Oregon v. Trump

406 F.Supp.3d 940

The State of OREGON; Kate Brown, Governor; Ellen Rosenblum, Attorney General; and The City of Portland, Plaintiffs,

v.Donald J. TRUMP, President of the United States, in his official capacity; William P. Barr, Attorney General of the United States, in his official capacity; and The United States of America, Defendants.

No. 6:18-cv-01959-MC

United States District Court, D. Oregon, Eugene Division.

Signed August 7, 2019

Marc Abrams, Oregon Department of Justice, Tracy Pool Reeve, Denis M. Vannier, Naomi Sheffield, Portland City Attorney's Office, Portland, OR, Justin E. Kidd, Peenesh H. Shah,Timothy Daly Smith, Oregon Department of Justice, Salem, OR, for Plaintiffs.

Daniel D. Mauler, U.S. Department of Justice, Civil Division, W. Scott Simpson, US Department of Justice, Washington, DC, for Defendants.

OPINION AND ORDER

Michael J. McShane, United States District Judge

The present dispute touches upon many of the same principles and tensions which have animated our Republic's legal and political discourse since its founding. The President of the United States and his Attorney General seek to advance their policy priorities by pressuring states and localities to comply with two immigration-related laws and by withholding federal funds from jurisdictions which refuse to assist immigration authorities. The laws at issue, 8 U.S.C. §§ 1373 and 1644, prohibit states and localities from enacting rules which prevent their employees from sharing a person's immigration status with federal officials. The State of Oregon and the City of Portland, both of which have been targeted, believe that Sections 1373 and 1644 are unconstitutional intrusions upon their legislative independence. They also believe that the funding conditions imposed by the Attorney General are contrary to the intent of Congress. The case comes before the Court on Defendants' Motion to Dismiss and Plaintiffs' Motion for Summary Judgment. Because Sections 1373 and 1644 violate the Tenth Amendment, and Defendants otherwise lack the authority to withhold the disputed funds, Plaintiffs' motion is GRANTED in part.

BACKGROUND

I. The Byrne JAG Program

The present conflict centers on the Edward Byrne Memorial Justice Assistance Grant Program ("Byrne JAG Program"). See Pub. L. No. 109-162, § 1111, 1119 Stat. 2960, 3094 (2006) (codified as amended at 34 U.S.C. §§ 10151 - 10158 ). The Byrne JAG Program is a federal grant program administered by the Office of Justice Programs, a subdivision of the United States Department of Justice. See 34 U.S.C. §§ 10101 - 10102, 10141, 10151. The purpose of the Byrne JAG Program is to support state and local criminal justice efforts by providing an additional source of funding for personnel, equipment, training, and other needs. Id. § 10152(a)(1). States and localities may use Byrne JAG funds to support criminal justice initiatives in several different areas, including law enforcement, prosecution, crime prevention, corrections, drug treatment, technology, mental health, and victim and witness services. See id. §§ 10152(a)(1), 10153(a).

Under the Byrne JAG Program, grants are distributed directly to states and localities according to a formula, the variables of which are derived from a jurisdiction's population and violent crime statistics. 34 U.S.C. § 10156. To receive and draw upon a Byrne JAG award, a jurisdiction must apply to the Attorney General in the form and manner prescribed by statute, see id. §§ 10153, 10155, and comply with all lawful conditions outlined in the grant solicitation and award documents, see, e.g. , Schmidt Decl. Exs. 1, 11, ECF No. 22; Defs.' Req. for Judicial Notice in Supp. Mot. Dismiss ("RJN") Exs. E, F, ECF No. 15. A jurisdiction, once awarded its statutory share of funds, may also make subawards to local governments and community organizations. 34 U.S.C. § 10152(b). Although funds appropriated by Congress for the Byrne JAG Program must be allocated according to the statutory formula, the Attorney General retains some discretion to reserve and redistribute certain funds. See id. §§ 10156(f), 101057.

II. History of Participation

The State of Oregon had, until 2017, received Byrne JAG funds every year since the program's creation in 2005. Schmidt Decl. ¶ 6; Nordeen Decl. ¶ 2, ECF No. 25; see also RJN Ex. A. During that time, the State of Oregon used its more than $26 million in Byrne JAG funds to support, among other things, programs for mental health treatment, technology improvement, and drug treatment and enforcement. Schmidt Decl. ¶ 9. With respect to the contested FY 2017 award, the State of Oregon plans to use its funds to support specialty courts designed to address root causes of criminal activity and provide statewide assistance to local crime victims. Schmidt Decl. ¶¶ 12, 15, Ex. 4 at 2, 7-8, 16-17. With respect to the contested FY 2018 award, the State of Oregon plans to use its funds to support specialty court programs which target non-violent felony offenders in an integrated, systemic approach to reduce drug use and recidivism while increasing public safety. Schmidt Decl. ¶ 22, Ex. 12 at 1-2, 8-14, 20-21.

