City of Chicago v. William P. Barr

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 18-2885 & 19-3290

CITY OF CHICAGO,

Plaintiff-Appellee,

v.

WILLIAM P. BARR, Attorney General

of the United States,

Defendant-Appellant.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 1:17-cv-05720 & 1:18-cv-06859 — Harry D. Leinenweber, Judge.

____________________

NO. 18-2885 ARGUED APRIL 10, 2019,

NO. 19-3290 SUBMITTED FEBRUARY 6, 2020

DECIDED APRIL 29, 2020

AMENDED JUNE 4, 2020

____________________

Before BAUER, MANION, AND ROVNER, Circuit Judges.

2 Nos. 18-2885 & 19-3290

ROVNER, Circuit Judge. In this appeal from two

consolidated cases, we consider for a second time the legality

of conditions imposed by the Attorney General on the

Edward Byrne Memorial Justice Assistance Grant Program

(“Byrne JAG”). See 34 U.S.C. § 10151 et seq. (formerly 42

U.S.C. § 3750). Previously, the district court granted a

preliminary injunction as to two conditions—known as the

notice and access conditions—imposed by the Attorney

General on the FY 2017 Byrne JAG grant applicants. We

upheld the preliminary injunction and its nationwide scope

in City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018)

(“Chicago I”).

The Attorney General then took the rare step of seeking en

banc review limited to only the nationwide scope of the

injunction, excluding the determination that injunctive relief

was proper as to the notice and access conditions, and we

granted en banc review. During the pendency of that review,

the district court granted a permanent injunction, and in light

of that superseding relief we vacated the decision granting en

banc review. City of Chicago v. Sessions, No. 17-2991, 2018 WL

4268814, at *2 (7th Cir. Aug. 10, 2018). The district court again

determined that the notice and access conditions imposed by

the Attorney General were unlawful and unconstitutional,

but also determined that a third condition—the compliance

condition—was unconstitutional as well. City of Chicago v.

Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018). The court

extended the injunction to apply to all FY 2017 grant

recipients program-wide, but in light of our prior grant of en

banc review regarding the scope of the injunction, stayed the

injunction to the extent that it applied beyond the City of

Chicago.

Nos. 18-2885 & 19-3290 3

The Attorney General appealed that determination, and

while it was pending in this court, the district court granted a

permanent injunction in a second case brought by the City of

Chicago, this time challenging the Attorney General’s impo-

sition of conditions on the FY 2018 Byrne JAG grant. City of

Chicago v. Barr, 405 F. Supp. 3d 748 (N.D. Ill. 2019). Those con-

ditions included the same notice, access, and compliance con-

ditions that the district court enjoined as to the FY 2017 grant,

as well as some new conditions. The district court enjoined

the imposition of all of the challenged conditions as to the FY

2018 Byrne JAG grant and all future years, and once more

stayed the injunction as to grantees other than the City of Chi-

cago. Id. at 770. The Attorney General again appealed to this

court, and we consolidated the two cases for the purposes of

the appeal.

The stakes in this case are high. Chicago, like many local

governments, has determined that: (1) effective law enforce-

ment requires the cooperation of its undocumented residents;

(2) such cooperation cannot be accomplished if those resi-

dents fear immigration consequences should they communi-

cate with the police; and, therefore, (3) local law enforcement

must remain independent from federal immigration enforce-

ment. The Byrne JAG grant was enacted by Congress to sup-

port the needs of local law enforcement to help fight crime,

yet it now is being used as a hammer to further a completely

different policy of the executive branch—presenting a city

such as Chicago with the stark choice of forfeiting the funds

or undermining its own law enforcement effectiveness by

damaging that cooperative relationship with its residents.

The Attorney General repeatedly expresses frustration

that Chicago, or any other jurisdiction, can “simultaneously

4 Nos. 18-2885 & 19-3290

accept federal law enforcement grants, yet maintain local pol-

icies that frustrate federal immigration enforcement.” Appel-

lant’s Brief 1-3-20 at 1. It is a sentiment echoed by the only

circuit—of the five that have considered it—to uphold the

challenged conditions thus far. See State of New York v. Dept. of

Justice, 951 F.3d 84, 107 (2d Cir. 2020) (“there is something dis-

quieting in the idea of States and localities seeking federal

funds to enforce their own laws while themselves hampering

the enforcement of federal laws, or worse, violating those

laws.”) But states do not forfeit all autonomy over their own

police power merely by accepting federal grants. And the At-

torney General’s perception of the urgency of immigration

enforcement does not corral for the executive branch the pow-

ers entrusted to the legislative branch. The executive branch

has significant powers over immigration matters; the power

of the purse is not one of them. This tendency to overlook the

formalities of the separation of powers to address the issue-

of-the-day has been seen many times by the courts, and it is

no more persuasive now than it was in those cases. As the Su-

preme Court has stated, repeatedly:

Much of the Constitution is concerned with set-

ting forth the form of our government, and the

courts have traditionally invalidated measures

deviating from that form. The result may ap-

pear ‘formalistic’ in a given case to partisans of

the measure at issue, because such measures are

typically the product of the era’s perceived ne-

cessity. But the Constitution protects us from

our own best intentions: It divides power

among sovereigns and among branches of gov-

ernment precisely so that we may resist the

Nos. 18-2885 & 19-3290 5

temptation to concentrate power in one location

as an expedient solution to the crisis of the day.

Printz v. United States, 521 U.S. 898, 933 (1997), quoting New

York v. United States, 505 U.S. 144, 187 (1992).

We conclude again today, as we did when presented with

the preliminary injunction, that the Attorney General cannot

pursue the policy objectives of the executive branch through

the power of the purse or the arm of local law enforcement;

that is not within its delegation. It is the prerogative of the

legislative branch and the local governments, and the Attor-

ney General’s assertion that Congress itself provided that au-

thority in the language of the statutes cannot withstand scru-

tiny.

I. Facts and District Court Rulings

In Chicago I, we discussed at length the Byrne JAG pro-

gram and Chicago’s Welcoming Ordinance, as well as their

respective purposes. See Chicago I, 888 F.3d at 276–82. In short,

the Byrne JAG grants are awarded annually to address the

needs of state and local law enforcement. They are the pri-

mary source of federal criminal justice enforcement funding

for state and local governments. This lawsuit stemmed ini-

tially from the Attorney General’s decision to attach three

conditions to those grants—the notice, access and compliance

conditions, which as set forth by the district court provide re-

spectively:

(1) A State statute, or a State rule, -regula-

tion, -policy, or -practice, must be in place

that is designed to ensure that, when a State

(or State-contracted) correctional facility re-

ceives from DHS a formal written request

6 Nos. 18-2885 & 19-3290

authorized by the Immigration and Nation-

ality Act that seeks advance notice of the

scheduled release date and time for a partic-

ular alien in such facility, then such facility

will honor such request and—as early as

practicable—provide the requested notice to

DHS.

(2) A State statute, or a State rule, -regula-

tion, -policy, or -practice, must be in place

that is designed to ensure that agents of the

United States acting under color of federal

law in fact are given [] access [to] any State

(or State-contracted) correctional facility for

the purpose of permitting such agents to

meet with individuals who are (or are be-

lieved by such agents to be) aliens and to in-

quire as to such individuals’ right to be or

remain in the United States.

(3) The applicant local government must

submit the required ‘Certification of Com-

pliance with 8 U.S.C. § 1373’ (executed by

the chief legal officer of the local govern-

ment).

City of Chicago v. Sessions, 264 F. Supp. 3d 933, 937–38 (N.D. Ill.

2017). In short:

 the notice condition requires that state or lo-

cal officials honor requests to provide fed-

eral agents advance notice of the scheduled

release date and time for aliens in custody;

Nos. 18-2885 & 19-3290 7

 the access condition requires state or local

correctional facilities to give federal agents

access to aliens in their custody;

 and the compliance condition requires the

state or local governments to certify their

compliance with 8 U.S.C. § 1373 (hereinafter

“§ 1373”), which prohibits state and local

governments from restricting their own offi-

cials from communicating information re-

garding the citizenship or immigration sta-

tus of any individual to the Immigration and

Naturalization Service.1

All of those conditions were imposed on applicants for the

FY 2018 Byrne JAG grant as well, but three new conditions

were added. The first was virtually identical to the compli-

ance condition, except that it referenced 8 U.S.C. § 1644 (here-

inafter § 1644) rather than 8 U.S.C. § 1373 which contains es-

sentially the same language:

 the § 1644 compliance condition requires

certification that the “program or activity”

funded under the Byrne JAG award com-

plies with § 1644, which provides “[n]ot-

withstanding any other provision of Federal,

State, or local law, no State or local govern-

ment entity may be prohibited, or in any

1 The Homeland Security Act of 2002 completely dismantled the Immigra-

tion and Naturalization Service and created a new cabinet level agency—

the Department of Homeland Security—under which Immigration and

Customs Enforcement (ICE) now operates. See Homeland Security Act of

2002, Pub. L. No. 107–296, 116 Stat. 2135.

8 Nos. 18-2885 & 19-3290

way restricted, from sending to or receiving

from the Immigration and Naturalization

Service information regarding the immigra-

tion status, lawful or unlawful, of an alien in

the United States.”

The Attorney General concedes that the two compliance

conditions are equivalent and that our disposition as to one

will control as to the other.

The Attorney General imposed two additional conditions

on the FY 2018 Byrne JAG grant that were distinct from those

imposed on the FY 2017 grant, which have been termed the

“harboring” condition and the “additional certification” con-

dition:

 The harboring condition prohibits the recip-

ient 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 re-

mains 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).”

 The additional certification condition re-

quires the certification that “neither the ju-

risdiction nor any entity, agency, or official

of the jurisdiction has in effect … any law,

rule, policy, or practice that would apply to

Nos. 18-2885 & 19-3290 9

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 fed-

eral 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).”

Chicago, 405 F. Supp. 3d at 754–55.

Those conditions conflict with the Welcoming City Ordi-

nance, which reflects Chicago’s determination that the coop-

eration of all persons, whether documented or undocu-

mented, “’is essential to achieve the City’s goals of protecting

life and property, preventing crime and resolving problems.’”

Chicago I, 888 F.3d at 279 (quoting Chicago Municipal Code,

Welcoming City Ordinance (the “Ordinance”), § 2-173-005

“Purpose and Intent”). Toward that end, the Ordinance sets

forth standards which include prohibitions on requesting or

disclosing information as to immigrant status, as well as a

prohibition on detaining persons solely based on a belief as to

their immigration status or on immigration detainers based

solely on violations of civil immigration laws. Chicago I, 888

F.3d at 279; Ordinance, § 2-173-020, -030, -042. The Ordinance

further provides that “unless acting pursuant to law enforce-

ment purposes unrelated to the enforcement of civil immigra-

tion law, no agency or agent shall permit Immigration and

Customs Enforcement (ICE) agents access to a person being

detained or permit the use of agency facilities for investigative

interviews, nor can an agency or agent while on duty expend

time responding to ICE inquiries or communicating with ICE

as to a person’s custody status or release date.” Chicago I, 888

F.3d at 279; Ordinance § 2-173-042. Those restrictions in the

10 Nos. 18-2885 & 19-3290

Ordinance are inapplicable when the subject of the investiga-

tion “has an outstanding criminal warrant, … has been con-

victed of a felony, … is a defendant … where … a felony

charge is pending, … or has been identified as a known gang

member either in a law enforcement agency’s database or by

his or her own admission.” Ordinance, § 2-173-042(c); Chicago

I, 888 F.3d at 279–80.

A. Challenge to FY 2017 grant

In the first of the two cases before us, Chicago challenges

the conditions imposed on the FY 2017 grant, alleging: that

the conditions were unconstitutional because the Byrne JAG

statute does not provide the Attorney General with the statu-

tory authority to impose the conditions, and that the imposi-

tion is therefore ultra vires and a violation of the separation of

powers; that the conditions violate the Spending Clause of the

Constitution; and that, independent of the Byrne JAG grant,

§ 1373 is an impermissible federal conscription of state power

and is unconstitutional under the anticommandeering doc-

trine of the Tenth Amendment. Chicago also sought a declar-

atory judgment providing that even if § 1373 is constitutional,

Chicago is in compliance with it. Finally, Chicago alleged that

the imposition of the conditions was arbitrary and capricious

in violation of the Administrative Procedures Act and vio-

lated the Paperwork Reduction Act.

The Attorney General sought dismissal of the complaint

in its entirety, arguing that the complaint was insufficient to

state a claim and that the court lacked subject matter

jurisdiction. As to subject matter jurisdiction, the Attorney

General asserted that the Department of Justice had not yet

consummated any final agency action that was ripe for

judicial review because it had not reached a final decision as

Nos. 18-2885 & 19-3290 11

to whether to award Chicago funds under the Byrne JAG

grant. Chicago responded that its challenge was not to the

Attorney General’s pending decision as to whether to award

the grant funds, but rather to the decision to attach the

conditions to the grant in the first instance. The district court

agreed with Chicago as to the nature of the challenge, noting

that the complaint requested that the court “[d]eclare that all

three immigration-related conditions for the FY 2017 Byrne

JAG are unlawful.” City of Chicago, 321 F. Supp. 3d at 865. The

court noted that in order for an agency action to be final, two

criteria must be satisfied: it must mark the consummation of

the agency’s decision-making process and not merely a

tentative or interlocutory decision; and it must be one by

which rights or obligations of the challenging party have been

determined or from which legal consequences will flow. Id. at

865 (citing Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). The

court held that the action was not merely tentative or

interlocutory, because the Attorney General stated in his

declaration that every FY 2017 award would include

conditions identical to the ones in the grant already awarded,

which included all of the challenged conditions. Id. at 865. In

addition, the court noted that the FY 2017 grants were

awarded based on a solicitation that clearly imposed the

challenged conditions. Id. The court held that the second

criteria was met as well, because the conditions force Chicago

to choose between accepting the award with those conditions,

or forgoing the grant and the corresponding law enforcement

benefit in favor of maintaining the policies that it believed

would maximize law enforcement goals. Id. at 866.

Chicago moved for partial summary judgment as to three

counts, arguing that the Attorney General acted ultra vires in

imposing the conditions, and in violation of the separation of

12 Nos. 18-2885 & 19-3290

powers, and contending that even if the compliance condition

was valid, Chicago was not in violation of § 1373. The district

court granted the motion and determined that § 1373 was fa-

cially unconstitutional under the Tenth Amendment’s anti-

commandeering principle, that the Attorney General ex-

ceeded the authority delegated by Congress in the Byrne JAG

statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a)(6),

and that the Attorney General violated the principle of the

separation of powers in attaching conditions to the FY 2017

Byrne JAG grant. The court enjoined the imposition of the

three conditions program-wide, but stayed the injunction be-

yond the City of Chicago pending the appeal. Id. at 882. The

Attorney General now appeals that decision as to all three of

the conditions.

B. Challenge to FY 2018 grant

In the second of the two cases consolidated in this appeal,

Chicago raises identical challenges to the notice, access and

compliance conditions, and also challenges the harboring

condition and the additional certification requirement.2 The

district court held that the notice, access, and compliance con-

ditions were materially identical to the conditions it had al-

ready enjoined in the case challenging the FY 2017 grant con-

ditions, and that the new compliance condition referencing

§ 1644 was indistinguishable from the § 1373 compliance con-

dition and therefore unlawful under the same reasoning. As

2 Although one additional claim was dismissed without prejudice, the

City of Chicago has informed the court that it disavows any right to fur-

ther pursue that claim in this action, and therefore the judgment is review-

able under § 1291. See West v. Louisville Gas & Elec. Co., 920 F.3d 499, 506

(7th Cir. 2019).

Nos. 18-2885 & 19-3290 13

to the additional certification requirement, the court first rec-

ognized that the Executive possesses no inherent authority to

impose conditions on the payment of federal funds author-

ized by the Legislature, and that the Attorney General had

failed to identify any source of authority as to the imposition

of the additional certification requirement. The district court

nevertheless proceeded to analyze whether any statutory ba-

sis for the Attorney General’s authority was apparent.

