Filed Date: Aug. 7, 2017
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This lawsuit, filed by the city of Chicago on August 7, 2017, challenged the federal government's imposition of immigration-related conditions on federal funding to the city. The plaintiff, represented by its corporation counsel and private counsel, sued the U.S. Department of Justice (DOJ) in the U.S. District Court for the Northern District of Illinois and sought declaratory and injunctive relief.
In its complaint, Chicago alleged that the DOJ was pursuing the federal government's anti-"sanctuary city" policy by new, but still unlawful, means. Since the narrowing (in Santa Clara) of President Trump’s January 25, 2017 Executive Order 13768, the President's ability to place new immigration-related conditions on federal funds was limited. Nevertheless, the DOJ threatened to withhold federal law enforcement funding—the Byrne JAG Program—from cities, including Chicago, that refused to certify compliance with 8 U.S.C. § 1373. (This section provides that a local government entity cannot prohibit or restrict communication between government entities or officials and federal immigration authorities.)
Chicago alleged it complied with § 1373 but argued that the DOJ was adopting "increasingly aggressive" and unconstitutionally vague definitions of what compliance meant. In a July 25, 2017 press release, as Chicago interpreted it, the DOJ defined compliance as allowing DHS to enter city correctional or detention facilities, interrogate arrestees about their immigration status, and in doing so, hold them longer than justified by probable cause. Such compliance would force Chicago to abandon its longstanding "Welcoming City Ordinance" policy, intended to improve cooperation between immigrant residents and municipal police. The city's policy restricted Chicago from seeking and disclosing information about residents' immigration status, as well as from honoring ICE detainer requests without an independent public-safety reason.
Chicago alleged that the federal government lacked constitutional or statutory authority to coerce the city to abandon its "Welcoming City Ordinance" policy. Statutorily, Chicago argued that the Byrnes JAG statute did not grant the DOJ authority to impose these conditions, and that the APA prohibited the DOJ's conduct as arbitrary and capricious and as lacking the requisite notice-and-comment procedure. Constitutionally, Chicago argued that the DOJ was usurping the authority both of Congress to spend funds, and of state and local governments to administer their own law enforcement. Thus, Chicago alleged, the DOJ was unlawfully coercing the city to choose between accepting the new unconstitutional conditions and losing its "Welcoming" policy to retain funding, or to reject them and lose funding critical for public safety.
The complaint sought declaratory and injunctive relief. Specifically, Chicago sought a declaration that it complied with § 1373 and that the DOJ's immigration-related conditions on Byrne JAG funding were unconstitutional. Chicago also sought an injunction against the new conditions in advance of the imminent September 5, 2017 deadline to apply for Byrnes JAG funding. A couple of days after filing the complaint, Chicago filed a motion for a preliminary injunction to prevent the DOJ from imposing the new conditions.
The case was assigned to Judge Harry D. Leinenweber on August 7.
On August 24, the DOJ responded to Chicago's preliminary injunction motion. The DOJ argued that Chicago's motion was likely to fail because Congress had expressly authorized the AG to impose these conditions on federal funding, and because all federal funding is also independently conditioned on compliance with federal statutes including § 1373. The DOJ also asserted that the conditions would not require Chicago to violate the Fourth Amendment because they would not require Chicago to hold an arrestee beyond the time she or he otherwise would have been released. Furthermore, the DOJ argued, Chicago faced no immediate harm because it had not yet applied to the FY 2017 Byrne JAG Program, and the federal funding constituted a very small fraction of its law enforcement budget. Finally, the DOJ maintained, the public interest and balance of equities allowed the federal government to enforce federal law, including immigration law, in its funding programs.
Several amici briefs were filed in support of Chicago on August 31-September 1, by the California State Legislature, the County of Santa Clara (California), Cook County (Illinois), legal scholars, prosecutors and law enforcement leaders, businesses, social service providers, and immigrants' rights organizations.