Similarly, the City of Portland had, until 2017, received Byrne JAG funds every year since the program's creation in 2005. Nordeen Decl. ¶ 2; see also RJN, Ex. B. During that time, the City of Portland used its Byrne JAG funds to, among other things, purchase bulletproof vests and special-threat plates, acquire tactical medical kits, install Global Positioning Systems, and add two Victim Advocates to the Portland Police Bureau's Sex Crimes Unit. Nordeen Decl. ¶ 3. In addition, the City of Portland has historically distributed funds to subrecipients Multnomah County and the City of Gresham, which have used those funds to, among other things, support a Neighborhood Deputy District Attorney, purchase police equipment, and add a full-time Parole and Probation Officer. Nordeen Decl. ¶ 4. The City of Portland plans to support similar initiatives with the contested FY 2017 and FY 2018 funds. Nordeen Decl. Exs. 2, 5.

III. FY 2017 and FY 2018 Funding Conditions

Starting in 2017, the Attorney General imposed three new immigration-related conditions on the receipt of Byrne JAG funds. See generally Schmidt Decl. Exs. 1-3; Nordeen Decl. Ex. 1; RJN Ex. D. The conditions are included in the FY 2017 state and local solicitations promulgated by the Department of Justice and, more importantly, the award agreements adopted by grantees. See, e.g. , Schmidt Decl. Ex. 1; Nordeen Decl. Ex. 1; RJN Ex. D. As relevant here, a jurisdiction must formally agree to each condition prior to drawing upon an award of FY 2017 Byrne JAG funds. See, e.g. , RJN Ex. D ¶ 1. The FY 2017 conditions can be summarized as follows:

• Notice Condition : A grantee must provide 48 hours' "advance notice"—or as much advance notice as is "practicable"—of the "scheduled release date and time" of any alien in the jurisdiction's custody if the jurisdiction receives a "formal written request" from the United States Department of Homeland Security ("DHS"). RJN Ex. D ¶ 55; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4.

• Access Condition : A grantee must allow DHS personnel to "access" any detention facility which it maintains and "meet with individuals who are (or are believed ... to be) aliens" and "inquire as to their right to be or remain in the United States." RJN Ex. D ¶ 55; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4.

• Compliance Condition : A grantee must certify that it complies with 8 U.S.C. § 1373. RJN Ex. D ¶ 54; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4. Section 1373 provides that no "State[ ] or local government entity or official may ... prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status ... of any individual." 8 U.S.C. § 1373(a).

In 2018, the Attorney General again imposed immigration-related conditions on the receipt of Byrne JAG funds. See generally Schmidt Decl. Ex. 11; Nordeen Decl. Ex. 4; RJN Exs. E, F. Two of those conditions are substantively indistinguishable from the Notice and Access Conditions described above. RJN Ex. E ¶¶ 45-46; see also Schmidt Decl. ¶ 22, Ex. 11 at 1, 35-37, 42-43; Nordeen Decl. Ex. 4 at 36-37, 42-43. A third condition merely expands the Compliance Condition to include 8 U.S.C. § 1644—a statute which is functionally equivalent to Section 1373—and to require that jurisdictions describe any "laws, policies, or practices related to whether, when, or how employees may communicate with DHS or [Immigration and Customs Enforcement]." Schmidt Decl. Ex. 11 at 27-28, 52; see also Nordeen Decl. Ex. 4 at 52; RJN Ex. E ¶ 47. But a fourth and final FY 2018 condition imposes a new restriction on grantees' conduct:

• Disclosure Condition : A grantee must not publicly disclose "federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice" or any "alien who has come to, entered, or remains in the United States" in violation of federal law. RJN Ex. E ¶ 44.¹

As with FY 2017 Byrne JAG awards, grantees must formally agree to each of the immigration-related conditions prior to drawing upon their FY 2018 funds. See, e.g. , RJN Exs. E, F. Thus, even if a jurisdiction receives a notice of award from the Department of Justice, it may not draw upon those funds until it agrees to the conditions listed in the award document.

See RJN Ex. E ¶ 1 ("Failure to comply with any one or more of these award requirements ... may result in the Office of Justice Programs ... withhold[ing] award funds, disallow[ing] costs, or suspend[ing] or terminat[ing] the award."); see also Schmidt Decl. Ex. 11 at 1; Nordeen Decl. Ex. 4 at 1.

IV. FY 2017 and FY 2018 Awards

Plaintiffs applied in August 2017 for a FY 2017 Byrne JAG award and in ...