken this Court from the opinion it expressed at the preliminary injunction

stage.”

226

For instance, the Seventh Circuit had rejected the government’s contention that the

conditions are authorized by 34 U.S.C. § 10102(a)(6), which sets forth the duties and functions of

the Assistant Attorney General (AAG) in running the Office of Justice Programs, which

administers the Byrne JAG program.

227

The government had pointed to the statutory text granting

the AAG the authority to exercise “powers and functions as may be vested in the Assistant

Attorney General pursuant to this chapter or by delegation of the Attorney General, including

placing special conditions on all grants, and determining priority purposes for formula grants.”

228

But, according to the Seventh Circuit, “[t]he inescapable problem here is that the Attorney

General does not even claim that the power exercised here is authorized anywhere in the chapter,

nor that the Attorney General possesses that authority and therefore can delegate it to the

Assistant Attorney General.”

229

City of Evanston v. Sessions

The City of Evanston, Illinois (City), and the United States Conference of Mayors

(Conference),

230

together, brought a lawsuit that mirrored Chicago’s and requested preliminary

injunctive relief.

231

The case was assigned to the same district judge who had presided over

221

Id. at 869. The court further described Section 1373 as a “federally-imposed restructuring of power within state

government” because, according to the court, it “redistributes local decision-making power by stripping it from local

policymakers and installing it instead in line-level employees who may decide whether or not to communicate with

[immigration authorities].” Id. at 870.

222

Id. at 871-72.

223

Id. at 873-76.

224

34 U.S.C. § 10153(a)(5)(D).

225

City of Chicago III, 321 F. Supp. 3d at 875.

226

Id. at 874.

227

City of Chicago v. Sessions, 888 F.3d 272, 284-85 (7th Cir. 2018).

228

City of Chicago II, 888 F.3d 272, 284 (7th Cir. 2018) (emphasis in original omitted) (quoting 34 U.S.C.

§ 10102(a)(6)).

229

Id. at 285.

230

The United States Conference of Mayors is “a non-partisan organization of cities with populations of 30,000 or

more, with each city being represented by its mayor. See The U.S. Conference of Mayors, About the Conference,

https://www.usmayors.org/the-conference/about/ (last visited Jan. 11, 2019)

231

Order at 1-2, City of Evanston & the U.S. Conference of Mayors v. Sessions, 1:18-cv-04853 (N.D. Ill. Aug. 9,

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Chicago’s lawsuit.

232

For that reason, when considering whether the plaintiffs were likely to

succeed on the merits of their claims, the district court relied on its earlier opinions and those of

the Seventh Circuit.

233

The district judge observed that, “though the plaintiffs at bar have

changed, the legislation proscribing which conditions the Attorney General may attach has

not.”

234

Accordingly, because the Seventh Circuit described as “untenable” the government’s

arguments for its statutory authority to impose the Byrne JAG conditions, the district court

concluded that the City and Conference were likely to prevail.

235

Consequently, the district court

enjoined the government from enforcing the conditions against the plaintiffs.

236

City of Philadelphia v. Sessions

The City of Philadelphia, Pennsylvania, also sued to stop the Attorney General from imposing the

new Byrne JAG conditions.

237

Like Chicago, Philadelphia argued that the DOJ lacked statutory

authority to impose the new conditions, violated constitutional principles of separation of powers,

violated the Spending Clause, and unconstitutionally conscripted the states into federal

immigration enforcement.

238

Philadelphia also argued that the conditions were arbitrarily and

capriciously imposed in violation of the APA.

239

Initially, the district court found that all three of the conditions were unlawfully imposed and

preliminarily blocked their enforcement against Philadelphia.

240

Then, after a bench trial, the

court permanently enjoined the DOJ from enforcing against Philadelphia the three new Byrne

JAG conditions.

241

The district court concluded that the Byrne JAG Statute contained no explicit

authority for the notice and access conditions.

242

The court further held that the Justice

Department’s decision to impose all three conditions was arbitrary and capricious in violation of

2018).

232

Id. at 2.

233

Id. at 8.

234

Id.

235

Id.

236

Id. at 1. The district court initially stayed the application of the preliminary injunction as it applied to the

Conference. Id. at 11-12. The court reasoned that “[e]ven in its most limited form, any injunction issued in their favor

will have the effects throughout the country and certainly far beyond the border of the Seventh Circuit,

which, the court continued, “engenders many of the same concerns that agitated against entering a nationwide

injunction in the Chicago case.” Id. at 9-10. The Conference then filed an emergency motion with the Seventh Circuit

asking it to lift the stay of injunctive relief. Emergency Motion, U.S. Conference of Mayors v. Sessions, 18-2734 (7th

Cir. Aug. 10, 2018). The Seventh Circuit granted the motion and lifted the stay. Order at 2, U.S. Conference of Mayors

v. Sessions, 18-2734 (7th

Cir. Aug. 29, 2018). The Seventh Circuit reasoned that, unlike in the Chicago case, applying

the injunction to the Conference in this case would be appropriate because the injunction would still be “limited to the

parties actually before the court who have demonstrated a right to relief.” Id.

237

Complaint, City of Philadelphia v. Sessions, 2:17-cv-03894-MMB (E.D. Pa. Aug. 30, 2017).

238

Amended Complaint at 43-44, City of Philadelphia v. Sessions, 2:17-cv-03894-MMB (E.D. Pa. Jan. 8, 2018).

239

Complaint at 40, City of Philadelphia v. Sessions, 2:17-cv-03894-MMB (E.D. Pa. Aug. 30, 2017).

240

Memorandum Re: Motion for Preliminary Injunction, at 52-58, 126-28, City of Philadelphia v. Sessions, 2:17-cv-

03894-MMB (E.D. Pa. Nov. 15, 2017).

241

City of Philadelphia v. Sessions [City of Philadelphia II], 309 F. Supp. 3d 289, 296 (E.D. Pa. 2018).

