The City of Chicago filed a lawsuit against Attorney General, Jeff Sessions on August 7, 2017. The supposed sanctuary city seeks an injunction to prevent Attorney General Sessions from adding new conditions requiring compliance with federal immigration law to an application for federal grant money.
Note: an injunction is an order from a judge that prevents a person from continuing, or beginning to carry out an action that invades another person’s legal rights.
Per Sessions, sanctuary jurisdictions may no longer receive Byrne-JAG grants. Previously, Chicago purchased 1,000 police officer vehicles via the grants. In addition, the grants allowed local nonprofits to provide “emergency shelter, food, and clothing; youth mentoring and structured activities in safe places; job training and placement; conflict resolution; and activities to strengthen community cohesion and resilience” in neighborhoods with high levels of violence.
The Chicago Tribune posted a full copy of the complaint and its accompanying exhibits here. Readers beware: the complaint says in 45 pages what it likely could have said in 20.
Read on to find the cliff notes version.
Count One: The DOJ is acting beyond the scope of its authority
The City of Chicago argues that the DOJ is ultra vires (acting beyond the scope of its authority). Congress is allowed to delegate some of its power to agencies. But in order to accept that power the agency must operate within the law provided by Congress.
Chicago argues that the new application requirements change the nature of the grant. Because the statutes do not authorize the DOJ to change the criteria for receiving the grant, it is barred from doing so with Congressional approval.
Count Two: Separation of Powers
Article 1, Section 8, Clause 1 of the United States Constitution grants Congress the power of the purse. The Executive Branch (i.e. the President and his executive branch appointees) doesn’t get to decide how to spend federal money. It is also may not refuse to spend money designated for a specific purpose.
Chicago argues that “[i]mposing a new condition on a federal grant program amounts to refusing to spend money appropriated by Congress unless that condition is satisfied.”
Count Three: Spending Clause
Chicago argues that Congress would be barred, under the spending clause, from incorporating the new conditions into the grant if it ever tried. Chicago argues that the new requirements are unconstitutional for four reasons: (1) they are not relevant to the federal grants purpose; (2) they force the City to engage in illegal conduct; (3) they are so ambiguous that Chicago has no idea how to implement them; and (4) the new conditions coerce the City into choosing between the Constitution and money.
Count 4: Commandeering
Chicago argues that the federal government is violating its 10th Amendment right to govern itself. The new conditions are unconstitutional because their purpose is to direct the functioning of state and local government.
Count 5: Declaratory Judgment that Chicago complies with statute 1373
The City wants a judge to rule that it is in compliance with statute 1373. AG Sessions will not be able to deny Chicago’s grant application for noncompliance with section 1373 if a federal judge issues a declaratory judgment stating that the City satisfies section 1373 requirements.
Count 6: Administrative Procedure Act – Notice and Comment
This count argues that the new conditions are tantamount to a new DOJ rule. When an agency changes its rules/regulations The APA requires agencies to issue a copy of proposed rule/regulation changes. Next, it must consider any comments submitted before finalizing the changes. Interpretive rules and guidance do not require notice and comment under the APA.
Chicago argues that the new conditions required notice and comment. Because there was no notice and comment the changes are “arbitrary and capricious.” The City argues that the conditions further violate the APA because the DOJ did not adequately explain its reason for adding the new conditions.
Count 7: Administrative Procedure Act – Paperwork Reduction Act
I can’t believe we’re still doing this.
Count 7 is the last argument included in the complaint. It says that the new conditions cannot be implemented because they are an unjustified collection of information. Apparently, the Paperwork Reduction Act bars agencies from collecting information unless it gives 60 days notice, and consults with members of the public to ensure that the information requested is necessary.
Whew . . .
Attorney General Sessions released a statement in response to Chicago’s lawsuit. It says: “This administration will not simply give away grant dollars to city governments that proudly violate the rule of law and protect criminal aliens at the expense of public safety. So it’s this simple: Comply with the law or forego taxpayer dollars.”
Buckle up, guys. I think we are in for one heck of a ride. GCE will keep you updated as this case develops.