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The City of Chicago v. Barr

United States District Court, N.D. Illinois, Eastern Division

September 19, 2019

THE CITY OF CHICAGO, Plaintiff,
v.
WILLIAM P. BARR, in his official capacity as the Attorney General of the United States, Defendant.

          MEMORANDUM OPINION AND ORDER

          HARRY D. LEINENWEBER, JUDGE UNITED STATES DISTRICT COURT.

         This litigation concerns the Executive Branch’s ability to attach conditions to money it offers to state and local governments. In this case-the latest chapter of a dispute playing out in district and appellate courts around the country-the City of Chicago takes issue with the conditions that the U.S. Attorney General placed on the FY 2018 Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) Program. The City contends that certain conditions attached to Byrne JAG funds violate the constitutional requirements of federalism and the separation of powers. For the reasons stated herein, Defendant’s Motion to Dismiss (Dkt. No. 42) is granted in part and denied in part. Plaintiff’s Motion for Summary Judgment (Dkt. No. 48) is granted in part and denied in part.

         I. BACKGROUND

         In addition to describing the most relevant facts here, the Court incorporates those facts previously described in its earlier ruling. See City of Chicago v. Sessions, 321 F.Supp. 3d 855 (N.D. Ill. 2018).

         The Byrne JAG program is the primary source of federal criminal justice funding available to state and local governments. (Def.’s Resp. to Pl.’s Stmt. of Facts (“PSOF”) ¶ 11, Dkt. No. 62.) This program is overseen by the Office of Justice Programs (OJP) within the U.S. Department of Justice (DOJ). (PSOF ¶ 11.) The Byrne JAG program distributes funds by a statutorily-defined formula based on a state’s population and the number of violent crimes reported within that jurisdiction in the past year. See 34 U.S.C. § 10156. To receive Byrne JAG funds, a state or local government must apply and comply with all conditions outlined in the Solicitation document that the Attorney General provides. See 34 U.S.C. § 10153.

         Chicago has received Byrne JAG funds every year since 2005. (PSOF ¶ 12.) But in 2017 the City ran into trouble when it came time to apply for and accept Byrne JAG funds. The Attorney General attached several new immigration-related conditions to the FY 2017 funds that conflicted with Chicago’s stated policy goals of promoting cooperation between local law enforcement and immigrant communities and ensuring access to essential city services for all city residents regardless of citizenship status. Therefore, in August of 2017, the City sued the Attorney General (then Jefferson Sessions) to enjoin his office from attaching those conditions to the FY 2017 Byrne JAG funds. See City of Chicago v. Sessions, No. 17-cv-5720 (N.D. Ill.).

         In the 2017 case, Chicago challenged three conditions that the Court will explain in detail later and will refer to as the “notice, access, and Section 1373 compliance conditions.” In September of 2017, this Court issued a nationwide preliminary injunction as to the notice and access conditions. See City of Chicago v. Sessions, 264 F.Supp. 3d 933 (N.D. Ill. 2017). The Court denied the Attorney General’s request to stay the nationwide application of the preliminary injunction. See City of Chicago v. Sessions, No. 17-cv-5720, 2017 WL 4572208 (N.D. Ill. Oct. 13, 2017). The Seventh Circuit affirmed the Court’s decision to grant the preliminary injunction, but later decided to take up the limited issue of the injunction’s nationwide scope en banc. See City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (affirming the preliminary injunction), reh’g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018) (granting en banc review as to the issue of whether a nationwide injunction was proper).

         Then, in July 2018, this Court granted partial summary judgment for the City. See City of Chicago v. Sessions, 321 F.Supp. 3d 855 (N.D. Ill. 2018). The Court held the notice and access conditions unconstitutional because neither the Byrne JAG statute nor any other federal law gave the Attorney General statutory authority to impose them. Id. at 873-74. The Court further found that 8 U.S.C. § 1373 is unconstitutional as it violates the anticommandeering doctrine, and that therefore the Section 1373 compliance condition is unlawful because the Attorney General cannot demand compliance with an unconstitutional law. Id. at 875-76. The Court entered a permanent nationwide injunction preventing the Attorney General from attaching the three aforementioned conditions to the FY 2017 Byrne JAG funds. Id. at 881; Final Judgment and Order, Chicago v. Sessions, No. 17-cv-5720 (N.D. Ill.), Dkt. No. 211. However, as the Seventh Circuit had at the time stayed the nationwide scope of the preliminary injunction pending an en banc rehearing, this Court stayed the nationwide scope of the permanent injunction in the same fashion. See City of Chicago, 321 F.Supp. 3d at 881-82. However, the Seventh Circuit vacated the en banc hearing after this Court issued its permanent injunction, as by that point the preliminary injunction “ha[d] all but evaporated.” City of Chicago, 2018 WL 4268814, at *2. Thus, the permanent injunction regarding the notice, access, and Section 1373 compliance conditions currently applies only to the FY 2017 funds and Chicago. See Final Judgment and Order. The Court’s 2018 summary judgment opinion is on appeal before the Seventh Circuit. See City of Chicago v. William Barr, No. 18-2885 (7th Cir.).