242

In holding that the notice and access conditions were imposed without statutory authority, the district court relied on

its reasoning for granting a preliminary injunction. Id. at 321 (“Because the DOJ has presented no argument, beyond

those previously considered by the Court at the Preliminary Injunction stage, which dictates a different result, the Court

reaches the same result now: the Access and Notice Conditions exceed the authority delegated by Congress in 34

U.S.C. § 10102(a)(6).”).

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the APA.

243

The court reasoned that the DOJ did not adequately justify imposing the new

conditions.

244

For instance, the court found that, before imposing the certification condition, the

government had not “assess[ed] the benefits or drawbacks of imposing a condition, but instead

merely assessed whether jurisdictions would be compliant were such a condition imposed.”

245

Finally, the district court in Philadelphia concluded that Murphy mandates holding Section 1373

unconstitutional.

246

The Third Circuit affirmed the district court’s ruling but on narrower grounds: The court held that

the conditions were imposed without statutory authority and thus are unlawful.

247

The circuit

court first concluded that the JAG statute did not authorize any of the challenged conditions. In

support of the notice and access conditions, the government pointed to two provisions of the

statute requiring the Attorney General to direct grant applicants (1) to report “data, records, and

information (programmatic and financial)” that he may “reasonably require,” and (2) to certify

that “there has been appropriate coordination with affected agencies.”

248

In the government’s

view, “information” the Attorney General may “reasonably require” includes notification of an

alien’s release from custody from law-enforcement and corrections programs funded by the JAG

grant.

249

But the court disagreed, explaining that JAG statute explicitly limits information to

programmatic and financial information, meaning “information regarding the handling of federal

funds and the programs to which those funds are directed” and not “priorities unrelated to the

grant program.”

250

The court also rejected the government’s argument that the coordination provision authorizes

access to aliens in Philadelphia’s custody because that would amount to “appropriate

coordination” with immigration authorities affected by those same JAG-funded law-enforcement

and corrections programs.

251

Because the statute refers to instances where “there has been”

coordination, which the court understood to reference past coordination, the court concluded that

the statutory language “does not serve as a basis to impose an ongoing requirement to

243

Id. at 323-25. In so holding, the court principally relied on its analysis in its preliminary injunction order. Id at 323

(“Given the nearly perfect overlap between the items considered at the two stages, it should come as no surprise to the

litigants that the Court’s opinion at the Summary Judgment stage closely aligns with its opinion from the Preliminary

Injunction stage, as to the arbitrary and capricious nature of the Challenged Conditions. There is no need to fully

reproduce the Court’s prior opinion on this point, which is extensively discussed in 280 F.Supp.3d at 619-625.”).

244

City of Philadelphia v. Sessions [City of Philadelphia I], 280 F. Supp. 3d 579, 621, 625 (E.D. Pa. 2017).

245

Id. at 624.

246

City of Philadelphia II, 309 F. Supp. 3d 289, 329-31 (E.D. Pa. 2018). The district court here further concluded that

the certification condition, itself, is unconstitutional because it requires compliance with an unconstitutional statute. Id.

at 329. The court did not explain the constitutional underpinnings for this conclusion (or provide supporting case law),

but contended that Congress cannot “pass blatantly unconstitutional statutes—including statutes already struck down as

unconstitutional by court—but essentially require state and localities to adhere to those statutes by tying a

‘certification’ of compliance” with that statute to federal grants. Id. The veracity of this conclusion is unclear, given

that, had the Byrne JAG statute given the DOJ discretion to add substantive conditions to the receipt of federal funds,

the Spending Clause likely would have permitted the DOJ to independently require recipients to share immigration-

related information with federal authorities. See NFIB v. Sebelius, 657 U.S. 519, 536 (2012) (“[I]n exercising its

spending power, Congress may offer funds to the States, and may condition those offers on compliance with specified

conditions,” which “may well induce the state to adopt policies that the federal Government itself could not impose”).

247

City of Philadelphia v. Attorney General of the U.S. [City of Philadelphia III], 916 F.3d 276, 279 (3d Cir. 2019).

248

Id. at 285 (quoting 34 U.S.C. § 10153(a)(4), (a)(5)(C) (emphasis added)).

249

Brief for Appellant at 34, City of Philadelphia III, 916 F.3d 276 (3d Cir. 2019).

250

City of Philadelphia III, 916 F.3d at 285.

251

Brief for Appellant at 34, City of Philadelphia III, 916 F.3d 276 (3d Cir. 2019); City of Philadelphia III, 916 F.3d at

285.

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coordinate.”

252

As for the lawfulness of the compliance condition, the government invoked

another JAG statute provision, this one requiring applicants to certify compliance with “all other

applicable Federal laws.”

253

The government contended that Section 1373 is an applicable federal

law. The court rejected the government’s expansive view of the term, however. The court

reasoned, for instance, that if the Attorney General could condition funds based on compliance

with any law in the U.S. Code, this practice would essentially turn the JAG formula grant—which

is awarded to a jurisdiction through a formula that considers only population and violent crime

statistics—into a discretionary grant.

254

Next, the court rejected the government’s other asserted source of statutory authority for

imposing the conditions: the provision establishing the duties and functions of the AAG in 34

U.S.C. § 10102.

255

This statute directs the AAG to “exercise such other powers and functions as

may be vested in the [AAG] pursuant to this chapter or by delegation of the Attorney General,

including placing special conditions on all grants.”

256

The court emphasized, however, that this

provision authorizes the AAG to place conditions on grants only if that power has been vested by

Title 34 of the U.S. Code or delegated by the Attorney General, and neither of those predicates

had occurred.

257

All told, based on the sole ground that the Attorney General lacked statutory

authority to impose the notice, access, and compliance conditions, the Third Circuit affirmed the

district court’s order enjoining those conditions as applied to Philadelphia, and declined to

address Philadelphia’s additional arguments.

