City of Phila. v. Sessions

280 F.Supp.3d 579

The CITY OF PHILADELPHIA

v.Jefferson Beauregard SESSIONS III, Attorney General of the United States

CIVIL ACTION NO. 17–3894

United States District Court, E.D. Pennsylvania.

Signed November 15, 2017

Virginia A. Gibson, Alexander B. Bowerman, Jasmeet K. Ahuja, Sara A. Solow, Hogan Lovells U.S. LLP, Marcel S. Pratt, City of Philadelphia Law Department Chair, Litigation Group, Lewis Rosman, Sozi Pedro Tulante, City of Philadelphia Law Dept., Judy Lee Leone, Dechert LLP, Will W. Sachse, Dechert, Price & Rhoads, Robert C. Heim, Philadelphia, PA, Daniel J.T. Schuker, Neal Katyal, Hogan Lovells U.S. LLP, Washington, DC, for The City of Philadelphia.

Arjun Garg, Chad A. Readler, U.S. Department of Justice, Washington, DC, Anthony St. Joseph, U.S. Attorney's Office, Philadelphia, PA, for Jefferson Beauregard Sessions III, Attorney General of the United States.

MEMORANDUM RE: MOTION FOR PRELIMINARY INJUNCTION

Baylson, J.

TABLE OF CONTENTS

I. Summary of the Counts in the Complaint...590

II. Summary of Findings of Fact and Conclusions of Law...591

III. Byrne JAG Program...593

IV. The Three Challenged Conditions...594

V. Philadelphia's Policies at Issue...596

VI. Prior Litigation Over "Sanctuary City" Policies...597

A. County of Santa Clara v. Trump...597

B. City of Chicago v. Sessions...599

VII. Plaintiff's Motion for Preliminary Injunction...600

VIII. Review of Testimony and Sworn Declarations Filed by Plaintiff in Support of Motion...600

A. Testimony of Police Commissioner Ross...600

1. Philadelphia Police Priorities...601

2. Reasons for Philadelphia Police Department Policies on Immigrants...601

3. Community Policing...602

4. Immigrants Have No Immunity from Arrest and Prosecution for Crimes in Philadelphia...602

5. Reasons for Police Policies Criticized by the Attorney General...602

6. Cooperation with Federal Law Enforcement Agencies...604

B. Declaration and Testimony of Julie Wertheimer...604

C. Declaration and Testimony of Eva Gladstein...605

D. Declaration and Testimony of Brian Abernathy...606

E. Testimony of Thomas Farley...609

IX. Review of Sworn Declarations Filed by Defendant in Opposition to Motion...609

X. Findings of Fact...609

XI. The APA and the Challenged Conditions...613

A. Final Agency Action...614

1. The Parties' Contentions...614

2. The Agency Action at Issue is Final...614

B. The City's Challenges under APA Section 706...615

1. Statutory Authority...615

a) "Special Conditions" Authorization...616

(1) The Parties' Contentions...616

(2) Section 10102(a)(6) Does Not Authorize Any Challenged Condition...616

b) "All Other Applicable Federal Laws" Authorization...617

(1) The Parties' Contentions...617

(2) Section 10153(a)(5)(D) May Authorize The Certification Condition...619

2. Arbitrary and Capricious...619

a) The Parties' Contentions...619

b) The "Backgrounder on Grant Requirements"...621

c) The July 25, 2017 Press Release...623

d) The 2016 OIG Report...624

3. Constitutionality of Conditions...625

XII. The Intersection between Criminal Law and Immigration Law...625

A. Lawfully Present versus Unlawfully Present Noncitizens...626

B. Removal: Deportability ( 8 U.S.C. § 1227 ) versus Inadmissibility ( 8 U.S.C. § 1182 )...627

1. Overview...627

2. Detention pending removal proceedings—criminal aliens...628

3. Removal proceedings...628

4. Consequences of Deportability and Inadmissibility...628

C. Criminal Grounds of Deportability and Inadmissibility...629

1. § 1227(a)(2) Sets out Criminal Grounds of Deportability...629

a) Crimes Involving Moral Turpitude ("CIMT")...629

b) Aggravated Felonies...630

c) Other offenses...630

2. § 1182(a)(2) Sets out Criminal Grounds of Inadmissibility...631

D. The Relevance of Padilla and Galarza...631

1. Padilla v. Kentucky...631

2. Galarza v. Szalczyk...632

E. ICE Programming and Enforcement Priorities...633

1. Secure Communities Program...633

2. Priority Enforcement Program...634

F. President Trump's Executive Order: New Enforcement Priorities...634

G. Philadelphia's Policy and Potential Conflicts...636

H. Statutes Which Impact Both Immigration and Criminal Law...637

I. Selective Enforcement...638

XIII. Spending Clause and Separation of Powers...639

A. Relatedness...639

1. Byrne JAG Program and the DOJ Conditions...642

2. Certification Condition...643

B. Lack of ambiguity...644

C. Coercion and the Tenth Amendment...647

1. New York v. United States...648

2. Printz v. United States...648

3. National Federation of Independent Business v. Sibelius...649

4. City of New York v. United States...650

5. The Present Case...651

XIV. Philadelphia Substantially Complies with Section 1373...651

A. Substantial Compliance Can Be Implied...652

B. Substantial Compliance Can Apply to Grant Conditions...653

XV. Irreparable Harm...655

A. The Status Quo...655

B. Philadelphia Has Demonstrated Irreparable Harm...655

XVI. Balance of Equities and the Public Interest...657

XVII. CONCLUSION...658

