Metropolitan News-Enterprise


Monday, July 15, 2019


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Ninth Circuit Strips L.A. City of Victory in Funding Dispute

Majority of Three-Judge Panel Says Department of Justice Action in Awarding Bonus Points to Grant Applicants Cooperating With Federal Immigration Enforcement Efforts Was Valid


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals held Friday there was no constitutional infirmity in the Department of Justice awarding extra points to cities seeking law enforcement funding which certified that they would cooperate with immigration authorities and chose “illegal immigration” from among alternative focus areas, rejecting contentions by the City of Los Angeles.

The city brought suit on Sept. 29, 2017, against the Department of Justice, then-Attorney General Jeff Sessions, and others, in an effort to block use of the immigration-related criteria. It was seeking a $3.125 million grant, which it planned to share with the county, but said it would be at a disadvantage if its policies as a sanctuary city were taken into account.

Among its allegations was that the Department of Justice (“DOJ”) policy contravenes the U.S. Constitution’s Spending Clause. It alleged in the complaint:

“The Constitution confers the power of the Spending Clause on Congress, not the Executive Branch….It is Congress, then, not an Executive Branch agency, that has the constitutional authority to impose conditions on the receipt of federal funds, and even that power is subject to limitations such as relatedness and clarity. Defendants here are attempting to wield authority that is vested in Congress, not in DOJ.”

In Friday’s decision, Judge Sandra S. Ikuta wrote for herself and Judge Jay S. Bybee in reversing a judgment in the city’s favor by Judge Manuel Real of the Central District of California, since deceased. Judge Kim McLane Wardlaw dissented.

Ikuta’s Opinion

Ikuta wrote:

“In 2017, Los Angeles applied for a grant,, but failed to score highly enough to earn one. It challenges the use of two of the many factors DOJ uses in determining the scores for each applicant. Because DOJ’s use of these two factors in evaluating applicants for a competitive grant program did not violate the Spending Clause of the U.S. Constitution…, did not exceed DOJ’s statutory authority, and did not violate the Administrative Procedure Act, we reverse the district court s grant of summary judgment in favor of Los Angeles.”

With respect to the Spending Clause, she enumerated effects the DOJ policy does not have, saying:

“As a threshold matter, DOJ does not propose to withdraw significant federal funds from a state or local jurisdiction unless they comply with specified federal requirements….Nor does DOJ propose to reinterpret the terms of a grant retroactively to impose costly new responsibilities on a recipient….Nor does DOJ offer a financial inducement for an applicant to cooperate on illegal immigration issues that is so coercive that it is tantamount to compulsion….Rather, an applicant is free to choose one of many focus areas, and numerous applicants obtained funding without selecting illegal immigration or signing the Certification. Nor did DOJ impose surprise or ambiguous conditions on recipients of the funds…; the immigration-related conditions were clearly presented in the Application Guidelines and Certification.

“At most, DOJ’s decision to give additional points to applicants that select an illegal immigration focus or that agree to the Certification encourages applicants to focus on these federal priorities.”

The jurist said the purpose of the grant was to aid law enforcement efforts and the contested criteria related to cooperation with federal law enforcement pursuits.

Statutory Authority

The DOJ did not exceed its authority under the Public Safety Partnership and Community Policing Act in tying the grants to cooperation with the federal government’s efforts against illegal immigration, Ikuta said, declaring:

“DOJ’s inclusion of immigration-related scoring factors as a component of its implementation of its grant program is well within DOJ’s broad authority to carry out the Act.”

The city asserted that the policy violates the Administrative Procedure Act (“APA”) because it did not set forth reasoned bases. Ikuta disagreed, quoting the DOJ as explaining that “illegal immigration enforcement is a public safety issue [that] can be addressed most effectively through the principles of community policing”; certification “relate[s] to non-citizens who are being detained and who have committed crimes or are suspected of having committed crimes”; and “[w]orking with the federal government to enforce the federal immigration laws against aliens who have committed crimes or are suspected of having committed crimes makes communities safer.”

She added:

“Moreover, the studies and articles cited by Los Angeles do not undercut DOJ’s conclusion that removing aliens who are convicted or suspected of crimes makes communities safer.”

Ikuta found that the matter is not moot, though the funds have been allocated, because the circumstances could again arise.

Wardlaw’s Dissent

Wardlaw said in her dissent that when Congress in 1994 set up the Community Oriented Policing Services (“COPS”) grant program, it was to increase the number of “cops on the beat” and improve relations between officers and the communities they patrol.

“Through its entire existence, the COPS grant program has been administered with this congressional purpose in mind,” Wardlaw wrote, adding:

“That is, until 2017, when DOJ decided to usurp the COPS funds for its own immigration policy directives. As part of a broader effort to divert federal funds from congressionally authorized purposes to the Trump Administration’s efforts to press state and local police into federal immigration enforcement, Attorney General Jefferson B. Sessions III imposed new preferences for obtaining COPS grant awards that effectively substitute ‘federal law enforcement’ for ‘community’ in the “community partnerships” Congress sought to fund through the Act. Congress did not contemplate general policing when devoting funds for community-oriented policing, and it certainly did not contemplate federal immigration enforcement when it attempted to reduce crime by adding ‘cops on the beat.’ ”

Trump’s Policies

Wardlaw, a Democrat appointed by Democratic President Bill Clinton and wife of Democratic contributor Bill Wardlaw, evinced disagreement with the policies of Republican President Donald Trump on illegal immigration. (Ikuta and Bybee were named by Republican Gov. George W. Bush; all three members of the panel are 65.)

 “The Trump Administration was openly determined to deprive jurisdictions with so-called ‘sanctuary’ policies of federal funds,” Wardlaw recounted. “Five days after his inauguration, President Trump attempted to withhold federal funding from ‘sanctuary’ jurisdictions by executive order in an effort to deliver on his campaign promise to ‘end the sanctuary cities that have resulted in so many needless deaths.’ ”

She noted that the policy was blocked by the District Court for the Northern District of California and, reflecting on the Ninth Circuit’s action last year, said:

“Our court agreed that the President’s attempt to wrest for his policy goals the power of the purse vested exclusively in Congress violated the U.S. Constitution’s separation of powers.”

‘JAG’ Grants

Wardlaw said that the DOJ restricted grants under the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG”) Program to those local governments that “allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities.” She pointed out:

“To date, every court to consider the challenges to immigration enforcement conditions the Trump DOJ imposed on the Byrne JAG grants has soundly rejected them as unconstitutionally exceeding DOJ’s statutory authority.”

She said Los Angeles sought COPS funds to hire 25 officers but did not choose illegal immigration as its focus and did not certify it would cooperate with federal immigration officials—and got no funds.

The judge said in a footnote:

“Because I would hold that the DOJ’s imposition of the federal immigration preferences is ultra vires, my analysis does not reach the spending clause or Administrative Procedure Act violations.”

The case is City of Los Angeles v. Barr, 18-55599.


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