Judge Leinenweber held a preliminary injunction hearing on September 11 and issued an order on September 15, granting in part and denying in part Chicago's motion. Judge Leinenweber found that Chicago had established a likelihood of success on the merits only on challenging the notice and access conditions (by which Chicago had to provide the federal government with notice of and access to detainees), but not the compliance provision (related to § 1373). Regarding the former, the Judge found that the DOJ's imposition of the conditions exceeded its statutory authority under the Byrne JAG statute, and Chicago had also demonstrated irreparable harm by losing funding. However, regarding the latter, he held that the federal government was authorized to require compliance with applicable federal laws, including § 1373. Judge Leinenweber saw § 1373 as presenting no commandeering problem in violation of federalism because the provision required no mandatory action from Chicago, but rather prohibited Chicago from restricting officials' voluntary cooperation with federal immigration enforcement. Finally, in enjoining the notice and access conditions, Judge Leinenweber noted that the injunction applied nationwide. 2017 WL 4081821 (N.D. Ill. Sept. 15, 2017).
On September 26, the DOJ appealed to the Seventh Circuit and moved to stay the injunction pending the appeal. The DOJ argued that the injunction should not be nationwide in scope because Chicago suffered no cognizable injury from conditions imposed on other Byrne JAG applicants. Additionally, the DOJ argued that the nationwide injunction would irreparably harm it by forcing it either to abandon the notice and access conditions for all outstanding FY 2017 Byrne JAG applications (even if the conditions were later held lawful), or to suspend the Byrne JAG program pending further litigation.
On October 6, the U.S. Conference of Mayors moved to intervene as a plaintiff. The Conference, which represents over 1000 mayors nationwide, had adopted a policy opposing federal penalties on sanctuary cities. The Conference argued that a stay would force many cities to individually sue defendants to enjoin the conditions on their own FY2017 Byrne JAG applications. Consequently, the Conference wanted the nationwide injunction to remain in place.
On October 13, Judge Leinenweber denied the government's request for a stay of his September 15 preliminary injunction pending appeal. Judge Leinenweber held that the DOJ's "constitutional transgression is national in scope because the notice and access conditions, shown to be likely unconstitutional, were imposed nationwide." Judge Leinenweber found the "extraordinary remedy" of a nationwide injunction appropriate because it was "based on the need for federal uniformity and [because of] the unfairness resulting from disparate applications[,]" and that it would benefit judicial economy. 2017 WL 149847 (N.D. Ill. Oct. 13, 2017).
The DOJ then immediately went to the Seventh Circuit and sought a partial stay of the nationwide preliminary injunction pending appeal. In this October 13 motion, the DOJ argued that the principles of standing and equity limited the injunction to Chicago, so that the DOJ could still administer the Byrne JAG grants to other cities during the scheduled FY2017 timeline.
Back in the district court, on October 13, Chicago sought partial reconsideration of the September 15 preliminary injunction, specifically the part declining to enjoin the § 1373 condition because it likely did not violate anti-commandeering principles. Chicago alleged that DOJ had contradicted itself, first by representing to the Court that § 1373 imposed no affirmative obligations on the plaintiff, but later notifying Chicago that it intended to extend § 1373 to Chicago's policy governing whether and under what circumstances to notify federal officials of the release date or custody status of individuals held by Chicago.
Accordingly, in the Seventh Circuit, on October 16, Chicago moved to suspend briefing, arguing that the Seventh Circuit lacked appellate jurisdiction until the district court ruled on Chicago's partial reconsideration motion. On October 18, the DOJ opposed this motion, and Illinois and California moved to file amici briefs in support of Chicago. On October 20, the Seventh Circuit granted Chicago's motion to suspend briefing until the district court ruled on Chicago's partial reconsideration motion.
Back in the district court, the U.S. Conference of Mayors moved for a preliminary injunction, repeating the reasoning that the Court had used in granting the preliminary injunction order for Chicago, and the arguments that Chicago had made in its motion for partial reconsideration.
