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Chicago Files Lawsuit Against DOJ Over Sanctuary Cities Funding Threats

Chicago Files Lawsuit Against DOJ Over Sanctuary Cities Funding Threats

The city claims the new guidelines are unconstitutional.

While his city is spiraling out of control, Chicago Mayor Rahm Emanuel filed a lawsuit against the Department of Justice over threats to cut funding to sanctuary cities. The Chicago Tribune reported:

“Chicago will not let our police officers become political pawns in a debate,” Emanuel said. “Chicago will not let our residents have their fundamental rights isolated and violated. And Chicago will never relinquish our status as a welcoming city.”

Federal Grant Money

Attorney General Jeff Sessions has threatened to withhold federal funding from the Edward Byrne Justice Assistance Grant towards cities that consider them sanctuary cities for illegal immigrants. The program “is the leading source of federal funding to state and local jurisdictions.” The website states:

The JAG Program provides states, tribes, and local governments with critical funding necessary to support a range of program areas including law enforcement, prosecution, indigent defense, courts, crime prevention and education, corrections and community corrections, drug treatment and enforcement, planning, evaluation, technology improvement, and crime victim and witness initiatives and mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams.

Sessions wants the cities to comply “with a federal law that bars restrictions on local police sharing immigration status information, providing unlimited police station access to federal officials searching for people in the country illegally and giving federal officials 48 hours’ notice of an arrested person’s release in cases of potential immigration violations.”

He stated in July that the sanctuary city policies “make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes.”

The Lawsuit

From The Chicago Sun-Times:

The 46-page filing asks a judge to stop the Justice Department from enforcing new grant guidelines, including one that would “give federal immigration officials unlimited access to local police stations and law enforcement facilities in order to interrogate any suspected non-citizen held there, effectively federalizing all of the City’s detention facilities.”

“These new conditions — which would give federal officials the power to enter city facilities and interrogate arrestees at will and would force the City to detain individuals longer than justified by probable cause, solely to permit federal officials to investigate their immigration status — are unauthorized and unconstitutional,” the city’s lawyers wrote.

During a press conference Monday morning, Chicago Corporation Counsel Ed Siskel told reporters “we are bringing this legal challenge because of the rhetoric – the threats — from this administration embodied in these new conditions.” He also said a motion for a preliminary injunction would follow.

Right now, Chicago “bars police from providing federal Immigration and Customs Enforcement [ICE] officials access to people in local custody unless they are wanted on a criminal warrant or have serious criminal convictions.” The city does not allow “ICE agents to sue police facilities for interviews or investigations and bars on-duty officers from responding to ICE questions or talking to ICE officials prior to a person’s release from custody.”

Chicago Corporation Counsel Ed Siskel stated that he doesn’t think that “Sessions has the authority to add the requirements to a grant program created by Congress or to force local police departments to carry out federal immigration functions.”

Emanuel attempted to justify the lawsuit on CNN this morning:

“We want you to come to Chicago if you believe in the American dream,” Emanuel, a Democrat, told CNN’s Poppy Harlow on “Newsroom.” “By forcing us, or the police department, to choose between the values of the city and the philosophy of the police department, in community policing, I think it’s a false choice and it undermines our actual safety agenda.”

He continued: “So we’re going to be filing a case saying that the Justice Department is wrong on constitutional legal grounds that is we will always be a welcoming city … but it also is true that our police department is part of a neighborhood, part of a community, built on the premise of trust.”

Emanuel has admitted that the money the city receives from the grant only makes up a small portion of its budget:

However, Emanuel said the conditions placed on applications for the Byrne Grant — due Sept. 5 — amount to a “camel’s nose under the tent,” and if successful would certainly lead to additional punitive actions against sanctuary cities like Chicago.

“This is true to who we are,” Emanuel said, noting that Chicago would be the first city to take the Trump administration to court on this issue. “I expect other cities to follow suit.”