258

City & Cty. of San Francisco v. Sessions

In separate lawsuits considered together, the State of California and the City and County of San

Francisco sued the Justice Department seeking to block the three new Byrne JAG conditions.

259

The California plaintiffs argued that the notice and access conditions were imposed without

statutory authority and, thus, violate the separation of powers, invoking the conclusions reached

by the district courts who had enjoined those conditions.

260

The plaintiffs further argued that,

post-Murphy, Section 1373 is constitutionally unenforceable against the states.

261

They contended

that Section 1373 “dictates what a state legislature may and may not do,” and Murphy forecloses

Congress’s ability to do that.

262

The district court concluded that the Byrne JAG conditions violate the separation of powers and

that Section 1373 is unconstitutional, declaring that he is “[i]n agreement with every court that

has looked at these issues.”

263

And “follow[ing] the lead of the district court in City of Chicago,”

the district judge entered a nationwide injunction, staying the nationwide aspect until the Ninth

252

City of Philadelphia III, 916 F.3d at 285.

253

Id. at 288.

254

Id. at 290.

255

Id. at 287-88.

256

34 U.S.C. § 10102(a)(6).

257

City of Philadelphia III, 916 F.3d at 257.

258

Id. at 291.

259

City & Cty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 934 (N.D. Cal. 2018).

260

California’s Motion for Summary Judgment at 11-14, Becerra v. Sessions, 17-cv-04701 (N.D. Cal. July 9, 2018).

261

Id. at 19-20.

262

California’s Motion for Summary Judgment at 19, Becerra v. Sessions, 17-cv-04701 (N.D. Cal. July 9, 2018)

(quoting Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018)).

263

City & Cty. of San Francisco, 349 F. Supp. 3d at 934.

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Circuit has an opportunity to review the order on appeal.

264

Like the district courts in Chicago and

Philadelphia, the district court here concluded that the Byrne JAG statute does not authorize the

Justice Department to impose the notice and access conditions, given the sparse, inapplicable

discretion the statute delegates.

265

Without that delegated authority, the court continued, the

Justice Department unlawfully exercised Congress’s exclusive Spending Power and violated the

separation of powers.

266

Next, the court held that Section 1373 violates principles of

federalism.

267

The court explained that post-Murphy, “[t]here is no distinction for anti-

commandeering purposes . . . between a federal law that affirmatively commands States to enact

new laws and one that prohibits States from doing the same.”

268

And even if the Supreme Court

eventually were to carve out an exception for federally required information-sharing, the district

court opined that Section 1373 impacts jurisdictions much more than “a ministerial information-

sharing statute.”

269

For example, the court found that Section 1373 “takes control over the State’s

ability to command its own law enforcement.”

270

States of New York v. Department of Justice

The States of New York, Connecticut, New Jersey, Rhode Island, Washington, Massachusetts, and

Virginia and the City of New York (collectively, the “States and City”) sued the DOJ, challenging

the three new Byrne JAG conditions.

271

Like other jurisdictions, these plaintiffs contended that

the conditions violate the separation of powers and the APA, and, further, that Section 1373

violates the anti-commandeering doctrine.

272

A district judge in the Southern District of New York

enjoined the Justice Department from imposing the notice, access, and compliance conditions on

the States and City.

273

The court first concluded that the conditions were imposed without statutory authority and thus,

as the APA directs, must be set aside.

274

Agreeing with the other courts, the district judge rejected

the government’s arguments that the statutory provision authorizing the Assistant Attorney

General to exercise powers delegated by the Attorney General to impose grant conditions.

Specifically, the government had contended that 34 U.S.C. § 10102(a)(6) authorizes the

imposition of the conditions, and Department’s compliance condition is authorized by the Byrne

JAG statute’s requirement, under 34 U.S.C. § 10153(a)(5)(D), to certify compliance with “all

other applicable Federal laws.”

275

Concerning § 10102(a)(6), the district court concluded that the

Assistant Attorney General could not impose the conditions because the Attorney General had no

statutory authority to do so, and thus had no authority to delegate.

276

As for § 10153(a)(5)(D), the

court concluded that the term “all other applicable Federal laws” is ambiguous and thus violates

264

Id.

265

Id. at 945-47.

266

Id. at 944.

267

Id. at *949-53.

268

Id. at *953.

269

Id.

270

Id.

271

States of New York v. Dep’t of Justice, 343 F.Supp.3d 213, 225 (S.D.N.Y. 2018).

272

See id.

273

Id. at 245.

274

Id. at 227-232.

275

See id. at 229-231 (quoting 34 U.S.C. § 10153(a)(5)(D)).

276

See id. at 230-31.

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the tenet that “if Congress intends to impose a condition on the grant of federal moneys, it must

do so unambiguously.”

277

Accordingly, the court viewed the language “‘from the perspective of a

state official who is engaged in the process of deciding whether the State should accept [the]

funds and the obligations that go with those funds,’ and ‘must ask whether such a state official

would clearly understand that one of the obligations of the Act is the [purported] obligation.’”

278

From that perspective, the court concluded that the applicable federal laws are limited to those

applicable grant, given that the rest of § 10153 concerns requirements for the application and

grant itself.

279

Additionally, the district court concluded that the conditions constitute arbitrary and capricious

agency action in violation of the APA.

280

The court reasoned that, notwithstanding the

government’s evidence in support of the benefits of withholding Byrne JAG funds from

jurisdictions that fail to comply with the three conditions, “[c]onspicuously absent” from the

government’s evidence “is any discussion of the negative impacts that may result from imposing

the conditions, and the record is devoid of any analysis that the perceived benefits outweigh these

drawbacks.”

281

Next, the district court concluded that Section 1373 violates the anti-commandeering doctrine and

thus is unconstitutional.