On November 16, 2017, Judge Leinenweber denied Chicago's motion for partial reconsideration and the U.S. Conference of Mayors' motion to intervene as a plaintiff. Judge Leinenweber first upheld his denial to enjoin the § 1373 compliance condition on the Byrne JAG grant. He stated that DOJ's correspondence with Chicago as to DOJ's interpretation of § 1373 would not alter the Court's facial analysis of the provision. Turning next to the Conference's motion, Judge Leinenweber held that although the Conference had standing, it could not intervene as a plaintiff because it could not demonstrate that its interests would be impaired without intervention.
The next day, the DOJ asked the Seventh Circuit to exercise its jurisdiction and consider the DOJ's motion for a partial stay of the preliminary injunction pending appeal. However, the Seventh Circuit denied the DOJ's motion on November 21.
Briefing in the Seventh Circuit proceeded, with the States of California and Illinois filing an amicus brief in support of Chicago.
In the District Court, on January 3, 2018, the defendants moved to dismiss. The defendants argued that the challenged conditions were authorized by statute, were consistent with the Spending Clause (as related to the purpose of Byrne JAG funding), did not commandeer Chicago (because it may decline the funds), and did not violate the Administrative Procedure Act (APA) (as not final agency action and not arbitrary and capricious).
On January 31, Chicago moved for partial summary judgment; fifteen states and the District of Columbia filed an amicus brief on behalf of Chicago.
On April 19, 2018, the Seventh Circuit issued an opinion affirming the District Court's preliminary injunction. The Court held that the District Court did not err in finding Chicago likely to succeed on the merits (that DOJ lacked the statutory authority to impose the conditions) and did not abuse its discretion in granting a nationwide injunction (because effective relief from this nationwide policy could not be limited to just the City). 888 F.3d 272.
Judge Rovner for the majority wrote:
The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. [. . .] It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power.
Subsequently, in the Seventh Circuit, the DOJ moved for a partial stay of the injunction (as applied to localities other than Chicago), pending a rehearing en banc and if necessary a petition for a writ of certiorari. However, the Seventh Circuit denied this motion on April 24. The DOJ then petitioned for a rehearing en banc, and also moved for a partial stay pending that rehearing, which was again denied; the DOJ again asked for an en banc reconsideration of the partial stay request. On June 4, 2018, the Seventh Circuit granted the partial stay request, staying the preliminary injunction beyond the City of Chicago. 2018 WL 4268817.
Meanwhile, on July 27, 2018, the district court granted the City's motion for partial summary judgment and denied the DOJ's motion to dismiss. The court held that in light of a 2018 Supreme Court decision, the anti-commandeering analysis was now "whether Section 1373 'evenhandedly regulates an activity in which both States and private actors engage,' as opposed to regulating activities undertaken by government entities only, thus conscripting state action in the implementation of a federal scheme." The court then held that § 1373 violated the Tenth Amendment on its face because it did not "evenhandedly regulate activities in which both private and government actors engage;" rather, it requested immigration information be provided to federal authorities by local government employees acting in their official, state-employed capacities.
Further, Judge Leinenweber held that the DOJ still had not proven its statutory authority to impose the notice and access funding conditions and so the Seventh Circuit's prior reasoning in affirming the earlier injunction controlled. The Judge also held that while the compliance funding conditions were likely within statutory authority, they were otherwise unconstitutional and therefore not subject to such analysis. Finally, the court held that the pending Seventh Circuit rehearing did not bar the district court from granting this new injunction, though it limited the injunction to just Chicago pending the Seventh Circuit's rehearing en banc. 321 F.Supp.3d 855.