The mayor explained that city will use a strategy based on a Supreme Court ruling:

Emanuel said the city’s legal strategy would rely on a ruling by the U.S. Supreme Court that found that the federal government could not withold [sic] funds in an attempt to force states to expand Medicaid.

In April, a federal judge blocked an initial order by Sessions that raised the possibility that Chicago stood to lose $1.3 billion — 14 percent of its budget. The president’s executive order contained “broad and threatening language” that “impermissibly” threatened cities like Chicago determined to protect undocumented immigrants with the loss of all federal grants, the judge ruled.

However, that ruling did not stop the federal government from enforcing existing conditions on federal law enforcement grants. The Obama administration also required cities to promise to follow federal immigration laws.

The DOJ Responds

The DOJ cannot believe Emanuel concentrates on this subject instead of the crimes ravaging his city:

The Justice Department fired back at Emanuel, pointing out the city’s growing problem with violent crimes.

“In 2016, more Chicagoans were murdered than in New York City and Los Angeles combined. So it’s especially tragic that the mayor is less concerned with that staggering figure than he is spending time and taxpayer money protecting criminal aliens and putting Chicago’s law enforcement at greater risk,” Justice Department spokeswoman Sarah Isgur Flores told the Sun-Times.


On Sunday, Leslie blogged that California Attorney General Xavier Becerra may sue the Trump administration for the same reason:

Now, the state’s Attorney General may sue the Trump administration after the Department of Justice took steps this week to pull funds from “sanctuary cities.”

California Attorney General Xavier Becerra — in conjunction with other California city and county attorneys — is considering charging the Justice Department with violating the Constitution by threatening to take crime-fighting funds away from cities and states that do not fully cooperate with federal immigration agents, according to those sources.

“The cities and states affected by these provisions have strong arguments to make in court that these conditions are illegal,” said a former Justice Department official familiar with California officials’ thinking. “If Congress wanted these requirements to be part of the grant funding decision, they would have written it into the law.”

Becerra plans to argue that Congress, not the executive branch, has power to set conditions on the grant money.

City of Chicago V. Jeff Sessions by DNAinfo Chicago on Scribd


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Under Chevron deference, the Administration can impose regulations as it likes. (Although I am not sure these new conditions on sanctuary city funding are regulations, so they may not be covered by Chevroi.) Gorsuch can wait a bit to be the point of a movement to get rid of Chevron deference, as he suggested he might want to do in his SCOTUS confirmation hearing.

notamemberofanyorganizedpolicital | August 7, 2017 at 2:58 pm

I sure am glad that bankrupt Chicago has millions and millions of taxpayers’ dollars to waste on this.

On the face of it, Emanuel and Becerra appear to be correct.

There is no question that Congress has the right to attach any conditions it likes to new funding. If states or cities don’t like the conditions they are free to do without the funding, since they’re doing without it now.

There also is no question that Congress may not cut existing funding so severely that it leaves the city or state with no choice but to comply with Congress’s wishes.

The Supreme Court has ruled that Congress may cut existing funding if the cut is small enough that the state or city can afford to do without it rather than do as Congress wants it to. In such a case, the Court said, Congress isn’t forcing the state, it’s just encouraging it.

That would appear to be the case here; “Emanuel has admitted that the money the city receives from the grant only makes up a small portion of its budget”, but is worried about the precedent it would set. Well, the Supreme Court has already dealt with that; if and when Congress increases the pressure, come back to court.

Which leaves, as I see it, only one real issue. It’s clear to me that Congress could attach such a condition to the Edward Byrne Justice Assistance Grants. But it hasn’t. This is the statute authorizing the grants, and there’s not a word about any such condition. It says the AG “may” make these grants, but links them to the formula in here, which likewise makes no mention of such a condition.

