On August 9, 2018, two Rhode Island cities challenged the U.S. Department of Justice’s (“DOJ”) policy of conditioning federal funding on compliance with immigration-related conditions. The cities argued that the new conditions forced them to make an impossible choice: accept unlawful conditions that undermined their ability to protect their communities or forfeit funding crucial to protecting their communities. Accordingly, the cities argued that the new conditions violated the separation of powers, the Administrative Procedure Act (APA), the Tenth Amendment, the Spending Clause, and also constituted ultra vires conduct. The cities sought declaratory and injunctive relief. This case was filed in the U.S. District Court for the District of Rhode Island and it was assigned to Judge Lincoln D. Almond.

The cities - Providence and Central Falls - had been recipients of the Edward Byrne Memorial Justice Grant (“Byrne JAG”). The cities argued that the new immigration-related conditions were not relevant to Byrne JAG’s purpose, which was to provide funding for states and local government in support of local activities related to criminal justice. The program, according to the complaint, was designed to create flexibility in federal funding to allow localities to address their particular law enforcement needs.

But on July 25, 2017, the DOJ announced its new policy of conditioning Byrne JAG funding on localities meeting all of the following conditions: (1) providing federal immigration enforcement agents with access to the localities’ correctional facilities (“access condition”), (2) providing federal immigration officials with notice before an individual’s scheduled custody release (“notice condition”), and (3) certifying compliance with 8 U.S.C. § 1373 (“Section 1373 condition”). Specifically, § 1373 prohibited localities from restricting their officials from communicating with federal immigration officials regarding the immigration status of any individual. The cities argued that these new conditions were an “attempt to force states and localities to forsake their own policy judgments and aid in federal civil immigration enforcement.”

But, citing City of Chicago v. Sessions, the complaint argued that the Byrne JAG program did not empower the DOJ to impose such conditions. As a result, the complaint further argued, the DOJ’s conditions violated the separation of powers between Congress and the Executive. The cities also argued that the conditions violated statutory and constitutional anti-commandeering principles by compelling local governments to enforce federal immigration laws. Because the conditions were "ambiguous as to what state and local governments must do to be in compliance and are not germane to the local criminal justice purposes of the Byrne JAG program," the cities argued they also violated the spending clause. Finally, the cities claimed the conditions violated the APA because they were imposed without any reasoning or opportunity for local governments to respond to them.

The cities filed an amended complaint on November 9, 2018. Alleging the same violations, the new complaint further argued that on June 28, 2018, the DOJ added a new condition to Byrne JAG grants prohibiting the public disclosure of any federal law enforcement information that might hide undocumented immigrants from federal authorities (“gag-order condition”).

The case is ongoing.

Virginia Weeks - 12/01/2018


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