         The Attorney General began issuing FY 2018 Byrne JAG funds in October of 2018. (PSOF ¶ 34.) Chicago filed this suit on October 12, 2018, seeking to enjoin the Attorney General from again imposing certain immigration-related conditions on the FY 2018 funds. On November 20, 2018, DOJ notified Chicago that OJP had awarded the City $2, 268, 856 for its FY 2018 Byrne JAG award. (PSOF ¶ 35.) However, as before, to accept the money, Chicago had to agree to a variety of conditions. (See Chicago FY 2018 Byrne JAG Award, Ex. C to Def.’s Request for Judicial Notice (“RJN”), Dkt. No. 44-1.)

         Several funding conditions are at issue in this case. Some this Court has already ruled upon, and others are new. The first four conditions, which have already been before this Court and therefore will be referred to as the “repeat conditions, ” are as follows:

1. The notice condition. This condition requires the State or local government to “provide-as early as practicable… -advance notice to [the Department of Homeland Security (DHS)] of the scheduled release date and time for a particular alien, if a State or local government (or government-contracted) correctional facility receives from DHS a formal written request pursuant to the INA that seeks such advance notice.” (Chicago FY 2018 Byrne JAG Award ¶ 46.)
2. The access condition. This condition requires the State or local government to permit federal government agents “access to any State or local government (or government-contracted) correctional facility by such agents for the purpose” of “interrogat[ing] any alien or person believed to be an alien as to his [or her] right to be or to remain in the United States.” (Id. ¶ 45.)
3. The Section 1373 compliance condition. This condition requires the Chief Legal Officer of the recipient jurisdiction to certify that the “program or activity” funded under the Byrne JAG award complies with 8 U.S.C. §§ 1373 (a) and (b). (Id. ¶¶ 41-43.) 8 U.S.C. § 1373 provides: “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not 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, lawful or unlawful, of any individual.” 8 U.S.C. § 1373.
4. The Section 1644 compliance condition. This condition requires the Chief Legal Officer to certify that the “program or activity” funded under the Byrne JAG award complies with 8 U.S.C. § 1644. (Chicago FY 2018 Byrne JAG Award ¶¶ 41-43.) 8 U.S.C. § 1644 provides: “Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.” 8 U.S.C. § 1644.

         On November 2, 2018, DOJ announced that, “at this time” it would not “use or enforce” the repeat conditions against Chicago, because these conditions were the subject of pending litigation. (See FY 2017 and FY 2018 JAG Award Special Notices at 2, Ex. D to Def.’s RJN.) However, DOJ reserved the right to enforce the repeat conditions against Chicago in the future if “the posture of the pending litigation changes (or if the pending litigation is resolved) in a manner such that DOJ decides to use or enforce any or all of [the repeat conditions.]” (Id.)

         There are also two new conditions attached to the FY 2018 grants that are at issue in this case:

1. The harboring condition. This condition prohibits the recipient jurisdiction from making any “public disclosure… of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under 18 U.S.C. ch. 49, or any alien who has come to, entered, or remains in the United States in violation of 8 U.S.C. ch. 12-without regard to whether such disclosure would constitute (or could form a predicate for) a violation of 18 U.S.C. 1071 or 1072 or of 8 U.S.C. 1324(a).” (Chicago FY 2018 Byrne JAG Award.)
2. The additional certification requirement. This condition requires the recipient jurisdiction to submit a “Certifications and Assurances by the Chief Executive of the Applicant Government.” (Chicago FY 2018 Byrne JAG Award ¶ 61.) The condition incorporates a requirement that the City’s Chief Legal officer certify that “neither the jurisdiction nor any entity, agency, or official of the jurisdiction has in effect… any law, rule, policy, or practice that would apply to the ‘program or activity’ to be funded… that would or does- (a) impede the exercise by federal officers of authority under 8 U.S.C. § 1357(a); or (b) impede the exercise by federal officers of authority relating to 8 U.S.C. § 1226(a) or (c), 8 U.S.C. § 1231(a), or 8 U.S.C. § 1366(1) or (3).” (State or Local Government: FY 2018 Certification, Ex. M to Pl.’s RJN, Dkt. No. 52-13.)

         The Court will refer to these two conditions as the “new conditions.” As with the repeat conditions, DOJ announced that it would not enforce the additional certification requirement against Chicago. (See FY 2017 and FY 2018 JAG Award Special Notices at 2.) The Court will refer to all six funding conditions together as the “challenged conditions.”