So to my mind the only question a court would have to answer is, “Has Congress given the Attorney General the implied discretion to impose such conditions of his own accord?”. If the word “may” includes such broad discretion, then Sessions is right. If it doesn’t then Emanuel and Becerra are right. Since it’s not clear from the statute’s language, it seems clear to me that Emanuel and Becerra are right to sue, and let the courts interpret the statute. If the courts uphold DOJ’s interpretation, then they will have to decide whether they value their policies more than the money.

    tom swift in reply to Milhouse. | August 7, 2017 at 3:32 pm

    So, you see a realistic possibility that a Federal court will redefine the word “may” so that it’s synonymous with “shall”?

      Milhouse in reply to tom swift. | August 7, 2017 at 4:28 pm

      The question is how much discretion is included in that “may”. Does it include permission to attach whatever conditions he likes? His discretion is explicitly limited by the link to the formula in § 3755. That shows it’s hardly plenary.

      Further, even if Congress did mean to give him such discretion, it may still be unconstitutional. “If Congress desires to condition the States’ receipt of federal funds, it ‘must do so unambiguously’.” How can a condition that isn’t even mentioned in the statute, and that Congress wasn’t even thinking of when it passed the statute, possibly be “unambiguous”?

        pete_edwards in reply to Milhouse. | August 7, 2017 at 7:06 pm

        Milhouse, Couldn’t Congress fling a thousand darts at Sanctuary Cities in California and Illinois? In that way it would allow the federal government to get support without crossing into coercion. What would that level be? 10%, 15%?

        Ultimately, (my assumption, please correct me if I am wrong) coercion is decided by what a judge would deem coercion, right? So something as low as 1% reduction could be deemed that.

        Is it possible the root of all of these problems is that those on the right have never stepped out and brought stronger lawsuits before? Since we have never forced the issue we are never setting precedents that support conservative/libertarian thoughts. Actually, even that is not correct, not treading on states rights is inherently libertarian, but basic common sense.

        Their actions harm others outside of their cities. That flies against the basic tenets of this nation that so ansgers some of us on the right.

          Milhouse in reply to pete_edwards. | August 7, 2017 at 7:39 pm

          If the cumulative effect is coercive rather than persuasive, it’s unconstitutional. No court has yet said how much is coercive, but the Supreme Court has said that cutting 5% of one single program (not of all funding to the state) definitely doesn’t cross the line at which “pressure turns into compulsion”. Note that even so, the condition must be unambiguous, which would seem to rule out letting the AG impose it ad hoc, and (I think) it must relate to the grant to which it’s attached. So if Congress explicitly made the JAG program conditional on compliance with ICE, and the whole program is small enough that Chicago can afford to stand on its principles and give it up, then it would be fine.

          Milhouse in reply to pete_edwards. | August 7, 2017 at 7:41 pm

          Their actions harm others outside of their cities. That flies against the basic tenets of this nation that so ansgers some of us on the right.

          The slave states said the same about the sanctuary states of the north.

    countrylaw in reply to Milhouse. | August 7, 2017 at 3:39 pm


    Is it your understanding that a State could command its Law Enforcement Officers to not honor a Federal warrant for say murder? Can you contrast your view of commandeering with the modern concept of Federal – State comity known as Cooperative Federalism.

      Milhouse in reply to countrylaw. | August 7, 2017 at 4:22 pm

      Not to honor a warrant? Nobody has the authority to do that. But not to enforce a federal warrant, nor to do anything to help the federal authorities enforce it? Yes, a state certainly can do that, and many states did so under the Fugitive Slave Acts. The Supreme Court explicitly endorsed their right to do so in Prigg v Pennsylvania: “state magistrates may, if they choose, exercise that authority [granted to them by federal legislation], unless prohibited by state legislation“.

      Comity is very nice, but the very definition of comity is “the informal and voluntary recognition by courts of one jurisdiction of the laws and judicial decisions of another”. Thus states have every right to order their courts not to be so comitous, if I may coin a word.

        countrylaw in reply to Milhouse. | August 7, 2017 at 6:58 pm

        Your legal reasoning is not mainstream but interesting, even fascinating. You would do well to go to law school. You have the makings of an excellent appellate attorney.

