Buzzfeed reports, “A federal appeals court on Thursday ruled that local governments nationwide don’t need to provide certain types of help to federal immigration authorities in order to get millions of dollars in federal grants. The ruling is a blow to Attorney General Jeff Sessions and the Justice Department, which had attempted to coerce so-called sanctuary jurisdictions into helping the Trump administration’s immigration agenda.”
In particular, the DOJ conditioned certain grants to local law enforcement authorities on compliance with three rules. Police must “1) notify the Department of Homeland Security when an undocumented immigrant is in their custody; 2) hold those suspects for 48 hours so federal authorities may visit the facility; and 3) comply with 8 USC §1373, a federal law that instructs local officials to share information with federal immigration authorities.”
Chicago brought suit and the lower court held that localities do not need to comply with the first two of these to get their grants. In sweeping terms, the three-judge panel (all appointed by Republicans) affirmed that decision and the nationwide injunction:
If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken. 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. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions.
The court found that Sessions’s indignation over locales’ resistance “evinces a disturbing disregard for the separation of powers. The power of the purse does not belong to the Executive Branch. It rests in the Legislative Branch. Congress may, of course, delegate such authority to the Executive Branch, and indeed the case today turns on whether it did so here, but the Executive Branch does not otherwise have the inherent authority as to the grant at issue here to condition the payment of such federal funds on adherence to its political priorities.” Ironically, it is the same principle of separation of powers that Republicans raised when President Barack Obama issued protection for “dreamers” by executive order.
Sessions, in other words, engaged in a power grab:
[T]he statute precisely describes the formula through which funds should be distributed to states and local governments, and imposes precise limits on the extent to which the Attorney General can deviate from that distribution. Against that backdrop, it is inconceivable that Congress would have anticipated that the Assistant Attorney General could abrogate the entire distribution scheme and deny all funds to states and localities that would qualify under the Byrne JAG statutory provisions, based on the Assistant Attorney General’s decision to impose his or her own conditions—the putative authority for which is provided in a different statute.
It is noteworthy that all three judges agreed with the substance of the ruling; there was, however, a dissent as to the nationwide application of the preliminary injunction.
Trump publicly complained about the ruling, but actual conservatives should not. The court upholds here the separation of powers, a key part of the constitutional structure to prevent accumulation of power. Trump might aspire to authoritarian powers but he nevertheless is checked, as he was repeatedly on the Muslim ban, by the judiciary branch. As Frank Sharry, who leads America’s Voice, tweeted: “Thanks to the courts, the rule of law is hanging tough.”