Sanctuary cities

States and local governments who have sued the Trump administration over the sanctuary jurisdictions executive order, the adding of conditions to receive Edward Byrne Justice Assistance Grants (Byrne JAG), and providing documentation to prove they comply with 8 U.S.C. 1373 have won all their major claims except one as of June 5.

On June 6 in City of Philadelphia v. Sessions a federal district court became the first to rule that Section 1373 is unconstitutional. This statute prohibits states and local governments from restricting employees from sharing immigration status information with federal immigration officials.

Congress created the Edward Byrne Justice Assistance Grants (Byrne JAG) in 2005 to provide “flexible” funding for state and local police departments. In April 2017 the Department of Justice (DOJ) required Philadelphia (and eight other jurisdictions) to provide documentation that it complies with 8 U.S.C. 1373, which prohibits states and local governments from restricting employees from sharing immigration status information with federal immigration officials.

Philadelphia sued Attorney General Jeff Sessions arguing that the City complies with 8 U.S.C. 1373. A federal district court in Philadelphia agreed and issued a preliminary injunction preventing Sessions from denying the City Byrne JAG grant funding.

Among other things, Sessions objected to a Philadelphia policy of not responding to Immigration and Customs Enforcement (ICE) civil immigration detainer requests asking the City to hold an arrested, undocumented person until ICE can pick them up, unless the request is accompanied by a judicial warrant.

In July the Department of Justice (DOJ) added two new requirements for states and local governments to receive federal Edward Byrne Justice Assistance Grants (Byrne JAG) for law enforcement funding. Chicago, San Francisco, and California have filed lawsuits against Attorney General Jeff Sessions arguing that these new requirements are unlawful. Chicago argues that another requirement added earlier is unlawful as well.    

Congress created Byrne JAG in 2005 to provide “flexible” funding for state and local police departments. In April 2017 DOJ required Chicago (and eight other jurisdictions) to provide documentation that it complies with 8 U.S.C. 1373, which prohibits states and local governments from restricting employees from sharing immigration status information with federal immigration officials.

In July 2017 DOJ added a “notice” and an “access” requirement to receive Byrne JAG funds. Recipients must now (1) provide 48 hours advance notice to the Department of Homeland Security (DHS) regarding the scheduled release of “aliens” and (2) allow access to correctional or detention facilities to meet with “aliens” and inquire about their right to be in the United States.

On the campaign trail President Trump promised to cancel all federal funding to sanctuary cities who do not cooperate with the federal government in enforcing federal immigration law. True to his word, President Trump has signed an executive order stating that sanctuary cities are “not eligible to receive Federal grants,” with some unclear exceptions.   

Whether and when this executive order will lead to cities losing federal funding, and how much, is unknown. New York City mayor Bill de Blasio has vowed to sue the federal government “the minute action to withhold funding” occurs.