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.¹

The Complaint in this case asserts multiple counts of constitutional and statutory violations, relating to the federal government's attempt to deprive the City of Philadelphia the receipt of grants from the United States Department of Justice, referred to as "JAG Program" grants. After a prompt Rule 16 conference, because of approaching events that threatened to deprive the City of Philadelphia of this grant money, and the non-monetary consequences of the federal government's proposed actions, the City has moved for a preliminary injunction.² The Court held an evidentiary hearing on October 26, 2017.

I. Summary of the Counts in the Complaint

The City filed a six-count Complaint on August 30, 2017, alleging in detail the City's overarching commitments to welcoming immigrants, holding wrongdoers accountable for their criminal conduct regardless of their immigration status, and promoting the health, safety, and welfare of all residents. The City evidently prizes the hard-won trust it has earned with immigrant communities, and believes that the City is both safer and better off when immigrants do not "fear adverse consequences to themselves or to their families from interacting with City officers." (ECF 1 ("Compl.") ¶ 2). In the City's view, fostering trust with immigrant communities promotes cooperation with police—particularly by immigrant victims and witnesses of crimes—which in turn promotes public safety. (Id. ¶ 3). To that end, the City has instituted a number of policies intended to limit collection of immigration status information in the provision of City services and routine policing efforts, and limit coordination with federal immigration enforcement. (Id. ¶¶ 21– 51). Philadelphia hastens to add, however, that it cooperates with federal authorities in various arenas of criminal justice, including by participating in federal task forces, and employs several databases that are visible to the Federal Bureau of Investigations ("FBI") and Immigration and Customs Enforcement ("ICE"). The City has applied for, and received, federal funding through the Byrne Justice Assistance Grants Program ("JAG Program") every fiscal year since the JAG Program assumed its present form in 2005. (Id. ¶ 60). In fiscal year 2016, it had to agree to some fifty-three special conditions in order to receive $1.68 million in JAG Program funds, as demonstrated on its 2016 grant approval sheet. (Id.; Compl. Ex. 9).

The City objects to three conditions recently imposed by the Department of Justice through the Attorney General, and has filed suit to enjoin them. Specifically, it alleges that the Attorney General cannot condition JAG Program funds on 1) requiring federal immigration agents access to City detention facilities (the "Access Condition"); 2) providing the Department of Homeland Security ("DHS") at least 48 hours' advance notice of the date and time of the release of any inmate about whom DHS has requested such information (the 48 hour "Notice Condition"); and 3) certifying compliance with 8 U.S.C. § 1373 ("Certification Condition"; collectively, the "Challenged Conditions"). (Compl. ¶ 5). The City alleges six counts for injunctive and declaratory relief.

Count I asserts that the Attorney General acted ultra vires and in violation of the Administrative Procedure Act by imposing the Challenged Conditions, because the Challenged Conditions are not authorized by the Congressional statute creating the JAG Program, do not concern administration and spending of JAG Program funds, and are at odds with the JAG Program's formula grant structure. (Id. ¶¶ 105–12).

Count II asserts that the imposition of the Challenged Conditions is unconstitutional and therefore violates the Administrative Procedure Act ("APA"). The City argues that the Constitution bestows upon Congress the exclusive power to enact spending legislation pursuant to Article I, § 8, cl. 1 (the "Spending Clause"), whereas the President and the Executive Branch are separately tasked with "tak[ing] Care that the Law be faithfully executed." U.S. Const. art. II, § 3, cl. 5 (the "Take Care Clause"). The City also claims that Attorney General's imposition of the new conditions amounts to an unconstitutional refusal to disburse money that Congress has already appropriated. (Id. ¶¶ 113–21).

Count III alleges that the Attorney General's imposition of the Challenged Conditions is arbitrary and capricious, and therefore violates the APA, because it deviates from past agency policy without reasoned explanation or justification. (Id. ¶¶ 122–24).

Count IV asserts that even Congress could not have imposed these conditions on JAG Program grants because doing so would violate the Spending Clause. The Challenged Conditions, the City argues, are unrelated to the purpose of the JAG Program, do not impose unambiguous obligations on recipients, and transgress principles of federalism. (Id. ¶¶ 125–31).

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