On July 16, 2018, the City of Evanston, Illinois, along with the U.S. Conference of Mayors, filed this lawsuit against the United States Department of Justice. The plaintiffs sought to enjoin the DOJ from imposing three new conditions on the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG program), a federal grant program that provides crucial support for law enforcement in hundreds of cities nationwide. These three conditions would require that cities (1) give the Department of Homeland Security and U.S. Immigration and Customs Enforcement 48 hours’ notice (or at least as much notice as practicable) prior to releasing any alien from custody (the “notice condition”); (2) give DHS officials unlimited access to local law enforcement facilities to interrogate any suspected noncitizen held there (the “access condition”); and (3) certify compliance with 8 U.S.C. §§ 1373 and 1644, which bar local governments from withholding immigration status information from the federal government (the “compliance condition”).

The plaintiffs sued the DOJ under the Administrative Procedure Act and the Declaratory Judgment Act, arguing that the DOJ lacked statutory authority to condition Byrne JAG funds on the notice, access, and compliance conditions, and that the conditions were arbitrary and capricious. Additionally, they argued that the three conditions amounted to improper usurpation of Congress’s spending power by the executive branch, thus violating separation of powers. Even if there were no separation-of-powers violation, the plaintiffs argued that Congress could not have authorized the three conditions because they did not satisfy Spending Clause requirements. The conditions also violated the Tenth Amendment’s anti-commandeering principle. The plaintiffs sought a declaration that the DOJ’s requirements were unlawful, and sought an injunction preventing the DOJ from imposing the conditions. The case was originally assigned to Judge Charles R. Norgle, but was shortly thereafter reassigned to Judge Harry D. Leinenweber.

On July 20, 2018 the plaintiffs filed a motion for a temporary restraining order and a preliminary injunction. On August 9, 2018, the court held that the plaintiffs had standing and issued a preliminary injunction enjoining the DOJ from attaching the three challenged conditions to grants awarded to the City of Evanston or to any member of the Conference of Mayors. However, given a pending Seventh Circuit ruling on a nationwide injunction in a parallel case (City of Chicago v. Sessions), the court stayed its injunction as applied to the Conference. The plaintiffs appealed the stay, which was lifted by the Seventh Circuit on August 29, 2018.

On October 5, 2018, the DOJ appealed the grant of the preliminary injunction to the Seventh Circuit. However, the parties filed a joint motion to hold appellate proceedings in abeyance, which was granted on October 15.

On December 10, 2018, the plaintiffs filed an amended complaint challenging two additional conditions on Byrne JAG program funding: (1) the “questionnaire condition,” which required a city to answer questions about whether it had any policies about how employees may communicate with DHS or ICE and (2) the “harboring condition,” requiring cities to agree not to violate 8 U.S.C. § 1324(a) (a prohibition on hiding or harboring undocumented immigrants).

On February 11, 2019, the plaintiffs filed a motion for partial summary judgment. The court held a hearing on the plaintiffs’ motion on April 9, 2019. The DOJ then filed a motion to dismiss for failure to state a claim and for lack of jurisdiction, and in the alternative, for summary judgment.

The court denied the DOJ’s motion to dismiss on September 26, 2019. On the same day, the court granted the plaintiffs’ motion for summary judgment with respect to the notice, access, compliance, and harboring conditions, as well as an additional certification requirement. It granted a declaration that 8 U.S.C. §§1373 and 1644 violated the anti-commandeering doctrine, declaring that “the Attorney General cannot require compliance with these statutes as a condition” of funding. The court also issued a permanent injunction prohibiting the Attorney General from imposing any of the challenged conditions in future grant years. 412 F.Supp.3d 873. The DOJ appealed.

While the appeal was pending, the court granted a plaintiff motion for attorneys’ fees and expenses on April 23, 2020. It awarded $97,546.43 in attorneys’ fees and $283.75 in costs and expenses. On July 2, 2020, the court granted the plaintiffs an additional $21,953.38 in supplemental fees.

As of July 2020, the appeal is currently pending.

Eva Richardson - 05/27/2019
Bogyung Lim - 07/13/2020


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