New York v. United States Dep't of Justice

19‐267 (L)
New York et al. v. United States Dep’t of Justice et al.
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2018
Nos. 19‐267(L); 19‐275(con)
STATE OF NEW YORK, STATE OF CONNECTICUT, STATE OF NEW JERSEY,
STATE OF WASHINGTON, COMMONWEALTH OF MASSACHUSETTS,
COMMONWEALTH OF VIRGINIA, STATE OF RHODE ISLAND, CITY OF NEW
YORK,
Plaintiffs‐Appellees,
v.
UNITED STATES DEPARTMENT OF JUSTICE, WILLIAM P. BARR, in his
official capacity as Attorney General of the United States,
Defendants‐Appellants.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: JUNE 18, 2019
DECIDED: FEBRUARY 26, 2020
_____
Before: WINTER, CABRANES, and RAGGI, Circuit Judges.
_____
On appeal from a judgment entered in the United States District
Court for the Southern District of New York (Edgardo Ramos, Judge),
which (1) mandates that defendants release withheld 2017 Byrne
Program Criminal Justice Assistance funds to plaintiffs, and (2)
enjoins defendants from imposing certain immigration‐related
conditions on such grants, defendants argue that the district court
erred in holding that the challenged conditions violate the
Administrative Procedure Act and the United States Constitution.
REVERSED AND REMANDED.
______________
BRAD HINSHELWOOD (Mark B. Stern, Daniel Tenny, on the
brief) for JOSEPH H. HUNT, ASSISTANT ATTORNEY GENERAL,
Appellate Staff, Civil Division, United States Department
of Justice, Washington, D.C., for Defendants‐Appellants.
ANISHA S. DASGUPTA, for LETITIA JAMES, ATTORNEY
GENERAL OF THE STATE OF NEW YORK, New York, New
York (Barbara D. Underwood, Eric R. Haren, Linda Fang,
New York State Office of the Attorney General, New
York, New York; Mark Francis Kohler, Michael Skold, for
William Tong, Attorney General of the State of
Connecticut, Hartford, Connecticut; Jeremy
Feigenbaum, for Gurbir S. Grewal, Attorney General of
the State of New Jersey, Trenton, New Jersey; Luke
Alexander Eaton, for Robert W. Ferguson, Attorney
General of the State of Washington, Olympia,
Washington; David Urena for Maura Healey, Attorney
General of the Commonwealth of Massachusetts, Boston,
Massachusetts; Victoria Pearson, for Mark R. Herring,
2
Attorney General of the Commonwealth of Virginia,
Richmond, Virginia; Michael W. Field, for Peter F.
Neronha, Attorney General of the State of Rhode Island,
Providence, Rhode Island, on the brief) for Plaintiffs‐
Appellees the States of New York, Connecticut, New
Jersey, Washington, Rhode Island, and the
Commonwealths of Massachusetts and Virginia.
Jamison Davies, Richard Dearing, Devin Slack, for
Zachary W. Carter, Corporation Counsel of the City of
New York, New York, New York for Plaintiff‐Appellee the
City of New York.
Adam Lurie, Caitlin Potratz Metcalf, Linklaters LLP,
Washington, D.C., Counsel for Amicus Curiae American
Jewish Committee.
SPENCER E. AMDUR, Lee Gelernt, Omar C. Jadwat,
American Civil Liberties Union Foundation, New York,
New York; Christopher Dunn, New York Civil Liberties
Union, New York, New York; Mark Fleming, Heartland
Alliance, Chicago, Illinois; Cody H. Wofsy, American
Civil Liberties Union of California Immigrants’ Rights
Project, San Francisco, California; Counsel for Amici
Curiae American Civil Liberties Union, New York Civil
Liberties Union, National Immigrant Justice Center,
National Immigration Law Center, Immigrant Legal
Resource Center, Asian Americans Advancing Justice—
Asian Law Caucus, Washington Defender Association,
and the New Orleans Workers’ Center for Racial Justice.
3
REENA RAGGI, Circuit Judge:
INTRODUCTION
The principal legal question presented in this appeal is whether
the federal government may deny grants of money to State and local
governments that would be eligible for such awards but for their
refusal to comply with three immigration‐related conditions imposed
by the Attorney General of the United States. Those conditions
require grant applicants to certify that they will (1) comply with
federal law prohibiting any restrictions on the communication of
citizenship and alien status information with federal immigration
authorities, see 8 U.S.C. § 1373; (2) provide federal authorities, upon
request, with the release dates of incarcerated illegal aliens; and (3)
afford federal immigration officers access to incarcerated illegal
aliens.
The case implicates several of the most divisive issues
confronting our country and, consequently, filling daily news
headlines: national immigration policy, the enforcement of
immigration laws, the status of illegal aliens in this country, and the
ability of States and localities to adopt policies on such matters
contrary to, or at odds with, those of the federal government.
Intertwined with these issues is a foundational legal question:
how, if at all, should federal, State, and local governments coordinate
in carrying out the nation’s immigration policy? There is also a
corollary question: to what extent may States and localities seeking
federal grant money to facilitate the enforcement of their own laws
4
adopt policies to extricate themselves from, hinder, or even frustrate
the enforcement of federal immigration laws?
At its core, this appeal presents questions of statutory
construction. In proceedings below, the United States District Court
for the Southern District of New York (Edgardo Ramos, Judge)
determined that the Attorney General was not statutorily authorized
to impose the challenged conditions and, therefore, enjoined their
application. See New York v. Dep’t of Justice, 343 F. Supp. 3d 213
(S.D.N.Y. 2018). The thoughtful opinion of the district court requires
us to examine the authorization question in detail. For reasons
explained in this opinion, we conclude that the plain language of the
relevant statutes authorizes the Attorney General to impose the
challenged conditions.
In concluding otherwise, the district court relied on, among
other things, an opinion of the Seventh Circuit in City of Chicago v.
Sessions, 888 F.3d 272 (7th Cir. 2018). While mindful of the respect
owed to our sister circuits, we cannot agree that the federal
government must be enjoined from imposing the challenged
conditions on the federal grants here at issue. These conditions help
the federal government enforce national immigration laws and
policies supported by successive Democratic and Republican
administrations. But more to the authorization point, they ensure that
applicants satisfy particular statutory grant requirements imposed by
Congress and subject to Attorney General oversight.
Nor can we agree with the district court that the challenged
conditions impermissibly intrude on powers reserved to the States.
5
See U.S. CONST. Amend. X. As the Supreme Court has repeatedly
observed, in the realm of immigration policy, it is the federal
government that maintains “broad,” Arizona v. United States, 567 U.S.
387, 394 (2012), and “preeminent,” power, Toll v. Moreno, 458 U.S. 1,
10 (1982), which is codified in an “extensive and complex” statutory
scheme, Arizona v. United States, 567 U.S. at 395. Thus, at the same
time that the Supreme Court has acknowledged States’
“understandable frustrations with the problems caused by illegal
immigration,” it has made clear that a “State may not pursue policies
that undermine federal law.” Id. at 416. As Chief Justice John
Marshall wrote over 200 years ago, “the states have no power, by
taxation or otherwise, to retard, impede, burden, or in any manner
control, the operations of the constitutional laws enacted by congress
to carry into execution the powers vested in the general government.”
McCulloch v. Maryland, 17 U.S. 316, 436 (1819). This fundamental
principle, a bedrock of our federalism, is no less applicable today.
Indeed, it pertains with particular force when, as here, Congress acts
pursuant to its power under the Spending Clause. See U.S. CONST.
art. I, § 8.
BACKGROUND
Invoking this court’s interlocutory jurisdiction pursuant to 28
U.S.C. § 1292(a)(1), defendants the United States Department of
Justice and the Attorney General of the United States (hereinafter,
collectively, “DOJ”) appeal from an award of partial summary
judgment entered on November 30, 2018. See New York v. Dep’t of
Justice, 343 F. Supp. 3d 213 (S.D.N.Y. 2018). That judgment grants
6
plaintiffs, the States of New York, Connecticut, New Jersey, Rhode
Island, and Washington, the Commonwealths of Massachusetts and
Virginia (hereinafter, collectively, the “States”), and the City of New
York (the “City”), injunctive relief from three immigration‐related
conditions imposed by DOJ on the receipt of 2017 Byrne Program
Criminal Justice Assistance grants (“Byrne grants”). Those conditions
required 2017 Byrne grant applicants (1) to certify their willingness to
comply with 8 U.S.C. § 1373, which law precludes government
entities and officials from prohibiting or restricting the sharing of
citizenship or alien‐status information with federal immigration
authorities (the “Certification Condition”); (2) to provide assurance
that, upon written request of federal immigration authorities, grant
recipients would provide notice of an incarcerated alien’s scheduled
release date (the “Notice Condition”); and (3) to certify that grant
recipients would afford federal authorities access to State‐
incarcerated suspected aliens in order for those authorities to
determine the aliens’ right to remain in the United States (the “Access
Condition”).1 The district court’s judgment not only enjoins DOJ from
enforcing these three requirements as to any of plaintiffs’ 2017 Byrne
grants (which DOJ has otherwise awarded), but also mandates that
DOJ release the withheld 2017 funds to plaintiffs without regard to
the challenged conditions. See id. at 245–46; App. at 45 (modifying
mandate).
1 Defendants have imposed still further conditions on 2018 Byrne grants, which
plaintiffs also challenge before the district court. Because no judgment has yet
been entered on that part of plaintiffs’ case, we do not address plaintiffs’ challenge
to those conditions on this appeal.
7
Three of our sister circuits have now upheld injunctions
precluding enforcement of some or all of the challenged conditions as
to other jurisdictions applying for Byrne grants. See City of Los Angeles
v. Barr, 941 F.3d 931 (9th Cir. 2019) (ruling as to Notice and Access
Conditions); City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir.
2019) (ruling as to all three conditions); City of Chicago v. Sessions, 888
F.3d 272 (7th Cir. 2018) (ruling as to Notice and Access Conditions),
reh’g en banc granted in part, opinion vacated in part, No. 17‐2991, 2018
WL 4268817 (7th Cir. June 4, 2018) (vacating nation‐wide injunction),
reh’g grant vacated, No. 17‐2991, 2018 WL 4268814 (7th Cir. Aug. 10,
2018). The district court relied on the Seventh Circuit decision in
entering the challenged judgment, see New York v. Dep’t of Justice, 343
F. Supp. 3d at 226–45; the later Third and Ninth Circuit decisions were
not then available to it.
In urging reversal, DOJ argues that the district court erred in
holding that the challenged conditions violate the Administrative
Procedure Act (“APA”), 5 U.S.C. § 551 et seq., and the Constitution.
As to the APA, DOJ faults the district court for holding that (1) the
Attorney General (and his designee, the Assistant Attorney General
(“AAG”)) lacked the requisite statutory authority to impose the
challenged conditions; and (2) the conditions are, in any event,
arbitrary and capricious because DOJ failed to consider their negative
ramifications for applicants. As to the Constitution, DOJ argues that
(1) the district court having found the conditions invalid under the
APA, there was no need for it to consider their constitutionality; and
(2) the challenged conditions do not raise either the separation‐of‐
powers or Tenth Amendment concerns identified by the district court.
8
For reasons explained herein, we conclude that the challenged
conditions do not violate either the APA or the Constitution. We
therefore reverse the challenged judgment in favor of plaintiffs and
remand the case to the district court for further proceedings consistent
with this opinion.
I. The Byrne Justice Assistance Grant Program
The Edward Byrne Memorial Justice Assistance Grant Program
(“Byrne Program”), codified at 34 U.S.C. §§ 10151–10158, is the
vehicle through which Congress annually provides more than $250
million in federal funding for State and local criminal justice efforts.2
The Byrne Program was created in 2006 as part of the Violence
Against Women and Department of Justice Reauthorization Act of
2005, Pub. L. No. 109‐162, § 1111, 119 Stat. 2960, 3094 (2006). That Act
amended provisions of the Omnibus Crime Control and Safe Streets
Act of 1968, Pub. L. No. 90‐351, tit. I, 82 Stat. 197, which itself had
2The Byrne Program is named for New York City Police Officer Edward Byrne
who, at age 22, was shot to death while guarding the home of a Guyanese
immigrant cooperating with authorities investigating drug trafficking. The case is
well known in this circuit, where five persons were convicted in the Eastern
District of New York for their roles in Byrne’s murder. Among these was Howard
“Pappy” Mason, a drug dealer who, from his New York State prison cell, ordered
subordinates to kill a police officer in retaliation for Mason’s own incarceration.
See Joseph P. Fried, Officer Guarding Drug Witness Is Slain, N.Y. Times, Feb. 27, 1988,
at A1, 34; Leonard Buder, Trial Is By a Defendant In Police Slaying, N.Y. Times, Nov.
29, 1989, at B5.
9
provided federal funding for State and local law enforcement
initiatives.