The court first noted that the Byrne JAG statute itself pro-

vided no such authority, and in fact strictly delineated the for-

mula for the distribution of grant funds. The court then noted

that it had already held, with respect to the notice and access

conditions, that § 10102(a)(6) did not provide such authority.

The court further held that the statutes enumerated in the ad-

ditional certification requirement applied only to the federal

government and did not require cities or localities to do any-

thing, and therefore the Attorney General could not require

compliance with those statutes as an “applicable federal law”

under § 10153(A)(5)(D). Finally, the court addressed the har-

boring condition. After again noting that § 10102(a)(6) cannot

provide a source of such authority, the court considered the

Attorney General’s argument that 34 U.S.C. §§ 10102(a)(2)

and (4) authorize the imposition of the harboring condition.

Those sections require the Assistant Attorney General to

maintain liaison with the executive and judicial branches of

the federal and state governments, public and private educa-

tional and research institutions, state and local governments,

and governments of other nations, relating to criminal justice.

The district court held that §§ 10102(a)(2) and (4) contain no

delegation of authority to place a harboring condition on

Byrne JAG grantees, but rather are more plausibly read as an

14 Nos. 18-2885 & 19-3290

instruction that the Assistant Attorney General maintain bi-

lateral communications with state and local governments.

II. Analysis—Overview

As we discussed in Chicago I, this appeal is not about opti-

mal federal or state immigration policies. That is not for the

court to discuss or decide. Rather, the issues before us today

concern the spheres of power that reside in the state rather

than in the federal government, and the critical balance of

power between the executive, legislative, and judicial

branches of the federal government. Chicago, in deciding that

its law enforcement needs would be better met if its undocu-

mented residents could report crimes and communicate with

its police force without fear of immigration consequences, is

exercising its police power—an area of power long recog-

nized as resting with the states. The Attorney General now

seeks to pursue the federal government’s interest in enforcing

its immigration laws. Regulating immigration into this coun-

try is a legitimate federal interest, and the executive branch

including the Attorney General has authority to enforce the

nation’s immigration laws. But the methods the executive em-

ploys in pursuit of those legitimate ends must be lawful and,

in this case, the means the Attorney General has chosen are

not lawful. The federal government cannot merely conscript

the police forces of the state or local governments to achieve

its ends; that would eviscerate the principles of federalism

that rest at the very foundation of our government.

The Attorney General’s use of extra-statutory conditions

on federal grant awards as a tool to obtain compliance with

his policy objectives strikes at the heart of another core value,

Nos. 18-2885 & 19-3290 15

which is the separation of powers among the branches of the

federal government. The authority to pass laws and the

power of the purse rest in the legislative not the executive

branch. The composition of the legislature—with elected

representatives and dual chambers—provides institutional

protection from the abuse of such power. But no such

institutional protection from abuse exists should such power

be concentrated in the executive branch, where one

individual—whether the President or the Attorney General or

another official—determined to impose his or her policy

preferences regardless of the will of Congress, could proceed

unimpeded by the types of institutional checks present in the

legislative body. Such a concentration of power would allow

tyranny to flourish, and our system of government is wisely

set up by the Founders to foreclose such a danger. The

executive branch has significant powers of its own—

particularly in matters such as immigration—but the power

to wield the purse to alter behavior rests squarely with the

legislative branch. Congress has thus far refused to pass

legislation that would do precisely what the Attorney General

seeks to do here. “Respecting the separation of powers

forecloses no substantive outcomes. It only requires us to

respect along the way one of the most vital of the procedural

protections of individual liberty found in our Constitution.”

Gundy v. United States, 139 S. Ct. 2116, 2145 (2019)(Gorsuch, J.,

dissenting).

Article I of the Constitution vests the power to legislate

with Congress, not the Executive. Id. at 2123. Therefore,

“when Congress confers decisionmaking authority upon

agencies Congress must ‘lay down by legislative act an intelli-

gible principle to which the person or body authorized to [act]

is directed to conform.’” (emphasis in original) Whitman v.

16 Nos. 18-2885 & 19-3290

Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001), quoting J.W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).

III. Notice, Access, Harboring and Additional

Certification Conditions

For his authority to impose the conditions, the Attorney

General points to 34 U.S.C. § 10102, which sets forth the duties

and functions of the Assistant Attorney General as follows:

(a) Specific, general and delegated powers

The Assistant Attorney General shall--

(1) publish and disseminate information on the

conditions and progress of the criminal justice

systems;

(2) maintain liaison with the executive and judi-

cial branches of the Federal and State govern-

ments in matters relating to criminal justice;

(3) provide information to the President, the

Congress, the judiciary, State and local govern-

ments, and the general public relating to crimi-

nal justice;

(4) maintain liaison with public and private ed-

ucational and research institutions, State and lo-

cal governments, and governments of other na-

tions relating to criminal justice;

(5) coordinate and provide staff support to co-

ordinate the activities of the Office and the Bu-

reau of Justice Assistance, the National Institute

Nos. 18-2885 & 19-3290 17

of Justice, the Bureau of Justice Statistics, the Of-

fice for Victims of Crime, and the Office of Juve-

nile Justice and Delinquency Prevention; and

(6) exercise 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 prior-

ity purposes for formula grants.

34 U.S.C. § 10102.

The Attorney General argues that §§ 10102(a)(2), (4), and

(6) provide authority for him to impose the substantive con-

ditions on the Byrne JAG grant. Specifically, he points to

§ 10102(a)(6) as allowing virtually unlimited authority to

place conditions on grants and therefore allowing the imposi-

tion of the notice, access, harboring and additional certifica-

tion conditions. He further points to the provisions in

§§ 10102(a)(2) and (4) empowering the Assistant Attorney

General to “maintain liaison” as further authority for the har-

boring condition.

A. Section 10102(a)(6)

We turn first to the notice and access conditions, which we

previously addressed in the appeal from the grant of a pre-

liminary injunction. Chicago I, 888 F.3d 272. The district court

imposed a preliminary injunction as to those notice and access

conditions, and in Chicago I we upheld that preliminary in-

junction. The standard for preliminary injunctive relief re-

quires only a showing of a likelihood of success on the merits,

whereas permanent relief requires a determination on the

merits. Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 546

18 Nos. 18-2885 & 19-3290

n.12 (1987). As to the challenge to the notice and access con-

ditions, however, this is a distinction without a difference.

Our reasoning in Chicago I established Chicago’s entitle-

ment to relief on the merits, not merely a likelihood of success.

The Attorney General relied on 34 U.S.C. § 10102(a)(6) as

providing the statutory authority to impose both of those con-

ditions.

Subsection (a)(6) provides that the Assistant Attorney

General shall “exercise 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, includ-

ing placing special conditions on all grants, and determin-

ing priority purposes for formula grants.” § 10102(a)(6) (em-

phasis added). During the first appeal, we held that the plain

meaning of that language was to delineate the subcategory of

powers and functions that the Assistant Attorney General

could exercise when vested in the Assistant Attorney General

either by the terms of this chapter or by delegation of the At-

torney General. Chicago I, 888 F.3d at 285; accord New York, 951

F.3d at 102, City of Philadelphia v. Atty. Gen. of United States, 916

F.3d 276, 287 (3d Cir. 2019), City & Cnty. of San Francisco v.

Sessions, 372 F. Supp. 3d 928, 943 n.4 (N.D. Cal. 2019). The “in-

escapable problem” with the Attorney General’s interpreta-

tion, however, was that he did not even claim that the power

exercised here was authorized anywhere in the chapter, nor

could he claim that the Attorney General possesses that au-

thority and could delegate it to the Assistant Attorney Gen-

eral. Chicago I, 888 F.3d at 285. And the plain language of

§ 10102(a)(6) precludes an interpretation that it is a stand-

alone grant of power unrelated to the authority granted in the

chapter or the authority granted to the Attorney General. Id.

Nos. 18-2885 & 19-3290 19

We further noted that our plain reading of the statute was

consistent with the structure of § 10102 and the Byrne JAG

program itself. Id. at 285–86. In contrast to discretionary

grants, the Byrne JAG program was a formula grant program,

with strictly-circumscribed provisions allocating award

amounts and penalties. An interpretation of § 10102(a)(6) that

would authorize the wholesale denial of all grant funds

would be a radical departure from the otherwise carefully-

delineated rules for the awarding and the withholding of

funds, and one would expect such a significant power to be

unmistakable in its language and to be connected to the Byrne

JAG (or grant awards in general) by reference. We noted that

‘[a] clause in a catch-all provision at the end of

a list of explicit powers would be an odd place

indeed to put a sweeping power to im-

pose any conditions on any grants—a power

much more significant than all of the duties and

powers that precede it in the listing, and a

power granted to the Assistant Attorney Gen-

eral that was not granted to the Attorney Gen-

eral. … As the Supreme Court has repeatedly

held, ‘Congress … does not alter the fundamen-

tal details of a regulatory scheme in vague terms

or ancillary provisions—it does not, one might

say, hide elephants in mouseholes.’

Id. at 285–87, quoting Gonzales v. Oregon, 546 U.S. 243, 267

(2006); Philadelphia, 916 F.3d at 288. We will not repeat that

analysis here, but it applies equally in the context of a perma-

nent injunction. No new meritorious arguments have been

raised by the Attorney General as to those conditions in this

appeal. Accordingly, we adopt and incorporate the reasoning

20 Nos. 18-2885 & 19-3290

from Section III of that opinion in this appeal. Chicago I, 888

F.3d at 282–87. For the reasons stated in Chicago I, the district

court did not err in granting permanent injunctive relief as to

the notice and access conditions. The Attorney General relies

on § 10102(a)(6) as the authority to impose the additional cer-

tification and harboring conditions as well, and our rejection

of that argument in Chicago I forecloses the argument as to

those conditions as well.3

B. Sections 10102(a)(2) and (4)

The Attorney General attempts to salvage the harboring

condition by pointing to a different portion of § 10102—the

subsections that instruct the Assistant Attorney General to

maintain liaisons with other entities—in (a)(2), “with the ex-

ecutive and judicial branches of the Federal and State govern-

ments in matters relating to criminal justice,” and in (a)(4)

“with public and private educational and research institu-

tions, State and local governments, and governments of other

nations relating to criminal justice.” That language entrusts

the Assistant Attorney General with maintaining lines of

3 In the course of his argument that § 10102(a)(6) authorizes the imposition

of the additional certification condition, the Attorney General also states

in a parenthetical that the additional certification condition “also involves

the provision of programmatic information to the extent that any active

impeding takes the form of withholding information, see 34 U.S.C.

§ 10153(A)(4).” Appellant Brief, No. 19-3290, at 22; see also City of Provi-

dence v. Barr, 2020 WL 1429579 at *7 (1st Cir. March 24, 2020) (rejecting the

argument that the “programmatic information” language in § 10153(A)(4)

provided authority for the conditions). That is the sole reference to

§ 10153(A)(4) as a basis to support the imposition of the additional certifi-

cation condition, and is insufficient to raise the argument before this court.

See Sauk Prairie Conservation All. v. United States Dep't of the Interior, 944

F.3d 664, 674 (7th Cir. 2019).

Nos. 18-2885 & 19-3290 21

communication with other entities, and is sandwiched be-

tween a recitation of other relatively-ministerial duties of the

Assistant Attorney General including the power to: “publish

and disseminate information on the conditions and progress

of the criminal justice systems [in (a)(1)], … provide infor-

mation to the President, the Congress, the judiciary, State and

local governments, and the general public relating to criminal

justice [in (a)(3),] … [and] coordinate and provide staff sup-

port to coordinate the activities of the Office and the Bureau

of Justice Assistance, the National Institute of Justice, the Bu-

reau of Justice Statistics, the Office for Victims of Crime, and

the Office of Juvenile Justice and Delinquency Prevention [in

(a)(5)].” 34 U.S.C. §§ 10102(a)(1), (3), (5); Chicago I, 888 F.3d at

287.

Nothing in that language even references, let alone au-

thorizes, the Assistant Attorney General to impose conditions

on the distribution of funds authorized by Congress. See State

of Oregon v. Trump, 406 F. Supp. 3d 940, 969 (2019) (holding

that the definition of liaison does not even hint at a punitive

aspect, “let alone a discretionary authority to completely dis-

solve relations when one side does not abide by the wishes of

the other,” and that the structure of the statute also weighs

against the Attorney General’s interpretation); San Francisco,

372 F. Supp. 3d at 944 (noting that “[t]he structure of Section

10102 does not support the contention that ‘maintain liaison’

in Section 10102(a)(2) provides more than a ministerial duty

on the Attorney General to maintain communication with

other Federal and State agencies.”). It would strain statutory

interpretation to the breaking point to interpret a provision

that requires the fostering of communication as handing to

the Assistant Attorney General the power to withhold the en-

tire Byrne JAG award for the failure to comply with

22 Nos. 18-2885 & 19-3290

substantive conditions imposed by the Attorney General—

particularly given that the language in the Byrne JAG grant

sets forth highly detailed and precise circumstances that

would justify the withholding of funds and the percentages

that can be withheld. See Chicago I, 888 F.3d at 286–87.

Moreover, the language in subsections (a)(2) and (4) could

not support the harboring condition even if we were to ignore

the problem that the language itself does not authorize the

imposition of conditions. Both subsections address the power

to maintain liaisons relating to criminal justice matters. But the

harboring condition that the Attorney General seeks to im-

pose on the Byrne JAG grant is explicitly not targeted to crim-

inal matters. The harboring condition prohibits the recipient

jurisdiction from making any “public disclosure … of any fed-

eral law enforcement information in a direct or indirect at-

tempt 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 [federal crim-

inal law provisions] 18 U.S.C. 1071 or 1072 or of 8 U.S.C. 1324(a).”

(emphasis added) Chicago, 405 F. Supp. 3d at 754–55. Thus, it

would withhold funds even regarding disclosures that re-

lated only to civil immigration and not the more narrow cate-

gory of criminal immigration matters. And it is being used by

the Attorney General to target Chicago’s Welcoming City Or-

dinance, which explicitly allows the City to cooperate in crim-

inal, as opposed to civil, immigration matters. The Attorney

General cannot rely on a provision encouraging communica-

tions as to criminal justice matters as authority to deny funds

for disclosures related only to civil matters. See San Francisco,

372 F. Supp. 3d at 945 (holding that the scope of the harboring

Nos. 18-2885 & 19-3290 23

condition exceeds the ministerial duty to maintain liaison).

For that reason as well, §§ 10102(a)(2) and (4) do not provide

authority for the harboring condition.

IV. Compliance Condition

We turn, then, to the compliance condition, which re-

quires the state or local government to certify that it will not

restrict its own officials from communicating information re-

garding the citizenship or immigration status of any individ-

ual. The burden of that requirement is not insignificant. For

instance, in City & Cnty. of San Francisco v. Sessions, 349

F. Supp. 3d 924, 952 (N.D. Cal. 2018), considering only de-

tainer requests, the district court noted that “California’s law

enforcement agencies experienced double the detainer re-

quests from ICE in one year—from 15,000 in fiscal year 2016

to 30,000 in fiscal year 2017.” Under the Attorney General’s

compliance condition, a state or local government could not

instruct its own employees that they must devote their time

to law enforcement tasks that it deems a higher priority rather

than respond to those information requests from ICE.

The compliance condition was not before this court in the

prior appeal. The district court had denied preliminary relief

as to that condition and Chicago did not cross-appeal that is-

sue to this court. At the permanent injunction stage, however,

the court reversed course and granted injunctive relief as to

that condition as well based on the Supreme Court’s decision

in Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461

(2018), which had been issued in the interim.

A. District Court Analysis

In the “Overview of Legal Requirements Generally Appli-

cable to OJP [Office of Justice Programs] Grants and

24 Nos. 18-2885 & 19-3290

Cooperative Agreements - FY 2017 Awards,” (hereinafter

“Overview of Legal Requirements”), the Attorney General

declared that he was imposing the compliance condition

“[c]onsistent with OJP’s statutory authority to impose grant

conditions, including 42 U.S.C. 3712 [now found at 34 U.S.C.