        Chicago will likely win its case. The reasons are not legal but political. the law is very flexible and malleable, particularly when politics is involved.

          Milhouse in reply to countrylaw. | August 7, 2017 at 7:44 pm

          I believe my reasoning is mainstream. The non-commandeering doctrine is regularly upheld, most recently in the 0bamacare case, and before that in the Brady Act case (sheriffs have the right to refuse to conduct background checks on gun purchasers), and I’m not aware of any decision contradicting that quote from Prigg.

        Ragspierre in reply to Milhouse. | August 7, 2017 at 9:22 pm

        Another historical example is the local enforcement of the Volstead Act. One of the problems with making it stick was that many local jurisdictions simply would not enforce it. And not because they were corrupt. It was a matter of resource allocation.

        Well, and maybe not giving a good damn…

          Milhouse in reply to Ragspierre. | August 7, 2017 at 10:02 pm

          Yup. As I understand it, one of the cities that point blank refused to enforce prohibition was NYC. The feds were free to enforce it themselves, but they got no help from NYPD.

    Congress has been withholding federal funds from states for years to force their compliance with federal laws. There should be no difference now.

      Milhouse in reply to Hal Jordan. | August 7, 2017 at 4:13 pm

      On the contrary, the Supreme Court explicitly ruled that Congress could only do that to encourage state compliance with its wishes, but not to force it. “Relatively mild encouragement” is allowed, but there is a point at which “pressure turns into compulsion”, and Congress is absolutely prohibited from passing that point. See S Dakota v Dole

The city claims the new guidelines are unconstitutional.
I claim that Rahm Emanuel is an ass, but that’s probably not provable in court.

    Milhouse in reply to Matt_SE. | August 7, 2017 at 4:38 pm

    He is an ass, but not only isn’t it provable in court, it’s legally irrelevant. Nothing in the Illinois constitution or the Chicago municipal code bars asses from the mayoralty, so long as they are 18 years old,
    registered voters, residents of the city, without any debt, unpaid tax, lien or other obligation to the city of Chicago, and without a felony conviction or conviction for any infamous crime, bribery or perjury.

    But there is a good chance that he can prove in court that Congress did not authorize the AG to impose this condition on this grant, or even that it would be unconstitutional for Congress to give the AG such broad authority.

“Chicago will not let our residents have their fundamental rights isolated and violated.”

Well, to be accurate, Chicago is more than willing to let some of its residents have their fundamental rights violated.

If those Chicago residents happen to be U.S. citizens or legal residents, then Chicago is happy to assist illegal aliens in taking their money, their jobs, their votes, and in some cases, their very lives.

    Milhouse in reply to Observer. | August 7, 2017 at 4:40 pm

    Indeed. The right Emanuel is defending here is not that of Chicago’s residents, or even of the city itself, but of the state of Illinois. If the state legislature were so inclined it could order the city to cooperate with ICE, as the Texas legislature has done to its cities. But IL, of course, will not do that.

      jack burns in reply to Milhouse. | August 7, 2017 at 5:26 pm

      You’re a busy little bee on this one and I recall illegal immigration being a hot button for you, as in you relish protecting them. I’m not a lawyer but I can’t help making the observation here and there.

        Milhouse in reply to jack burns. | August 7, 2017 at 5:43 pm

        I care about the constitution, which apparently so many people here don’t give a **** about. It is a fundamental principle of our law that states do not have to enforce federal law, and Congress cannot compel them to do so. Those who ignore or flout this principle are far more anti-American than the people they attack.