The Byrne Program is a formula grant program, i.e., Congress
appropriates a fixed amount of funding for the program and specifies
“how the funds will be allocated among the eligible recipients, as well
as the method by which an applicant must demonstrate its eligibility
for that funding.” Office of Justice Programs, Grant Process Overview.3
The Byrne Program’s statutory formula awards the States 50% of
allocated funds based on their relative populations, see 34 U.S.C.
§ 10156(a)(1)(A), and the other 50% based on their relative rates of
violent crime, see id. § 10156(a)(1)(B). The formula further provides
that, of total Byrne funds awarded to a State, the State itself keeps
60%, with the remaining 40% percent allocated to local governments
within the State. See id. § 10156(b).
Congress affords States and localities wide discretion in using
Byrne grants. While awarded funds cannot substitute for a state’s
own expenditures, see id. § 10153(a)(1), Byrne grants may be used to
support such diverse needs as “additional personnel, equipment,
supplies, contractual support, training, technical assistance, and
information systems,” pertaining to a broad range of criminal justice
initiatives:
(A) Law enforcement programs. (B) Prosecution and
court programs. (C) Prevention and education
programs. (D) Corrections and community corrections
3 Available at http://go.usa.gov/xPmkA (last visited Feb. 24, 2020).
10
programs. (E) Drug treatment and enforcement
programs. (F) Planning, evaluation, and technology
improvement programs. (G) Crime victim and witness
programs (other than compensation). (H) Mental health
programs and related law enforcement and corrections
programs, including behavioral programs and crisis
intervention teams,
id. § 10152(a). As Congress has explained, its intent was thus to afford
States and localities the “flexibility to spend money for programs that
work for them rather than to impose a ‘one‐size fits all’ solution.”
H.R. REP. NO. 109‐233, at 89 (2005), as reprinted in 2005 U.S.C.C.A.N.
1636, 1640.
Plaintiffs have received Byrne grants each year since that
program’s inception. They have used these grants for a variety of
purposes, including, but not limited to, supporting various
investigative task forces, funding both prosecutors’ and public
defenders’ offices, paying 911 operators, improving their criminal
records systems and forensic laboratories, identifying and mentoring
criminally at‐risk youth and young adults, operating drug courts and
diversion programs for nonviolent felony offenders, mitigating gang
violence in prison, and funding prisoner re‐entry services.
While the Byrne fund‐distribution formula is statutorily
mandated, and while Byrne applicants can use such funds for almost
any law‐enforcement‐related purpose, no State or locality is
automatically entitled to receive a Byrne grant. Rather, a jurisdiction
seeking Byrne funding must submit an application satisfying a host
of statutory requirements. For example, a jurisdiction is statutorily
11
required to make its Byrne Program application public and to afford
an opportunity for public comment before submitting its final
application to the Attorney General. See 34 U.S.C. § 10153(a)(3)(A)–
(B). Also, a Byrne grant application must include a “comprehensive
Statewide plan” detailing, as specified in § 10153(a)(6)(A)–(E), how
awarded grants will be used to improve the jurisdiction’s criminal
justice system. A Byrne grant applicant must satisfy these, and all
other statutory requirements, “in such form as the Attorney General
may require,” id. § 10153(a), and subject to such “rules” as the
Attorney General “shall issue” to carry out the program, id. § 10155.4
Three statutory requirements for Byrne grants are particularly
relevant to this appeal. First, an applicant must certify that it “will
comply with all provisions of this part [i.e., part of chapter pertaining
to Byrne Program] and all other applicable Federal laws.” Id.
§ 10153(a)(5)(D). Second, an applicant must provide assurance that it
“shall maintain and report such data, records, and information
(programmatic and financial) as the Attorney General may
reasonably require.” Id. § 10153(a)(4). Third, an applicant must certify
4 The APA defines the term “rule” broadly to mean “the whole or a part of an
agency statement of general or particular applicability and future effect designed
to implement, interpret, or prescribe law or policy or describing organization,
procedure, or practice requirements of an agency . . . .” 5 U.S.C. § 551(4); see Safari
Club Int’l v. Zinke, 878 F.3d 316, 332 (D.C. Cir. 2017) (recognizing that APA defines
“rule” “very broadly” (internal quotation marks omitted)). At the same time, the
APA exempts rules pertaining to grants from the notice‐and‐comment procedures
generally attending federal rule‐making. See 5 U.S.C. § 553(a)(2); City of Los Angeles
v. McLaughlin, 865 F.2d 1084, 1087 (9th Cir. 1989); cf. Richard B. Cappalli, Rights
and Remedies Under Federal Grants 247 (1979) (observing that “a significant number
of formula [grant] programs contain no mention of Due Process rights”).
12
that “there has been appropriate coordination with affected
agencies.” Id. § 10153(a)(5)(C).
The Attorney General’s authority to disapprove Byrne
applications not satisfying the program’s statutory requirements is
implicit in the statutory provision tempering that authority with a
required opportunity for correction: the Attorney General “shall not
finally disapprove” a deficient application “without first affording
the applicant reasonable notice of any deficiencies in the application
and opportunity for correction and reconsideration.” Id. § 10154. The
authority to deny funds is further evident in Congress’s instruction as
to how appropriated funds are to be distributed if the Attorney
General determines “that a State will be unable to qualify or receive
[Byrne Program] funds”: that State’s allocation under the statutory
formula “shall be awarded by the Attorney General to units of local
government, or combinations thereof, within such State,” giving
priority to those with the highest reported number of violent crimes.
Id. § 10156(f). Such denial authority is, moreover, consistent with the
discretion Congress has afforded the Attorney General to waive
certain statutory program requirements, see id. § 10152(c)(2), and to
develop “guidelines” for the statutorily required “program
assessment component” of every Byrne grant that is awarded, id.
§ 10152(c)(1).
The Attorney General is statutorily authorized to delegate the
“powers and functions” thus vested in him by Title 34 to the AAG
responsible for DOJ’s Office of Justice Programs, which office now
administers the Byrne Program. Id. § 10102(a)(6). Congress has made
13
plain that the powers and functions that may be so delegated
“includ[e] placing special conditions on all grants, and determining
priority purposes for formula grants.” Id.
II. The Challenged Immigration‐Related Conditions
In soliciting 2017 applications for Byrne Program grants, then‐
Attorney General Jefferson B. Sessions III, on July 25, 2017, announced
the three immigration‐related conditions at issue in this case.
First, the Certification Condition requires a Byrne grant applicant
to execute a “Certification of Compliance with 8 U.S.C. § 1373.” App.
at 288, ¶¶ 52–53. That statute, which the Attorney General identified
as an “applicable Federal law” for purposes of the certification
requirement of 34 U.S.C. § 10153(a)(5)(D), see supra at 12, states, in
pertinent part, as follows:
Notwithstanding any other provision of Federal, State, or
local law, a Federal, State, or local government entity or
official may not prohibit, or in any way restrict, any
government entity or official from sending to, or
receiving from, the Immigration and Naturalization
Service5 information regarding the citizenship or
immigration status, lawful or unlawful, of any
individual.
5The Immigration and Naturalization Service, which had been a part of DOJ, see 8
U.S.C. § 1101(a)(34), was disbanded in 2002, see 6 U.S.C. § 291, and its duties
divided among three services operating within the new cabinet‐level Department
of Homeland Security: the United States Citizenship and Immigration Service, the
Immigration and Customs Enforcement Service, and the Customs and Border
Protection Service, see id. §§ 111, 211, 251–52, 271.
14
18 U.S.C. § 1373(a). The Certification Condition thus requires that,
with respect to the “program or activity” funded in
whole or part under this award (including any such
“program or activity” of any subrecipient at any tier),
throughout the period of performance for the award, no
State or local government entity, ‐agency, or ‐official may
prohibit or in any way restrict—(1) any government
entity or ‐official from sending or receiving information
regarding citizenship or immigration status as described
in 8 U.S.C. § 1373(a); or (2) a government entity or
‐agency from sending, requesting or receiving,
maintaining, or exchanging information regarding
immigration status as described in 8 U.S.C. § 1373(b).
App. at 288–89, ¶¶ 52–53.
Second, the Notice Condition requires Byrne grant recipients to
have in place throughout the grant period a law, rule, or policy for
informing federal authorities, upon request, of the scheduled release
date of an alien in the recipient’s custody. It states that,
as of the date the recipient accepts [a Byrne] award, and
throughout the remainder of the period of performance
for the award—
...
A State statute, or a State rule, ‐regulation, ‐policy, or
‐practice, must be in place that is designed to ensure that,
when a State (or State‐contracted) correctional facility
receives from DHS a formal written request authorized
by the Immigration and Nationality Act that seeks
advance notice of the scheduled release date and time for
a particular alien in such facility, then such facility will
15
honor such request and—as early as practicable . . .—
provide the requested notice to DHS.
Id. at 291, ¶ 55(1)(B).
Finally, the Access Condition requires grant recipients to have a
law, rule, or policy in place allowing federal authorities to meet with
incarcerated aliens in order to inquire about their rights to remain in
the United States. It states that,
as of the date the recipient accepts [a Byrne] award, and
throughout the remainder of the period of performance
for the award—
...
A State statute, or a State rule, ‐regulation, ‐policy, or
‐practice, must be in place that is designed to ensure that
agents of the United States acting under color of federal
law . . . are given . . . access [to] any State (or State‐
contracted) correctional facility for the purpose of
permitting such agents to meet with individuals who are
(or are believed by such agents to be) aliens and to
inquire as to such individuals’ rights to be or remain in
the United States.
Id. at 291, ¶ 55(1)(A).
In announcing these conditions, Attorney General Sessions
stated an intent to “increase information sharing between federal,
state, and local law enforcement, ensuring that federal immigration
authorities have the information they need to enforce immigration
laws and keep our communities safe.” Press Release, Attorney
General Sessions Announces Immigration Compliance Requirements
16
for Edward Byrne Memorial Justice Assistance Programs (July 25,
2017).6 The Attorney General was specifically critical of “[s]o‐called
‘sanctuary’ policies [that] make all of us less safe because they
intentionally undermine our laws and protect illegal aliens who have
committed crimes.” Id. He stated that DOJ needed to “encourage
these ‘sanctuary’ jurisdictions to change their policies and partner
with federal law enforcement to remove [alien] criminals.” Thus,
“[f]rom now on,” DOJ would “only provide Byrne JAG grants to cities
and states that comply with federal law, allow federal immigration
access to detention facilities, and provide 48 hours[’] notice before
they release an illegal alien wanted by federal authorities.” Id.7
III. Title 8 U.S.C. § 1373
Because an understanding of how 8 U.S.C. § 1373 became the
focus of the Certification Condition is useful to a consideration of
plaintiffs’ challenge to that condition, we set forth that history here.
Section 1373 was enacted in 1996, when Congress took notice
that certain states and localities were restricting their officials’
cooperation with federal immigration authorities. See generally H.R.
REP. NO. 104‐725, at 391 (1996) (Conf. Rep.), as reprinted in 1996
U.S.C.C.A.N. 2649, 2779 (noting that various state statutes and local
6 Available at https://www.justice.gov/opa/pr/attorney‐general‐sessions‐
announces‐immigration‐compliance‐requirements‐edward‐byrne‐memorial.
7As indicated in the text quoted supra at 15–16, the actual Notice Condition sets
no firm 48‐hour deadline but, rather, requires notification “as early as practicable.”
17
laws prevent disclosure of individuals’ immigration status to federal
officials).8
Members of the Senate Judiciary Committee voiced particular
concern with granting federal funds to “State and local governments
passing ordinances and rules which prohibit State and local agencies
from cooperating or communicating with INS.” See The Impact of
Immigration on the United States and Proposals to Reform U.S.
Immigration Laws: Hearing Before the Subcomm. on Immigration and
Refugee Affairs of the Comm. on the Judiciary, 103d Cong. 45 (1994)
[hereinafter Immigration Reform Hearings] (statement of Sen. Simpson,
R. Wyo. (“I believe cooperation has to be [a] condition[] for any
Federal reimbursement. In other words, you are not going to get
bucks from the Federal Government if the local governments can’t
communicate with the INS about illegal immigration and those who
are involved in it.”)); see also id. at 26 (statement of Sen. Feinstein, D.
8This conference report specifically pertains to 8 U.S.C. § 1644, a provision of the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L.
104‐193), which states that, “notwithstanding any other provision of Federal, State,
or local law, no State or local government entity may be prohibited, or in any way
restricted, from sending to or receiving from the Immigration and Naturalization
Service information regarding the immigration status, lawful or unlawful, of an
alien in the United States.” As this court has recognized, § 1373, enacted a month
after § 1644 as part of the Immigration Reform Act, “expands” on the earlier statute
insofar as it provides generally that no Federal, State, or local government entity
may restrict another government entity from sending to, or receiving from INS,
any immigration status information. See City of New York v. United States, 179 F.3d
29, 32 (2d Cir. 1999) (rejecting constitutional challenge to both laws). Thus, the
conference report pertaining to § 1644 is relevant to § 1373.