§ 10102].” See Dist. Ct. R. 26, Exh. M. As with the notice and

access conditions, the Attorney General points to § 10102(a)(6)

as authorizing the Assistant Attorney General to place special

conditions on all grants and determine priority purposes for

formula grants. We rejected that interpretation in Chicago I as

to the notice and access provisions, and we have adopted that

rationale in this appeal as well. The Attorney General’s reli-

ance on § 10102(a)(6) fails for the same reason when applied

to the compliance condition.

Despite his declaration that the grant condition would be

imposed pursuant to his power under § 10102, in the district

court and on appeal the Attorney General primarily anchors

the compliance condition to 34 U.S.C. § 10153(A)(5)(D) (here-

inafter “§ 10153”). That provision states that in a request for a

grant, the application “shall include … [a] certification, made

in a form acceptable to the Attorney General … that … the

applicant will comply with all provisions of this part and all

other applicable Federal laws.” (emphasis added) The Attorney

General argues that the italicized portion allows him to re-

quire that applicants certify compliance with 8 U.S.C. § 1373.

Section 1373 provides:

(a) In general

Notwithstanding any other provision of Fed-

eral, State, or local law, a Federal, State, or local

government entity or official may not prohibit,

Nos. 18-2885 & 19-3290 25

or in any way restrict, any government entity or

official from sending to, or receiving from, the

Immigration and Naturalization Service infor-

mation regarding the citizenship or immigra-

tion status, lawful or unlawful, of any individ-

ual.

(b) Additional authority of government entities

Notwithstanding any other provision of Fed-

eral, State, or local law, no person or agency

may prohibit, or in any way restrict, a Federal,

State, or local government entity from doing

any of the following with respect to information

regarding the immigration status, lawful or un-

lawful, of any individual:

(1) Sending such information to, or requesting or

receiving such information from, the Immigra-

tion and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other

Federal, State, or local government entity.

(c) Obligation to respond to inquiries

The Immigration and Naturalization Service

shall respond to an inquiry by a Federal, State,

or local government agency, seeking to verify or

ascertain the citizenship or immigration status

of any individual within the jurisdiction of the

agency for any purpose authorized by law, by

26 Nos. 18-2885 & 19-3290

providing the requested verification or status

information.

Under the Attorney General’s reasoning, Congress itself

incorporated § 1373 into the Byrne JAG program by requiring

compliance with “all other applicable federal laws.” And the

Attorney General interprets the requirements of § 1373 in-

credibly broadly, maintaining that the information as to “citi-

zenship or immigration status” incorporates information be-

yond an individual’s immigration status, including, for in-

stance, an alien prisoner’s release date.

The district court interpreted the term “all other applica-

ble federal laws” as encompassing all federal law. City of Chi-

cago, 321 F. Supp. 3d at 875. The court held that if Congress

wanted to limit the term to include just a specific body of fed-

eral grant-making laws, it could have done so, but that the

language “all other applicable federal law” includes any fed-

eral law that applies to Chicago. Id. Because § 1373 is a federal

law, the court held that § 10153 would require applicants to

certify compliance with it. Id.

But the district court then considered whether § 1373 was

itself constitutional, reasoning that an unconstitutional law

could not constitute an “applicable law” under § 10153. The

court held that § 1373 violated the anticommandeering

doctrine of the Tenth Amendment in light of the Supreme

Court’s decision in Murphy, 138 S. Ct. 1461. City of Chicago, 321

F. Supp. 3d at 866–73, 875. In Murphy, the Court made clear

that regardless of whether a federal law commands state

action or precludes it, Congress cannot issue direct orders to

state legislatures. Murphy, 138 S. Ct. at 1478. Accordingly, the

language in § 1373 could be problematic under the Tenth

Amendment even if it merely operated to preclude the state

Nos. 18-2885 & 19-3290 27

from taking certain actions. The district court then considered

the language of § 1373, which bars any government entity or

official from prohibiting, or in any way restricting, any other

government entity or official from exchanging information

with federal immigration authorities, and also prohibits any

person or agency from doing the same. The court held that

Chicago had challenged § 1373 as an independent statute, and

concluded that it was unconstitutional under the anti-

commandeering doctrine of the Tenth Amendment. City of

Chicago, 321 F. Supp. 3d at 867, 869. The court noted that a

state’s ability to control its offices and employees is at the

heart of state sovereignty and that § 1373 violates that in a

number of ways: first, it supplants local control of officers,

precluding Chicago and other localities from limiting the

amount of paid time its employees use to communicate with

federal immigration authorities; second, it indirectly

constrains local rule-making by precluding local lawmakers

from passing laws that implement the localities’ preferred

policies, such as the Welcoming City Ordinance, which run

counter to § 1373—a concern squarely addressed in Murphy;

third, it redistributes local decision-making power by

transferring that power from local policymakers to line-level

employees who are empowered to decide for themselves

whether or not to communicate with immigration authorities;

and finally, because it eliminates the ability of a locality such

as Chicago to control its employees’ communications with

federal immigration authorities, § 1373 prevents that locality

from extricating itself from federal immigration enforcement,

thus foreclosing the “critical alternative” recognized in New

York v. United States, 505 U.S. 144, 177 (1992), of the option of

non-participation in a federal program. City of Chicago, 321 F.

Supp. 3d at 869–70. The court concluded that § 1373 was

28 Nos. 18-2885 & 19-3290

unconstitutional on its face and, as an unconstitutional law, it

could not be considered an “applicable federal law” for

purposes of § 10153. Id. at 875–76. It rejected the Attorney

General’s baseless argument that even an unconstitutional

law could be considered an “applicable federal law” under §

10153.

B. Section 10153

The Attorney General challenges those conclusions on ap-

peal, but we need not address the district court’s compelling

analysis of that Tenth Amendment issue, because we hold

that the term “all other applicable federal law” cannot be con-

strued so broadly as to encompass § 1373. Pearson v. Callahan,

555 U.S. 223, 241 (2009) (noting the court’s long-time practice

of “constitutional avoidance,” where courts do not pass on

questions of constitutionality unless such adjudication is un-

avoidable). Our analysis begins with the plain language of

§ 10153, interpreted not in a vacuum, but in light of the con-

text and the statutory structure as a whole. Gundy, 139 S. Ct.

at 2126; Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1,

18–19 (1981). Proper interpretation considers not only the spe-

cific context in which the language is used, but the overall

structure of the statute as a whole, as well as its history and

purpose. Gundy, 139 S. Ct at 2126.

1. Plain Language

The Attorney General argues that the term “all other ap-

plicable federal law” incorporates all federal law that applies

to states or localities. The immediate problem with that inter-

pretation is that it renders the words “other applicable” su-

perfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)

(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)) (“[i]t is ‘a

Nos. 18-2885 & 19-3290 29

cardinal principle of statutory construction’ that ‘a statute

ought, upon the whole, to be so construed that, if it can be

prevented, no clause, sentence, or word shall be superfluous,

void, or insignificant.’”); Philadelphia, 916 F.3d at 289 (“the

canon against surplusage counsels us to read the term ‘appli-

cable’ in a way that gives it some independent heft.”) If Con-

gress meant to incorporate all law that applies to States or lo-

calities, that would be accomplished by requiring compliance

with “all federal law.” Any federal laws that did not apply to

states or localities would simply be irrelevant in considering

compliance, in that an entity could not fail to comply with a

law that does not impose any legal obligations on it, and

therefore the term would not be overinclusive. By including

only “applicable” federal laws, the provision encompasses

only laws that apply by their terms to the award itself.

The natural reading of the phrase considers the language

in the subsection as a whole:

(A) To request a grant … the … State or unit of local

government shall submit an application to the

Attorney General … in such form as the Attor-

ney General may require. Such application shall

include the following:

…

(5) A certification, made in a form acceptable to the

Attorney General and executed by the chief ex-

ecutive officer of the applicant (or by another of-

ficer of the applicant, if qualified under regula-

tions promulgated by the Attorney General),

that—

30 Nos. 18-2885 & 19-3290

(A) the programs to be funded by the grant meet all

the requirements of this part;

(B) all the information contained in the application

is correct;

(C) there has been appropriate coordination with

affected agencies; and

(D) the applicant will comply with all provisions of

this part and all other applicable Federal laws.

34 U.S.C. § 10153(A)(5). This provision relates to the grant ap-

plication itself and conformance to all of its requirements. It

provides for an assurance that the programs to be funded by

the grant meet all the requirements, that the information in

the grant application is correct, that appropriate coordination

with agencies affected by the grant has occurred, and that the

applicant will comply with all provisions of this part and “all

other applicable Federal laws.” The most natural reading of the

last provision is that “all other applicable” laws refers to the

many federal laws that apply specifically to grants or grant-

ees. That is consistent with the structure of the provision as a

whole which addresses requirements related to the grant and

the application for the grant itself. See City of Providence v. Barr,

2020 WL 1429579 at *11 (1st Cir. March 24, 2020); Philadelphia,

916 F.3d at 289 (noting that those four subsections all relate to

the programs that will be funded under the grant, thus coun-

seling against a broader interpretation of the applicable laws

clause); San Francisco, 349 F. Supp. 3d at 954 (noting that all of

the conditions preceding it apply to the grant itself). This

reading also tracks more closely to the language of

§ 10153(A)(5)(D) itself, which requires certification that the

“applicant” will comply with all provisions of this part and

Nos. 18-2885 & 19-3290 31

all other applicable federal laws, thus signaling that the re-

quirement is tethered to the status of the state and locality as

a grant applicant and not merely as a governmental entity.

2. Consistency with Other Statutes Applied

The language at issue is mirrored in a subsequent sub-

chapter that also applies on its terms to the Byrne JAG pro-

gram, and provides:

Whenever, after reasonable notice and oppor-

tunity for a hearing on the record in accordance

with section 554 of Title 5, the Bureau of Justice

Assistance, the National Institute of Justice, and

the Bureau of Justice Statistics finds that a recip-

ient of assistance under this chapter has failed

to comply substantially with—

(1) any provisions of this chapter;

(2) any regulations or guidelines promulgated

under this chapter; or

(3) any application submitted in accordance

with the provisions of this chapter, or the provi-

sions of any other applicable Federal Act;

the Director involved shall, until satisfied that

there is no longer any such failure to comply,

terminate payments to the recipient under this

chapter, reduce payments to the recipient under

this chapter by an amount equal to the amount

of such payments which were not expended in

accordance with this chapter, or limit the avail-

ability of payments under this chapter to

32 Nos. 18-2885 & 19-3290

programs, projects, or activities not affected by

such failure to comply.

(emphasis added) 34 U.S.C. § 10222. Again, the statute speaks

in terms of the “recipient of assistance under this chapter”

complying with “the provisions of any other applicable Fed-

eral law,” thus signaling that the laws that would be “appli-

cable” are laws that refer specifically to grant recipients, not

any laws that apply generally to states or localities. The refer-

ence to “other” applicable Federal law is a nod to the require-

ments that precede it, which all relate to the grant itself and

regulations relating to it. Specifically, preceding the “all other

applicable Federal law” provision are the requirements that

the recipient of assistance comply substantially with provi-

sions of that chapter, regulations or guidelines promulgated

under that chapter, and applications submitted in accordance

with the provisions of this chapter. All of those requirements

directly relate to the requirements specific to the subject mat-

ter of the grants. The most natural reading of the phrase “all

other applicable Federal law,” then, is that it includes laws re-

lating to grant recipients that appear outside this specific chap-

ter of the United States Code.

And that is true of the same language in § 10153(A)(5)(D)

as well. Because many federal laws explicitly apply to federal

grantees, the most natural reading of § 10153 as a whole is that

it requires the applicant to certify that it will comply with all

of those federal laws that apply, by their terms, to successful

grant applicants. That is consistent with the other listed pro-

visions in § 10153(A)(5) which relate to the grant itself—either

in assuring that it is awarded based on correct information, or

that it is pursued in proper coordination with affected agen-

cies, or, in the part at issue here, that it will be in compliance

Nos. 18-2885 & 19-3290 33

with all the grant requirements in this part or other parts of

federal law. It is also reflected in the OJP’s own explanation

of grant requirements as set forth in its Overview of Legal Re-

quirements, which explains that “[e]ach recipient of an OJP

grant or cooperative agreements must comply with all fed-

eral statutes and regulations applicable to the award, as well

as the particular award conditions included in the award doc-

ument.” (emphasis added) Dist. Ct. R. 26, Exh. M.; see also id.

(providing applicant an overview of statutes and award con-

ditions “that apply to many (or in some cases, all) OJP grants

and cooperative agreements awarded in 2017”) (emphasis

added). As that language makes clear, the connection of the

law to the award itself is what renders a particular federal law

“applicable.”4

Such statutes directly applying to grants and grant recipi-

ents are plentiful, and the Byrne JAG program explicitly iden-

tifies a number of them in its application. In fact, a review of

the other federal laws referenced in the application reveals a

clear pattern of laws that explicitly apply to those receiving

federal funds. The Edward Byrne Memorial Justice Assistance

4 The Attorney General argues that some federal laws and regulations in-

clude language modifying “applicable,” and that absent such language

the term should be interpreted as unbounded (citing 42 U.S.C.

§ 16154(g)(1) (“generally applicable Federal laws and regulations govern-

ing awards of financial assistance, contracts, or other agreements”) and

Pub. L. No. 113-121, § 1043 (a)(3)(C)(ii)(II), 128 Stat. 1193, 1246 (2014) (“all

applicable Federal laws (including regulations) relating to the use of the

funds”)). It is not at all clear that such language serves to narrow rather

than to clarify, but regardless, the use of modifying language in other stat-

utes does not alter our conclusion that the context, language and structure

of this statute defines the phrase as including only laws relating to grants

and grantees.

34 Nos. 18-2885 & 19-3290

Grant Program FY 2017 Local Solicitation directs applicants

to the web pages accessible through the “Overview of Legal

Requirements Generally Applicable to OJP Grants and Coop-

erative agreements – FY 2017 Awards” for a general overview

of the important statutes and regulations that apply to the

grant. Appellant’s Appendix, No. 18-2885, at A175. That

source identifies a number of federal laws that apply to the

grant, and those laws are identified in the grant award itself

as well. See id. at A50–A69. Unlike § 1373, however, those laws

by their very language apply expressly to grants and recipi-

ents of grants. For instance, the laws include:

18 U.S.C. § 1913—Lobbying with appropriated

moneys, which provides that “[n]o part of the

money appropriated by any enactment of Con-

gress shall, in the absence of express authoriza-

tion by Congress, be used directly or indirectly

to pay for any personal service, advertisement,

[etc.] … intended or designed to influence in

any manner a Member of Congress … .“

22 U.S.C. § 7104—Prevention of trafficking,

which in § 1704(g) provides that “the President

shall ensure that any grant … provided or en-

tered into by a Federal department or agency

under which funds are to be provided to a pri-

vate entity, in whole or in part, shall include a

condition that authorizes the department or

agency to terminate the grant … if the grantee

or any subgrantee … engages in … (1) severe

forms of trafficking in persons … .”

41 U.S.C. § 4712(a)(1)—Enhancement of con-

tractor protection from reprisal for disclosure of

Nos. 18-2885 & 19-3290 35

certain information, providing that “[a]n em-

ployee of a … grantee, or subgrantee … may

not be discharged, demoted or otherwise dis-

criminated against as a reprisal for disclosing to

a person or body described in paragraph (2) in-

formation that the employee reasonably be-

lieves is evidence of gross mismanagement of a

Federal contract or grant … .”

28 C.F.R. § 54.100—Title IX regulation “de-

signed to eliminate (with certain exceptions)

discrimination on the basis of sex in any educa-

tion program or activity receiving Federal fi-

nancial assistance, whether or not such pro-

gram or activity is offered or sponsored by an

educational institution … .”

28 C.F.R. § 42.102-42.105—Title VI of the Civil

Rights Act—prohibits discrimination on the

ground of race, color, or national origin and

“applies to any program for which Federal as-

sistance is authorized under a law adminis-

tered by the Department,” with Federal finan-

cial assistance defined as including “grants and

loans of Federal funds.” It also requires that

“[e]very application for Federal financial assis-

tance to which this subpart applies … shall, as a

condition to its approval and the extension of

any Federal financial assistance pursuant to the

application, contain or be accompanied by an

assurance that the program will be conducted or

the facility operated in compliance with all

36 Nos. 18-2885 & 19-3290

requirements imposed by or pursuant to this

subpart.”

31 U.S.C. § 1352—Limitation on use of appro-

priated funds to influence certain Federal con-

tracting and financial transactions, providing

that “[n]one of the funds appropriated by any

Act may be expended by the recipient of a Fed-

eral … grant … to pay any person for influenc-

ing or attempting to influence an officer or em-

ployee of any agency, a Member of Congress, an

officer or employee of Congress, or an employee

of a Member of Congress in connection with

[federal contracts].”

(emphasis added). Those statutes and regulations also

provide specific remedies tailored to each provision for

violations—ranging from civil penalties to abatement

measures to grant termination—in contrast to §1373 for which

the Attorney General himself has determined that wholesale

withholding of the entire grant is the remedy for

noncompliance. See, e.g., 31 U.S.C. § 1352(a)–(c) incorporated

by reference in 18 U.S.C. § 1913, 22 U.S.C. § 7104(g), 41 U.S.C.

§ 4712(c). Section 1373, therefore, represents a departure from

the other federal law incorporated into the grant. In fact, the

Third Circuit in Philadelphia, 916 F.3d at 290, considered the

history as to which laws the Justice Department included

under the applicable laws clause, and noted that “[e]very

condition that is authorized by the Applicable Laws Clause

applies specifically to programs funded under the grant, not

more generally to the grantee.”

Nos. 18-2885 & 19-3290 37

C. Problems with AG’s Interpretation

The Attorney General’s interpretation of the compliance

provision, in contrast, would expand that provision far be-

yond the context of the grant and its application, to encom-

pass the broad, unrelated array of federal laws that apply to

states or local governments regardless of their connection to

this or any grant. Moreover, as we will explain, the Attorney

General’s interpretation would: (1) allow the executive to im-

pose conditions that Congress repeatedly declined to institute

itself; (2) allow the Attorney General in his discretion to im-

pose a substantive qualifying condition on a grant that Con-

gress explicitly established as a formula rather than a discre-

tionary grant; (3) render irrelevant or illogical other provi-

sions in the Byrne JAG statute and raise constitutional con-

cerns; and (4) conflict with another statutory provision. As

such, it is inconsistent with the bedrock principles of separa-

tion of powers and federalism, and the district court properly

granted injunctive and declaratory relief.

1.

Although the Attorney General interprets § 10153 as re-

quiring compliance with § 1373, Congress has repeatedly re-

fused to pass legislation that would do precisely that, as we

recognized in Chicago I:

In the past few years, numerous pieces of legis-

lation were introduced in the House and Senate

seeking to condition federal funding on compli-

ance with 8 U.S.C. § 1373—which was intended

to address “sanctuary cities” and prohibit fed-

eral, state or local government officials or enti-

ties from restricting the exchange of information

38 Nos. 18-2885 & 19-3290

with the immigration authorities regarding citi-

zenship or immigration status. None of those ef-

forts were passed by Congress. See, e.g., Stop

Dangerous Sanctuary Cities Act, H.R. 5654,

114th Cong. § 4 (2016); Stop Dangerous Sanctu-

ary Cities Act, S. 3100, 114th Cong. § 4 (2016);

Enforce the Law for Sanctuary Cities Act, H.R.

3009, 114th Cong. § 3 (2015); Mobilizing Against

Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2

(2015); Stop Sanctuary Policies and Protect

Americans Act, S. 2146, 114th Cong. § 3(a)

(2015); Stop Sanctuary Cities Act, S. 1814, 114th

Cong. § 2 (2015) (all available at

https://www.congress.gov). see also Annie Lai

& Christopher N. Lasch, Crimmigration Re-

sistance and the Case of Sanctuary City Defunding,

57 Santa Clara L. Rev. 539, 553 n. 87 (2017) (list-

ing eight pieces of legislation introduced during

that time, all of which were unsuccessful).

Chicago I, 888 F.3d at 277–78. The Attorney General’s reading

would thus allow the Executive Branch to override Congress’

refusal to endorse § 1373 compliance and would effectively

“legislate” a different result.

2.

Second, the Attorney General’s interpretation would vest

the executive branch with unbridled power to identify select

federal laws and impose them as a precondition for the receipt

of federal grant money allocated by Congress. That discre-

tionary authority is fundamentally inconsistent with the na-

ture of the Byrne JAG grant as a formula grant, located in a

separate section of the Act than the discretionary grants. See

Nos. 18-2885 & 19-3290 39

generally Bureau of Justice Assistance Grant Program, 34

U.S.C. § 10151 et seq. As a formula grant rather than a discre-

tionary grant, the grant awarded is a function of the state or

local government’s proportionate crime rate and population,

and is incompatible with the sort of unbridled discretion that

the Attorney General’s interpretation would yield. See Phila-

delphia, 916 F.3d at 290 (noting that Congress structured the

Byrne JAG program as a formula grant, and that allowing the

withholding of funds “because a jurisdiction does not certify

compliance with any federal law of the Attorney General’s

choosing undermines the predictability and consistency em-

bedded in the program’s design, thus turning the formula

grant into a discretionary one.”).5

The Attorney General dismisses this as a non-issue, de-

claring that the States and local governments were already

subject to those laws and therefore the certification of compli-

ance imposes no burden or barrier. He disclaims any role in

determining which laws will be applied, stating that his inter-

pretation “does not require compliance with laws ‘selected at

the Attorney General’s uncabined discretion.’” Reply Brief,

No. 18-2885, at 5. Instead, he declares that he is “not urging

that the Attorney General has discretion to select applicable

laws; rather, Congress has made laws applicable to Chicago,

and Chicago must comply with them.” Id. at 5–6. But that ar-

gument is utterly inconsistent with the application process

5 As we noted in Chicago I, the provision for discretionary grants is located

in a different subpart of the same statute, and “imbues the Director (who

reports to the Assistant Attorney General) with the authority to award

funds on terms and conditions that the Director determines to be con-

sistent with that subpart.” Chicago I, 888 F.3d at 286.

40 Nos. 18-2885 & 19-3290

that the Attorney General has actually implemented and is

meritless.

First, the grant application does not purport to track com-

pliance with the entire universe of federal law. Instead, the

Attorney General has singled out particular federal laws

which act as a gatekeeper to control and limit access to the

grant. That is apparent in the language of the application—

which identifies specific statutes—and also in the Attorney

General’s apparent absence of concern with the multitudes of

other federal laws that apply by their terms to states and cit-

ies, such as OSHA requirements or EPA regulations or any

other federal constitutional, statutory or regulatory law. In

fact, the Attorney General has singled out § 1373 and required

a separate certification of compliance for that statute alone,

with penalties for false statements or omissions ranging from

civil penalties to criminal prosecution. Rather than condition-

ing the award of the grant on evidence that the state or local

government is in compliance with all federal laws that by

their terms apply to states or local governments, the Attorney

General conditions the award on a certification that the state

or locality is in compliance with one specific law—§ 1373—as

is trumpeted in the following notice to grant applicants:

Alert: New Requirements for Certain FY 2017

Programs

Consistent with OJP’s statutory authority to

impose grant conditions, including 42 U.S.C.

3712, OJP will include—in an award document

sent to a prospective FY 2017 Edward Byrne

Justice Assistance Grant (“Byrne JAG”)

recipient for acceptance—express award

conditions concerning ongoing compliance

Nos. 18-2885 & 19-3290 41

with 8 U.S.C. 1373, throughout the award

period, in the “program or activity” funded by

the award. (In general, section 1373 bars

restrictions on communication between State

and local agencies and officials and the

Department of Homeland Security (and certain

other entities) with respect to information

regarding the citizenship or immigration status

of any individual.) States and units of local

government that apply for awards under the FY

2017 Byrne JAG Program will be required—

prior to award acceptance—to submit a specific

certification from the chief legal officer of the

jurisdiction regarding the applicant’s

compliance with 8 U.S.C. 1373(a) and (b).

Interested applicants may view a sample

certification document at

https://ojp.gov/funding/Explore/SampleCertific

ations-8USC1373.htm.

In addition, consistent with OJP’s statutory au-

thority, OJP will include in any FY 2017 Byrne

JAG award (as part of the award document) ad-

ditional express conditions that, with respect to

the “program or activity” that would be funded

by the FY 2017 award, are designed to ensure

that States and units of local government that

receive funds from the FY 2017 Byrne JAG

award: (1) permit personnel of the U.S. Depart-

ment of Homeland Security (“DHS”) to access

any correctional or detention facility in order to

meet with an alien (or an individual believed to

be an alien) and inquire as to his or her right to

42 Nos. 18-2885 & 19-3290

be or remain in the United States; and (2) pro-

vide at least 48 hours’ advance notice to DHS re-

garding the scheduled release date and time of

an alien in the jurisdiction’s custody when DHS

requests such notice in order to take custody of

the alien pursuant to the Immigration and Na-

tionality Act.

Overview of Legal Requirements, Dist. Ct. R. 26, Exh. M. That

alert to future grant applicants expressly recognizes that the

OJP has selected one federal statute to impose as a grant con-

dition with requirements of certification that are specific to

that statute. Its contention that Congress, rather than the At-

torney General, has selected the laws that will constitute con-

ditions of the grant is patently false.

The argument that the certificate of compliance imposes

no burden because government entities were already

required to follow the law fails for an additional reason. The

identification of a federal law as an “other applicable law” for

receipt of the grant imposes a penalty on the violation of that

law that would otherwise not exist. It transforms every

federal legal obligation into a potential basis to withhold

funding that has been designated by Congress for

disbursement to state and local governments for law

enforcement. Yet that penalty for non-compliance is not a

penalty set forth by Congress in those other statutes.

Therefore, the interpretation by the Attorney General which

could transform any federal law into a condition of the grant

would indeed impose a burden not already provided by the

federal law itself, in the form of a steep financial penalty. In

fact, that “penalty” could extend well beyond the denial of the

Byrne JAG grant if the Attorney General’s interpretation of

Nos. 18-2885 & 19-3290 43

“all other applicable federal law” is adopted. It would allow

the Attorney General to withhold myriad other grants that

have been authorized by Congress because that precise term

is used in numerous other statutes—often as part of a

statutory section that mirrors the one in the Byrne JAG grant

at issue here—including statutes providing grants under: the

Comprehensive Opioid Abuse Grant Program, 34 U.S.C.

§ 10702; Matching Grant Program for School Security, 34

U.S.C. § 10552; Career and Technical Education Assistance to

the States, 20 U.S.C. § 2322; and the Byrne JAG discretionary

grants, 34 U.S.C. §10181.

Interpreting that language as potentially incorporating

any federal law would vest the Attorney General with the

power to deprive state or local governments of a wide variety

of grants, based on those entities’ failure to comply with

whatever federal law the Attorney General deems critical. Yet

there is nothing in those statutes that even hints that Congress

intended to make those grants dependent on the Attorney

General’s whim as to which laws to apply, cabined only by

the requirement that the laws apply generally to states or lo-

calities. That anomalous result is avoided if we interpret the

term “all other applicable federal law” to incorporate federal

laws that explicitly apply to grants or grant recipients. As to

those federal laws, Congress clearly intended them to apply

to states and local governments applying for federal grants,

and to impact those grants.

The potential for abuse is apparent. Here, the Attorney

General has used the broad interpretation of “other applicable

law” as a means of hijacking the legislatively-established

Byrne JAG program to further particular policy goals of the

Executive, despite the repeated refusal of Congress to impose

44 Nos. 18-2885 & 19-3290

such a prerequisite itself. The open-ended ability to choose

federal laws at will would allow the targeting of states or pol-

icy issues if the Attorney General chose to do so. For instance,

the Attorney General could effectively isolate specific states

by requiring certification of compliance with federal law re-

garding controlled substances, thus disqualifying states or lo-

cal governments that have legalized or decriminalized mari-

juana, or by requiring a certification of compliance with fed-

eral constitutional law such as Roe v. Wade, 410 U.S. 113 (1973),

thus eliminating grant funding for states that recently have

passed “heartbeat bills” and other legislation designed to

challenge Roe. That would transform the highly-structured

formula grant into one that vested total in the Attorney Gen-

eral to impose barriers to the grant through his choice as to

which other federal laws to target as grant conditions.6

3.

The Attorney General’s identification of a specific law—

and the conditioning of the grant on compliance with it—falls

far astray from the language, context and structure of the stat-

ute itself. And a reading of the statutory language in a manner

promoted by the Attorney General would raise potential

6 In addition to the impropriety of such discretion in a formula grant gen-

erally, the discretion to set conditions here is also problematic because the

certification provided in § 10153(A)(5) is only a certification “in a form ac-

ceptable to the Attorney General” that the applicant will comply with all

other applicable federal laws. The statute, then, grants discretion only

over the form of the certification, not the content as the Attorney General

seeks to assert here. Compare 13 U.S.C. § 141 (providing that “[t]he Secre-

tary shall … take a decennial census of the population … in such form and

content as he may determine … .”) (emphasis added); accord City of Provi-

dence, 2020 WL 1429579 at *11.

Nos. 18-2885 & 19-3290 45

constitutional and statutory concerns. First, as we have al-

ready discussed, the statute cited as providing the authority

for the imposition of the condition grants no such power to

the Attorney General. Moreover, the vesting of such discre-

tionary authority in the hands of the Attorney General would

render irrelevant or illogical the statute’s exacting delineation

of the formula for grant awards and the precise limits on the

extent to which the Attorney General can deviate from that

distribution, as we discussed in Chicago I, 888 F.3d at 286:

The ability of the Attorney General to depart

from the distribution mandated by the formula

is strictly circumscribed. For instance, of the to-

tal amount available in a given fiscal year, the

Attorney General is authorized to reserve “not

more than 5 percent, to be granted to 1 or more

States or units of local government” for one or

more of the allowed statutory purposes, “pur-

suant to his determination that the same is nec-

essary (1) to combat, address, or otherwise re-

spond to precipitous or extraordinary increases

in crime, or in a type or types of crime; or (2) to

prevent, compensate for, or mitigate significant

programmatic harm resulting from operation of

the formula … .” 34 U.S.C. § 10157(b). Moreo-

ver, the Attorney General is authorized by other

statutes to reduce the funding in certain circum-

stances, but even then the amount of the reduc-

tion is set by statute. For example, the Sex Of-

fender Registration and Notification Act man-

dates a 10 percent reduction in JAG funding if a

state fails to substantially implement its provi-

sions. 34 U.S.C. § 20927(a). And the Prison Rape

46 Nos. 18-2885 & 19-3290

Elimination Act of 2003 stipulates that a state

that does not certify full compliance with its na-

tional standards can forfeit 5 percent of JAG

funds unless it certifies that no less than 5 per-

cent of such funds will be used solely to achieve

compliance. 34 U.S.C. § 30307(e)(2)(A).

In contrast to those carefully delineated reductions for

specific circumstances, the Attorney General’s interpretation

would allow the Attorney General to withhold 100% of funds

based on his determination as to which federal law to target.

In addition to the dissonance with the statutory structure,

the selective targeting of specific statutes without regard to

the statute’s relation to the grant or its purposes could present

constitutional concerns. First, we note that as the Supreme

Court reaffirmed in Gundy, 139 S. Ct. at 2129, a statutory del-

egation of authority “is constitutional so long as Congress has

set out an ‘intelligible principle’ to guide the delegee’s exer-

cise of authority … [o]r in a related formulation, the Court has

stated that a delegation is permissible if Congress has made

clear to the delegee ‘the general policy’ he must pursue and

the ‘boundaries of [his] authority.’” Although courts rarely

second-guess the degree of policy judgment left by Congress

to those responsible for executing the law, the term “applica-

ble” by itself is so devoid of any definition or guidance that,

if the Attorney General were relying on that provision as a

delegation of authority to impose the conditions, it would

vest discretion unmoored by any legislative general policy or

boundaries of authority.

In fact, the Supreme Court in Gundy recognized the

constitutional issues presented by statutory provisions

vesting such broad discretion, in considering the Sex Offender

Nos. 18-2885 & 19-3290 47

Registry Notification Act (“SORNA”) which provided that

“[t]he Attorney General shall have the authority to specify the

applicability of the requirements of this subchapter to sex

offenders convicted before the enactment of this chapter …

and to prescribe rules for the registration of any such sex

offender.” Id. at 2122. Although the Justices in the plurality

decision in Gundy could not agree as to the outcome, a

majority recognized that such a provision, if read as granting

the Attorney General discretion to determine whether to apply

SORNA to offenders rather than the mechanics of how to

apply it, would present constitutional nondelegation

problems. See Gundy, 139 S. Ct. at 2123, 2128 (plurality)

(discussing the whether/how distinction and noting that it

would present a nondelegation question if, as Gundy argued,

the provision in the SORNA statute “grants the Attorney

General plenary power to determine SORNA’s applicability

to pre-Act offenders—to require them to register, or not, as

she sees fit, and to change her policy for any reason and at any

time”) and 139 S. Ct. at 2143, 2145 (dissenting) (noting that the

provision “gave the Attorney General unfettered discretion to

decide which requirements to impose on which pre-Act

offenders” and that “[m]ost everyone, the plurality included,

concedes that if SORNA allows the Attorney General as much

authority as we have outlined, it would present ‘a

nondelegation question.’”).

Here, the Attorney General’s interpretation of the “other

applicable federal law” language would grant the type of un-

fettered discretion to determine whether a particular federal

law will be a precondition of the grant that seven Justices of

the Grundy Court recognized presents a constitutional non-

delegation issue. Accordingly, the language of the statute, if

read as delegating the authority to the Attorney General to

48 Nos. 18-2885 & 19-3290

choose which federal laws would constitute conditions of the

grant, would raise grave constitutional concerns.

But the Attorney General has not relied on that language

in that manner. Instead, the Attorney General asserts that

Congress, with the “other applicable law” provision, itself im-

posed the condition on the grant under its Spending Clause

power because Congress thereby incorporated all federal

laws as grant conditions. Yet among the requirements for the

constitutional exercise of such spending power, is the require-

ment that Congress, if it desires to condition the receipt of fed-

eral funds, “’must do so unambiguously …, enabl[ing] the

States to exercise their choice knowingly, cognizant of the

consequences of their participation.’” South Dakota v. Dole, 483

U.S. 203, 207 (1987), quoting Pennhurst, 451 U.S. at 17. A state

cannot knowingly accept the conditions of the federal fund-

ing if that state is unaware in advance of the conditions or un-

able to ascertain what is expected of it, and therefore we insist

that Congress must speak with a clear voice. Pennhurst, 451

U.S. at 17. An interpretation of “other applicable federal laws”

that is limited to laws that expressly apply to grantees is

clearly ascertainable, in contrast to the broader interpretation

of the Attorney General which is unbounded—which would

literally include thousands of federal statutes and regulations.

The Second Circuit, in adopting the broad interpretation

of the language that the Attorney General seeks,

acknowledges—even celebrates—the unbounded authority

that such an interpretation would provide, and makes clear

that the interpretation will allow denial of the grant for

federal laws entirely unrelated to the purposes of the grant

such as environmental laws:

Nos. 18-2885 & 19-3290 49

Indeed, whether a grant is awarded by formula

or by discretion, there is something disquieting

in the idea of States and localities seeking fed-

eral funds to enforce their own laws while

themselves hampering the enforcement of fed-

eral laws, or worse, violating those laws. One

has only to imagine millions of dollars in Byrne

funding being sought by a locality that is simul-

taneously engaged in persistent, serious viola-

tions of federal environmental laws. The for-

mula nature of the Byrne Program does not dic-

tate that such an applicant must be given federal

money even as it continues to flout federal law.

To the contrary, § 10153(a)(5)(D) authorizes the

Attorney General to condition the locality’s re-

ceipt of a Byrne grant on its certified willingness

to comply with all federal laws applicable to that

locality, which includes environmental laws.

New York, 951 F.3d at 107–08.

We do not agree with that interpretation of the language.

Congress, under its spending power, can attach only condi-

tions that “bear some relationship to the purpose of the fed-

eral spending,” and the universe of all federal laws as pro-

moted by the Attorney General would necessarily include

many laws that fail to meet that standard—once again render-

ing the conditions ambiguous. New York v. United States, 505

U.S. 144, 167 (1992), citing South Dakota, 483 U.S. at 207–08 and

n.3. Thus, the more narrow reading of the language is not only

more consistent with the structure of the statute, but it avoids

potential constitutional questions.

50 Nos. 18-2885 & 19-3290

4.

Moreover, the narrower interpretation that we adopt to-

day also avoids a conflict with 34 U.S.C. § 10228, which ap-

plies to the chapter that includes the Byrne JAG grant provi-

sions. Section 10228 provides:

(a) General rule

Nothing in this chapter or any other Act shall be

construed to authorize any department, agency,

officer, or employee of the United States to ex-

ercise any direction, supervision, or control over

any police force or any other criminal justice

agency of any State or any political subdivision

thereof.

The incorporation of § 1373 as a condition of the Byrne

JAG grant directly conflicts with § 10228. Through § 1373, the

Attorney General seeks to prohibit the state or political sub-

division from providing certain instructions and limitations

on the actions of its own police force, thus exercising “direc-

tion, supervision, or control” over that police force. Nor does

it matter that § 1373 prohibits the state from taking an action,

as opposed to requiring an action. As the Supreme Court rec-

ognized in Murphy (in considering a claim under the anticom-

mandeering doctrine of the Tenth Amendment), it does not

matter whether a law commands a state to take an affirmative

action or prohibits a state from taking an action—either situ-

ation involves the exercise of control over the state. Murphy,

138 S. Ct. at 1478. Section 1373 declares that a state or local

government may not prohibit or restrict its own officials from

communicating information regarding the citizenship or im-

migration status of any individual to the INS. That restriction

Nos. 18-2885 & 19-3290 51

of the state or local government would constitute direction or

control over the communications by the state or local police

force. Because § 10228 declares that “[n]othing in this chapter

or any other Act shall be construed to authorize” such direc-

tion or control, we should not construe § 10153 in a manner

that would incorporate § 1373 as a condition of the grant. See

Philadelphia, 916 F.3d at 291 (noting that § 10228 may be a stat-

utory limit to which laws are “applicable”).

Accordingly, based on the language, structure, and pur-

pose of the Act, the reference to “all other applicable federal

laws” in § 10153 should be read as referencing any federal law

that by its terms applies to federal grants or grantees in that

capacity. Accord Providence, 2020 WL 1429579 at *12. Because

we so hold, we need not consider the alternative argument

that § 1373 cannot be considered an “applicable federal law”

even under the broader reading by the Attorney General be-

cause it is unconstitutional under the anticommandeering

doctrine of the Tenth Amendment. See Pearson, 555 U.S. at 241

(noting that we generally should avoid constitutional ques-

tions if possible). The holding that § 1373 is not an “applicable

federal law” equally dooms the argument that § 1644 pro-

vides authority for the compliance condition, as the parties

concede that § 1644 is identical to § 1373.

V. Relief

We turn, then, to the final issue in this case, which is

whether the district court erred in extending the injunction

beyond the City of Chicago. In its Final Judgment and Order

in the FY 2017 litigation, the district court granted declaratory

and injunctive relief to Chicago. The district court ordered

that “the Attorney General’s decision to attach the Conditions

to the FY 2017 Byrne JAG grant is set aside and shall have no

52 Nos. 18-2885 & 19-3290

legal effect” and enjoined the Attorney General from “deny-

ing or delaying issuance of any FY 2017 Byrne JAG award in-

sofar as that denial or delay is based on the Conditions.” Dist.

Ct. Final Judgment and Order, R. 211 at 3. The court further

held that “[t]his Order applies to the Attorney General’s im-

position of the Challenged Conditions on the Byrne JAG grant

program as a whole. Its effects run to the benefit of all Byrne

JAG applicants and recipients are not limited to the City of

Chicago and its sub-grantees.” Id. at 4. The court stayed the

order as to all areas of the country beyond Chicago in light of

the stay our court had granted pending the since-vacated

grant of an en banc rehearing.

The court declared that § 1373 violated the Tenth Amend-

ment’s anticommandeering principle and was therefore fa-

cially unconstitutional, that the Attorney General exceeded

the authority delegated by Congress in the Byrne JAG statute,

34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a)(6), and

that the Attorney General’s decision to attach the conditions

to the FY 2017 Byrne JAG grant violated the constitutional

principle of separation of powers. Dist. Ct. Final Judgment

and Order, R.211 at 2. In the subsequent challenge to the

FY 2018 grant conditions, the district court held that §§ 1373

and 1644 violate the Tenth Amendment’s anti-commandeer-

ing principles and are therefore facially unconstitutional, that

the Attorney General exceeded the authority delegated by

Congress in the Byrne JAG statute and in § 10102(a) in attach-

ing the challenged conditions to the FY 2018 Byrne JAG grant,

and that the decision to attach those conditions to the grant

violated the constitutional principle of separation of powers.

The district court extended the permanent injunction it had

imposed as to the FY 2017 Byrne JAG grant to include FY 2018

and all future years, enjoining the Attorney General from

Nos. 18-2885 & 19-3290 53

denying or delaying issuance of the Byrne JAG award insofar

as that denial or delay is based on the challenged conditions

or materially identical conditions. Dist. Ct. Final Judgment

and Order, Appellant Appendix, No. 19-3290, at SA50. The

court stayed the injunction to the extent that it applied to

grantees other than the City of Chicago.

The district court’s decision to extend the injunctive relief

to include future years reflected the history of litigation and

the positions taken by the Attorney General. In the litigation

challenging the FY 2017 injunction, the Department of Justice

attorney representing the Attorney General [hereinafter “DOJ

attorney”], asserted that it would be premature to enjoin con-

ditions in FY 2018 or the years to follow because those condi-

tions were “still in formation and … will be different in some

respects from the 2017 conditions.” Dist. Ct. Transcript of Pro-

ceedings, Doc. 213 at 5. The DOJ attorney then stated that alt-

hough disagreeing with the district court’s analysis, “we’ve

certainly taken it to heart. And so we are looking at the con-

ditions for next year against the backdrop of your prior deci-

sion.” Id. He argued to the district court that relief beyond the

specific year was improper because the issue was not yet ripe,

arguing:

[DOJ attorney]: Your Honor, two things. One,

the solicitation is not – are not the actual condi-

tions. This is an invitation to seek a grant. It

doesn’t expressly state what the conditions are.

Two, I’ve told you that we’re looking at those

conditions and that we are taking to heart your

prior decision. And three, I think your point

about, if we impose the exact same conditions

without notice and force them to affirmatively

54 Nos. 18-2885 & 19-3290

file a case, there might be other remedies avail-

able to the plaintiffs in that context.

[District court]: That would mean their lawyers

would get paid.

Id. at 5–6. Despite these assurances made by the DOJ attorney

to Judge Leinenweber, the Attorney General nevertheless im-

posed the very same conditions again in the FY 2018 grant ap-

plication, and indeed also added yet another condition that

was identical to the § 1373 compliance condition as well as

two more conditions that relied on the same statutory author-

ity that the district court and this court rejected. In its FY 2018

Byrne JAG application, Chicago included an addendum indi-

cating that it would not comply with those conditions. The

Department of Justice began announcing grant recipients in

the fall of 2018, issuing 752 Byrne JAG local awards by Octo-

ber 12, but still had not granted Chicago’s application; at that

time Chicago filed a complaint challenging the FY 2018 con-

ditions. About a month after Chicago filed suit, on November

20, the Department of Justice informed Chicago that it was

awarded the grant. The Department of Justice subsequently

announced that in light of the ongoing litigation, it would not

enforce the notice, access, compliance, and additional certifi-

cation conditions against Chicago, but that it retained the

right to enforce the harboring condition.

The temporal scope of the injunctive relief in this case is

proper. Injunctive relief is forward-looking, and a plaintiff

injured by an unconstitutional or unlawful action in one year

does not need to suffer injuries repeatedly in each ensuing

year—and separately sue after each injury—to obtain relief

from the unlawful actions. See United States v. Oregon State

Med. Soc., 343 U.S. 326, 333 (1952) (“[t]he sole function of an

Nos. 18-2885 & 19-3290 55

action for injunction is to forestall future violations”); see

generally § 2942 Availability of Injunctive Relief—In General,

11A Fed. Prac. & Proc. Civ. § 2942 (3d ed.) (noting

that injunctive relief looks to the future and is designed to

deter rather than punish, and that even if the defendant

claims the conduct has been discontinued, the court will deny

injunctive relief only if there is no reasonable expectation of

future injurious conduct). Injunctive relief is designed to

prevent precisely that scenario. Once an injury is shown in the

imposition of the grant conditions sufficient to demonstrate

standing, Chicago can challenge the imposition of those

conditions in the Byrne JAG grant, and that challenge is not

temporally limited—at least where, as here, the challenge is

not in any way related to the timing of the conditions. And of

course, the Attorney General’s indication to the district court

that it would alter the conditions in future grants proved

false. See Oregon State Med. Soc., 343 U.S. at 333 (“It is the duty

of the courts to beware of efforts to defeat injunctive relief by

protestations of repentance and reform, especially when

abandonment seems timed to anticipate suit, and there is

probability of resumption.”). The district court need not await

yet another round of the same conditions and the same

rejected justifications before enjoining the future conduct.

A. Injunctive Relief Beyond City of Chicago

The Attorney General argues that, even if we agree with

the district court on the merits, the court erred in extending

injunctive relief beyond the City of Chicago. In Chicago I, 888

F.3d 272, the panel addressed a similar issue as to the prelim-

inary injunctive relief, with the majority holding that nation-

wide injunctive relief was proper and with one panel member

dissenting. Our court granted rehearing en banc to consider

56 Nos. 18-2885 & 19-3290

only the issue of the proper scope of the injunction, but that

rehearing was vacated when the district court’s grant of the

permanent injunction superseded the preliminary injunction.

We now are presented again with the issue of the proper

scope, although in the different context of a permanent rather

than a preliminary injunction.

At the outset, we note that a remand is necessary for the

district court to consider whether any additional injunctive

relief is appropriate as to the unlawful imposition of the com-

pliance condition. The court imposed declaratory relief as to

the constitutionality of § 1373, and injunctive relief as to the

imposition of that condition. But because we have determined

that the term “all other applicable Federal law” encompasses

only law that by its terms applies to federal grants or grantees

in that capacity, we have not reached that Tenth Amendment

issue. A remand is required to allow the district court to de-

termine whether any additional injunctive relief is appropri-

ate for the violation as we have framed it. For instance, the

declaratory relief would no longer be necessary because

§ 1373 is inapplicable here, but other injunctive relief might

be proper, such as enjoining the Attorney General from inter-

preting the phrase “all other applicable federal law” to in-

clude laws that do not explicitly apply by their terms to the

grant or grantees. The Attorney General relied on that misuse

of § 10153 to impose the § 1373 compliance condition on Chi-

cago. In the FY 2018 grant, the government continues to re-

quire a certification of compliance with § 1373, but perhaps

anticipating the foreclosure of that option, added the require-

ment of certification of compliance with the parallel provision

in § 1644.

Nos. 18-2885 & 19-3290 57

That FY 2018 condition leaves no doubt that the Attorney

General intends to continue to interpret § 10153 as allowing

the incorporation of federal laws unrelated to the grant or

grantees. Because the injury to Chicago in this case, in relation

to the compliance conditions in both § 1373 and § 1644, is

caused by the Attorney General’s unsupportable interpreta-

tion of § 10153 as allowing the incorporation of all federal law

as a condition of the grant, proper relief in this case could in-

clude an injunction preventing the Attorney General from in-

corporating federal law unrelated to grants or grantees as a

condition of the grant under § 10153. The proper scope of any

additional relief, however, is for the district court, not this

court, to determine as an initial matter, and we remand for the

district court to consider whether to order any other relief as

to the unlawful imposition of the compliance condition in

light of our decision. We review such decisions only for an

abuse of discretion. eBay Inc. v. MercExchange, L.L.C., 547 U.S.

388, 391 (2006). We may consider, however, the propriety of

the injunctive relief that has already been granted as to all of

the challenged conditions

1. Authority of the Court

Courts and commentators, particularly recently, have rec-

ognized serious concerns with imposing injunctive relief that

extends beyond the parties before the court to include third

parties. In fact, the question as to the authority of a court to

issue such nationwide, or universal, injunctions, as well as the

propriety of such injunctions, has spawned a veritable cottage

industry of scholarly articles in the past few years. See e.g.

Mila Sohoni, The Lost History of the “Universal” Injunction, 133

HARV. L. REV. 920, 924–25 N. 16 (2020) [hereinafter Sohoni, Lost

History], citing: Spencer E. Amdur & David Hausman,

58 Nos. 18-2885 & 19-3290

Response, Nationwide Injunctions and Nationwide Harm, 131

HARV. L. REV. F. 49 (2017) [hereinafter Amdur & Hausman,

Nationwide Injunctions]; Samuel L. Bray, Multiple Chancellors:

Reforming the National Injunction, 131 HARV. L. REV. 417, 419

(2017) [hereinafter Bray, Multiple Chancellors]; Zachary D.

Clopton, National Injunctions and Preclusion, 118 MICH. L. REV.

1 (2019); Amanda Frost, In Defense of Nationwide Injunctions,

93 N.Y.U. L. REV. 1065 (2018) [hereinafter Frost, In Defense];

Suzette M. Malveaux, Class Actions, Civil Rights, and the Na-

tional Injunction, 131 HARV. L. REV. F. 56 (2017) [hereinafter

Malveaux, Class Actions]; Michael T. Morley, De Facto Class

Actions?: Plaintiff- and Defendant-Oriented Injunctions in Voting

Rights, Election Law, and Other Constitutional Cases, 39 HARV.

J.L. & PUB. POL’Y 487 (2016); Michael T. Morley, Nationwide In-

junctions, Rule 23(b)(2), and the Remedial Powers of the Lower

Courts, 97 B.U. L. REV. 615 (2017); Zayn Siddique, Nationwide

Injunctions, 117 COLUM. L. REV. 2095 (2017); Alan M. Tram-

mell, Demystifying Nationwide Injunctions, 98 TEX. L. REV. 67

(2019); Howard M. Wasserman, “Nationwide” Injunctions Are

Really “Universal” Injunctions and They Are Never Appropriate,

22 LEWIS & CLARK L. REV. 335 (2018) [hereinafter Wasserman,

Nationwide Injunctions]. 7 Those articles are a response to the

perceived increase in the utilization of universal injunctions

in the past few decades. It is a question for another forum

7 The terms “nationwide” and “universal” injunctions are both used by

courts and commentators to describe injunctions for which relief extends

beyond the plaintiff, see Wasserman, Nationwide Injunctions at 352–53, and

we use these terms interchangeably in this opinion. As to the relief pro-

vided in this case, we use “program-wide” injunction because it is more

descriptive of the actual reach of the injunction here.

Nos. 18-2885 & 19-3290 59

whether any such increase signals an expanding judicial over-

reach or an increasing executive autocracy.

As to the authority to issue such injunctions, some urge

that injunctions extending beyond the parties before the court

are a recent invention, first appearing in the 1960s, and that

the absence of such equitable relief before that time should

cause us to question the legitimacy of that remedy. See e.g.

Trump v. Hawaii, 138 S. Ct. 2392, 2425 & 2428 (2018) (Thomas,

J. concurring) (indicating that the first universal injunction

emerged “a century and a half after the founding,” in 1963,

and “appear to be inconsistent with longstanding limits on

equitable relief and the power of Article III courts”); see also

Bray, Multiple Chancellors at 437–38; Wasserman, Nationwide

Injunctions at 353.

But recent scholarship casts doubt on that constricted win-

dow of universal injunctions, exhaustively documenting the

use of injunctions that extend beyond the plaintiff going back

over a century, from a Supreme Court decision in 1913 to the

present. See Sohoni, Lost History, 133 Harv. L. Rev. 920, 924

(2020); see also Samuel Bray, A Response to The Lost History of

the “Universal” Injunction, 36 Yale J. on Reg.: Notice & Com-

ment (Oct. 6, 2019) available at: https://www.yalejreg.com/nc/

a-response-to-the-lost-history-of-the-universal-injunction-

by-samuel-bray/ (last visited 4/7/2020) (discussing “four seri-

ous problems” with Sohoni’s analysis), and Mila Sohoni, A

Reply to Bray’s Response to The Lost History of the “Universal”

Injunction, 36 Yale J. on Reg.: Notice & Comment (October 10,

2019) (http://perma.cc/P8BA-2UJ6 (last visited 4/7/2020) (re-

futing Bray’s concerns). Sohoni meticulously examines equi-

table remedies in the past century, documenting the equitable

relief that extended to non-parties throughout that history,

60 Nos. 18-2885 & 19-3290

and reaching the conclusion that universal injunctions are

consistent with those traditional equitable remedies. Id.

That conclusion has found support as well in an amicus

brief submitted to this court by a group of legal historians,

professors at Stanford and Columbia Law Schools and Prince-

ton University, who concluded that “[n]ot only did equity

courts have the equitable power to grant injunctions that look

like modern nationwide injunctions (save they did not run

against the federal government itself),8 but they in fact issued

injunctions of astonishing scope.” Brief of Amici Curiae Legal

Historians In Support of Plaintiff and Appellee the City of

Chicago [hereinafter “Amicus”], No. 18-2885, at 6. That wide

scope included even exercising “their equity powers at na-

tionwide scale in the 19th and early 20th centuries, to enjoin

the activities of hundreds of thousands of individuals, includ-

ing thousands of non-parties.” Amicus at 18. Bray, a leading

opponent of universal injunctions, disagreed with their con-

clusions, but nevertheless acknowledged the gravitas of the

authors of that amicus brief, characterizing the authors as “an

all-star cast of legal historians and historians of the early Re-

public” and recognizing that “[t]hese historians have written

some of the leading scholarship on American equity.” Bray,

National Injunctions: Historians Enter the Lists, THE VOLOKH

8 They subsequently explained that injunctions restraining the “United

States” from nationwide enforcement of a law could not happen until after

1976, when the United States enacted its first general waiver of sovereign

immunity, and that suits to restrain high level executive branch officials

like the Attorney General were difficult to bring because “[i]n the absence

of the modern venue statute, and because of doctrinal barriers that no

longer exist, a modern nationwide injunction could only have been

brought in Washington, D.C.” Amicus at 18–19.

Nos. 18-2885 & 19-3290 61

CONSPIRACY (Nov. 17, 2018, 2:21 PM), https://rea-

son.com/2018/11/17/national-injunctions-historians-enter-th/

(last visited 4-7-2020). Those historians examined the relief

provided in equity from the 18th century onward, such as

bills of peace as well as ordinary bills for injunctions includ-

ing injunctions to abate nuisances, and concluded that “equity

courts had the equitable powers to issue nationwide injunc-

tions in the early republic,” and “have long issued injunctions

that protect the interests of non-parties.” Amicus at 6, 8. In

fact, the historians noted periods of time in which the equita-

ble remedies were much more drastic, extending as far as en-

joining non-parties (which it noted would not be accepted to-

day) and including a period of time in which injunctions were

so broad they were called “omnibus injunctions” and “Gat-

ling-gun injunctions.” Amicus at 16–17. They noted that those

omnibus injunctions were repeatedly upheld by the Supreme

Court, and ultimately Congress used its power to restrain

their issuance. Amicus at 17. Although concluding that na-

tionwide injunctions are historically grounded, the legal his-

torians cautioned against an approach that would anchor eq-

uitable remedies too closely to the “notoriously difficult sub-

ject” of history, noting that the continuity of some traditional

equity practices should not foreclose adapting equitable rem-

edies to modern circumstances. Amicus at 25; see also Frost, In

Defense at 1081.

2. Consistency with Supreme Court Law

Therefore, there is a substantial historical basis for the

concept of injunctive relief that extends to the benefit of non-

parties. The Attorney General and the dissent in this case

nevertheless argue that universal injunctions are inconsistent

with the Supreme Court’s decision in United States v. Mendoza,

62 Nos. 18-2885 & 19-3290

464 U.S. 154 (1984). The Mendoza Court held that the

government in that case should not be subjected to

nonmutual offensive collateral estoppel because the

“economy interests underlying a broad application of

nonmutual collateral estoppel are outweighed by the

constraints which peculiarly affect the government.” Id. at

162–63. The Court was concerned with the impact on the

government if one decision could bind the government as to

that legal issue in any subsequent cases brought by other

litigants. The Attorney General and the dissent argue that the

same danger is presented in a universal injunction.

There are, however, important distinctions between non-

mutual offensive collateral estoppel and a universal injunc-

tion. First, as is obvious, the legal concepts at issue here are

not identical, so the Court’s decision as to an estoppel issue is

in no way dispositive of the question as to the availability of

universal injunctions. The significance of Mendoza must come

from its reasoning, then. But the very different contexts make

Mendoza of less relevance to this question. As to collateral es-

toppel, “once a court has decided an issue of fact or law nec-

essary to its judgment, that decision is conclusive in a subse-

quent suit based on a different cause of action involving a

party to the prior litigation.” Id. at 158. The principle would

apply to litigation remote in time, involving different under-

lying causes of actions, and regardless of whether the litigant

in the subsequent suit was similarly situated to the one in the

past case.

That expansive reach presented issues uniquely problem-

atic for the government. Whereas in disputes over private

rights between private litigants, there was “’no sound reason

for burdening the courts with repetitive litigation,’” the

Nos. 18-2885 & 19-3290 63

position of the government is not identical to that of the pri-

vate litigant. Id. at 159–60., quoting Standefer v. United States,

447 U.S. 10, 24 (1980). The government is more likely to be

involved in cases with significant legal issues and is likely to

be sued more often than a private party, thus increasing the

potential for estoppel to be invoked. Id. at 160. In addition to

depriving the government of the benefit of multiple courts of

appeal weighing in on the issue, the application of estoppel

would force the government to appeal every time it disagreed

with a legal issue regardless of the significance of the case in

which it was presented, or risk being bound by that holding

in a later case of more importance to the government. Id. at

160–61. Finally, the use of estoppel would prevent subsequent

Administrations from altering the government’s position on

a legal issue, thus upsetting the ability of the Executive Branch

to adapt to the changing philosophies of subsequent political

leaders. Id. at 161–62. In light of those concerns unique to the

government as a litigant, the Court held that “[t]he conduct of

government litigation in the courts of the United States is suf-

ficiently different from the conduct of private civil litigation

in those courts so that what might otherwise be economy in-

terests underlying a broad application of collateral estop-

pel are outweighed by the constraints which peculiarly affect

the government.” Id. at 162–63.

The concerns expressed by the Court as to the use of es-

toppel against the government are not equally present in the

context of the universal injunction. Of course, both situations

present the concern with one court’s decision preventing the

percolation of the issue in different courts. But unlike the col-

lateral estoppel context, the universal injunction by its nature

will concern an issue that is common to all parties bound by

it who will be similarly-situated, will involve an issue of

64 Nos. 18-2885 & 19-3290

obvious and significant impact (thus not presenting the gov-

ernment with the need to appeal every adverse legal decision

in even minor cases), and will not interfere with the ability of

future Administrations to change policies (because the impact

of the universal injunction will be felt in one ongoing case that

would be appealed, not in unlimited, unforeseeable cases in

the future). Its restriction on the government’s ability to relit-

igate an issue will be limited to that case and will not raise the

prospect of impacting future unforeseeable situations remote

in time. Therefore, the reasoning of Mendoza counsels an out-

come as applied to universal injunctions. See Frost, In Defense

at 1113. To the extent that Mendoza identifies factors relevant

to both estoppel and universal injunctions, the weighing of

the factors should occur—as it routinely does—in the district

court’s discretionary determination as to the appropriate eq-

uitable relief. The situations are not similar enough to support

a blanket prohibition of universal injunctions under the rea-

soning of Mendoza.

And the decisions of numerous courts post-Mendoza, in-

cluding the Supreme Court itself, support that conclusion.

The historical underpinning for the argument that courts

have the power to issue universal injunctions is comple-

mented by the actual allowance of injunctions benefitting

non-parties more recently. As we noted in Chicago I, the Su-

preme Court in Trump v. Intern. Refugee Assistance Project, 137

S. Ct. 2080 (2017) (“IRAP”), allowed an injunction to remain

in place that applied to non-parties. 888 F.3d at 289. In IRAP,

the Court denied in part a request for a stay of a nationwide

injunction in a challenge to an Executive Order that sus-

pended entry of foreign nationals from seven countries. The

Court recognized that “[c]rafting a preliminary injunction is

an exercise of discretion and judgment, often dependent as

Nos. 18-2885 & 19-3290 65

much on the equities of a given case as the substance of the

legal issues it presents.” IRAP, 137 S. Ct. at 2087. The Court

granted the government’s request to stay the injunction as to

foreign nationals who lacked any bona fide relationship with

a person or entity in the United States, but refused to stay the

injunction not only as to the respondents in the case, but also

as to persons not parties to the case who were similarly situ-

ated. Id. at 2088. If the lower court was without the power to

impose an injunction that provided relief to non-parties, and

thus relief greater than that necessary for the parties before

the court, then the Supreme Court’s decision to allow the in-

junction to remain in place as to those non-parties would be

inexplicable.

The concurring and dissenting justices in IRAP would

have stayed the injunction entirely, but particularly argued

that the injunctions should not have remained in place as to

“an unidentified, unnamed group of foreign nationals

abroad” for whom no class had been certified and in a case in

which neither party had asked for the scope of relief applied

by the Court. Id. at 2090 (Thomas, J. concurring in part, dis-

senting in part). They further asserted that the role of courts

was to provide complete relief only to the plaintiffs, and not

to non-parties. Id. The IRAP Court’s refusal to stay the injunc-

tion as to similarly-situated individuals, in light of those ar-

guments in the dissent, should put to rest any argument that

the courts lack the authority to provide injunctive relief that

extends to non-parties. See Frost, In Defense at 1086.

3. Propriety of Injunctive Relief

Therefore, both historical and current practice lends sup-

port to a determination that the courts possess the authority

to impose injunctions that extend beyond the parties before

66 Nos. 18-2885 & 19-3290

the court. The propriety of such an injunction, in a given case,

is another matter.

Such injunctions present real dangers, and will be appro-

priate only in rare circumstances. For instance, a nationwide

injunction can truncate the process of judicial review, elevat-

ing the judgment of a single district court. That effect, how-

ever, is not absolute. As a practical matter, the issuance of

such an injunction is unlikely to dramatically foreclose all

other review, because the possibility of a stay while seeking

review in the court of appeals—as happened here—limits the

immediate impact on litigation in other jurisdictions, and en-

sures review by multiple judges in short order. See Amdur &

Hausman, Nationwide Injunctions at 53 n.27 (providing exam-

ples in which nationwide injunctions did not foreclose perco-

lation). But even if the impact is not absolute, it is nonetheless

a concern and has the clear potential to narrow the input from

different judicial panels. Moreover, the potential for forum

shopping is a real hazard and alone should caution against

such broad injunctive relief. See e.g. Bray, Multiple Chancellors

at 457; Frost, In Defense at 1104.

That does not, however, mandate a conclusion that uni-

versal injunctions are never proper. See Frost, In Defense at

1105 (noting that “[a]bolishing nationwide injunctions is both

an over- and under-inclusive response to that problem”). In

some circumstances, universal injunctions can be necessary

“to provide complete relief to plaintiffs, to protect similarly-

situated nonparties, and to avoid the chaos and confusion that

comes from a patchwork of injunctions.” Id. at 1101. Just as

the percolation through the courts is a valid consideration, so

too the desire to avoid a multiplicity of suits has long been a

consideration in equity, which even the opponents of

Nos. 18-2885 & 19-3290 67

universal injunctions acknowledge. See Bray, Multiple Chan-

cellors at 426; Hawaii, 138 S. Ct. at 2427 (Thomas, J, concurring).

An outright prohibition of such injunctions, however,

would handcuff the ability of courts to determine the relief

that is proper in exceptional circumstances. Any number of

factors could influence a court’s determination as to the

proper scope of an injunction, including the nature of the vi-

olation, the extent of the impact, the urgency of the situation,

the multiplicity of litigation, and the ability of others to even

access the courts. IRAP presented the type of situation in

which the remedy of a universal injunction can be particularly

crucial. 137 S. Ct. 2080. As we stated above, in that case, the

Supreme Court denied in part a request for a stay of a nation-

wide injunction in a challenge to an Executive Order that sus-

pended entry of foreign nationals from seven countries. The

travel ban was imposed suddenly, impacting an immense

number of people immediately—including people who were

already on planes to the United States—and the ability of per-

sons affected by the ban to access the courts individually for

redress was extremely limited. In such a circumstance, a court

that in its discretion determines that the equities of the case

and the substance of the legal issues justifies an injunction,

should not be limited to imposing that relief only as to those

few persons who could obtain attorneys or present them-

selves in court.

Nor is the presence of the vehicle of a class action a realis-

tic alternative in such a case. The difficulties, expense and de-

lay inherent in pursuing a class action would render it inade-

quate for the type of situation presented in IRAP. As noted by

Frost,

68 Nos. 18-2885 & 19-3290

[d]emonstrating these prerequisites [of numer-

osity, commonality and typicality and the ade-

quacy of the named plaintiff to represent the

class] is difficult and time consuming and has

been getting harder as a result of recent court

decisions and federal legislation. Courts have

heightened the evidentiary standard for class

certification, requiring hearings and sometimes

significant amounts of evidence on the merits of

the case before certifying the class. In recent

years, courts have started to deny class certifica-

tion if they think there has been a flaw in class

definition. These courts typically deny certifica-

tion without first allowing the plaintiffs to

amend that definition in response to the court’s

concerns. Under Federal Rule of Civil Proce-

dure 23(f), defendants can seek interlocutory re-

view of a court’s decision to certify a class, add-

ing further delay and expense to the certifica-

tion process. Noting these difficulties, one com-

mentator has described the class certification

process as a “drawn-out procedural bog,”

which comes with significant expense and delay

for the would be class member.

(footnotes omitted) Frost, In Defense at 1096–97, quoting Sam-

uel Issacharoff, Private Claims, Aggregate Rights, 2008 SUP. CT.

REV. 183, 208; see also Malveaux, Class Actions at 59 (describing

the increasing hurdles to class actions and arguing that

“Bray’s concession that ‘the requirements for a class action

will not always be easy to meet’ understates the significant

hurdles erected over the last fifty years”). The class action

Nos. 18-2885 & 19-3290 69

mechanism is not an adequate substitute for a universal in-

junction in the proper case.

Absent the ability to grant injunctive relief that extends be-

yond the particular party, courts will have little ability to

check the abuse of power that presents the most serious threat

to the rule of law—such as that which is swift in implementa-

tion, widespread in impact, and targeted toward those with

the least ability to seek redress. Although circumspection is

appropriate in ascertaining whether such relief is appropriate,

an outright ban of such injunctions is neither required by his-

tory nor desirable in light of the range of situations—some as

unpredictable and impactful as the sudden travel ban—that

courts may confront.

That said, it is a more difficult question as to whether the

nationwide injunction is proper in this case. In exercising its

discretion to impose the permanent injunction nationwide,

the district court identified a number of factors that strongly

weighed in favor of an injunction that included more compre-

hensive relief. The court first noted that compliance with the

Attorney General’s conditions would damage the relation-

ship between local law enforcement and immigrant commu-

nities, and would decrease the cooperation with those com-

munities that is critical to preventing and to solving crimes.

The court held that the loss of trust, which once lost is not eas-

ily restored, would cause irreparable harm that could not be

remedied with money damages. Moreover, the court held

that the balance of hardships favored Chicago, noting that the

Attorney General could distribute the funds without impos-

ing the conditions, and nothing in the injunction would pre-

vent any state or local government from coordinating its local

law enforcement with the federal authorities absent those

70 Nos. 18-2885 & 19-3290

unlawful conditions. Finally, the court recognized that the

public interest was served by an injunction in that it acts as a

check on the executive’s encroachment of congressional

power that violates the separation of powers.

The Attorney General does not address those factors and

does not question the court’s determination that injunctive re-

lief is proper. Instead, the Attorney General focuses his chal-

lenge on the scope of the injunction, asserting injunctive relief

must be limited to that necessary to provide complete relief to

the plaintiff and cannot extend to non-parties. But as we have

already discussed, courts have the authority to extend injunc-

tive relief to non-parties, and therefore those arguments fail.

The district court identified a number of considerations

that supported extending injunctive relief in this case

program-wide and to include future years. Among those

considerations was the Attorney General’s repeated

imposition of the conditions despite adverse court rulings.

Upon our decision affirming the grant of the preliminary

injunction in this case, the Attorney General took the highly

unusual step of seeking en banc review only as to the scope of

the injunction, declining to present for en banc consideration

our holding that the Attorney General’s claim to lawful

authority was unfounded. And despite his failure to seek

rehearing as to the preliminary injunctive relief to Chicago

itself, the Attorney General continued to refuse to release the

grant funds to Chicago, choosing instead to withhold the

grant of all funds to all recipients. See U.S. Department of

Justice FY 2020 Performance Budget Office of Justice

Programs March 2019,

https://www.justice.gov/file/1144566/download, at 99–100

(last visited 4-8-20) (noting that of the $403 million available

Nos. 18-2885 & 19-3290 71

for Byrne JAG grants in FY 2017, only $254.4 million had been

awarded and similarly only $256 million of the $415.5 million

available had been awarded in FY 2018, and explaining in a

footnote that some FY 2017 and FY 2018 formula grants had

not been released to grantees as a result of “concerns

regarding compliance with federal immigration laws and

ongoing litigation related to those matters.”) Because of that

conduct, the district court explicitly enjoined the Attorney

General from denying or delaying the issuance of the grant

funds in the permanent injunction.

Moreover, as described earlier, the Attorney General as-

sured the district court that the permanent injunction need

not cover future years, because the conditions imposed in fu-

ture years would reflect a careful consideration of the court’s

holdings as to their legality. The court accepted that assur-

ance, and yet the Attorney General proceeded to impose the

identical conditions on the grants for the next year, issuing an

award to Chicago that was not dependent on satisfaction of

the unlawful conditions only after Chicago filed suit yet

again. See City & Cty. of San Francisco, 372 F. Supp. 3d at 940–

41 (“There is no dispute that certain challenged conditions in

the fiscal year 2018 Byrne JAG Program are functionally the

same as the notice, access, and Section 1373 certification con-

ditions in the fiscal year 2017 Byrne JAG program at issue in

the previous related litigation.”). Despite choosing to forgo en

banc review as to the unlawfulness of the grant conditions,

and with no change in the legal basis for those conditions, the

Attorney General persists in his determination to impose con-

ditions on the Byrne JAG grant that we held unlawful and that

Congress itself has failed to impose. Those actions make man-

ifest that each and every state and local government will have

to bring its own suit in order to obtain relief (and possibly for

72 Nos. 18-2885 & 19-3290

each new grant year, given the Attorney General’s penchant

for adding new statutory authorizations—even ones identical

in language to rejected ones), leaving behind those who can-

not afford such litigation. The concern with multiplicity of lit-

igation is a valid factor in assessing the appropriate scope of

injunctive relief.

As the district court held, the nature of the violation also

supports the scope of the injunction here, in that it involves a

violation of the separation of powers doctrine. The nature of

the injury is a valid consideration in determining the proper

scope of injunctive relief. Whether deemed a statutory or a

constitutional violation, the executive’s usurpation of the leg-

islature’s power of the purse implicates an interest that is fun-

damental to our government and essential to the protection

against tyranny. See Dalton v. Spector, 511 U.S. 462, 472 (1994)

(distinguishing ultra vires claims, alleging an action that ex-

ceeded the authority, from constitutional claims, alleging an

absence of any authority).

At its core, this case implicates principles of federalism—

involving federal intrusion into spheres of power possessed

by states—and, more directly, principles of the separation of

powers between the executive, the legislative, and the judicial

branches.

Why did the framers insist on this particular ar-

rangement? They believed the new federal gov-

ernment’s most dangerous power was the

power to enact laws restricting the people’s lib-

erty….. Some occasionally complain about Arti-

cle I’s detailed and arduous processes for new

legislation, but to the framers these were bul-

warks of liberty.

Nos. 18-2885 & 19-3290 73

…

If Congress could pass off its legislative power

to the executive branch, the “[v]esting [c]lauses,

and indeed the entire structure of the Constitu-

tion,” would “make no sense.” Without the in-

volvement of representatives from across the

country or the demands of bicameralism and

presentment, legislation would risk becoming

nothing more than the will of the current Presi-

dent. And if laws could be simply declared by a

single person, they would not be few in number,

the product of widespread social consensus,

likely to protect minority interests, or apt to pro-

vide stability and fair notice. Accountability

would suffer too.

…

[E]nforcing the separation of powers isn’t about

protecting institutional prerogatives or govern-

mental turf. It’s about respecting the people’s

sovereign choice to vest the legislative power in

Congress alone. And it’s about safeguarding a

structure designed to protect their liberties, mi-

nority rights, fair notice, and the rule of law. So

when a case or controversy comes within the ju-

dicial competence, the Constitution does not

permit judges to look the other way; we must

call foul when the constitutional lines are

crossed. Indeed, the framers afforded us inde-

pendence from the political branches in large

part to encourage exactly this kind of “fortitude

74 Nos. 18-2885 & 19-3290

… to do [our] duty as faithful guardians of the

Constitution.”

Gundy, 139 S. Ct. at 2134–35 (Gorsuch, J., joined by the Chief

Justice and Thomas, J., dissenting). In our case, the executive

branch has usurped the power of the legislature to determine

spending and to set conditions on that spending. It has done

so to conscript the police power of the states to serve the civil

immigration goals of the federal government. The challenged

actions strike at the heart of the vital principles of separation

of powers and federalism and comity for state’s rights.

That is particularly true in this case where the revolving

door of statutory provisions relied upon by the Attorney Gen-

eral as authorization for the withholding of funds upends the

process. Like a whack-a-mole game at a carnival, the Attorney

General has presented the courts with one statutory “author-

ization” after another for the decision to withhold all Byrne

JAG funding from sanctuary cities—from § 10102(a)(6) ini-

tially to §§ 10153(A)(4), 10153(A)(5)(C), and 10155 before the

First and Second Circuits for the notice and access conditions;

from § 1373 to § 1644 for the federal law supporting the com-

pliance condition; and from § 10102(a)(6) to § 10153(A)(5)(D)

as the catch-all for the conditions. See e.g. City of Providence,

2020 WL 1429579 at *6–9. By relying on a moving target of

statutory provisions, the Attorney General undermines his

own argument that the conditions were a response to a legis-

lative grant of authority rather than an executive policy in

search of a legislative “hook.” The nature of the violation in

this case strongly weighs in favor of more comprehensive re-

lief, both because respect for the separation of powers is fun-

damental to our government, and because the willingness to

add new “statutory authorizations” every time a court strikes

Nos. 18-2885 & 19-3290 75

one down—and to reimpose conditions on jurisdictions in en-

suing years that have already been rejected—portends a mul-

tiplicity of litigation that would be a drain on the resources of

the courts. At this point in time, five circuits have weighed in

on the issues, diluting the benefit of any additional “percola-

tion” through the courts. Those factors provide a strong argu-

ment in favor of the district court’s determination that pro-

gram-wide relief extending to non-parties is proper.

B. Injunction as Providing Complete Relief to Plaintiff

But we should avoid deciding that more expansive issue

if a more narrow approach is available, and it is available

here. It is widely accepted—even by self-professed opponents

of universal injunctions—that a court may impose the equita-

ble relief necessary to render complete relief to the plaintiff,

even if that relief extends incidentally to non-parties. See Cali-

fano v. Yamasaki, 442 U.S. 682, 702 (1979); Wasserman, Nation-

wide Injunctions at 360–61; see, e.g., McKenzie v. City of Chicago,

118 F.3d 552, 555 (7th Cir. 1997) (noting that “in reapportion-

ment and school desegregation cases, for example, it is not

possible to award effective relief to the plaintiffs without al-

tering the rights of third parties”); Gill v. Whitford, 138 S. Ct.

1916, 1930 (2018) (recognizing, for instance, in two malappor-

tionment cases, that “the only way to vindicate an individual

plaintiff’s right to an equally weighted vote was through a

wholesale ‘restructuring of the geographical distribution of

seats in a state legislature’”). Here, because of the statutory

structure of the grant calculations, an injunction limited to

providing complete relief to the plaintiff alone will have the

practical impact of preventing the application of the condi-

tions program-wide, thus ameliorating the equitable concerns

76 Nos. 18-2885 & 19-3290

expressed above, without the need to extend injunctive relief

beyond the plaintiff itself to non-parties.

The Byrne JAG grant is a formula grant, not a discretion-

ary grant. The determination of the funds that will be pro-

vided to a grantee is based upon a very structured, precise

calculation that is set forth by Congress at 34 U.S.C. § 10156

(formerly 42 U.S.C. § 3755), and the amount received by a spe-

cific state or locality is dependent on the calculations related

to the other states and localities. Therefore, to provide com-

plete and accurate relief to Chicago now and in the future, and

ensure that it receives the allocation that it would receive if

the Attorney General did not apply the unlawful conditions,

the allocations as a whole must be lawfully determined. In this

formula grant, the unlawfully-imposed conditions must be

rendered inapplicable program-wide in order for the grant

amounts to be properly calculated for the plaintiff itself.

Before delving into the minutia as to the structure of the

Byrne JAG awards and the interrelationship of the grants, it

might be helpful to provide a brief overview. If every grantee

was allocated a set grant amount, independent from each

other, then relief for Chicago could be calculated and

awarded in a vacuum. There would be no need to enjoin the

conditions beyond Chicago to redress the monetary injury,

because the imposition of the conditions beyond Chicago

would not impact Chicago’s grant award. But that is not the

case. The slice of the Byrne JAG pie that Chicago receives is

related to the slices received by Illinois and other states, and

if the imposition of the unlawful conditions eliminates Illinois

or other states from receiving their own awards, then that can

impact Chicago’s award as well. The grant awards are statu-

torily interrelated.

Nos. 18-2885 & 19-3290 77

The Byrne JAG program allocates grant amounts to some

localities directly, and also allocates grant amounts to each

state, which then must pass on a certain percentage to other

localities. If a state is unable to qualify to receive funds under

the program, that state’s award is redistributed to the locali-

ties. In that way, the amount a locality can receive is con-

nected to the amount the state is awarded and to the ability of

the state to participate in the program. And the amount that

the state is awarded is itself impacted by the amounts

awarded to other states. In a number of ways, Byrne JAG

funds can be redistributed from some states to other states,

thus decreasing some states’ awards and increasing the

award for the other states.

