City of Chi. v. Barr

957 F.3d 772

CITY OF CHICAGO, Plaintiff-Appellee,

v.William P. BARR, Attorney General of the United States, Defendant-Appellant.

Nos. 18-2885 & 19-3290

United States Court of Appeals, Seventh Circuit.

No. 18-2885 Argued April 10, 2019

No. 19-3290 Submitted February 6, 2020

Decided April 30, 2020

Debo P. Adegbile, Attorney, Wilmer Hale LLP, New York, NY, Ari Holtzblatt, David W. Ogden, Jamie S. Gorelick, Molly Maureen Jennings, Tiffany Wright, Attorneys, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, Laura Kleinman, Attorney, Robinson Curley, P.C., Chicago, IL, Benna Ruth Solomon, Justin A. Houppert, Attorneys, City of Chicago Law Department, Chicago, IL, Matthew Charles Crowl, Ronald S. Safer, Attorneys, Riley Safer Holmes & Cancila LLP, Chicago, IL, for Plaintiff-Appellee in 18-2885.

Brian C. Haussmann, Katherine O'Brien, Attorney, Tabet, Divito & Rothstein LLC, Chicago, IL, for Plaintiff in 18-2885.

Katherine Twomey Allen, Hashim M. Mooppan, Mark B. Stern, Daniel Tenny, Bradley Hinshelwood, Attorneys, Department of Justice, Civil Division, Appellate Staff, Washington, DC, W. Scott Simpson, Attorney, Office of the United States Attorney, Springfield, IL, for Defendant-Appellant in 18-2885.

Mark Steven Venezia, Attorney, Immigration Reform Law Institute, Washington, DC, for Amicus Curiae Immigration Reform Law Institute.

R. Stanton Jones, Allison Gardner, Andrew Tutt, Attorneys, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Amicus Curiae Legal Historians.

Hannah Luke Edwards, Office of the County Counsel, County of Santa Clara, San Jose, CA, for Amicus Curiae County of Santa Clara, California.

Chirag Gopal Badlani, Attorney, Hughes Socol Piers Resnick & Dym, Ltd., Chicago, IL, for Amicus Curiae Current and Former Law Enforcement Leaders.

Charles A. Rothfeld, Attorney, Mayer Brown LLP, Washington, DC, Paul Whitfield Hughes, Attorney, McDermott, Will & Emery, Washington, DC, for Amicus Curiae Law Professors.

Linda Fang, Attorney, Office of the Attorney General, New York, NY, for Amicus Curiae State of New York.

Spencer Elijah Wittmann Amdur, Attorney, American Civil Liberties Union, San Francisco, CA, for Amici Curiae American Civil Liberties Union, American Civil Liberties Union, American Civil Liberties Union of Illinois, National Immigrant Justice Center, Immigrant Legal Resource Center, and Southern Poverty Law Center.

Elizabeth B. Wydra, Attorney, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Members of Congress.

Harry Sandick, Attorney, Patterson, Belknap, Webb & Tyler LLP, New York, NY, for Amici Curiae Administrative Law Scholars, Constitutional Law Scholars, and Immigration Law Scholars.

Paul A. Castiglione, Attorney, Office of the Cook County State's Attorney, Federal Litigation Division, Chicago, IL, for Amicus Curiae Cook County, Illinois.

Sheila Maureen Prendergast, Attorney, McDermott, Will & Emery LLP, Chicago, IL, Ankur J. Goel, McDermott, Will & Emery LLP, Washington, DC, Niyati Shah, Asian Americans Advancing Justice, Washington, DC, for Amicus Curiae Asian Americans Advancing Justice.

John J. Hamill, Attorney, DLA Piper LLP (US), Chicago, IL, Chad I. Golder, Munger, Tolles & Olson LLP, Washington, DC, for Amicus Curiae Illinois Business Immigration Coalition.

Debo P. Adegbile, Attorney, Wilmer Hale LLP, New York, NY, Justin Baxenberg, Ari Evans, Jamie S. Gorelick, Ari Holtzblatt, Molly Maureen Jennings, David W. Ogden, Attorneys, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, Justin A. Houppert, Benna Ruth Solomon, Attorneys, City of Chicago Law Department, Chicago, IL, for Plaintiff-Appellee in 19-3290.

Bradley Hinshelwood, Daniel Tenny, Attorneys, Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Defendant-Appellant in 19-3290.

Spencer Elijah Wittmann Amdur, Attorney, American Civil Liberties Union, San Francisco, CA, for Amici Curiae in 19-3290.