18
Cal. (signaling that she would not support providing immigration
“impact aid” to “States and local governments that declined to
cooperate in enforcement of [federal immigration] laws”));9 id.
(statement of Committee Chairman Sen. Kennedy, D. Mass.
(acknowledging concerns of some mayors that cooperation with
federal immigration authorities could be counterproductive to local
law enforcement efforts, and observing that federal aid had to be
provided “in ways that are going to get the[ir immigration]
cooperation but also, . . . [allow them] to deal with . . . violence and
gangs and drug problems and the rest. We are looking for balance
. . . .”)).
In its report accompanying the proposed legislation that
would become § 1373, the Senate Judiciary Committee expressly
recognized that the “acquisition, maintenance, and exchange of
9 Senator Feinstein’s comment was made in signaling agreement with a
recommendation of the Commission on Immigration Reform, a body created by
Congress in 1990 to “evaluate the impact of” changes in federal immigration law.
The relevant exchange is as follows:
Commissioner Teitelbaum: There is a further condition [on
recommended immigration impact aid] that was unanimously
supported by the Commission . . . [and] it should be highlighted,
and that is a requirement for cooperation by State and local
governments with Federal authorities to enforce the immigration
laws of the United States. I don’t think the Commission would
support the notion of impact aid for States and local governments
that declined to cooperate in enforcement of such laws.
Senator Feinstein: Nor would I, sir, so I agree with you.
Immigration Reform Hearings, 103d Cong. at 26.
19
immigration‐related information by State and local agencies is
consistent with, and potentially of considerable assistance to, the
Federal regulation of immigration and the achieving of the purposes
and objectives of the Immigration and Nationality Act.” S. REP. NO.
104‐249, at 19–20 (1996) (quoted in City of New York v. United States,
179 F.3d at 32–33). Thus, in enacting § 1373, as in enacting § 1644,
Congress sought “to give State and local officials the authority to
communicate with [federal immigration authorities] regarding the
presence, whereabouts, or activities of illegal aliens,”
notwithstanding any local laws to the contrary. H.R. REP. NO. 104‐
725, at 383 (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. at 2771
(quoted in City of New York v. United States, 179 F.3d at 32).
In the twenty years that followed, political debates over federal
immigration policies grew more contentious, and the number of State
and local jurisdictions limiting official cooperation with federal
immigration authorities increased. In February 2016, Representative
John Culberson (R. Tex.), then the Chairman of the House
Appropriations Subcommittee on Commerce, Justice, Science, and
Related Agencies, forwarded to Attorney General Loretta E. Lynch a
report by the Center for Immigration Studies, which concluded that
“over 300 ‘sanctuary’ jurisdictions [were] refus[ing] to comply with
[federal immigration] detainers or [were] otherwise imped[ing]
information sharing with federal immigration officials.” App. at
20
134.10 Representative Culberson asked the Attorney General to
investigate whether DOJ “grant recipients were complying with
federal law, particularly . . . § 1373.” Id. (emphasis added).
The ensuing investigation was conducted by DOJ’s Inspector
General (“IG”) who, in May 2016, reported a significant, decade‐long
decline in state and local cooperation with federal immigration
authorities. He reported that a 2007 congressionally mandated IG
audit of seven jurisdictions then receiving federal funds pursuant to
the State Criminal Alien Assistance Program (“SCAAP”) revealed
that all but one (San Francisco) were accepting federal detainers and
providing federal authorities with timely notice of aliens’ release
dates. See App. at 134–35 n.1. By contrast, the IG’s 2016 examination
of ten jurisdictions receiving a combined 63% of relevant DOJ grants,11
10An immigration detainer is the instrument by which federal authorities formally
“advise another law enforcement agency that [they] seek[] custody of an alien
presently in the custody of that agency, for the purpose of arresting and removing
the alien.” 8 C.F.R. § 287.7(a). Supported by an administrative warrant issued on
a showing of probable cause, the detainer generally requests the agency then
having custody of the alien to provide federal authorities with advance notice of
the alien’s intended release date or to detain the alien for a brief time to allow
federal authorities to assume custody. See U.S. Immigration and Customs Enf’t,
Fiscal Year 2017 ICE Enforcement and Removal Operations Report 7–8 (2017); see also
Hernandez v. United States, 939 F.3d 191, 200 (2d Cir. 2019).
11The IG reviewed ten jurisdictions receiving federal grants administered by the
DOJ’s Office of Justice Programs (e.g., Byrne Program grants) and/or the DOJ’s
Office of Violence Against Women: “the States of Connecticut and California; City
of Chicago, Illinois; Clark County, Nevada; Cook County, Illinois; Miami‐Dade
21
revealed that “all . . . had ordinances or policies that placed limits on
cooperation” with federal immigration authorities. Id.; see id. at 137,
145–49 (detailing limitations found).12 The IG observed that insofar
County, Florida; Milwaukee County, Wisconsin; Orleans Parish, Louisiana; New
York, New York; and Philadelphia, Pennsylvania.” App. at 136.
12To illustrate with some examples, the IG reported that Cook County, Illinois
(Chicago), prohibited its on‐duty employees from communicating with federal
immigration authorities “regarding individuals’ incarceration status or release
dates.” Id. at 140 (internal quotation marks omitted). Similarly, Orleans Parish,
Louisiana (New Orleans) prohibited its officials from “provid[ing] information on
an inmate’s release date” to federal authorities. Id. By executive order,
Philadelphia employees were prohibited from providing federal authorities with
release date information about the subject of an immigration detainer unless that
person was incarcerated “for a first or second degree felony involving violence
and the detainer is supported by a judicial warrant,” and not merely an
administrative one. Id. at 141 (internal quotation marks omitted).
New York City appears to have placed restrictions on its employees’ cooperation
with federal immigration authorities as early as 1989. See City of New York v. United
States, 179 F.3d at 31 (discussing 1989 executive order prohibiting city officials or
employees from communicating individual’s immigration status to federal
authorities unless (1) required to do so by law, (2) expressly authorized to do so
by alien, or (3) alien is suspected of criminal behavior). Then, in a 2003 Executive
Order, the City established a “General Confidentiality Policy” summarized by the
district court as follows:
City employees may not disclose an individual’s immigration
status, except in limited circumstances, such as when the disclosure
is authorized by the individual, is required by law, is to another
City employee as necessary to fulfill a governmental purpose,
pertains to an individual suspected of illegal activity (other than
mere status as an undocumented immigrant), or is necessary to
investigate or apprehend persons suspected of terrorist or illegal
activity (other than mere documented status). Additionally, police
22
as these limitations “may be causing local officials to believe and
apply the[se] policies in a manner that prohibits or restricts
cooperation with [federal immigration officials] in all respects,” that
would be “inconsistent with and prohibited by Section 1373.” Id. at
141. Thus, “to the extent [DOJ]’s focus is on ensuring that grant
applicants comply with Section 1373,” the IG stated that it could
consider taking “several steps,” including (1) clarifying that § 1373 “is
an ‘applicable federal law’” that DOJ grant recipients “would be
expected to comply with in order to satisfy relevant grant rules and
regulations”; and (2) “[r]equir[ing] grant applicants to provide
certifications specifying the applicants’ compliance with Section 1373,
along with documentation sufficient to support the certification.” Id.
at 142.
Following this IG report, in July 2016, DOJ, then still headed by
Attorney General Lynch, specifically identified § 1373 as “an
officers may not inquire about a person’s immigration status unless
investigating illegal activity other than mere undocumented status,
and may not inquire about the immigration status of crime victims
or witnesses at all. Other city employees may not inquire about any
person’s immigration status unless the inquiry is required by law
or is necessary to determine eligibility for or to provide government
services.
New York v. Dep’t of Justice, 343 F. Supp. 3d at 223 (citations omitted). The IG
reported that by law enacted in November 2014, New York City further prohibited
its Corrections personnel from communicating inmate release dates to federal
immigration authorities unless the inmate is subject to a detainer supported by a
judicial warrant. See App. at 141.
23
applicable federal law” for purposes of both Byrne and SCAAP grants
and began providing applicants and recipients with guidance as to
the requirements of that statute. That guidance explained that § 1373
imposed no affirmative obligation on States and localities but, rather,
prohibited such entities from taking actions to restrict the exchange of
immigration information with federal authorities.13 For some
jurisdictions identified by the IG, notably plaintiff New York City,
DOJ conditioned the continuance of their 2016 Byrne grants on the
submission of documentation validating their compliance with
§ 1373.14
13 In that respect, DOJ stated,
Section 1373 does not impose on states and localities the affirmative
obligation to collect information from private individuals
regarding their immigration status, nor does it require that states
and localities take specific actions upon obtaining such
information. Rather, the statute prohibits government entities and
officials from taking action to prohibit or in any way restrict the
maintenance or intergovernmental exchange of such information,
including through written or unwritten policies or practices.
App. at 151 (internal quotation marks omitted).
14The validation requirement imposed by DOJ on New York City’s 2016 Byrne
grant stated as follows:
The recipient agrees to undertake a review to validate its
compliance with 8 U.S.C. § 1373. If the recipient determines that it
is in compliance with 8 U.S.C. § 1373 at the time of review, then it
must submit documentation that contains a validation to that effect
and includes an official legal opinion from counsel (including
related legal analysis) adequately supporting the validation. If the
24
In October 2016, DOJ published further guidance stating that
henceforth, “all” Byrne grant applicants “must certify compliance
with all applicable federal laws, including Section 1373.” App. at 182.
Grant applicants were advised “to examine their policies and
procedures to ensure they will be able to submit the required
assurances” in their 2017 applications. Id. at 183.
Thus, when in July 2017, a new Attorney General, serving a
new, Republican administration, announced that applicants for 2017
Byrne grants would have to certify their compliance with § 1373, he
was putting into effect the same condition earlier announced by DOJ
under the preceding, Democratic administration.
recipient determines that it is not in compliance with 8 U.S.C. § 1373
at the time of review, then it must take sufficient and effective steps
to bring it into compliance therewith and thereafter submit
documentation that details the steps taken, contains a validation
that the recipient has come into compliance, and includes an official
legal opinion from counsel (including related legal analysis)
adequately supporting the validation. Documentation must be
submitted . . . by June 30, 2017. Failure to comply with this
condition could result in the withholding of grant funds,
suspension or termination of the grant, ineligibility for future
[grants], or other administrative, civil, or criminal penalties as
appropriate.
App. at 170, ¶ 53. By letter dated June 27, 2017, the City stated that
“[n]otwithstanding [its] position that § 1373 is not an applicable federal law . . . the
City certifies that its laws and policies comply with and operate within the
constitutional bounds of § 1373.” 2016 Compliance Validation at 2, New York v.
Dep’t of Justice, 343 F. Supp. 3d 213 (No. 18‐cv‐6474), ECF No. 41‐1.
25
IV. Plaintiffs’ 2017 Byrne Grant Awards
On June 26, 2018, DOJ applied the Byrne Program formula to
award the plaintiff States Byrne grants totaling $25 million—subject
to their acceptance of the three immigration‐related conditions at
issue. As to New York City, DOJ reiterated, in both October 2017 and
January 2018, the concerns it had first expressed in 2016, i.e., that
certain of the City’s laws or policies appeared to violate § 1373, which
could render it ineligible for Byrne grants. See supra at n.14.
In response to these DOJ actions, the plaintiff States and City
filed the instant related actions, challenging, inter alia, the
Certification, Notice, and Access Conditions for 2017 Byrne grants as
violative of both the APA and the Constitution.
V. The Award of Summary Judgment to Plaintiffs
On the parties’ cross motions for summary judgment, the
district court granted partial judgment to plaintiffs, enjoining the
enforcement of the challenged conditions as to them and mandating
the release of 2017 Byrne grant funds to plaintiffs.
In so ruling, the district court held that the challenged
conditions violated the APA in two respects: (1) the Attorney General
lacked the statutory authority to impose the conditions, see New York
v. Dep’t of Justice, 343 F. Supp. 3d at 22731; and (2) defendants’ failure
to consider the conditions’ potential negative ramifications for
plaintiffs’ law enforcement efforts rendered the conditions arbitrary
and capricious, see id. at 23841.
26
While the district court could have stopped there, it proceeded
also to rule on certain of plaintiffs’ constitutional challenges. As to
§ 1373 in particular, the district court ruled that DOJ could not
identify it as an “applicable law” requiring compliance certification
under 34 U.S.C. § 10153(a)(5)(D) because, on its face, § 1373 violates
the anticommandeering principle of the Tenth Amendment to the
Constitution. See id. at 23137. Further, the district court concluded
that, in the absence of statutory authority for the Attorney General to
impose the challenged conditions, all three violated the separation of
legislative and executive powers mandated by Articles I and II of the
Constitution. See id. at 238.
Defendants timely appealed.
