The City of Chicago, represented at taxpayer expense by the powerhouse law firm WilmerHale, has won a victory against the Justice Department’s efforts to rein in certain federal subsidies in response to the City’s deliberate non-compliance with immigration enforcement.
The U.S. Court of Appeals for the Seventh Circuit, based in Chicago, affirmed a U.S. district court’s imposition of a nationwide injunction preventing Attorney General Jeff Sessions and his Department of Justice from withholding “Bryne Grants” for state and local law enforcement in jurisdictions that adopt so-called “sanctuary” policies.
All three judges on the panel agreed with the district court that Chicago has a reasonable likelihood of prevailing on their argument that withholding funds violate constitutionally mandated separation of powers between Congress and the executive and impermissibly infringes on Chicago’s sovereignty under federalism. All three are Republican appointees.
The majority, Judges William Bauer and Illana Rovner, appointed to the Seventh Circuit by Presidents Gerald Ford and George H.W. Bush, also decided the district court was within its authority to apply their injunction nationwide while the case is pending, throwing Sessions’ anti-sanctuary city agenda into jeopardy. The Chicago case is part of a broader push to demand demonstrated compliance with a federal law, 8 U.S.C. § 1373, blocking interference with federal immigration enforcement before Bryne Grants are distributed.
That strategy is facing legal challenges from liberal sanctuary jurisdictions affected by it throughout the country. The U.S. Court of Appeals for the Ninth Circuit is also hearing a similar case after a district judge in San Francisco issued an injunction similar to the one in Chicago.
A partial dissent by Reagan appointee Judge Daniel Manion agreed with the likelihood of Chicago’s success on the merits, but disputed whether the district judge had the power to impose this injunction nationwide at this time. He wrote:
Other jurisdictions that do not want to comply with the Notice and Access conditions were not parties to this suit, and there is no need to protect them in order to protect Chicago. An injunction, particularly a preliminary injunction, is an extreme remedy. A nationwide preliminary injunction is more extreme still. One should only be issued where it is absolutely necessary, and it is far from absolutely necessary here. Consequently, I would remand with instructions to the district court to modify the injunction so as to prevent the Attorney General from enforcing the conditions only concerning Chicago’s application for funds.
Both opinions went to great lengths to emphasize they were not weighing on matters of immigration policy. The majority, for example, insists:
Our role in this case is not to assess the optimal immigration policies for our country; that is not before us today. Rather, the issue before us strikes at one of the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government—the separation of powers.
The judges’ choice of language, however, indicates a willingness to engage with that very policy debate. Both opinions uncritically accept the legitimacy of the purposes behind Chicago’s “Welcoming City” ordinance which prohibits Chicago law enforcement from responding to certain requests from U.S. Immigration and Customs Enforcement and refuse throughout to refer to illegal aliens as such. Instead of the term found in federal statute, all three judges repeatedly chose to use the City of Chicago and open-borders advocates’ preferred nomenclature of “undocumented persons.”
“The Justice Department believes it exercised its authority, given by Congress, to attach conditions to Byrne JAG grants that promote cooperation with federal immigration authorities when the jurisdiction has an illegal alien who has committed a crime in their custody,” DOJ spokesman Devin O’Malley said in response to the decision, adding:
Nationwide injunctions allow a single federal district judge to set policy by ordering relief outside the scope of the particular case. Many in the legal community have expressed concern that the use of nationwide injunctions is inconsistent with the separation of powers, and that their increased use creates a dangerous precedent. We will continue to fight to carry out the Department’s commitment to the rule of law, protecting public safety, and keeping criminal aliens off the streets to further perpetrate crimes.
Response from immigration reform groups was similarly skeptical. “Today’s ruling is yet another step towards the erosion of federalism and adherence to the Supremacy Clause,” Dale Wilcox, executive director and general counsel of the Immigration Reform Law Institute told Breitbart News. “The result is likely to be a more chaotic nation, where violent crime increases and states can choose which federal laws they want to obey or ignore. This path is dangerous and not in America’s best interests.”
Breitbart News legal editor Ken Klukowski predicted at the outset of this case that it and its sister cases will eventually wind up at the U.S. Supreme Court. The Justice Department is expected to pursue further action, but the path they decide to take to the Supremes is not yet public.
The case is Chicago v. Sessions, No. 17‐2991 in U.S. Court of Appeals for the Seventh Circuit.