282

The court acknowledged that the Second Circuit—whose opinions are

binding precedent on the Southern District of New York—held that Section 1373 is constitutional

in City of New York v. United States.

283

But the court concluded that the Second Circuit’s earlier

ruling “cannot survive the Supreme Court’s decision in Murphy.”

284

City of New York, the court

explained, had relied on a distinction between affirmative commands, which were considered

unconstitutional, and affirmative prohibitions, which the circuit court had considered permissible.

But, the Second Circuit continued, the Supreme Court in Murphy described that distinction as

“empty.”

285

Because Murphy concluded that the anti-commandeering doctrine forbids the federal

government from imposing a direct prohibition on state legislatures, the district court held that

Section 1373—by dictating what a state legislature may not do—is unconstitutional.

286

The district court additionally held that the three Byrne JAG conditions violate the separation of

powers.

287

Harking back to its earlier analysis of the Byrne JAG statute provisions, the court

explained that when Congress delegated spending authority to the executive branch in the statute,

it did not delegate the authority to impose the new conditions.

288

The Byrne JAG statute, the court

277

See id. at 231 (emphasis added) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)).

278

Id. (alteration in original) (quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)).

279

Id.

280

Id. at 239-41.

281

Id. at 240.

282

Id. at 233-38. Based on this conclusion, the court additionally opined that Section 1373 could not be an “applicable

federal law” for the purposes of complying with Section 10153. Id. at 231.

283

Id. at 233-34. For a discussion of City of New York v. United States, see supra Subsection “Related Litigation” under

Section “Federal Measures to Counteract Sanctuary Policies.”

284

States of New York, 343 F.Supp.3d 213, 234.

285

Id. (quoting Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018)).

286

Id.

287

Id. at 238.

288

Id.

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continued, authorizes the distribution of funds “according to statutorily prescribed criteria” that

the executive branch is powerless to disturb.

289

City of Los Angeles v. Sessions

The City of Los Angeles, California, separately challenged the new conditions attached to the

Byrne JAG program and the additional consideration factors for the COPS program.

290

Initially

focusing on the COPS program, Los Angeles first asked the U.S. District Court for the Central

District of California to enjoin the DOJ from implementing the new COPS considerations in any

future grant solicitations, contending, among other things, that they were imposed without

statutory authority, violate the Spending Clause, and are invalid under the APA.

291

The district court agreed with Los Angeles and granted a permanent injunction.

292

The court first

concluded that the DOJ lacked statutory authority to consider the degree to which applying

jurisdictions cooperate with federal immigration enforcement when assessing applications.

293

The

court pointed to 34 U.S.C. § 10381(c)—the statute authorizing the COPS program for

community-policing grants—which identifies when the DOJ “may give preferential

consideration” to applicants, and explained that none of the scenarios listed apply to federal

immigration enforcement.

294

Next, the court concluded that the challenged COPS considerations violate the Spending

Clause.

295

The federal government had contended that the challenged “considerations” on grant

funding were not subject to the same Spending Clause requirements as grant “conditions”

because compliance with the considerations was not required to receive the grant.

296

But the court

found no meaningful distinction between grant “conditions” and the challenged “considerations,”

declaring that “compliance is required in order for applicants to compete on a level playing

field.”

297

Further, the court remarked, if the government’s assertion were correct, “it would be

simple for federal agencies to avert Spending Clause requirements by labeling all considerations

‘plus factors.’”

298

And because the COPS statute does not identify as a factor for preferential

treatment a jurisdiction’s cooperation with federal immigration enforcement, the court concluded

that Congress did not, as the Spending Clause requires, “unambiguously condition” the receipt of

289

Id.

290

Complaint, City of Los Angeles v. Sessions, 2:17-cv-07215-R-JC (C.D. Cal. Sept. 29, 2017).

291

Memorandum in Support of Motion for Partial Summary Judgment, City of Los Angeles v. Sessions, 2:17-cv-

07215-R-JC (C.D. Cal. Nov. 21, 2017). Initially, Los Angeles had sought to preliminarily enjoin the DOJ from

implementing the new considerations during the grant application cycle for the 2017 fiscal year. City of Los Angeles v.

Sessions, 293 F. Supp. 3d 1087, 1093 (C.D. Cal. 2018). But less than two weeks later, the DOJ notified Los Angeles

that it had already selected the recipients, that Los Angeles was not one of them, and that the City would not have

received a grant even had it received the extra consideration for certifying that it provided the requested notice and

access to federal immigration authorities. Id. at 1093-94. Los Angeles then withdrew its motion for preliminary relief

and, instead, asked the district court to enjoin the DOJ from implementing the new consideration factors in future grant

cycles. Id. at 1094.

292

City of Los Angeles, 293 F. Supp. at 1095-1101.

293

Id. at 1095-98.

294

Id. at 1096-97 (“In the Court’s view, subsection (c) does not plainly or even arguably authorize the Attorney

General to give preferential treatment to competitors based on compliance with the Challenged Considerations.”).

295

Id. at 1098-99.

296

Id. at 1098.

297

Id. at 1098-99 (emphasis added) (noting that 80% of selected recipients complied with the added conditions).

298

Id. at 1099.

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funds on the recipients’ compliance with federal authorities.

299

“It is irrelevant” that the DOJ’s

COPS Office was forthcoming about the conditions because, the court added, it is Congress—not

the agency—that “must be clear in its directives.”

300

Additionally, the added considerations

violate the Spending Clause because, the court concluded, they are not germane to the goals of

the COPS program: “[C]ommunity policing is about developing partnerships between local

authorities and the community,” and, in the court’s view, “there is no relationship between local

police partnerships with federal authorities and community policing.”

301

Finally, the district court concluded that the added considerations are arbitrary and capricious in

violation of the APA because the government put forth no evidence, nor did it argue, that its

explanation for adding the considerations—that “‘[c]ities and states that cooperate with federal

law enforcement make all of us safer by helping remove dangerous criminals from our

communities,’ including by ending ‘violent crime stemming from illegal immigration’”—was

based on any findings or data.

302

Thus the court concluded that the government had no reasonable

basis for adding the new conditions.

303

Concerning the Byrne JAG notice and access conditions, the district court later entered a

preliminary injunction blocking the government from enforcing those conditions against Los

Angeles. In doing so, the court pointed to the text of the Byrne JAG statute, explaining that “[t]he

authority explicitly granted to the Attorney General . . . is limited.”

304

That limited authority, the

court concluded, does not include requiring states or localities to assist in immigration

enforcement.

305

Justice Department Lawsuit Against California

On the other side of the coin, the Justice Department has sued California, seeking to invalidate

three laws governing the state’s regulation of private and public actors’ involvement in

immigration enforcement within its border.

306

The government contends that these laws “reflect a

deliberate effort by California to obstruct the United States’ enforcement of federal immigration

law, to regulate private entities that seek to cooperate with federal authorities consistent with their

obligations under federal law, and to impede consultation and communication between federal

and state law enforcement officials,” and, thus, violate the Supremacy Clause.

307

The government

is challenging parts of the following three California laws: (1) The Immigrant Worker Protection

Act, Assembly Bill 450 (AB 450); (2) Section 12 of Assembly Bill 103 (AB 103); and (3) the

California Values Act, Section 3 of Senate Bill 54 (SB 54).

308

In particular, the federal

government principally contends that these laws violate the Supremacy Clause in two ways. First,

the DOJ argues that the state measures violate the doctrine of intergovernmental immunity—a

doctrine that derives from the Supremacy Clause and provides that “a State may not regulate the

299

Id.

300

Id.

301

Id.

302

Id. at 1099-1100 (alteration in original).

303

Id.

304

Order Granting Plaintiff’s Application for Preliminary Injunction at 2, City of Los Angeles v. Sessions, 2:17-cv-

07215 (C.D. Cal. Sept. 13, 2018).

305

Id. at 3.

306

Complaint, United States v. California, 2:18-cv-00490-JAM-KJN (E.D. Cal. Mar. 6, 2018).

307

Id. at 2.

308

Id.

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United States directly or discriminate against the Federal Government or those with whom it

deals.”

309

Second, the government asserts that the California laws are preempted because they

create an obstacle for the federal government’s enforcement of certain immigration laws.

310

The Challenged California Laws

The Immigrant Worker Protection Act (AB 450)

AB 450 imposes on public and private employers in California several requirements related to

federal immigration enforcement actions taking place at the worksite.

311

First, AB 450 prohibits

an employer from allowing an immigration enforcement officer to enter any nonpublic areas of a

worksite, unless the officer has a judicial warrant or “as otherwise required by federal law.”

312

Second, AB 450 bars employers from permitting immigration enforcement officers to access,

review, or obtain employee records without a subpoena or judicial warrant, or “as otherwise

required by federal law” (together, the “consent” provisions).

313

Third, “[e]xcept as otherwise

required by federal law,” AB 450 requires employers to provide employees with written notice of

any I-9 employment eligibility inspection

314

(or other employment record inspections) within 72

hours after receiving notice of the inspection (the “notice” provision).

315

Fourth, AB 450 prohibits

an employer (or a person acting on the employer’s behalf) from reverifying the employment

eligibility of a current employee unless as required by 8 U.S.C. § 1324a(b)

316

or “as otherwise

required by federal law” (the “reverification” provision).

317

Section 12 of AB 103

Section 12 of AB 103—part of California’s omnibus budget bill—requires, for the next 10 years,

the California Attorney General (or a designee) to review and report on county, local, and private

detention facilities that house aliens in immigration proceedings, including those housing minors

on behalf of, or by contract with, the U.S. Office of Refugee Resettlement or ICE.

318

The review

must include the conditions of confinement, standard of care, due process provided, and the

circumstances surrounding the aliens’ apprehension and transfer to the facility.

319

309

United States v. California, 314 F. Supp. 3d 1077, 1088 (E.D. Cal. 2018) (citing North Dakota v. United States, 495

U.S. 423, 435 (1990) (plurality op.)).

310

Plaintiff’s Motion for Preliminary Injunction & Memorandum of Law in Support at 9-18, United States v.

California, No. 2:18-cv-00490-JAM-KJN, 2018 WL 1473199 (E.D. Cal. Mar. 6, 2018).

311

A.B. 450, 2017-2018 Cal. State Assembly (Cal. 2017), https://leginfo.legislature.ca.gov/faces/

billNavClient.xhtml?bill_id=201720180AB450.

312

Id. § 1(a).

313

Id. § 2(a). However, this section of AB 450 does not apply to the federal I-9 Employment Eligibility Verification

forms and other documents for which a notice of inspection has been provided. Id.

314

All employers within the U.S. must complete an I-9 form for every person they hire—U.S. citizens and noncitizens

alike—to verify the identity and employment authorization for each hired person. U.S. Citizenship & Immigration

Servs., I-9, Employment Eligibility Verification, https://www.uscis.gov/i-9 (last visited Nov. 8, 2018).

315

A.B. 450, § 4; Complaint, United States v. California, No. 2:18-cv-00490-JAM-KJN (E.D. Cal. Mar. 6, 2018).

316

Section 1321a(b) lays out the process for verifying the employment eligibility for persons hired by agricultural

employers or farm laborer contractors. 8 U.S.C. § 1324a(a)(1)(B), (b).

317

A.B. 450, § 5.

318

A.B. 103, § 12(a), 2017-2018 Cal. State Assembly (Cal. 2017), https://leginfo.legislature.ca.gov/faces/

billTextClient.xhtml?bill_id=201720180AB103.

319

A.B. 103 § 12(b)(1).

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California Values Act (Section 3 of SB 54)

SB 54 enacts the California Values Act, which regulates to California’s participation in federal

immigration enforcement.

320

As relevant here, the California Values Act generally prohibits law

enforcement agencies from using agency money or personnel to investigate, interrogate, detain,

detect, or arrest persons for the purpose of immigration enforcement, including

 inquiring into immigration status;

 detaining a person subject to a hold request;

 providing information about a person’s release date;

 providing personal information such as a person’s home or work address, unless

it is publicly available;

 making or participating in arrests based on civil immigration warrants; or

 performing any functions of an immigration officer.

321

The Act also prohibits California law enforcement agencies from placing their officers under the

supervision of federal agencies or employing officers who are deputized as special federal officer

for purposes of immigration enforcement.

322

Further, under the Act, California law enforcement

agencies may not use immigration authorities as “interpreters” for law enforcement matters

relating to persons in custody.

323

Nor may California law enforcement agencies transfer a person

to immigration authorities unless authorized to do so by judicial warrant, a judicial probable

cause determination, or otherwise in accordance with California law.

324

Additionally, subject to

limited exception, the agencies may not contract with the federal government to use California

law enforcement facilities to house federal detainees.

325

However, the Act specifies that it does not prevent California law enforcement from enforcing

violations of 8 U.S.C. § 1326, which makes it a criminal offense to unlawfully enter the United

States after being denied admission to, or being removed from, the United States.

326

Nor does the

Act prevent California law enforcement from responding to requests for information about a

person’s criminal history.

327

Further, the Act does not prevent California law enforcement from

engaging in certain joint law enforcement task force activities.

328

Additionally, California law

enforcement may still give immigration authorities access to interview an individual in custody,

in compliance with California law, and to make inquiries related to determining whether a person

is a potential crime or trafficking victim and thus eligible for certain visas.

329

320

S.B. 54, § 3, 2017-2018 Cal. Senate (Cal. 2017).

321

Id.

322

Id.

323

Id.

324

Id.

325

Id.

326

Id.

327

S.B. 54 § 3.

328

Id.

329

Id.

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United States v. California

On March 6, 2018, the United States sued California, requesting an injunction to preliminarily

block the three California laws described above.

330

In particular, the government contends that the

contested California laws violate the Supremacy Clause.

331

The government asserts that the

California laws “reflect a deliberate effort by California to obstruct the United States’

enforcement of federal immigration law, to regulate private entities that seek to cooperate with

federal authorities consistent with their obligations under federal law, and to impede consultation

and communication between federal and state law enforcement officials.”

332

Further, the United

States contends that the California laws “have the purpose and effect of making it more difficult

for federal immigration officers to carry out their responsibilities in California,” and “[t]he

Supremacy Clause does not allow California to obstruct the United States’ ability to enforce laws

that Congress has enacted or to take actions entrusted to it by the Constitution.”

333

The district

court granted the government’s request, in part, concluding only that parts of California’s

Immigrant Worker Protection Act (AB 450), as applied to private employers,

334

violates the

Supremacy Clause.

335

The government appealed, arguing that the other challenged California

provisions, too, likely are unconstitutional. But the Ninth Circuit sustained all but one of the

district court’s rulings, concluding that one subsection within Section 12 of AB 103 violates the

doctrine of intergovernmental immunity.

336

AB 450

The district court concluded that the United States was likely to succeed on its claim challenging

AB 450’s consent and reverification provisions. The court concluded that consent provision

violates the doctrine of intergovernmental immunity because it imposes monetary penalties on

employers for voluntarily consenting to immigration officers entering nonpublic areas of the

worksite and to access employment records, and thus, the provision “impermissibly discriminates

against those who choose to deal with the Federal Government.”

337

Concerning the reverification

provision, the court reasoned that the government was likely to succeed on the merits of its claim

that the provision is preempted by IRCA. The court concluded that the reverification provision

likely stands as an obstacle to enforcing IRCA’s continuing obligation imposed on employers to

avoid knowingly employing an unauthorized alien.

338

But the court concluded that the government was unlikely to succeed on its claim that AB 450’s

notice provision violates the Supremacy Clause.

339

The court first concluded that this provision

does not violate the intergovernmental immunity doctrine because, the court explained, it

330

Complaint, United States v. California, No. 2:18-cv-00490-JAM-KJN (E.D. Cal. Mar. 6, 2018); Plaintiff’s Motion

for Preliminary Injunction & Memorandum of Law in Support, United States v. California, No. 2:18-cv-00490-JAM-

KJN, 2018 WL 1473199 (E.D. Cal. Mar. 6, 2018).

331

Complaint at 16-17, No. 2:18-cv-00490-JAM-KJN (E.D. Cal. Mar. 6, 2018).

332

Id. at 2.

333

Id. at 3.

334

The government did not challenge AB 450 as applied to public employers. United States v. California, 314 F. Supp.

3d 1077, 1094 (E.D. Cal. 2018).

335

Id. at 1086.

336

United States v. California, —F.3d—, No. 18-16496, 2019 WL 1717075, at *2 (9th Cir. Apr. 18, 2019).

337

United States v. California, 314 F. Supp. 3d 1077, 1096 (E.D. Cal. 2018).

338

Id. at 1098.

339

Id. at 1096-97.

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punishes employers for failing to communicate with its employees and not for choosing to deal

with the federal government.

340

The Ninth Circuit agreed, adding that “intergovernmental

immunity attaches only to state laws that discriminate against the federal government and burden

it in some way.”

341

And the Ninth Circuit accepted California’s contention that “[t]he mere fact

that those notices” required by AB 450 “contain information about federal inspections does not

convert them into a burden on those inspections.”

342

The district court also rejected the government’s argument that the notice provision prevents an

obstacle to enforcing IRCA’s prohibition on employing unauthorized aliens because, the

government asserted, if investigation targets are warned, investigations will be less effective.