The DOJ again appealed this latest injunction to the Seventh Circuit. On August 10, 2018, the Seventh Circuit vacated its prior order granting a rehearing en banc in order to avoid piecemeal appeals. The Court found that because of the district court's July 27 decision (and its intent to enter a permanent injunction), the preliminary injunction had become meaningless and the appeals process needed to restart. So, the Court maintained the stay of the nationwide scope of the earlier injunction until the district court issued a proper permanent injunction under Federal Rule of Civil Procedure 65, and it indicated it would hear an appeal once there was a final judgment from the lower court. 2018 WL 4268814.
The district court then entered final judgment on August 15, 2018 in favor of the City and against the DOJ. Once again, the DOJ appealed to the Seventh Circuit (docket no. 18-02885).
The Seventh Circuit heard oral argument on April 10, 2019.
On October 12, 2018, the City of Chicago had filed another lawsuit in this district court, again challenging the imposition of immigration-related conditions on federal funding, but for FY2018 grants (City of Chicago v. Sessions III). The case was also assigned to Judge Leinenweber. The challenged conditions in that case were almost identical to those presented here, and on September 19, 2019, Judge Leinenweber granted summary judgment to the city of Chicago and entered a permanent injunction. The nationwide scope of that injunction was also stayed due to the pending appeal of the injunction in this case. The government also appealed that injunction to the Seventh Circuit.
Consequently, on November 20, 2019, the Seventh Circuit ordered the appeals in these two cases to be consolidated for purpose of disposition.
On April 30, 2020, the Seventh Circuit affirmed Judge Leinenweber's grant of injunctive relief to Chicago and extended it nationwide. The Court found that while the executive branch has significant powers in the realm of immigration, it does not have Congress' power of the purse and thus cannot withhold Byrne JAG grants in order to force Chicago to alter its behavior. The Court affirmed the district court's grants of declaratory relief to Chicago, finding that the Attorney General exceeded the authority delegated to him by Congress in imposing the challenged conditions to the FY2017 and FY2018 grants, and that the Attorney General's decision to impose the conditions in both years violated the separation of powers.
The Court found it unnecessary to reach the constitutionality of § 1373 under the anti-commandeering doctrine. The government had relied on language in 34 U.S.C. § 10153 to support its imposition of the compliance condition. § 10153 states that in a request for a grant, the application shall include a certification that the applicant "will comply with all provisions of this part and all other applicable Federal laws." The government had argued that the reference to "all other applicable Federal laws" allowed it to require that applicants certify compliance with § 1373. However, the Seventh Circuit disagreed with this interpretation and instead found that the phrase could not be construed so broadly as to encompass all federal laws that applied to states or localities, including federal immigration statutes.
The Court also held that a nationwide injunction was proper due to the interconnected nature of applicants for the Byrne JAG grants. In order for the grant amounts to be properly calculated for Chicago, the Court held that the unlawful conditions could not be imposed elsewhere. Finally, the Court remanded for the district court to determine whether any other injunctive relief was appropriate in light of its determination that § 10153 could not be used to incorporate laws unrelated to the grants or grantees. 957 F.3d 772.
The case is ongoing.
Ava Morgenstern (5/5/2018)
Virginia Weeks (9/5/2018)
Sam Kulhanek (5/14/2020)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/6133859/parties/the-city-of-chicago-v-sessions-iii/
Abbuhl, Joshua (District of Columbia)
Adegbile, Debo Patrick (New York)
Allen, Katherine T. (District of Columbia)
Apostolides, George P. (Illinois)
Badlani, Chirag (Illinois)
Bauer, William Joseph (Illinois)
Garza, Reynaldo Guerra (Texas)
Leinenweber, Harry Daniel (Illinois)
Manion, Daniel Anthony (Indiana)
Rovner, Ilana Kara Diamond (Illinois)
See docket on RECAP: https://www.courtlistener.com/docket/6133859/the-city-of-chicago-v-sessions-iii/
Last updated June 30, 2023, 3:18 a.m.
State / Territory: Illinois
Filing Date: Aug. 7, 2017
Case Ongoing: Yes
City of Chicago
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Order Duration: 2018 - None
Content of Injunction: