Ruling by 2nd Circuit Could Send Sanctuary Cities and States Case to Supreme Court

July 20, 2020 by Tom Ramstack
New York City (Photo by Dan McCue)

A federal appeals court placed part of the federal funding for sanctuary cities in jeopardy with a ruling last week that endorses a policy of punishing cities and states that refuse to cooperate in deporting illegal immigrants.

The ruling advances a Trump administration threat beginning in 2017 to withhold up to $385 million in the grants.

“Sanctuary” refers to a policy of some cities and states of refusing to cooperate with federal immigration authorities in arresting and deporting illegal immigrants.

The Justice Department made the funds dependent on states granting access to their correctional facilities for federal immigration agents, notifying immigration authorities before an illegal immigrant’s release from custody and agreeing to information-sharing “regarding the citizenship or immigration status, lawful or unlawful, of any individual” in custody.

Seven states sued in July 2018 for an injunction to block the Trump policy of withholding the grants. They say their 10th Amendment states’ rights mean the Justice Department lacks discretion to impose the conditions it demanded.

The states filed their lawsuit after former U.S. Attorney General Jeff Sessions announced the decision to withhold the money.

He mentioned crime by illegal immigrants in New York City and elsewhere as an example of why it is important to cooperate in deportations.

The states’ 30-page lawsuit disagreed, saying,“Although the Attorney General has asserted that New York City is ‘crumbling under the weight of illegal immigration and violent crime’ due to its ‘soft on crime stance,’ the city’s historic streak of declining crime paints a very different picture,” the lawsuit says. “Crime in the city is at the lowest level since the city started keeping reliable records in the 1950s, with decreases in every major felony category. The city’s track record contradicts the Attorney General’s repeated-and factually unsupported-claim that ‘the lawless practices of so-called ‘sanctuary’ jurisdictions … make our country less safe.’”

In similar lawsuits, sanctuary cities and states won before the 1st, 3rd, 7th and 9th Circuit U.S. Courts of Appeal.

The ruling this week makes the New York City-based 2nd Circuit the only jurisdiction to rule in favor of the Trump administration.

Previously the 2nd Circuit deadlocked between Democratic and Republican appointees on similar immigration issues. The court became more conservative last November when the U.S. Senate confirmed Trump appointee Steven Menashi as a new judge.

The majority opinion said the relevant federal law “unambiguously informs states that they must abide by the certification condition,” which means they must cooperate with federal immigration authorities before they can get the justice assistance grants.

However, dissenting opinions showed the court was deeply divided.

“Until today, every single circuit judge to have considered the questions presented by this appeal has resolved them the same way,” wrote U.S. Circuit Judge Raymond Lohier, an Obama appointee. “… when asked whether the Attorney General may impose the challenged conditions, [they] have all said the same thing: No.”

The opinion also said disagreement among federal courts shows the Supreme Court must be the next and final step for review.

The ruling jeopardizes the grant money for New York City, Los Angeles, Washington, D.C., as well as the states of Connecticut, Massachusetts, New Jersey, New York, Rhode Island, Virginia and Washington.

New York City Mayor Bill de Blasio previously denounced the Trump administration’s insistence on cooperation before the grants would be awarded.

“President Trump’s latest retaliation against his hometown takes away security funding from the No. 1 terrorist target in America — all because we refuse to play by his arbitrary rules,” de Blasio said in a statement.

Undeterred by threats of losing federal grants, the Washington, D.C., Council approved a policy last year that forbids the local Department of Corrections from cooperating with federal immigration authorities.

The legislation prohibits the Department of Corrections from holding illegal immigrants in custody while they await deportation. It also orders corrections officers to stop sharing immigrants’ locations, release dates and criminal case information with immigration officials.

Mayor Muriel Bowser has said she will not be intimidated by risks of losing federal funds.

Washington has about 25,000 illegal immigrants, according to city reports.

“I will not let the residents of D.C. live in fear,” Bowser said at a January 2017 press conference. “The District is and will continue to be a sanctuary city.”

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