DISCUSSION
We review an award of summary judgment de novo, construing
the record in the light most favorable to the non‐moving party. See,
e.g., Bentley v. Autozoners, 935 F.3d 76, 85 (2d Cir. 2019). We will
uphold such an award only if there is no genuine dispute as to any
material fact, and the movant is entitled to judgment as a matter of
law. See id.
I. Statutory Authorization To Impose the Challenged
Conditions
Except when acting pursuant to powers expressly conferred on
the Executive Branch by the Constitution—which are not asserted
here—an executive department or agency “literally has no power to
act . . . unless and until Congress confers power upon it.” Louisiana
27
Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). Thus, the APA
requires that executive action taken in the absence of statutory
authority be declared invalid. See 5 U.S.C. § 706(2)(C).15 When the
challenged action is not only unauthorized but also intrusive on
power constitutionally committed to a coordinate branch, the action
may violate the Constitution, specifically, its mandate for the
separation of legislative from executive powers.16
DOJ maintains that the Attorney General was statutorily
authorized to impose each of the challenged conditions. Whether
Congress conferred such authority depends on statutory text, which
we construe de novo. See Kidd v. Thomson Reuters Corp., 925 F.3d 99,
15 The relevant statutory text states as follows:
[t]o the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the
meaning or applicability of the terms of an agency action. The
reviewing court shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be . . . in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right . . . .
5 U.S.C. § 706(2)(C).
16See generally New York v. United States, 505 U.S. 144, 182 (1992) (“[S]eparation of
powers . . . is violated where one branch invades the territory of another.”). But see
Dalton v. Specter, 511 U.S. 462, 472 (1994) (explaining that not every action “in
excess of . . . statutory authority is ipso facto in violation of the Constitution,” and
distinguishing between “claims of constitutional violations and claims that an
official has acted in excess of his statutory authority”).
28
103 (2d Cir. 2019); United States v. Shyne, 617 F.3d 103, 106 (2d Cir.
2010).17
A. Title 34 U.S.C. § 10102(a)(6) Does Not Itself
Authorize the Challenged Conditions
Because DOJ devotes considerable energy on this appeal, as it
did in the district court, to arguing that the challenged conditions are
authorized by 34 U.S.C. § 10102(a)(6), we explain at the outset why
that argument does not persuade. We will then discuss sections of
Title 34 that do authorize the conditions at issue.
At the conclusion of a list of criminal‐justice‐related duties
assigned to the AAG, § 10102(a)(6) authorizes the AAG,
[to] exercise such other powers and functions as may be
vested in the Assistant Attorney General pursuant to this
chapter or by delegation of the Attorney General,
including placing special conditions on all grants, and
determining priority purposes for formula grants.
17Defendants have not claimed Chevron deference for their own interpretation of
the authority conferred by statutes pertaining to Byrne grants and, thus, on this
appeal, we do not consider whether any such deference might be warranted. See
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 845 (1984); compare
Neustar, Inc. v. FCC, 857 F.3d 886, 894 (D.C. Cir. 2017) (holding Chevron deference
“forfeited” where not claimed on appeal), with Sierra Club v. United States Dep’t of
the Interior, 899 F.3d 260, 286 (4th Cir. 2018) (explaining in case where parties
assumed Chevron deference that parties “cannot waive the proper standard of
review by failing to argue it” (internal quotation marks omitted)). Rather, we
conclude on de novo review that the challenged conditions are statutorily
authorized.
29
34 U.S.C. § 10102(a)(6) (emphasis added). Focusing on the
highlighted language, DOJ argues that § 10102(a)(6) does not merely
authorize the Attorney General to delegate powers and functions to
the AAG, but also grants “addition[al]” authority, which supports the
three challenged conditions. Appellant Br. at 22; see Reply Br. at 4–5.
In rejecting this argument, the district court held that the
highlighted text is not a “‘stand‐alone grant of authority to the
Assistant Attorney General to attach any conditions to any grants.’”
New York v. Dep’t of Justice, 343 F. Supp. 3d at 228 (quoting City of
Chicago v. Sessions, 888 F.3d at 285). Rather, the introductory word
“including” signals that the ensuing phrase is necessarily cabined by
what went before it.
Thus, the Assistant Attorney General can only place
special conditions or determine priority purposes to the
extent that power already “may be vested in the
Assistant Attorney General pursuant to this chapter or
by delegation of the Attorney General[,]” . . . who may
only delegate it to the extent that he has such power
himself.
Id. (quoting 34 U.S.C. § 10102(a)(6)).
This conclusion finds support not only in City of Chicago v.
Sessions, the Seventh Circuit decision quoted by the district court, but
also in subsequent decisions of the Third and Ninth Circuits. See City
of Los Angeles v. Barr, 941 F.3d at 93839; City of Philadelphia v. Attorney
Gen., 916 F.3d at 28789. We agree with that much of these courts’
decisions.
30
Depending on context, the word “including” can be either
illustrative or enlarging. Compare Federal Land Bank of St. Paul v.
Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (construing word as
illustrative of preceding section), with American Sur. Co. of N.Y. v.
Marotta, 287 U.S. 513, 517 (1933) (observing that, “[i]n definitive
provisions of statutes,” word frequently signifies extension rather
than limitation), and Adams v. Dole, 927 F.2d 771, 776–77 (4th Cir. 1991)
(noting dual meaning of word). The context here signals illustration
rather than enlargement. It is the “other powers and functions” that
may be vested in or delegated to the AAG that can “include” the
authority to impose special conditions and to set priority purposes for
Byrne Program grants. Thus, § 10102(a)(6) does not itself confer
authority on the Attorney General (or AAG) to impose the conditions
here at issue. The authority must originate in other provisions of law.
That is the case here.
B. Statutory Provisions Authorizing the Attorney
General To Impose the Challenged Conditions
1. Other Circuits Identify No Such Authority
In looking to whether the Attorney General is otherwise
authorized to impose the challenged conditions, we are mindful that
three sister circuits have considered that question before us and
concluded that he is not. Their reasons for so holding have not been
uniform.
The Seventh Circuit so ruled with respect to the Notice and
Access Conditions, reasoning that no provision of law outside
§ 10102(a)(6) specifically mentions “special conditions” or “priority
31
purposes” for Byrne grants. See City of Chicago v. Sessions, 888 F.3d at
285.
The Ninth Circuit did not think that omission determinative.
Reasoning that Congress could not have enacted § 10102(a)(6) “for the
purpose of expressly authorizing the Assistant AG to exercise powers
that do not exist,” that court construed § 10102(a)(6) as effectively
“confirming” what had been implicit in the overall statutory scheme,
i.e., that the Attorney General has the authority to impose special
conditions on, and to identify priority purposes for, Byrne grants,
which authority he can delegate to the AAG. City of Los Angeles v.
Barr, 941 F.3d at 939. We agree with that much of the Ninth Circuit’s
reasoning. The court goes on, however, to construe the terms “special
conditions” and “priority purposes” narrowly and, from that,
concludes that the Attorney General is not statutorily authorized to
impose the challenged Notice and Access Conditions. See id. at
93941 (construing “special conditions” as used in § 10102(a)(6) to
reference only “tailored requirements” necessary to particular
circumstance “such as when a grantee is [at] ‘high‐risk’” of violating
a grant’s terms, not general conditions applicable to all grants); id. at
94142 (limiting “priority purposes” for Byrne awards to purposes set
out in § 10152(a)).
We cannot adopt the Seventh or Ninth Circuit’s conclusions
because we do not think the Attorney General’s authority to impose
the three challenged conditions here derives from the words “special
conditions” or “priority purposes.” Rather, we locate that authority
in other provisions of law, specifically, those requiring Byrne grant
32
applicants to satisfy the program’s statutory requirements in such
“form” and according to such “rules” as the Attorney General
prescribes. See 34 U.S.C. §§ 10153(a), 10153(a)(5), 10155. Considering
that form‐ and rule‐making authority in light of three particular
statutory requirements—(1) for certification of willingness to comply
with “applicable Federal laws,” id. § 10153(a)(5)(D); (2) for assurance
that required information will be maintained and reported, see id.
§ 10153(a)(4); and (3) for coordination with affected agencies, see id.
§ 10153(a)(5)(C)—we conclude that the Attorney General is
statutorily authorized to impose the challenged conditions.
Before explaining that conclusion, we acknowledge that the
Third Circuit, considering these same three statutory requirements,
held that none supports the challenged conditions. See City of
Philadelphia v. Attorney Gen., 916 F.3d at 28591. The Third Circuit,
however, viewed the Attorney General’s statutory authority
respecting Byrne Program grants as “exceptionally limited.” Id. at
28485. We do not.
The Third Circuit emphasized that the Byrne Program awards
formula grants. See id. at 290. We agree that the Attorney General’s
authority to depart from that formula when awarding grants to
qualified applicants is extremely limited. But before there can be an
award, there must be a demonstrated showing of qualification.
Repeatedly and throughout its pronouncement of Byrne Program
statutory requirements, Congress makes clear that a grant applicant
demonstrates qualification by satisfying statutory requirements in
such form and according to such rules as the Attorney General
33
establishes. This confers considerable authority on the Attorney
General.18
18The following statutory sections confer on, or confirm, the Attorney General’s
authority in this respect:
• 34 U.S.C. § 10152(c)(1) – Requiring every program funded with a Byrne
grant to have a “program assessment component, developed pursuant to
guidelines established by the Attorney General” together with the National
Institute of Justice.
• Id. § 10152(d)(2) – Authorizing Attorney General to certify that
extraordinary and exigent circumstances warrant using Byrne grant funds
for generally prohibited expenditures.
• Id. § 10152(f) – Affording Attorney General discretion to extend Byrne
grants beyond normal four‐year period.
• Id. § 10153(a) – Requiring Byrne grant applicants to submit application
to Attorney General “in such form as the Attorney General may require,”
including statutorily required certifications and assurances.
• Id. § 10153(a)(5)(C) – Requiring certification “in a form acceptable to the
Attorney General” that “there has been appropriate coordination with
affected agencies.”
• Id. § 10153(a)(5)(D) – Requiring certification “in a form acceptable to the
Attorney General” that “applicant will comply with all provisions of this
part and all other applicable Federal laws.”
• Id. § 10154  Requiring Attorney General to afford applicant notice and
opportunity to correct any application deficiencies before finally
disapproving application.
• Id. § 10155 – Requiring Attorney General to “issue rules to carry out this
part.”
34
To be sure, the Attorney General’s authority in identifying
qualified Byrne applicants is not limitless but, rather, a function of the
particular requirements prescribed by Congress. Not surprisingly,
however, Congress has prescribed those requirements broadly,
enlisting the Attorney General to delineate the rules and forms for
them to be satisfied. See generally United States v. Haggar Apparel Co.,
526 U.S. 380, 39293 (1999) (explaining that because “Congress need
not, and likely cannot, anticipate all circumstances in which a general
policy must be given specific effect[,]” agency may issue rules so that
statute “may be applied . . . in a manner consistent with Congress’
general intent”). While the Attorney General certainly cannot
exercise that authority arbitrarily or capriciously, see infra Point II, the
authority itself cannot fairly be characterized as “exceptionally
limited.”
With that understanding, we proceed to consider each
challenged condition and the statutory provisions supporting it.
2. The Certification Condition Is Statutorily
Authorized by 34 U.S.C. § 10153(a)(5)(D)
a. The Statutory Text Requires Applicants To
Certify a Willingness To Comply With “All
. . . Applicable Federal Laws”
The Certification Condition requires a Byrne grant applicant to
certify that, throughout the grant period, it will comply with 8 U.S.C.
§ 1373, the federal law prohibiting any government entity or official
from restricting the receipt, maintenance, or exchange of information
regarding citizenship or immigration status as specified in that
35
statute. See supra at 15 (quoting condition). The Attorney General’s
statutory authority to impose this condition derives from 34 U.S.C.
§ 10153(a)(5)(D). Therein, Congress specifically requires a Byrne
grant applicant to include in its application “[a] certification, made in
a form acceptable to the Attorney General” stating that “the applicant
will comply with all provisions of this part and all other applicable
Federal laws.” 34 U.S.C. § 10153(a)(5)(D) (emphasis added).
The conjunctive structure of § 10153(a)(5)(D) makes plain that
a Byrne grant applicant must certify its willingness to comply with
more than those provisions of law specifically pertaining to the Byrne
Program (“this part”). It must also certify its willingness to comply
with “all other applicable Federal laws.” Id. At the same time that
this phrase expands an applicant’s certification obligation, the word
“applicable,” as used in the phrase, serves a limiting function. A
Byrne applicant is not required to certify its willingness to comply
with the United States Code in its entirety as well as all accompanying
regulations. Rather, an applicant must certify its willingness to
comply with those laws—beyond those expressly stated in Chapter
34—that can reasonably be deemed “applicable.” This raises two
questions: What is an “applicable” law? And who identifies it? We
answer the second question first because it is not seriously disputed
and, thus, requires only brief discussion.
