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Chicago Is Right. The Feds Can’t Legally Withhold Grant Funding Over Sanctuary Cities


Juan Jose Dominguez-De La Parra. Juan Francisco Lopez-Sanchez. Jose Inez Garcia-Zarate. All arrested multiple times, in five different states. All deported multiple times. And all the same man who freely wandered the streets of San Francisco the night he shot 32-year old Kate Steinle as she walked with her father on Pier-14. All because the sanctuary city released him from jail instead of allowing Immigration and Customs Enforcement agents to arrest and deport Zarate.

Chicago, too, boasts of its refusal to cooperate with federal agents on immigration, though it adapted the name to “Welcoming City.” The policy was formally enacted as an ordinance in 2006, following years of mayoral executive orders implementing it. Chicago claims this “Welcoming City” policy seeks to remove barriers to “the cooperation of all persons, both documented citizens and those without documentation status.” Assisting in immigration enforcement would, according to City leaders, “threat[en] immigrants and minority profiling and harassment and chill effective local law enforcement as fear of deportation led witnesses and victims to avoid cooperation with police.”

But federal officials are not asking Chicago or San Francisco, or any other municipality, to profile residents, check immigration status of witnesses or victims or even individuals temporarily detained during traffic stops, or assist in immigration enforcement.

The federal government merely wants cities to inform the Department of Homeland Security of the scheduled release date for specific aliens, something San Francisco failed to do with dire consequences. And the federal government needs cities to allow its agents access to correctional facilities “to meet with aliens and to inquire as to such individuals’ right to be or remain in the United States,” so they can potentially uncover the true identity of the arrestee in a sea swimming with aliases.

Continued defiance from liberal cities on this subject led the Department of Justice in 2017 to require a minimal level of cooperation as a condition for receiving a federal grant known as the Byrne JAG grant program. Chicago, which has received funding under this grant every year since its inception — including $33 million to purchase nearly 1,000 police cruisers — has chosen to file suit in a federal district court in Chicago over the conditions, rather than cooperate.

Judge Harry D. Leinenweber, a Ronald Reagan appointee, entered a preliminary injunction against the federal government, ruling the DOJ lacked authority to make notifying DHS of the impending release of aliens or giving DHS agents access to question arrestees a condition of the grant. Leinenweber further ruled that the DOJ could not enforce the conditions on any sanctuary city — not merely the City of Chicago. The government immediately appealed the ruling to the Seventh Circuit Court of Appeals, and a three-judge panel of the federal appellate court will hear oral arguments Friday morning.

Notwithstanding the high-profile nature of this case, the hundreds of pages of briefs, and the participation by several amici curiae, the outcome of this case will rest on mundane rules of statutory construction and the meaning of one sentence from the legislation that authorized the funding of the Byrne JAG grants.

The relevant language provides that the Assistant Attorney General may: “[e]xercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.”

The Department of Justice argues the language about “special conditions” on grants is authorization to make the Byrne JAG grants conditional on cooperating with DHS. But Chicago argues the language does not authorize the conditions, because the Assistant Attorney General may only exercise “whatever power is otherwise properly vested in him by statute or by the Attorney General.”

Chicago is correct, though I hate to say it. As a matter of pure statutory construction, the Department of Justice lacks the authority to adopt the conditions to the Byrne JAG grants. And while it is only logical that the federal government expects cities receiving millions of dollars in federal funds to cooperate in such a minimal way, this language just does not authorize even these minor and reasonable conditions.

But, although Chicago is right on the law, it is wrong on the policy — horribly so.

“By protecting criminals from immigration enforcement, cities and states with ‘so-called’ sanctuary policies make their communities less safe and undermine the rule of law,” a DOJ spokesman said of sanctuary cities. And he is right. Freeing criminal aliens into the peaceful immigrant population protects no one — except the criminal.

Chicago might not grasp this reality, but Congress should. And Congress has an easy solution to the problem: authorize the Attorney General to “impose reasonable conditions on Byrne JAG grant awards.” Congress did just that when it passed the Violence Against Women Act, and there is no reason, other than politics, for Congress not to act now.