343

But the court opined that IRCA imposes obligations and penalties on employers, not employees,

and so the “target” of any investigation is the employer, not the employee.

344

Likewise, the Ninth

Circuit concluded that AB 450’s notice requirement does not impose “additional or contrary

obligations that undermine or disrupt the activities of federal immigration authorities” in

implementing IRCA.

345

AB 103

The district court declined to preliminarily enjoin Section 12 of AB 103. The government had

argued that California’s “efforts to assess the process afforded to immigrant detainees” through

the review and reporting requirements in AB 103, create an obstacle to administering the federal

government’s exclusive discretion in deciding whether and how to pursue an alien’s removal.

346

The court disagreed, though, opining that the California Attorney General’s review would not

give the state a role in determining whether an alien should be detained or removed from the

United States.

347

Rather, the court characterized the provision as one that harnesses power

California’s Attorney General lawfully possesses to investigate matters related to state law

enforcement.

348

Nor, the court concluded, would the government likely succeed on its claim Section 12 of AB 103

violates the doctrine of intergovernmental immunity.

349

The court recognized that the law imposes

inspections only on facilities that contract with the federal government.

350

But the court opined

that the burden imposed on the federal contractors is minimal, and the government had not shown

that the burden imposed under AB 103 is higher than burdens imposed under independent

California laws governing inspections of other detention facilities within the state.

351

340

Id. at 1097.

341

United States v. California, —F.3d—, No. 18-16496, 2019 WL 1717075, at *8-9 (9th Cir. Apr. 18, 2019) (emphasis

added).

342

Id. at *8.

343

California, 314 F. Supp. 3d at 1097; Plaintiff’s Motion for Preliminary Injunction & Memorandum of Law in

Support at 9-10, United States v. California, 18-cv-00490, 2018 WL 1473199 (E.D. Cal. Mar. 6, 2018).

344

California, 314 F. Supp. 3d at 1097.

345

United States v. California, —F.3d—, No. 18-16496, 2019 WL 1717075, at *9 (9th Cir. Apr. 18, 2019).

346

California, 314 F. Supp. 3d at 1091.

347

Id. at 1091.

348

Id. at 1091-92.

349

Id. at 1093.

350

Id.

351

Id.

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On appeal, however, the Ninth Circuit concluded that part of Section 12 of AB 103 (the

requirement for the California Attorney General to review the circumstances surrounding

detained aliens’ apprehension and transfer to each facility) violates the doctrine of

intergovernmental immunity.

352

The Ninth Circuit characterized the district court’s ruling as

creating a “de minimis exception” to the doctrine of intergovernmental immunity.

353

But the

Ninth Circuit rejected this new exception, opining that “[a]ny economic burden that is

discriminatorily imposed on the federal government is unlawful.”

354

Still, the court decided that

only the provision requiring state inspectors to examine the circumstances surrounding the

immigration detainees’ apprehension and transfer to the facility likely violates the doctrine of

intergovernmental immunity.

355

In the Ninth Circuit’s view, this “unique” requirement appeared

distinct from any other inspection imposed under California law, and, thus, the Ninth Circuit

concluded that the district court erred in finding that the review appears no more burdensome

than other legally mandated inspections.

356

SB 54

Finally, the district court rejected the government’s argument that SB 54 acts as an obstacle to

immigration enforcement and, thus, is preempted.

357

The government had asserted that SB 54’s

limitations on information sharing and transferring to federal custody certain alien inmates

“impede immigration enforcement from fulfilling its responsibilities regarding detention and

removal because officers cannot arrest an immigrant upon the immigrant’s release from custody

and have a more difficult time finding immigrants after the fact without access to address

information.”

358

The court opined, however, that “refusing to help is not the same as

impeding.”

359

A state’s refusal to help with federal immigration enforcement will always make

obtaining the federal objective more difficult than if the state voluntarily assists, but, the court

explained, “[s]tanding aside does not equate to standing in the way.”

360

The Ninth Circuit upheld the district court’s ruling.

361

First, the court concluded that SB 54 does

not obstruct the government’s implementation of the INA.

362

The court reasoned that the INA

(with the exception of Section 1373) “provides state and localities the option, not the requirement,

of assisting federal immigration authorities,” and “SB 54 simply makes that choice for California

law enforcement agencies.”

363

Further, invoking the Supreme Court’s ruling in Murphy, the Ninth

Circuit opined that invalidating SB 54 under the principles of conflict preemption “would, in

effect, ‘dictate[] what a state legislature may and may not do,’ because it would imply that a

state’s otherwise lawful decision not to assist federal authorities is made unlawful when it is

352

United States v. California, —F.3d—, No. 18-16496, 2019 WL 1717075, at *10 (9th Cir. Apr. 18, 2019).

353

Id. at *11.

354

Id.

355

Id. at *12.

356

Id.

357

United States v. California, 314 F. Supp. 3d 1077, 1104 (E.D. Cal. 2018).

358

Id. at 1104.

359

Id.

360

Id. at 1104-05.

361

United States v. California, —F.3d—, No. 18-16496, 2019 WL 1717075, at *13-19 (9th Cir. Apr. 18, 2019).

362

Id. at *13-17.

363

Id. at *16.

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codified as state law.”

364

Nor does Section 1373 preempt the information-sharing provisions of

SB 54 because, the court concluded, the state measure expressly permits the type of information

required by Section 1373, specifically, citizenship or information status.

365

Moreover, the Ninth

Circuit, again relying on Murphy, concluded that anti-commandeering principles likely precluded

a preemption challenge to the information-sharing provisions.

366

The court described the

exception to the anti-commandeering doctrine for reporting requirements as existing only when

the “Congress evenhandedly regulates an activity in which both States and private actors

engage.”

367

But here, Section 1373 regulates only state actors, and therefore anti-commandeering

principles preclude the government from requiring California to exchange information with it.