1. The Attorney General Is Authorized To
Identify “Other Applicable Federal Laws”
Requiring § 10153(a)(5)(D) Compliance
Certification
36
The statutory text signals that the Attorney General identifies
the laws requiring § 10153(a)(5)(D) compliance certification. This is
evident in the requirement that Byrne grant applicants provide
certification in a “form acceptable to the Attorney General.” Id.
§ 10153(a)(5). A “form” is commonly understood to be a “document”
for providing “required or requested specific information.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 892 (1986). By
requiring that § 10153(a)(5)(D) certification be in a “form acceptable
to the Attorney General,” the statute makes clear that it is the
Attorney General who has authority to “require[] or request[] specific
information,” to ensure a grant applicant’s intended compliance with
all other applicable federal laws. See id. Thus, § 10153(a)(5)(D)
authorizes the Attorney General to decide not only the style (e.g.,
format and typeface) for § 10153(a)(5)(D) certification, but also the
specificity of its content, i.e., whether certification is “acceptable” in a
form that references “all other applicable Federal laws” generally, or
whether such certification needs to be in a form that identifies specific
applicable laws.19
That Congress would vest such authority in the Attorney
General makes sense for several reasons. First, while Congress itself
requires compliance certification as to “all other applicable Federal
laws,” the number of laws that could apply to States and localities
seeking Byrne funding is large, variable, and not easily identified in a
19While matters of “substance” are frequently distinguished from matters of
“form,” see, e.g., PPL Corp. v. Comm’r of Internal Revenue, 569 U.S. 329, 340–41 (2013)
(distinguishing between form and substance of a tax), a form serves to ensure the
communication of required substance.
37
single statutory provision. Second, the Attorney General, as the
nation’s chief federal law enforcement official, is particularly suited
to identify the federal laws applicable to persons and circumstances.
Third, having the Attorney General identify specific laws requiring
§ 10153(a)(5)(D) certification serves the salutary purpose of affording
applicants clear notice of what is expected of them as Byrne grant
recipients.20
2. “All Other Applicable Federal Laws”
Encompasses Both Laws Applying To the
Entity Seeking a Grant and Laws Applying To
the Proposed Grant Program
The district court nevertheless concluded that the Attorney
General was not authorized to identify § 1373 as an applicable law. It
held that “‘applicable Federal laws’ for purposes of 34 U.S.C.
§ 10153(a)(5)(D) means federal laws applicable to the grant,” not to
the grant applicant. New York v. Dep’t of Justice, 343 F. Supp. 3d at 230–
31. Because it thought that § 1373 applies only to applicants in their
capacities as State and local governments, not to their grants, the
district court ruled that the statute could not be an “applicable” law
requiring § 10153(a)(5)(D) certification. Id. at 231. The Third Circuit
subsequently reached the same conclusion. See City of Philadelphia v.
Attorney Gen., 916 F.3d at 28890. In so ruling, both courts
acknowledged that it would be reasonable to construe the statutory
text to mean laws applicable to a grant applicant as well as to a
requested grant. See id. at 288; New York v. Dep’t of Justice, 343 F. Supp.
20 We discuss this notice point further infra at 47–49.
38
3d at 23031. Nevertheless, the Third Circuit concluded that a
narrower construction was required by the canon against surplusage,
the structure of the statute, the historical practice of DOJ, and the
formula‐grant nature of the program. See City of Philadelphia v.
Attorney Gen., 916 F.3d at 28991. The district court relied on similar
reasoning, as well as Congress’s obligation “unambiguously” to
impose conditions on grants of federal money, to justify its narrow
reading of § 10153(a)(5)(D). New York v. Dep’t of Justice, 343 F. Supp.
3d at 231 (internal quotation marks omitted). We cannot agree.
First and foremost, we do not think the statutory text admits
such narrowing. See generally Connecticut Nat’l Bank v. Germain, 503
U.S. 249, 254 (1992) (stating that “when the words of a statute are
unambiguous . . . judicial inquiry is complete” (internal quotation
marks omitted)); accord Mei Xing Yu v. Hasaki Rest., Inc., 944 F.3d 395,
403 (2d Cir. 2019) (citing Connecticut Nat’l Bank v. Germain). The word
“applicable,” as used in § 10153(a)(5)(D), is not statutorily defined.
Thus, it is properly construed according to its contemporary
dictionary definition, see Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S.
560, 566 (2012); accord Munoz‐Gonzalez v. D.L.C. Limousine Serv., Inc.,
904 F.3d 208, 213 (2d Cir. 2018), which is “capable of being applied:
having relevance,” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 105. Statutes are “capable of being applied,” and can be
relevant both to persons and to circumstances. A second dictionary
definition for the word “applicable”—“fit, suitable, or right to be
applied,” id.—only reinforces that conclusion, in that a statute may be
39
fit, suitable, or right to apply both to persons and to circumstances.21
Thus, an “applicable Federal law” under § 10153(a)(5)(D) is one
pertaining either to the State or locality seeking a Byrne grant or to
the grant being sought.
To the extent the district court might be understood to have
construed “all other applicable laws” to mean only laws applying to
States and localities as recipients of federal grants, nothing in the
statutory text suggests that Congress there used the word
“applicable” only in that limited sense. To the contrary, Congress’s
use of the adjective “all” to introduce the phrase “all other applicable
Federal laws” signals an intent to give the word “applicable” its full
effect, not to narrow it. See Norfolk & W. Ry. Co. v. Am. Train
Dispatchers Assʹn, 499 U.S. 117, 128–29 (1991) (explaining that phrase
“all other law” is “clear, broad, and unqualified” and “indicates no
limitation” (internal quotation marks omitted)).
Second, we cannot agree with the Third Circuit that a
redundancy or surplusage problem arises if “all other applicable
Federal laws” is construed to mean laws pertaining both to Byrne
applicants and to the grants they seek. See City of Philadelphia v.
Attorney Gen., 916 F.3d at 289 (concluding that such construction
effectively equates phrase with “other Federal laws,” making word
“applicable” mere surplusage). As explained supra at 36, the word
21 See Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 69–70 (2011) (using both
dictionary definitions in construing phrase “debtor’s applicable monthly expense
amounts” in provision of Bankruptcy Code (emphasis added) (quoting 11 U.S.C.
§ 707(b)(2)(A)(ii)(I))).
40
“applicable” does serve a limiting function in the statutory text—even
if not as limiting as plaintiffs might wish. Thus, to raise a redundancy
concern, the Third Circuit must imply that if Congress had used the
phrase “all other Federal laws” in § 10153(a)(5)(D), then courts would
have to infer the word “applicable” because of the improbability of
Congress requiring certification for the entirety of federal law. But
Congress did not use that broader phrase in § 10153(a)(5)(D). And we
do not think its use of a modifying word—“applicable”—to make
explicit in actual statutory text what our sister circuit thinks would
have to be implied in a hypothetical alternative manifests surplusage.
Rather, we think it demonstrates clear drafting.
Third, the formula nature of the Byrne Program does not
warrant limiting the phrase “all other applicable Federal laws.”
While Congress’s intent in appropriating funds for formula (as
distinct from discretionary) grants is to have all the money
distributed, even a formula grant applicant must satisfy the
program’s requirements before being entitled to receive funding. Cf.
Richard B. Cappalli, Rights and Remedies Under Federal Grants 40 (1979)
(remarking that states typically qualify for formula grants after
submitting document statutorily described as “state plan,” which
serves as “vehicle by which the state commits itself to abide by the
conditions which Congress attaches to the funds”). As to the Byrne
Program, this is evident from the fact that Congress has expressly
provided for alternative distributions of appropriated funds if “a
State will be unable to qualify” for a Byrne granta matter Congress
also leaves for “the Attorney General [to] determine[].” 34 U.S.C.
§ 10156(f); see supra at 13. Thus, Byrne Program formula funding can
41
be denied to an applicant that fails to provide the required
§ 10153(a)(5)(D) certification as to any “applicable Federal law[],”
whether that law pertains to the particular grant sought or to the
applicant seeking it.22
Indeed, whether a grant is awarded by formula or by
discretion, there is something disquieting in the idea of States and
localities seeking federal funds to enforce their own laws while
themselves hampering the enforcement of federal laws, or worse,
violating those laws. One has only to imagine millions of dollars in
22 The Third Circuit inferred from the fact that qualifying Byrne (and other federal)
grant recipients could lose a specified (often small) percentage of their annual
distribution if they fail to comply with certain other statutes, that the Attorney
General was not statutorily authorized “to withhold all of a [Byrne] grantee’s
funds for any reason the Attorney General chooses.” City of Philadelphia v. Attorney
Gen., 916 F.3d at 286 (emphases in original) (citing 34 U.S.C. § 20927(a) (providing
mandatory 10% penalty for failure to comply with Sex Offender Registration and
Notification Act); id. § 30307(e)(2) (mandating 5% penalty for failure to comply
with Prison Rape Elimination Act); id. § 40914(b) (withholding up to 4% of funding
for failure to meet requirements of National Instant Criminal Background Check
System)). That reasoning does not apply here, where the issue is not whether the
Attorney General can withhold Byrne funding for any reason from qualifying
applicants, but whether he can deny any such funding to an applicant that fails to
demonstrate qualification under the Program’s statutory requirements, indeed,
fails to satisfy them in a “form acceptable to the Attorney General,” as Congress
has mandated. 34 U.S.C. § 10153(a)(5). To be sure, the form acceptable to the
Attorney General must be grounded in the qualifying requirements it serves, but
where that is the case, an applicant’s failure—or refusal—to satisfy the statutory
requirement in that form can result in denial of a Byrne grant. While the Attorney
General cannot “finally disapprove” a deficient Byrne grant application “without
first affording the applicant reasonable notice of any deficiencies . . . and
opportunity for correction and reconsideration,” id. § 10154, if those deficiencies
persist after such notice and opportunity, then the Attorney General is authorized
to deny the grant in its entirety and to reallocate funds as provided in § 10156(f).
42
Byrne funding being sought by a locality that is simultaneously
engaged in persistent, serious violations of federal environmental
laws. The formula nature of the Byrne Program does not dictate that
such an applicant must be given federal money even as it continues
to flout federal law. To the contrary, § 10153(a)(5)(D) authorizes the
Attorney General to condition the locality’s receipt of a Byrne grant
on its certified willingness to comply with all federal laws applicable to
that locality, which includes environmental laws.
The conclusion obtains with even more force here, where
enactment of the law at issue, 8 U.S.C. § 1373, was informed by
Congress’s concern that States and localities receiving federal grants
were hampering the enforcement of federal immigration laws. See
supra at 17–20. Subsequent reports that increasing numbers of federal
grant recipients were limiting cooperation with federal immigration
authorities prompted a congressional request for DOJ investigation,
the results of which led two successive Attorneys General serving
different administrations to identify § 1373 as an “applicable Federal
law” requiring compliance certification. See supra at 20–25.23 We are
satisfied that these identifications are authorized by the plain
23The IG’s findings, see supra at 21–23, might well be found to demonstrate the
“high risk” identified by the Ninth Circuit for imposing “special conditions” on
Byrne grants, see City of Los Angeles v. Barr, 941 F.3d at 940 (holding that “special
conditions,” as referenced in § 10102(a)(6), means “unusual” or “extraordinary”
conditions for a “high‐risk grantee,” i.e., a grantee with “a history of
noncompliance with grant requirements, financial stability issues, or other factors
that suggest[] a propensity toward violation of a grant’s terms” (internal quotation
marks omitted)).
43
language of § 10153(a)(5)(D), and the formula nature of the Byrne
Program requires no contrary conclusion.
Fourth, the Third Circuit observes that certain § 10153(a)(5)
certification requirements appear, on their face, to pertain to the
requested grant rather than to the grant applicant. See City of
Philadelphia v. Attorney Gen., 916 F.3d at 289 (citing § 10153(a)(5)(A)
(requiring certification that “the programs to be funded by the grant
meet all the requirements of this part”); § 10153(a)(5)(B) (requiring
certification that “all the information contained in the application is
correct”); and § 10153(a)(5)(C) (requiring certification that “there has
been appropriate coordination with affected agencies”)). That,
however, is insufficient reason to impose a similar limitation on
§ 10153(a)(5)(D), when the plain language of that provision—“all
other applicable Federal laws”—reaches more broadly. See generally
Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S. at 127, 129
(rejecting argument that exemption from “antitrust laws and from all
other law” was limited to antitrust‐related laws; ejusdem generis canon
does not apply where neither statutory text nor context supports
urged limitation (emphasis added) (internal quotation marks
omitted)).