         The present motions concern Chicago’s Amended Complaint, which contains eight Counts. Count I charges that the challenged conditions are ultra vires, as the Attorney General does not have statutory authority to impose them. Count II alleges that the challenged conditions violate the separation of powers doctrine. Count III alleges that the challenged conditions violate the Spending Clause of the U.S. Constitution. Count IV alleges that 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment’s anticommandeering doctrine and thus the Attorney General cannot impose compliance with these laws as conditions on the Byrne JAG program. Count V asserts that, notwithstanding the unconstitutionality of §§ 1373 and 1644, Chicago’s Welcoming City Ordinance and implementing policies comply with §§ 1373 and 1644, and the City deserves declaratory judgment to that effect. In Count VI, Chicago seeks a declaratory judgment that its Welcoming City Ordinance and implementing policies comply with 8 U.S.C. § 1324. Count VII alleges that the challenged conditions are arbitrary and capricious in violation of the Administrative Procedure Act (“APA”). Finally, Count VIII asserts that the President lacked statutory authority under the DOJ’s succession statute, 28 U.S.C. § 508, to appoint Matthew Whitaker as acting Attorney General. Chicago seeks a permanent injunction preventing the challenged conditions from taking effect. The City further reserves its right, upon final judgment of the Court and pursuant to 28 U.S.C. § 2412, to seek reasonable attorneys’ fees, expenses, and costs.

         Chicago now moves for summary judgment in its favor on Counts I, II, III, IV, and VII, seeking a declaration that the challenged conditions violate the U.S. Constitution and the APA, and a permanent injunction that prohibits the DOJ from imposing the challenged conditions on the FY 2018 funds or in any future program year. The Attorney General moves under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss various aspects of the Amended Complaint. Specifically, the Attorney General argues that Chicago lacks standing to challenge the additional certification requirement, seek a declaration regarding its compliance with 8 U.S.C. § 1324, and challenge the President’s appointment of former Acting Attorney General Whitaker; and Chicago fails to state a claim on its APA counts and its challenges to the harboring condition.

         The Court will first address the standing and jurisdictional arguments for dismissal, and then turn to the merits of the Counts at issue in Plaintiff’s Motion for Summary Judgment.

         II. MOTION TO DISMISS

         The Attorney General moves to dismiss Counts I, II, III, VI, VII and VIII of Chicago’s Amended Complaint under Rules 12(b)(1) and 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(1) tests the jurisdictional sufficiency of the complaint. See Fed. R. Civ. Pro. 12(b)(1). Defendant asserts a facial challenge to Chicago’s Amended Complaint. See Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015) (noting that in evaluating a challenge to subject matter jurisdiction, a court must first determine whether a defendant has raised a factual or facial challenge). A facial challenge argues that the plaintiff has not sufficiently alleged a basis of subject matter jurisdiction. Id. In a facial challenge to subject matter jurisdiction, the court does not look beyond the allegations in the complaint, which are taken as true for purposes of the motion. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). The plaintiff bears the burden of establishing the elements necessary for jurisdiction. See Silha, 807 F.3d at 173.

         Rule 12(b)(6) allows dismissal for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. Pro. 12(b)(6). A court entertaining a Rule 12(b)(6) motion must construe the complaint in the light most favorable to the plaintiff and accept as true all well-pleaded facts alleged. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). To survive a motion to dismiss under Rule 12(b)(6), a complaint must “provide a short and plain statement of the claim showing that the pleader is entitled to relief, sufficient to provide the defendant with fair notice of the claim and its basis.” Id.; see also Fed. R. Civ. P. 8(a)(2).

         A. Whitaker Appointment (Count VIII)

         The Court can dispense of the first issue quickly. In Count VIII, Plaintiff challenges the President’s 2018 appointment of Matthew Whitaker as Acting Attorney General. In February 2019, the President appointed, and the Senate confirmed, William Barr to serve as Attorney General. Accordingly, in its response to Defendant’s Motion to Dismiss, Plaintiff concedes that it is abandoning this claim. (See Pl.’s Memo. at 24, Dkt. No. 50 (“[T]he Court need not take up this weighty constitutional issue now.”).) Thus, Defendant’s Motion to Dismiss Count VIII with prejudice is granted.

         B. Welcoming City Ordinance Declaratory Judgment (Count VI)

         The Court turns to the Attorney General’s argument against Count VI, in which the City seeks a declaratory judgment that its Welcoming City Ordinance (the “Ordinance”) and its implementing policies comply with 8 U.S.C. § 1324. Section 1324 contains the federal prohibition against harboring illegal aliens. See 8 U.S.C. § 1324(a) (establishing criminal liability for any person who “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place”).

         This Ordinance, codified as Chapter 2-173 of the Chicago Municipal Code, reflects the City’s determination that, “as a City in which one out of five of its residents is an immigrant, ‘the cooperation of all persons, both documented citizens and those without documentation status, is essential to achieve the City’s goals of protecting life and property, preventing crime and resolving problems.’” City of Chicago, 888 F.3d at 279 (citing Chicago, Ill. Muni. Code § 2-173-005). The Ordinance prohibits City agents from arresting, detaining, or continuing to detain a person based upon an immigration detainer when such detainer is for a civil immigration law violation, or on the belief that the person is not present legally in the U.S. or has committed a civil immigration violation. Chicago, Ill. Muni. Code § 2-173-042(a). So too are City agents prohibited from allowing Immigrations and Customs Enforcement (ICE) agents access to a person in City custody, allowing ICE agents use of City facilities for investigative purposes, expending their time on duty responding to ICE inquiries, and informing ICE of a person’s custody status or release date. Chicago, Ill. Muni. Code § 2-173-042(b). The prohibitions in § 2-173-042 do not apply when the individual in ...


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