368

Conclusion

Ongoing lawsuits concerning sanctuary jurisdictions may offer clarity on some unsettled and

cross-cutting issues involving immigration and federalism. The Tenth Amendment reserves for

the states the “police power” to regulate and protect the health, safety, and welfare of the

public,

369

and, in adopting sanctuary policies, jurisdictions have sometimes invoked public safety

concerns as a justification for enacting those measures.

370

But the federal government’s power to

regulate immigration-related matters is substantial and exclusive,

371

and on occasion the exercise

of this power has been found to render unenforceable state or local initiatives that conflict with

federal immigration enforcement priorities.

372

Additionally, Congress generally may condition the

receipt of federal funds on compliance with specific conditions that achieve federal goals.

373

Still,

the anti-commandeering doctrine restricts the federal government from compelling the states to

administer or enforce a federal regulatory program,

374

like the immigration laws, whether through

direct compulsion or prohibition, or indirectly, through monetary incentives that are unduly

coercive.

364

Id. (quoting Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018)).

365

Id. at *17.

366

Id.

367

Id. (quoting Murphy, 138 S. Ct. at 1478).

368

Id.

369

See Ndioba Niang v. Carroll, 879 F.3d 870, 873-74 (8th Cir. 2018); Siena Corp. v. Mayor & City Council of

Rockville, Md., 873 F.3d 456, 464 (4th Cir. 2017); Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584, 591

(10th Cir. 1999); Sinclair Refining Co. v. City of Chicago, 178 F.2d 214, 216 (7th Cir. 1949).

370

For example, the California Values Act begins by declaring that “[a] relationship of trust between California’s

immigrant community and state and local agencies is central to the public safety of the people of California. S.B. 54 §

3, 2017-2018 Cal. Senate (Cal. 2017) (emphasis added).

371

See, e.g., Arizona v. United States, 567 U.S. 387 , 394 (2012) ("The Government of the United States has broad,

undoubted power over the subject of immigration and status of aliens."); Toll v. Moreno, 458 U.S. 1, 10 (1982) (“Our

cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens

within our borders.”); De Canas v. Bica, 424 U.S. 351, 354 (1976) (“Power to regulate immigration is unquestionably

exclusively a federal power.”); Hampton v. Mow Sun Wong, 426 U.S. 88, 95 (1976) (“Congress and the President have

broad power over immigration and naturalization which the States do not possess.”)

372

See Arizona, 567 U.S. at 416 (holding the many provisions of an Arizona statute aimed at deterring the presence of

aliens in the state who committed violations of federal immigration laws were preempted).

373

See NFIB v. Sebelius, 567 U.S. 519, 579 (2012) (“Congress may attach appropriate conditions to federal . . .

spending programs to preserve its control over the use of federal funds.”); CRS Report R44797, The Federal

Government’s Authority to Impose Conditions on Grant Funds, by Brian T. Yeh.

374

Printz v. United States, 521 U.S. 898, 935 (1997).

“Sanctuary” Jurisdictions: Federal, State, and Local Policies and Related Litigation

Congressional Research Service 39

With that background, the heart of the debate in the lawsuits challenging EO 13768 and its

implementation has principally centered on what constitutionally permissible methods are

available to the federal government to stop or deter state and local adoption of sanctuary policies,

which the government views as hindering federal immigration enforcement objectives, and, on

the flip side, whether and when state and local sanctuary policies do, in fact, undercut federal

immigration enforcement efforts in a manner that contravenes the Supremacy Clause.

In City & County of San Francisco v. Trump and County of Santa Clara v. Trump, for example,

the district court’s ruling that enjoined Section 9(a) hinged, in part, on its conclusion that the

executive branch lacked statutory authority from Congress to withhold and create new conditions

for federal grants, and that purporting to withhold all federal grants from what it labeled as

sanctuary jurisdictions was unconstitutionally coercive, given the sheer amount of money a

sanctuary jurisdiction would stand to lose if it didn’t dispense with its policies.

375

Congress could

step in to ratify Section 9(a), at least in part, using its spending power to incentivize states to

cooperate with immigration enforcement, so long as it doesn’t threaten to withhold an amount of

money that could be deemed coercive. And in City of Chicago v. Sessions and City of

Philadelphia v. Sessions, the district courts and one appellate court concluded that the executive

branch lacked statutory authority to impose some of the spending conditions that the DOJ

attached to the Byrne JAG program.

376

Likewise, Congress could amend the Byrne JAG statute to

give the Attorney General, as it has done for other grant programs, the discretion to impose

conditions on the receipt of the federal grant.

Moreover, since Murphy, the courts considering the challenges to Section 1373 have concluded

that the statute is no longer constitutionally viable, given the Supreme Court’s application of the

anti-commandeering doctrine to a federal statute that prohibits states from enacting certain kinds

of laws.

377

Accordingly, to achieve Section 1373’s goals, Congress may consider using its power

of the purse to incentivize states and localities to share immigration-related information with

federal immigration authorities.

Author Information

Sarah Herman Peck

Legislative Attorney

375

See supra section City & Cty. of San Francisco v. Trump and Cty. of Santa Clara v. Trump.

376

See supra sections City of Chicago v. Sessions and City of Philadelphia v. Sessions.

377

See Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018); City of Chicago v. Sessions, 321 F. Supp. 3d 855, 872 (N.D.

Ill. 2018) (holding Section 1373 unconstitutional); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 329-31 (E.D.

Pa. 2018) (same); City & Cty. of San Francisco v. Sessions, Nos. 17-cv-04642-WHO & 17-cv-04701-WHO, 2018 WL

4859528, at *1 (N.D. Cal. Oct. 5, 2018) (same).

“Sanctuary” Jurisdictions: Federal, State, and Local Policies and Related Litigation

Congressional Research Service R44795 · VERSION 7 · UPDATED 40

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