In urging otherwise, plaintiffs point to 34 U.S.C. § 10228, which
states that “[n]othing in this chapter or any other Act shall be
construed to authorize any department, agency, officer, or employee
of the United States to exercise any direction, supervision, or control
over any police force or any other criminal justice agency of any State
or any political subdivision thereof.” As the Fourth Circuit has
44
observed in construing § 10228’s predecessor statute, the provision is
intended “to guard against any tendency towards federalization of
local police and law enforcement agencies.” Ely v. Velde, 451 F.2d
1130, 1136 (4th Cir. 1971) (construing statute to prohibit federal
authorities from “[prescribing] the type of shoes and uniforms to be
worn by local law enforcement officers, the type or brand of
ammunition to be purchased and used by police departments and
many other vital matters pertaining to the day‐to‐day operations of
local law enforcement” (citation omitted)). Section 1373 raises no
such federalization concern. It does not direct, control, or supervise
the day‐to‐day operations of any State or local police force or law
enforcement agency. It does not mandate that State or local law
enforcement authorities cooperate with federal immigration officers.
It requires only that nothing be done to prohibit voluntary
communication about citizenship or immigration status among such
officials. See supra at 24. To hold that § 10228 places such a statutory
requirement outside the scope of applicable laws requiring
§ 10153(a)(5)(D) compliance certification is to render that
qualification condition a nullity, as compliance with every federal law
necessarily places some limits on a grant applicant’s actions. Indeed,
that conclusion applies whether the law pertains to the applicant or
the grant program. We decline to construe § 10228 so broadly as to
render § 10153(a)(5)(D) inoperative. Cf. Mountain States Tel. & Tel. Co.
v. Pueblo of Santa Ana, 472 U.S. 237, 250 (1985) (noting “elementary
canon of construction that a statute should be interpreted so as not to
render one part inoperative” (internal quotation marks omitted)). See
generally Ely v. Velde, 451 F.2d at 1136 (declining to construe
predecessor provision “so broadly as unnecessarily to undercut
45
solutions adopted by Congress to preserve and protect other societal
values”).24
Fifth, DOJ’s own focus on laws pertaining to grants rather than
applicants in its past identifications of “applicable” federal laws does
not itself limit the word. Given the scope of local programs that can
be funded with Byrne grants, it is not surprising that DOJ would most
frequently identify laws applicable to a particular program in
specifying the form of an acceptable § 10153(a)(5)(D) certification. See
generally City of Philadelphia v. Attorney Gen., 916 F.3d at 290 (observing
that if requested grant was to be used for body armor purchases or
human research, applicants were expected to certify willingness to
comply with applicable federal regulations in those areas). Far fewer,
one expects, will be the occasions when States and localities seeking
Byrne grants are themselves violators of federal laws applicable to
them. Nevertheless, in such circumstances, the violated laws fall
within the plain meaning of the phrase “all other applicable Federal
laws” as used in § 10153(a)(5)(D). To illustrate, while the Attorney
General can—and has—required applicants proposing to use Byrne
grants for construction or renovation projects to comply with federal
environmental laws specifically applicable to such work, that hardly
means he cannot also require an applicant that has a history of
violating environmental laws generally from certifying its willingness
going forward to comply with such laws. The laws are applicable in
24Insofar as plaintiffs rely not only on § 10228, but also on the Tenth Amendment
to argue that § 1373 cannot be an “applicable” law requiring Compliance
Certification, we discuss that constitutional point infra at 49–61.
46
the former instance to the grant purpose; in the latter, to the grant
applicant. In either case, the Attorney General is requiring
compliance certification as to “applicable Federal laws.”
Sixth, Congress’s duty to speak unambiguously in imposing
conditions on federal grant money also does not require “all other
applicable Federal laws” to be construed to mean only laws
pertaining to grants and not to grant applicants. See New York v. Dep’t
of Justice, 343 F. Supp. 3d at 231. The duty derives from Pennhurst State
School & Hospital v. Halderman, 451 U.S. 1 (1981). The Supreme Court
there analogized federal spending legislation to “a contract: in return
for federal funds, the States agree to comply with federally imposed
conditions.” Id. at 17. It concluded therefrom that Congress must
“speak with a clear voice” in placing conditions on federal grants
because there “can . . . be no knowing acceptance [of the putative
contract] if a State is unaware of the conditions or is unable to
ascertain what is expected of it.” Id.
“Knowing acceptance” is no concern here. Section
10153(a)(5)(D) provided plaintiffs with clear notice that their Byrne
grant applications had to include a certification, in a form acceptable
to the Attorney General, of their willingness to comply not only with
laws specifically applicable to the Byrne Program, but also with “all
other applicable Federal laws.” To the extent the quoted phrase fails
to specify precisely which laws are “applicable,” that uncertainty can
pertain as much for laws applicable to requested grants as for those
applicable to grant applicants. Thus, the district court’s Pennhurst
reasoning does not support its conclusion that “applicable Federal
47
laws” can pertain only to requested Byrne grants, not to grant
applicants.
But more to the point, no Pennhurst concern arises here because
plaintiffs were given advance notice that their 2017 Byrne grant
applications had to certify a willingness to comply with § 1373.
Indeed, they were given such notice twice, first in 2016, and again in
2017. See supra at 23–25. To be sure, that notice was provided by DOJ
rather than Congress. But the Supreme Court has recognized that, in
establishing federal grant programs, Congress cannot always
“prospectively resolve every possible ambiguity concerning
particular applications of the [program’s statutory] requirements.”
Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656, 666, 669 (1985) (making
point in context of federal education grant program). Thus, it has
upheld an administering agency’s clarifying interpretations, and even
its violation determinations, as long they were grounded in “statutory
provisions, regulations, and other guidelines provided by the
Department” at the time of the grant. Id. at 670–71; see also United
States v. O’Hagan, 521 U.S. 642, 67273 (1997) (recognizing agency
authority to prescribe legislative rules consistent with statute).
Plaintiffs here may disagree with the identification of § 1373 as an
“applicable Federal law,” but they can hardly complain of inadequate
notice.
In a final argument in support of their APA challenge to the
Attorney General’s identification of § 1373 as an applicable federal
law, plaintiffs point to Congress’s rejection of various legislative
proposals to impose immigration‐related conditions on receipt of
48
federal funds. As the Supreme Court has cautioned, “subsequent
legislative history is a hazardous basis for inferring the intent of an
earlier Congress.” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633,
650 (1990) (internal quotation marks omitted). Such legislative
history “is a particularly dangerous ground” of construction where,
as here, the “proposal[s] . . . do[] not become law.” Id. Indeed,
“several equally untenable inferences may be drawn from”
congressional inaction, “including the inference that the existing
legislation already incorporated the offered change.” Id. (internal
quotation marks omitted). Thus, this challenge to the Attorney
General’s § 10153(a)(5)(D) authority to identify § 1373 as an
“applicable” law also fails.
In sum, we conclude that the plain language of § 10153(a)(5)(D),
authorizes the Attorney General to require certification in a form that
specifically references federal laws applicable either to the Byrne
grant sought or to the State or locality seeking that grant. Because 8
U.S.C. § 1373 is a law applicable to all plaintiffs in this action, the
Attorney General was authorized to impose the challenged
Certification Condition and did not violate either the APA or
separation of powers by doing so.
b. Tenth Amendment Challenge
(1) “As Applied” Review
The district court ruled not only that the Certification
Condition was not statutorily authorized, but also that it could not be
so authorized without violating the Constitution. Specifically, the
district court held that 8 U.S.C. § 1373, the law for which the condition
49
required certification, “is facially unconstitutional under the
anticommandeering doctrine of the Tenth Amendment,” and, as
such, “drops out of the possible pool of ‘applicable federal laws’”
requiring § 10153(a)(5)(D) certification. New York v. Dep’t of Justice,
343 F. Supp. 3d at 237 (internal quotation marks omitted). The district
court did not have to reach this constitutional question, having
already found the Certification Condition to violate the APA. See
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988)
(noting that “longstanding principle of judicial restraint requires that
courts avoid reaching constitutional questions in advance of the
necessity of deciding them”); accord Camreta v. Greene, 563 U.S. 692,
705 (2011). This court, however, cannot avoid the issue in light of our
ruling that the Certification Condition is statutorily authorized.
For reasons briefly explained herein, we think the district
court’s reasoning insufficient to support its declaration of facial
unconstitutionality. We do not pursue the matter in detail, however,
because § 1373’s constitutionality is properly assessed here not on the
face of the statute, but as applied to clarify a federal funding
requirement.25 In that context, § 1373 does not constitute
commandeering in violation of the Tenth Amendment.
25As the Supreme Court has long recognized, “as‐applied challenges are the basic
building blocks of constitutional adjudication,” and it is not the court’s “traditional
institutional role to resolve questions of constitutionality with respect to each
potential situation that might develop.” Gonzales v. Carhart, 550 U.S. 124, 168 (2007)
(internal quotation marks and alterations omitted); see Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–95 (1982) (holding that courts
50
To the extent the district court thought that § 1373 had to be
constitutional in all its applications to be identified as an “applicable
Federal law[]” warranting § 10153(a)(5)(D) certification, it was
mistaken. Even assuming arguendo that § 1373 can constitutionally be
applied to States and localities only when they are seeking federal
funding—a matter we do not here decide—the principle of
severability would warrant upholding the statute as so narrowed. See
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987) (discussing
severability in addressing constitutional challenges to statutes); accord
National Fed’n of Indep. Bus. (“NFIB”) v. Sibelius, 567 U.S. 519, 586–88
(2012) (severing part of Affordable Care Act raising constitutional
concerns and upholding remainder); United States v. Booker, 543 U.S.
220, 245 (2005) (remedying constitutional defect in Sentencing
Guidelines by severing provision for mandatory application). There
can be no question that Congress would have enacted the law, even
as so narrowed. Legislative history indicates that § 1373’s enactment
was animated by reports that States and localities receiving federal
should consider constitutional challenge to statute as applied to plaintiff before
considering other applications); Yazoo & Miss. Valley R.R. Co. v. Jackson Vinegar Co.,
226 U.S. 217, 219–20 (1912) (upholding statute as applied to instant case without
speculating as to how it might apply in other circumstances); accord United States
v. Holcombe, 883 F.3d 12, 17 (2d Cir. 2018) (explaining that where First Amendment
rights are not implicated, court considers constitutional challenge “in light of the
specific facts of the case at hand” (internal quotation marks omitted)). Section 1373
is not here challenged as constitutionally vague, much less constitutionally vague
in a way implicating First Amendment rights, so as to warrant more than as‐
applied review. See Farrell v. Burke, 449 F.3d 470, 496 (2d Cir. 2006) (“The general
rule disfavoring facial vagueness challenges does not apply in the First
Amendment context.”); see also United States v. Davis, 139 S. Ct. 2319, 2323 (2019)
(“In our constitutional order, a vague law is no law at all.”).
51
funding were hindering cooperation with immigration authorities.
See supra at 17–20. Nor is there any reason to think that the law would
not operate as Congress intended as applied in the funding context.
See generally Alaska Airlines, Inc. v. Brock, 480 U.S. at 684–85 (discussing
two factors informing severability).
With this understanding, that, in the end, the proper scope of
constitutional inquiry is “as applied,” we briefly discuss concerns
raised by the district court’s facial assessment before explaining our
conclusion that § 1373 does not violate the Tenth Amendment as
applied here to States and localities seeking Byrne Program grants.
(2) The District Court’s Identification of Facial
Unconstitutionality
The Tenth Amendment states: “The powers not delegated to
the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.” U.S.
CONST. amend. X. From this text, the Supreme Court has derived an
“anticommandeering principle,” which prohibits the federal
government from compelling the States to enact or administer a
federal regulatory program. See Printz v. United States, 521 U.S. 898,
935 (1997) (“The Federal Government may neither issue directives
requiring the States to address particular problems, nor command the
States’ officers, or those of their political subdivisions, to administer
or enforce a federal regulatory program.”).
This court has already considered, and rejected, a facial
commandeering challenge to § 1373. See City of New York v. United
States, 179 F.3d 29 (2d Cir. 1999). We reasoned that § 1373 does not
52
“compel[] state and local governments to enact or administer any
federal regulatory program.” Id. at 35. Nor does it “affirmatively
conscript[] states, localities, or their employees into the federal
government’s service.” Id. Rather, the law prohibits state and local
governments and officials “only from directly restricting the
voluntary exchange of immigration information” with federal
immigration authorities. Id.
The district court acknowledged this precedent, but concluded
that it does not survive Murphy v. National Collegiate Athletic
Association, 138 S. Ct. 1461 (2018).26 The Supreme Court there held
that federal legislation prohibiting States from authorizing sports
gambling violates the Tenth Amendment’s anticommandeering rule
because it “unequivocally dictates what a state legislature may and
may not do.” Id. at 1478. The Court explained that it did not matter
whether Congress issued such a dictate by commanding affirmative
action or imposing a prohibition: “The basic principle—that Congress
cannot issue direct orders to state legislatures—applies in either
event.” Id. The district court concluded that Murphy’s reasoning
required it to hold § 1373 facially violative of the Tenth Amendment
because the statute’s proscriptions prevent States from “adopting
[immigration] policies contrary to those preferred by the federal
government,” or “extricating themselves from federal immigration
26It has long been the rule in this circuit that a panel decision controls “unless and
until . . . reversed en banc or by the Supreme Court.” In re Arab Bank, PLC Alien Tort
Statute Litig., 808 F.3d 144, 154 (2d Cir. 2015) (internal quotation marks omitted).