        On the other hand, while the Supreme Court decided about 100 years after the constitution was written that Congress has plenary power over immigration, that is not to be found anywhere in the constitution. Ilya Somin makes a very good point that originalists should not be supporting any restrictions on immigration, because it’s not in the enumerated powers of Congress. Still, until SCOTUS changes its mind that’s the current state of the law.

          jack burns in reply to Milhouse. | August 7, 2017 at 5:50 pm

          Immigration law is federal law is it not? And enforcing it is the duty of the DOJ. But try and wrap yourself in nobility as you lobby for protecting new Democrats.

          Milhouse in reply to Milhouse. | August 7, 2017 at 7:50 pm

          You contradict yourself. Yes, immigration law is federal law, which is precisely why DOJ has no right to compel cities and states to enforce it.

          The fact that you bring up which political party this allegedly helps proves that you are an unprincipled hypocritical piece of garbage; a person with principles does not change his positions depending on whose ox is gored. If a principle is right when it helps Republicans then it is equally right when it helps Democrats (not that this does), and it is illegitimate to even think about that when deciding whether to support it.

Like the right to life and not have that life snuffed out by illegal immigrants.

Chicago will never be purged of corruption until they wake up and stop voting in people like Rahm-a-lama-ding-dong.


    jack burns in reply to LisaGinNZ. | August 7, 2017 at 6:11 pm

    Its too late for Chicago, its the prototype for all subsequent Democratic illegal voting hatcheries. They’ll fight hard to protect the crown jewel.

#Pillhouse, federal does dot apply to citizens in cities and states? Does it apply in D.C. proper only? I’ll call you id I ever have any overdue parking tickets.

    Milhouse in reply to jack burns. | August 7, 2017 at 8:59 pm

    Idiot, federal law applies everywhere in the USA, and ICE is free to enforce it everywhere in the USA. Who ever suggested otherwise? No state or city claims federal law does not apply there, and no state or city has either the desire or the ability to prevent ICE from enforcing that law. But every state and city has the right not to enforce federal laws, and not to assist in their enforcement. If you deny that you’re betraying everything the USA stands for, and have no right to complain about anything 0bama did to the constitution.

      jack burns in reply to Milhouse. | August 7, 2017 at 10:47 pm

      Hold your water there #pillhouse, I know that enforcing immigration law is a sore spot for you. I won’t even say anything about the keyboard warrior syndrome. A grown man who calls himself “Milhouse”, well what’s left to say after that.

        Ragspierre in reply to jack burns. | August 7, 2017 at 11:09 pm

        Instead of calling Milhouse names and your other ad hominem bullshit, you’d do well to read his stuff carefully and with an open mind.

        I dunno what his positions are on immigration, but he’s solid on the ideas vis state and federal stuff.

        Unless you just intend to be one of the bruins in the turd-swirl here WRT stupid shit about what can really be done to combat sanctuary cities/states.

          jack burns in reply to Ragspierre. | August 7, 2017 at 11:23 pm

          Ignatius! How’re you keeping? I guess the keyboard warrior thing is was got your attention, strong identification with that. Lawyers, who could guess why they’re so popular with folks outside of their “profession”? Here you go sport. Check that blood pressure.

          Q: What do you call a smiling, courteous person at a bar association convention?
          A: The caterer.

          Ragspierre in reply to Ragspierre. | August 7, 2017 at 11:44 pm

          “I guess the keyboard warrior thing is was got your attention…”

          You’re drunk, slurring your words, and an asp troll when sober.

          Go home.

          Or you could act like an adult, sober up, and deal in arguments.

          But I think the cab home is your best choice…

          Sleep it off.

I was under the impression that this grant expires in October. Give them their money through October then change the rules of the Grant application.

Seems simple to me but…I just pretend to be a doctor/attorney on LI!

    Milhouse in reply to Merlin01. | August 8, 2017 at 6:47 pm

    If the plaintiffs are right, and I think they may very well be, the AG can’t make that change, whether now or in October; Congress has to insert it explicitly into the statute, which means the Dems can try to filibuster it.