by Lisa Soronen, executive director, State and Local Legal Center

In July 2017, the U.S. Department of Justice (DOJ) added two new requirements for local and state governments to receive federal Edward Byrne Justice Assistance Grants (Byrne JAG) for law enforcement funding. Chicago sued Attorney General Jeff Sessions, arguing he lacks the statutory authority to impose these conditions.

In September 2017, an Illinois federal district court granted Chicago’s request for a nationwide preliminary injunction temporarily disallowing DOJ from imposing the two new requirements. Last week, the Seventh Circuit Court of Appeals affirmed the lower court’s decision.

Congress created Byrne JAG in 2006 to provide funding to meet a “wide range of needs” for local and state police departments. In July 2017, DOJ added a “notice” and an “access” requirement to receive Byrne JAG funds. Recipients were required to (1) provide 48 hours advance notice to the Department of Homeland Security (DHS) regarding the scheduled release of “aliens” and (2) allow access to correctional or detention facilities to meet with “aliens” and inquire about their right to be in the United States.

The new requirements violate Chicago’s welcoming city policy, which prohibits city employees from responding to Immigration and Customs Enforcement (ICE) inquiries on custody status or release date and allows ICE to conduct investigations in city facilities on immigration status, except if a detainee is suspected or convicted of a felony.

Before the Seventh Circuit, the attorney general admitted he does not “possess inherent executive authority to impose the grant conditions, and instead recognizes that the authority must originate from Congress.”

Sessions argued that Section 10102 of the Byrne JAG statute allows the assistant attorney general to impose these (and any other) conditions on grants. Section 10102 says the assistant attorney general has “other powers and functions” “pursuant to this chapter” or delegated by the attorney general “including placing special conditions on all grants and determining priority purposes for formula grants.”

According to the court, the plain meaning of “including” “is to set forth a subcategory of the types of powers and functions that the assistant attorney general may exercise when vested in the assistant attorney general either by the terms of this chapter or by delegation of the attorney general. The inescapable problem here is that the attorney general does not even claim that the power exercised here is authorized anywhere in the chapter, nor that the attorney general possesses that authority and therefore can delegate it to the assistant attorney general.”

The court also pointed out it would be odd for Congress to include such “sweeping” power in a “catch-all provision at the end of a list of explicit powers” and to give a broad grant of authority in a formula (versus a discretionary) grant. Congress knows how to explicitly grant broad authority to the attorney general to add grant conditions.

Two of the three Seventh Circuit judges agreed with the district court that the injunction, in this case, should be nationwide. The majority of the court noted “[t]he case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.”

The dissenting judge only would have granted injunctive relief to Chicago opining that “the court bypasses Supreme Court precedent, disregards what the district court actually concluded concerning the equities in this case, and misreads the effect of providing relief to Chicago only.”

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