53
enforcement.” New York v. Dep’t of Justice, 343 F. Supp. 3d at 235
(internal quotation marks and alterations omitted).
Murphy may well have clarified that prohibitions as well as
mandates can manifest impermissible commandeering. But the
conclusion that § 1373, on its face, violates the Tenth Amendment
does not follow.
A commandeering challenge to a federal statute depends on
there being pertinent authority “reserved to the States.” In Murphy,
there was no question that, but for the challenged federal law, the
States’ police power allowed them to decide whether to permit sports
gambling within their borders. That conclusion is not so obvious in
the immigration context where it is the federal government that holds
“broad,” Arizona v. United States, 567 U.S. at 394, and “preeminent”
power, Toll v. Moreno, 458 U.S. at 10. Title 8 of the United States Code,
commonly known as the Immigration and Nationality Act (“INA”),
see 8 U.S.C. § 1101 et seq., is Congress’s “extensive and complex”
codification of that power, Arizona v. United States, 567 U.S. at 395.
This does not mean that States can never enact any laws
pertaining to aliens. See id. at 404 (observing that “[w]hen there was
no comprehensive federal program regulating the employment of
unauthorized aliens . . . State had authority to pass its own laws on
the subject”). But courts must carefully identify the powers reserved
to States in this area of extensive and complex federal legislation and
the effect of their exercise on federal immigration laws and policies.
It is doubtful that States have reserved power to adopt—in the words
of the district court—immigration policies “contrary to those preferred
54
by the federal government.” New York v. Dep’t of Justice, 343 F. Supp.
3d at 235 (internal quotation marks omitted) (emphasis added). As
Chief Justice Marshall famously pronounced, “The states have no
power, by taxation or otherwise, to retard, impede, burden, or in any
manner control, the operations of the constitutional laws enacted by
congress to carry into execution the powers vested in the general
government.” McCulloch v. Maryland, 17 U.S. at 436. The Supreme
Court recently made the same point in the immigration context.
While acknowledging a State’s “understandable frustrations with the
problems caused by illegal immigration,” the Court held that the
“State may not pursue policies that undermine federal law.” Arizona
v. United States, 567 U.S. at 416.
Here, the district court declared § 1373 facially violative of the
Tenth Amendment without identifying what reserved power States
have to enact laws or policies seemingly foreclosed by 8 U.S.C. § 1373,
i.e., laws prohibiting their officials and agencies from engaging in
even voluntary communications about citizenship and immigration
status with federal authorities. A court undertaking that inquiry
would have to recognize, as the Supreme Court has, that
“[c]onsultation between federal and state officials is an important
feature of the immigration system” established by the INA. Id. at 411.
A court would then have to consider how various INA provisions
establish that consultation feature. In Arizona v. United States, the
Supreme Court discussed various INA provisions encouraging or
prohibiting restrictions on federal‐state sharing of immigration‐status
information before concluding that the “federal scheme thus leaves
room for a [State] policy requiring state officials to contact [federal
55
immigration authorities] as a routine matter.” Id. at 413 (emphasis
added). The same conclusion may not be so easy to reach, however,
with respect to a State policy prohibiting information sharing. Among
the statutes cited in Arizona v. United States to illustrate the importance
placed on federal‐state consultation by the INA is 8 U.S.C. § 1644. See
567 U.S. at 412–13. As discussed supra at 17–20, § 1644, like § 1373,
prohibits restricting State or local government entities from
communicating with federal immigration authorities “‘regarding the
immigration status, lawful or unlawful, of an alien in the United
States.’’’ Id. (quoting 8 U.S.C. § 1644). Further, even outside the
immigration context, the Supreme Court has not decided whether a
federal law imposing “purely ministerial reporting requirements” on
the States violates the Tenth Amendment. See Printz v. United States,
521 U.S. at 936 (O’Connor, J., concurring) (noting open question
regarding statute’s missing child reporting requirement).
While this authority casts doubt on the district court’s
identification of facial unconstitutionality, we do not ourselves pursue
the point further because, even assuming some power reserved for
the States to prohibit information sharing with federal immigration
authorities, we conclude that § 1373 does not violate the Tenth
Amendment as applied here to a federal funding requirement.27
27For that same reason, we need not conclusively decide the preemptive effect of
§ 1373. We note only that, insofar as the district court concluded that the statute
could claim no preemptive effect because it confers a “purported federal right to
transmit information only on government entities and officials,” not on private
56
(3) Section 1373 Raises No Commandeering
Concerns as Applied to a Federal Funding
Requirement
While Congress cannot regulate the States, its constitutional
powers, notably under the Spending Clause, see U.S. CONST. art. I, § 8,
cl. 1, do allow it to “fix the terms on which it shall disburse federal
money to the States,” Pennhurst State Sch. & Hosp. v. Halderman, 451
U.S. at 17. By setting such terms, Congress can “influenc[e] a State’s
policy choices,” New York v. United States, 505 U.S. at 166, and even
“implement federal policy it could not impose directly under its
enumerated powers,” NFIB v. Sibelius, 567 U.S. at 578; see South Dakota
v. Dole, 483 U.S. 203, 207 (1987) (explaining that “objectives not
thought to be within Article I’s enumerated legislative fields may
nevertheless be attained through the use of the spending power and
the conditional grant of federal funds” (internal quotation marks
omitted)); United States v. Butler, 297 U.S. 1, 66 (1936) (holding that
Congress’s power to place conditions on disbursement of federal
funds “is not limited by the direct grants of legislative power found
in the Constitution”). Thus, where Congress places conditions on a
State’s receipt of federal funds—whether directly, or by delegation of
persons, its focus may have been too narrow. New York v. Dep’t of Justice, 343 F.
Supp. 3d at 235 (internal quotation marks and alterations omitted); see Murphy v.
Nat’l Collegiate Athletic Ass’n, 138 S. Ct. at 1480 (observing that “Constitution . . .
confers upon Congress the power to regulate individuals, not States” (internal
quotation marks omitted)). As already noted, § 1373 is one provision of a larger
statute, the INA, which certainly confers rights and places restrictions on large
numbers of private persons.
57
clarifying authority to an executive agency—there is no
commandeering of reserved State power so long as the State has “a
legitimate choice whether to accept the federal conditions in exchange
for federal funds.” NFIB v. Sibelius, 567 U.S. at 578.28
A State is deprived of “legitimate choice” only when the federal
government imposes grant conditions that pass the point at which
“pressure turns into compulsion.” Id. at 577–78 (internal quotation
marks omitted). On this point, even the NFIB dissenters agreed. See
id. at 681 (Scalia, J., with Kennedy, Thomas, and Alito, JJ., dissenting)
(observing that “courts should not conclude that legislation is
unconstitutional . . . unless the coercive nature of an offer is
unmistakably clear”). Pressure can turn into compulsion when the
28The law further requires that federal grant conditions (1) promote the “general
welfare,” (2) “unambiguously” inform States what is demanded of them, (3)
reasonably relate “to the federal interest in particular national projects or
programs,” and not “induce the States to engage in activities that would
themselves be unconstitutional.” South Dakota v. Dole, 483 U.S. at 207–08, 210
(internal quotation marks omitted). None of these requirements is at issue on this
appeal. Section 10153(a)(5)(D)’s requirement that Byrne grant applicants certify
their willingness to comply with “all . . . applicable Federal laws” promotes the
respect for law necessary to the general welfare. See, e.g., City of Los Angeles v. Barr,
929 F.3d 1163, 1176 (9th Cir. 2019) (“[C]ooperation relating to enforcement of
federal immigration law is in pursuit of the general welfare, and meets the low bar
of being germane to the federal interest in providing the funding.”). Such a
certification condition reasonably relates to the Byrne Program, whose focus, after
all, is law enforcement. For reasons discussed supra at 47–48, Congress avoids
ambiguity by itself stating that § 10153(a)(5)(D) certification must be made as to all
applicable Federal laws, and then authorizing the Attorney General to require
certification in a form that references specifically identified applicable laws.
Finally, nothing about § 10153(a)(5)(D) induces unconstitutional conduct by the
State‐applicants.
58
amount of funding that a State would lose by not acceding to the
federal conditions is so significant to the States’ overall operations as
to leave it with no real choice but to agree.
Such was the case with the Medicaid expansion provision of the
Affordable Care Act, which the Supreme Court held invalid in NFIB
v. Sebelius because it threatened States rejecting expansion with the
withholding of 100% of their Medicaid funding, which constituted
10% to 16% of most States’ total budgets. The Supreme Court
concluded that “[t]he threatened loss of over 10 percent of a State’s
overall budget . . . is economic dragooning that leaves the States with
no real option but to acquiesce in the Medicaid expansion.” Id. at 581–
82 (describing condition as “a gun to the head”).
The funding loss associated with most grant conditions,
however, does not raise such coercion concerns. See id. at 684–85
(Scalia, J., with Kennedy, Thomas, and Alito, JJ., dissenting)
(observing that Medicaid expansion provision was “quite unlike
anything that we have seen in a prior spending‐power case” in that it
“threatened to withhold 42.3% of all federal outlays to the States”). In
South Dakota v. Dole, the Supreme Court described a threatened loss
of 5% of federal highway funding—less than 0.5% of South Dakota’s
budget—if the state did not raise its legal drinking age to 21, as only
“mild encouragement” and “a valid use of the spending power.” 483
U.S. at 211–12.
This case is much more akin to Dole than to NFIB. While
plaintiffs emphasize that a failure to provide § 10153(a)(5)(D)
certification in a form acceptable to the Attorney General, i.e., a form
59
certifying a willingness to comply with 8 U.S.C. § 1373, can result in
the denial of any Byrne funding for that year, plaintiffs do not—and
cannot—claim that such a loss represents so significant a percentage
of their annual budgets as to cross the line from pressure to coercion.
For example, New York’s anticipated 2017 Byrne award is $8,879,161,
a significant amount of money to be sure, but one representing less
than 0.1% of the State’s annual $152.3 billion budget, a smaller
percentage loss even than that in Dole.29 Massachusetts’ anticipated
2017 Byrne award is $3,453,006, also representing less than 0.1% of its
annual $38.92 billion budget.30 Thus, however much the plaintiff
States would prefer to receive Byrne awards without having to certify
their willingness to comply with 8 U.S.C. § 1373, they cannot
complain that the consequences for failing to do so are so severe as to
leave them with no real choice in the matter. As the Supreme Court
has observed in connection with the conditions attached to most
federal funding programs: “The States are separate and independent
sovereigns. Sometimes they have to act like it.” NFIB v. Sebelius, 567
U.S. at 579.
In sum, the district court erred in holding 8 U.S.C. § 1373
unconstitutional because the statute does not violate the
29See NEW YORK DIVISION OF THE BUDGET, FY 2017 ENACTED BUDGET FINANCIAL
PLAN 69 (May 2016), available at https://www.budget.ny.gov/pubs/
archive/fy17archive/enactedfy17/FY2017FP.pdf.
30See Press Release, Governor Baker Signs Fiscal Year 2017 Budget (July 8, 2016),
available at https: www.mass.gov/news/governor‐baker‐signs‐fiscal‐year‐2017‐
budget.
60
anticommandeering principle of the Tenth Amendment as applied
here to a federal funding requirement.
In the absence of any such Tenth Amendment concern, and in
light of our holding that the challenged Certification Condition is
statutorily authorized by 34 U.S.C. § 10153(a)(5)(D), we conclude that
the condition does not violate either the APA or the Constitution.
Accordingly, we vacate the district court’s injunction prohibiting
application of the Certification Condition.
3. The Notice Condition Is Statutorily Authorized
by 8 U.S.C. §§ 10153(a)(4), 10153(a)(5)(C), and
10155
The challenged Notice Condition requires States and localities
accepting Byrne grants to have in effect during the grant period a
“statute, or a state rule, ‐regulation, ‐policy, or ‐practice” for their
criminal detention facilities to respond “as early as practicable” to
written requests from federal immigration authorities for notice of
identified aliens’ scheduled release dates. Supra at 15–16 (quoting
condition). The Attorney General’s statutory authority to impose this
condition derives from 34 U.S.C. §§ 10153(a)(4), 10153(a)(5)(C),
and 10155.
Section 10153(a)(4) requires a State or locality seeking Byrne
funding to include in its application, “in such form as the Attorney
General may require,” “[a]n assurance” that throughout the grant
period, “the applicant shall maintain and report such data, records,
and information (programmatic and financial) as the Attorney
General may reasonably require.” Section 10153(a)(5)(C) requires a
61
Byrne grant applicant to provide “[a] certification, made in a form
acceptable to the Attorney General,” that “there has been appropriate
coordination with affected agencies.” Section 10155 authorizes the
Attorney General to “issue rules to carry out” these requirements and
any other parts of the Byrne Program.