The Byrne JAG conditions challenged here disrupt the en-

tire distribution plan, because they can prevent the states

from even applying for an award—and clearly prevent the

states from receiving a Byrne JAG award—if they cannot com-

ply with the unlawful conditions at issue in this case. Because

the awards to states are interrelated, and the award for local-

ities is also related to the award to states, the imposition of the

unlawful conditions impacts the proper calculation of all

awards, including awards to localities such as Chicago.

As we will see, the Attorney General does not really con-

test that Chicago’s award could be impacted by the imposi-

tion of conditions on states. Instead, the Attorney General ar-

gues that we need not be concerned with that because the im-

position of the unlawful conditions on other grant applicants

would be a windfall to Chicago, resulting in a higher grant

amount than it would otherwise receive, and Chicago cannot

complain of receiving a higher amount. As we will discuss,

the impact on Chicago if the unlawful conditions are applied

78 Nos. 18-2885 & 19-3290

to the states would not necessarily be an increase in its grant

amount; it could operate to decrease the grant to Chicago as

well. Moreover, even an improper increase in its award

would be problematic. Once we have concluded that the At-

torney General is without the authority to impose the chal-

lenged conditions, the court’s role should be to ensure that

Chicago receives the grant it would have been entitled to ab-

sent the unlawful conditions. Courts should not impose relief

that makes Chicago an involuntary beneficiary of the very

conduct that it seeks to enjoin. That can only be assured if the

Byrne JAG awards as a whole are calculated absent the impo-

sition of the unlawful conditions.

1. Statutory Formula for Allocation

That is the overview. We turn, now, to the details. As an

initial matter, it is important to understand the statutory for-

mula for calculating grants, with its awards to states and lo-

calities. In this subpart, we describe the statutory formula for

the initial allocations of funds as to states and localities. That

is the base, from which subsequent redistributions will occur,

which we discuss in subsections 2 and 3. The dissent argues

that we misunderstand § 10156(d) and (e) as making Chi-

cago’s award contingent on any governing body’s compliance

with the unlawful conditions. We do not argue that

§ 10156(d)-(e) has any such effect. Those provisions set forth

the formula for the allocation of funds at the outset, which is

determined proportionally and therefore will inform redistri-

butions of funds as well. Subsections 2 and 3 demonstrate the

redistributions of funds that are provided in the statute, and

explain how the imposition of the unlawful conditions on

states can alter that redistribution and thereby impact Chi-

cago’s Byrne JAG grant award.

Nos. 18-2885 & 19-3290 79

Consideration of the precise formula delineated by Con-

gress in § 10156 makes clear the need for program-wide

treatment. Under that statute, the Attorney General first de-

termines the initial allocations to states and U.S. territories

(hereinafter collectively referred to as “states”), allocating

half of the available funds based on the ratio of a state’s pop-

ulation to the national population, and half allocated based

on the ratio of a state’s share of violent crime to that of the

nation. 34 U.S.C. § 10156(a)(1). If that number falls below the

minimum allocation provided in § 10156(a)(2), reflecting

0.25% of the total Byrne JAG allocation, the state is awarded

that minimum allocation. The population and crime data

from those states receiving the minimum allocation is ex-

cluded in calculating the ratios in § 10156(a)(1). With the ex-

ception of the U.S. territories and the District of Columbia,

60% of the total allocation to a state is retained by the state,

with 40% set aside for local governments. § 10156(b). The

amounts allocated to local governments are calculated based

on their share of all violent crimes reported in the state.

§10156(d). If the local government is entitled to an award

greater than or equal to $10,000, then that unit of local gov-

ernment is eligible to receive the award directly. § 10156(c)–

(e). If the amount allocated to a unit of local government is

less than $10,000, that amount is returned to the state gov-

ernments for redistribution to state law enforcement agen-

cies and local governments. Id. Moreover, units of local gov-

ernment may not receive a Byrne JAG award that exceeds

that local government’s total expenditures on criminal jus-

tice services for the most recently completed fiscal year, and

therefore award amounts in excess of that total expenditure

are reallocated proportionally among other units of local gov-

ernment. § 10156(e)(1).

80 Nos. 18-2885 & 19-3290

The formula for grant distribution also recognizes that, in

some circumstances, a disparity can exist between the fund-

ing eligibility of a county and its associated municipalities.

The three types of disparity include: a zero-county disparity,

when one or more municipalities within a county are eligible

for a direct award but the county is not, yet the county is re-

sponsible for providing criminal justice services for the mu-

nicipality and therefore should be entitled to part of the mu-

nicipality’s award; a disparity in which both a county and a

municipality within it qualify for a direct award, but the

award amount for the municipality exceeds 150% of the

county’s award amount; and a disparity in which a county

and multiple municipalities within that county are all eligible

for direct awards, but the sum of those awards exceeds 400%

of the county’s award amount. § 10156(d)(4); see also BJA

Technical Report, Justice Assistance Grant Program, 2016,

https://www.bja.gov/JAG/pdfs/JAG-Technical-Report.pdf at

2–6 (“BJA Technical report”) (last visited 4-8-2020); BJA Ed-

ward Byrne Memorial Justice Assistance Grant Program Fre-

quently Asked Questions https://bja.ojp.gov/sites/g/files/

xyckuh186/files/media/document/JAGFAQ.pdf at 23–24 (last

visited 4-8-2020). Jurisdictions subject to such disparity must

identify a fiscal agent to submit a joint application for the ag-

gregate of funds to which the units of local government are

eligible, and that joint application must specify the amount of

funds to be distributed to each of the units of local govern-

ment and the purposes for which the funds will be used. Id.

Accordingly, the statutory formula for distribution of

Byrne JAG funding includes both direct and indirect distribu-

tions to states and units of local government, and in some cir-

cumstances requires a unit of local government to submit a

joint application on behalf of itself and specified

Nos. 18-2885 & 19-3290 81

geographically constituent units of local government. Chi-

cago falls within those provisions, and therefore it files its ap-

plication for Byrne JAG funding on behalf of itself but also on

behalf of eleven other neighboring units of local government.

Chicago I, 888 F.3d at 292. For instance, the City of Evanston,

which is currently pursuing its own challenge to the Byrne

JAG conditions along with the United States Conference of

Mayors, receives its funds indirectly through an application

submitted by the City of Chicago.

The statute therefore employs a precise formula for deter-

mining the amounts to be awarded to applicants, including

states and units of local governments. Because the amounts

allocated are based on percentages, the actual amount that a

unit of local government such as Chicago will receive is de-

pendent on the number of applicants and the local govern-

ment’s share of all violent crimes reported in the state relative

to those other applicants. Nor is the award a static one that,

once awarded, is automatically and permanently distributed

to the applicants. The awards themselves are for a four-year

period of time. During that time, the award requires of each

applicant ongoing compliance with the terms of the award,

which according to the Attorney General, includes the re-

quirement of compliance with § 1373. An inability to comply

with § 1373 during that time can result in the loss of the

award. As we will explain, when a state is forced to relinquish

its award or cannot qualify for an award in the first place for

any reason including the unlawful conditions, that situation

can impact the award amount provided both to localities and

to other states.

Essentially, application of the unlawful conditions to the

Byrne JAG program can impact Chicago’s grant in any of

82 Nos. 18-2885 & 19-3290

three different ways: (1) if applied to Chicago, it will eliminate

its grant entirely; (2) if applied to Illinois, it could disqualify

Illinois from receiving a grant and increase Chicago’s grant

award as described in subsection 2; (3) if applied to other

states, it can impact Illinois’ award either by increasing or de-

creasing the award that Illinois otherwise would get as de-

scribed in subsection 3. And again, that altered amount can

impact Chicago’s award as described in subsection 2—even if

the unlawful conditions were not applied to Illinois.

2. Redistribution from State to Locality

First, a state’s inability to participate in the Byrne JAG pro-

gram for any reason, including the inability to comply with

the unlawful conditions, can result in an increase in the grant

received by the locality. In that way, the grant for the locality

is interconnected with the grant to the state.

Section 10156(f) explicitly provides for additional funding

to units of local government, where a state is unable or un-

willing to comply with the program’s requirements during

that time, as follows:

(f) Funds not used by the State

If the Attorney General determines, on the ba-

sis of information available during any grant

period, that any allocation (or portion thereof)

under this section to a State for such grant pe-

riod will not be required, or that a State will be

unable to qualify or receive funds under this

part, or that a State chooses not to participate

in the program established under this part,

then such State’s allocation (or portion

thereof) shall be awarded by the Attorney

Nos. 18-2885 & 19-3290 83

General to units of local government, or com-

binations thereof, within such State, giving

priority to those jurisdictions with the highest

annual number of part 1 violent crimes of the

Uniform Crime Reports reported by the unit of

local government to the Federal Bureau of In-

vestigation for the three most recent calendar

years for which such data are available.

(emphasis added). Thus, even after the initial award, during

that four-year period of the grant the Attorney General could

determine that a State no longer qualifies to receive funds,

and those funds will be redistributed to the units of local gov-

ernment, as long as that allocation does not exceed the local

government unit’s total expenditure on criminal justice ser-

vices for the most recently completed fiscal year for which

such data is available. § 10156(e)(1). That can result in a redis-

tribution of funds from Illinois to its localities for any of a

number of reasons; one of those possible reasons is if the un-

lawful conditions were applied to Illinois and it was unable

to comply with those conditions.

The possibility of that provision impacting Chicago’s

grant amount is far from negligible. The State of Illinois, for

instance, recently passed the Keep Illinois Families Together

Act, 5 ILCS § 835/1, which forbids local law enforcement agen-

cies or officials from participating in the federal 287(g) pro-

gram, an ICE program that allows local law enforcement offi-

cials to identify and remove undocumented residents from

the United States. Id. at § 835/5. If the Attorney General were

to determine that the law operated to restrict a local govern-

ment official’s ability to send or receive information regarding

immigration status in violation of § 1373, or if Illinois were to

84 Nos. 18-2885 & 19-3290

extend its protections of its families to prevent all communi-

cations regarding immigration status, then under § 10156(f)

the funds awarded to the State of Illinois could be redistrib-

uted to units of local government.

Regardless of whether the State of Illinois is in compliance

with the unlawful conditions, the point here is that the award

to a unit of local government such as the City of Chicago can

be impacted by the award and compliance status of the state

and the other units of local government, not just in the grant

year but in the three years following it. That would require, at

a minimum, that injunctive relief extend to the state level. But

an injunction prohibiting the application of the unlawful con-

ditions to Illinois would not itself ensure that Chicago re-

ceives the proper grant amount because, under § 10156(f), any

number of scenarios can result in the redistribution of Illinois’

grant award to its localities. And the grant that Illinois re-

ceives, which can then be redistributed to its localities, is itself

impacted by the enforcement of the unlawful conditions as to

the other states. That is because the structure of the Byrne JAG

program renders the grants at the state level interrelated as

well. See City and County of San Francisco v. Trump, 897 F.3d

1225, 1244 (9th Cir. 2018); Wasserman, Nationwide Injunctions

at 387–88 (acknowledging that the Ninth Circuit properly al-

lowed the injunction to run to non-party California because

the state grant could impact San Francisco’s grant).

3. Redistribution from State to State

Byrne JAG grant awards to each state are not determined

in isolation from each other. First, the awards are based on the

statistics of each state relative to that of the others. If states are

no longer eligible for the grant program based on the unlaw-

ful conditions, the allocations could be calculated excluding

Nos. 18-2885 & 19-3290 85

those states, resulting in a higher amount for the remaining

states. That is a hypothetical possibility, not a certainty, be-

cause it is possible that the initial allocations would still be

calculated as to all states—even those rendered ineligible for

funds—and the states would be excluded only at the award

stage. If that was the only redistribution, we would remand

to the district court for further fact-finding to determine

whether the initial grant allocations will be impacted by the

ineligibility of states due to the unlawful conditions. But we

need not remand here because the state Byrne JAG awards are

interrelated in other ways that do not require factual develop-

ment.

What is clear, even without factfinding, is that other

statutorily-mandated redistributions of Byrne JAG funds

among states will be upended by the imposition of the

unlawful Byrne JAG conditions. Just as recipients of Byrne

JAG grants have to certify compliance with anti-lobbying

statutes and other grant-related requirements in order to be

eligible for their grant award, grantees also can have their

grant award reduced or increased based on their compliance

with the Sex Offender Registration and Notification Act

(SORNA), 34 U.S.C. § 20927(a), and the Prison Rape

Elimination Act (PREA), 34 U.S.C. § 30307(e)(2)(A). In

contrast to the award conditions imposed in this case by

executive fiat, the conditions of compliance with SORNA and

PREA are legislatively-authorized, in explicit statutory

language. See 34 U.S.C. § 20927(a),(c), and § 30307(e)(2)(A),

(E).

As described above, in the Byrne JAG program, initial al-

locations of Byrne JAG funds are made to states and, after the

states submit their applications with the required

86 Nos. 18-2885 & 19-3290

certifications, awards of the grant are issued. If a state seeking

a Byrne JAG grant is non-compliant with the requirements of

SORNA, then its Byrne JAG grant award is reduced by 10 per-

cent. Those funds are then reallocated as an addition to the

Byrne JAG grant award to other, SORNA-compliant states in

the following fiscal year unless the non-compliant state seeks

reallocation of those funds to its own Byrne JAG grant award

by certifying that the funds will be used solely to obtain

SORNA compliance and that request is approved. 34 U.S.C. §

20927(c). The amounts at stake in that redistribution can be

significant. For FY 2016, the 10% penalty applied to SORNA-

non-compliant states reduced Byrne JAG grants by more than

$6 million, with approximately $5 million reallocated to the

SORNA-non-compliant states that applied for the funds to

promote SORNA implementation, and over a million dollars

reallocated as a bonus award to SORNA-compliant states. See

Justice Assistance Grant Program, 2016 Technical Report at 7,

at https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/doc-

ument/jag-technical-report.pdf (last visited 4-8-2020).

Accordingly, a state’s Byrne JAG award can be increased

or decreased based on that state’s own compliance with

SORNA and based on whether other states are non-

compliant. Because the penalty is assessed when the Byrne

JAG grant is awarded, it will not be assessed as to states that

either cannot even apply for the award because they cannot

certify that they are in compliance with the unlawful

conditions, or that apply and are denied an award because

they are not in compliance with those conditions. See Office of

Justice Programs SMART, Byrne JAG Grant Reductions

Under SORNA at

https://smart.gov/byrneJAG_grant_reductions.htm (last

Nos. 18-2885 & 19-3290 87

visited 4-8-2020)(noting that the 10 percent reduction is

imposed when the awards are made).

That is a real problem if the unlawful Byrne JAG condi-

tions challenged in this case are imposed upon the states.

States that cannot or will not comply with those unlawful con-

ditions will not be able to receive any award under the Byrne

JAG grant. In fact, even filing an application for the Byrne JAG

grant is problematic for such states. The application require-

ments and penalties leave potential applicants in “sanctuary”

or “welcoming” jurisdictions with few options. The chief ex-

ecutive of each state or unit of local government must certify

that the unit of government will comply with all Byrne JAG

provisions and all applicable federal laws, and must include

the certification of compliance with § 1373. The solicitation for

Byrne JAG applications makes clear that the certification is

subject to review by DOJ, and that a false statement or con-

cealment or omission of a material fact may result in criminal

prosecution, and also may trigger civil penalties and admin-

istrative remedies including suspension or termination of the

award, placement on the DOJ high risk grantee list (with at-

tendant consequences), disallowance of costs, and suspension

or debarment of the recipient. See Edward Byrne Memorial

Justice Assistance Grant Program FY 2017 Local Solicitation

CFDA # 16.738 at 8–9, Appellant’s Appendix, No. 18-2885, at

A153–54. In the amicus briefs in this case alone, fourteen

st

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