Before Bauer, Manion, and Rovner, Circuit Judges.

Rovner, Circuit Judge.

In this appeal from two consolidated cases, we consider for a second time the legality of conditions imposed by the Attorney General on the Edward Byrne Memorial Justice Assistance Grant Program ("Byrne JAG"). See 34 U.S.C. § 10151 et seq. (formerly 42 U.S.C. § 3750 ). Previously, the district court granted a preliminary injunction as to two conditions—known as the notice and access conditions—imposed by the Attorney General on the FY 2017 Byrne JAG grant applicants. We upheld the preliminary injunction and its nationwide scope in City of Chicago v. Sessions , 888 F.3d 272 (7th Cir. 2018) (" Chicago I ").

The Attorney General then took the rare step of seeking en banc review limited to only the nationwide scope of the injunction, excluding the determination that injunctive relief was proper as to the notice and access conditions, and we granted en banc review. During the pendency of that review, the district court granted a permanent injunction, and in light of that superseding relief we vacated the decision granting en banc review.

City of Chicago v. Sessions , No. 17-2991, 2018 WL 4268814, at *2 (7th Cir. Aug. 10, 2018). The district court again determined that the notice and access conditions imposed by the Attorney General were unlawful and unconstitutional, but also determined that a third condition – the compliance condition – was unconstitutional as well. City of Chicago v. Sessions , 321 F. Supp. 3d 855 (N.D. Ill. 2018). The court extended the injunction to apply to all FY 2017 grant recipients program-wide, but in light of our prior grant of en banc review regarding the scope of the injunction, stayed the injunction to the extent that it applied beyond the City of Chicago.

The Attorney General appealed that determination, and while it was pending in this court, the district court granted a permanent injunction in a second case brought by the City of Chicago, this time challenging the Attorney General’s imposition of conditions on the FY 2018 Byrne JAG grant. City of Chicago v. Barr , 405 F. Supp. 3d 748 (N.D. Ill. 2019). Those conditions included the same notice, access, and compliance conditions that the district court enjoined as to the FY 2017 grant, as well as some new conditions. The district court enjoined the imposition of all of the challenged conditions as to the FY 2018 Byrne JAG grant and all future years, and once more stayed the injunction as to grantees other than the City of Chicago. Id . at 770. The Attorney General again appealed to this court, and we consolidated the two cases for the purposes of the appeal.

The stakes in this case are high. Chicago, like many local governments, has determined that: (1) effective law enforcement requires the cooperation of its undocumented residents; (2) such cooperation cannot be accomplished if those residents fear immigration consequences should they communicate with the police; and, therefore, (3) local law enforcement must remain independent from federal immigration enforcement. The Byrne JAG grant was enacted by Congress to support the needs of local law enforcement to help fight crime, yet it now is being used as a hammer to further a completely different policy of the executive branch—presenting a city such as Chicago with the stark choice of forfeiting the funds or undermining its own law enforcement effectiveness by damaging that cooperative relationship with its residents.

The Attorney General repeatedly expresses frustration that Chicago, or any other jurisdiction, can "simultaneously accept federal law enforcement grants, yet maintain local policies that frustrate federal immigration enforcement." Appellant’s Brief 1-3-20 at 1. It is a sentiment echoed by the only circuit—of the five that have considered it—to uphold the challenged conditions thus far. See State of New York v. Dept. of Justice , 951 F.3d 84, 107 (2d Cir. 2020) ("there is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws, or worse, violating those laws.") But states do not forfeit all autonomy over their own police power merely by accepting federal grants. And the Attorney General’s perception of the urgency of immigration enforcement does not corral for the executive branch the powers entrusted to the legislative branch. The executive branch has significant powers over immigration matters; the power of the purse is not one of them. This tendency to overlook the formalities of the separation of powers to address the issue-of-the-day has been seen many times by the courts, and it is no more persuasive now than it was in those cases. As the Supreme Court has stated, repeatedly:

Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear ‘formalistic’ in a given case to partisans of the measure at issue, because such measures are typically the product of the era’s perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.

Printz v. United States , 521 U.S. 898, 933, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), quoting New York v. United States , 505 U.S. 144, 187, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992).

We conclude again today, as we did when presented with the preliminary injunction, that the Attorney General cannot pursue the policy objectives of the executive branch through the power of the purse or the arm of local law enforcement; that is not within its delegation. It is the prerogative of the legislative branch and the local governments, and the Attorney General’s assertion that Congress itself provided that authority in the language of the statutes cannot withstand scrutiny.

I. Facts and District Court Rulings

In Chicago I...