The district court did not discuss these statutory conditions. It
concluded simply that the Notice Condition was not authorized by
§ 10102(a)(6), as DOJ maintained. The Third Circuit, however, did
consider §§ 10153(a)(4) and 10153(a)(5)(C). It concluded that
§ 10153(a)(4) did not authorize the Notice Condition because “[its]
data‐reporting requirement is expressly limited to ‘programmatic and
financial’ information—i.e., information regarding the handling of
federal funds and the programs to which those funds are directed. It
does not cover Department priorities unrelated to the grant
program.” City of Philadelphia v. Attorney Gen., 916 F.3d at 285. As for
§ 10153(a)(5)(C), the Third Circuit concluded that it did not authorize
the Notice Condition because its “coordination requirement”
operated only in the past tense, i.e, “to require certification that there
was appropriate coordination in connection with the grantee’s
application. This does not serve as a basis to impose an ongoing
requirement to coordinate on matters unrelated to the use of grant
funds.” Id. (emphases in original).
To explain why we conclude otherwise, we discuss each
statutory requirement in turn.
62
a. Section 10153(a)(4)’s Reporting Requirement
The plain language of § 10153(a)(4) authorizes the Attorney
General to decide both what data, records, and information a Byrne
grant recipient must maintain and report and the form of an
applicant’s assurance that it will do so. This authority is cabined only
by the parenthetical modifier “(programmatic and financial),” which
serves to limit the referenced data, records, and information to those
pertaining to the particular program being funded by a Byrne grant
or to related financial matters. In this respect, at least, we agree with
the Third Circuit. See id.
But unlike that court, we think the release information required
by the Notice Condition is “programmatic,” at least for Byrne‐funded
programs that relate in any way to the criminal prosecution,
incarceration, or release of persons, some of whom will inevitably be
aliens subject to removal.31 This includes most, if not all, of the
programs for which plaintiffs seek Byrne funding, for example, (1)
programs for task forces targeting certain crimes, the object of which
is undoubtedly the arrest, prosecution, and eventual incarceration of
perpetrators; (2) programs for prosecutors’ offices, whose attorneys
decide when to pursue (or forego) the prosecution and incarceration
31As this court observed in Cuomo v. Barr, 7 F.3d 17 (2d Cir. 1993), plaintiff “New
York houses many illegal aliens in its prison system. As of March 1992, New York
held approximately 60,000 prisoners in state correctional facilities, 8% of whom
were known to be aliens and an additional 4% of whom were suspected to be
aliens. Of this number, 6,096 had been convicted of aggravated felonies, making
them subject to deportation.” Id. at 18. While the record on appeal does not
provide current statistics, there is no reason to suspect a marked decline in these
percentages.
63
of criminal suspects; (3) programs for defenders’ offices, whose
attorneys work to secure persons’ release from criminal detention and
to avoid their conviction and incarceration; (4) diversion programs for
persons who might otherwise remain in criminal custody; (5)
programs for persons while incarcerated or for the facilities
maintaining them; (6) programs for persons upon their release from
incarceration. As to such programs, we conclude that the Attorney
General is statutorily authorized by 8 U.S.C. § 10153(a)(4) to require
Byrne grant recipients to report when identified aliens in their
custody will be released.32
Insofar as the Notice Condition specifically requires a grant
applicant to have a statute, rule, regulation, policy, or practice in place
for its criminal detention facilities to report identified aliens’ release
dates “as early as practicable” after receipt of a written federal
request, we are satisfied that the requirement falls within the
Attorney General’s authority to determine the “form” of an
acceptable Byrne grant application, which necessarily includes the
form of an acceptable assurance. 34 U.S.C. § 10153(a). That
conclusion is reinforced by the Attorney General’s authority to “issue
rules to carry out this part.” Id. § 10155. See generally Federal Election
Campaign Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S.
27, 37 (1981) (“[D]eference should be presumptively afforded” to
32Because plaintiffs have not sought to distinguish among their grant purposes in
defending the challenged injunction and judgment, we have no occasion on this
appeal to consider whether Byrne Program funding could be sought for a purpose
so unrelated to prosecution, incarceration, or release that the Notice Condition
would not be statutorily authorized in those circumstances.
64
agency authorized to make rules in administering statute.); National
Broad. Co. v. United States, 319 U.S. 190, 215, 219 (1943) (explaining that
statute delegating authority, inter alia, to “[m]ake such rules and
regulations . . . as may be necessary to carry out the provisions of this
Act” gave agency “expansive powers” (internal quotation marks
omitted)).
b. Section 10153(a)(5)(C)’s Coordination
Requirement
Further statutory authority for the Notice Condition is supplied
by § 10153(a)(5)(C)’s requirement for certification, in “a form
acceptable to the Attorney General,” that “there has been appropriate
coordination with affected agencies.” The Third Circuit observed that
Congress’s use of the past tense in the quoted text signals that
“appropriate coordination” must have occurred by the time a State or
locality formally files its Byrne Program application. See City of
Philadelphia v. Attorney Gen., 916 F.3d at 285. While we agree with that
construction, we do not think that means the required coordination
need not continue into the future. See id. Rather, we think appropriate
coordination frequently, perhaps invariably, must determine future
conduct.
The plain meaning of “coordination” is “the functioning of
parts in cooperation and normal sequence.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 502. “Coordination” strives to bring a
“combination [of parts] in suitable relation for most effective or
harmonious results.” Id. The definition does not describe a static
concept that ends as soon as the suitable relation of parts and
65
sequence of their operation is determined. Rather, coordination
contemplates that relation and sequence are agreed upon in order to
establish how parts will operate going forward to achieve effective
and harmonious results.
The “parts” pertinent to § 10153(a)(5)(C)’s coordination
requirement are the grant applicant and the agencies that will be
affected by that grant. Thus, the certification required by
§ 10153(a)(5)(C) demands that, in advance of any Byrne award, States
and localities coordinate with affected agencies to determine their
relationship and sequence of conduct as necessary throughout the
grant period to ensure effective and harmonious results.
Put more concretely, if a State were to seek Byrne Program
funding for its State police to pursue a law enforcement initiative
involving undercover operations across several municipalities,
“appropriate coordination” might well require the State to reach an
understanding with the affected localities as to how notice will be
given to them when those undercover activities are occurring within
their borders, thus ensuring that local authorities do not misidentify
the State undercover officers as real criminals, with possibly tragic
consequences for both sides. In sum, the parties reach an
understanding about necessary coordination before the State files its
formal Byrne grant application, and the parties’ conduct during the
funding period is coordinated as thus agreed upon.
Similarly, were a State or locality to seek a Byrne grant to
modernize equipment used to track terrorist threats, “appropriate
coordination” might require the applicant to consult with other state
66
and federal agencies engaged in similar tracking and to reach
agreement as to the type of compatible equipment to be acquired and
how obtained information will be shared and secured. Such
coordination before formal application then determines the parties’
conduct after receipt of the grant.
So, here, when a State seeks Byrne funding for programs that
relate to the prosecution, incarceration, or release of persons, some of
whom will be removable aliens, there must be coordination with the
affected federal agency, the Department of Homeland Security
(“DHS”), before a formal application is filed, but what makes that
coordination “appropriate” is that it will establish the parties’
relationship and the sequence of their conduct throughout the grant
period.
To explain what makes DHS an affected agency, we begin with
the ordinary and clear meaning of “affect,” which is to “produce a
material influence upon.” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 35; see BLACK’S LAW DICTIONARY (9th ed. 2009) (defining
“affect” to mean “to produce an effect on; to influence in some way”).
The degree of influence need not be significant for the law to
recognize that something has been “affected” in a range of contexts.
See, e.g., Jones v. United States, 529 U.S. 848, 854 (2000) (holding that
“statutory term ‘affecting . . . commerce,’ . . . when unqualified,
signal[s] Congress’ intent to invoke its full authority under the
Commerce Clause”); United States v. Wiant, 314 F.3d 826, 830 (6th Cir.
2003) (holding, in context of “affected a financial institution” that
“breadth of [its] definition indicates that” word “affect” “is intended
67
to encompass even minimal impacts”); United States v. SKW Metals &
Alloys, Inc., 195 F.3d 83, 90 (2d Cir. 1999) (“The sum of what
dictionaries say about the relevant meaning is that the verb ‘to affect’
expresses a broad and open‐ended range of influences.”).
When States use Byrne grants in ways related to the
prosecution, incarceration, or release of aliens, the DHS Secretary’s
performance of numerous statutory responsibilities with respect to
such aliens is affected. For example, the Secretary must “begin any
removal proceeding” for an alien convicted of a deportable offense
“as expeditiously as possible after the date of the conviction,” 8 U.S.C.
§ 1229(d)(1); must effect the removal of such an alien “within . . . 90
days” after an order of removal becomes final, see id. § 1231(a)(1)(A)–
(a)(1)(B)(i)–(ii); and must detain the alien during that 90‐day period,
see id. § 1231(a)(2).33 The Secretary, however, “may not remove an
alien who is sentenced to imprisonment”—whether by federal or
State authorities—ʺuntil the alien is released.” Id. § 1231(a)(4)(A). In
that case, the 90‐day removal period starts to run from the date of the
alien’s release from custody. See id. § 1231(a)(1)(B)(iii).34 Moreover, in
33 While these statutory sections refer to the Attorney General, the removal
responsibilities stated therein and in other statutory provisions referenced in this
part of the opinion have been transferred to the Secretary of DHS. See 6 U.S.C.
§§ 251(2), 552(d).
34States are under no obligation to incarcerate criminal aliens convicted of state
felony crimes, but if they do so, they may then request that the federal government
either (1) pay “compensation . . . as may be appropriate” to the State “with respect
to the incarceration” of the alien, or (2) “take the undocumented criminal alien into
the custody of the Federal Government and incarcerate the alien.” 8 U.S.C.
68
circumstances where a removable alien is released from custody
before a final removal order has been obtained, the law authorizes the
Secretary to issue a warrant for the alien’s arrest and detention, see id.
§ 1226(a), and (with limited exceptions) requires the Secretary to do
so if the alien has a certain criminal history or has engaged in terrorist
activities, see id. § 1226(c)(1), (2).35
As even this brief review makes plain, a removable alien’s State
incarceration and release from incarceration will affect DHS’s
performance of its own statutory duties throughout the grant period.
In these circumstances, “appropriate coordination” requires that, by
the time a State or locality files its Byrne grant application, it have
reached an agreement with DHS as to their mutual relationship and
sequence of conduct throughout the grant period. Any less
coordination would not be “appropriate”; indeed, it would be
meaningless.
§ 1231(i). It appears that, in 2017, plaintiff the State of New York received $13.9
million in such compensation pursuant to the SCAAP program referenced supra
at 21. See Bureau of Justice Assistance, Fiscal Year 2017 SCAAP Award Details,
available at https://bja.ojp.gov/program/state‐criminal‐alien‐assistance‐program‐
scaap/archives (last visited Feb. 24, 2020) (follow “FY 2017” hyperlink below
“SCAAP Awards” subheading).
35In 1992, New York attempted to sue federal authorities for failing to comply with
a predecessor statute requiring them to take into custody, upon release, aliens
convicted of aggravated felonies under state as well as federal law. See Cuomo v.
Barr, 812 F. Supp. 324 (N.D.N.Y. 1993), appeal dismissed, 7 F.3d 17 (2d Cir. 1993).
69
The Notice Condition serves to ensure such appropriate
coordination. It advises States that, at the time they file a Byrne grant
application, they must agree to respond as soon as practicable to a
written DHS request for the release date of an identified State‐
incarcerated alien and to have a statute, rule, or policy in force
throughout the grant period.
We conclude that the Attorney General is authorized to impose
such a condition by § 10153(a)(5)(C), which empowers him to
determine the acceptable form for certifying appropriate
coordination. See supra at 37 (discussing dictionary definition of
“form” as something requiring “specific information”).36 It is further
supported by § 10155, which authorizes the Attorney General to issue
rules for carrying out Byrne Program requirements. Of course, we
recognize that plaintiffs would prefer not to coordinate at all with
DHS, but that option is denied to them by § 10153(a)(5)(C) when the
States seek Byrne grants for programs relating to prosecution,
incarceration, or release that will affect DHS’s performance of its own
statutory duties.
36 Where, as here, the affected agency is federal, the Attorney General can be
expected to have particular insights into what coordination is appropriate to
establish the relationship and sequence of conduct necessary for a grant applicant
and the affected federal agency both to perform their respective duties in an
effective and harmonious manner. But even where the affected agency is not
federal, the Attorney General’s form‐ and rule‐authority may allow him to help
parties resolve coordination disputes that surface after the application is made
public but before it is approved. See 34 U.S.C. § 10153(a)(3)(B).
70
In sum, we conclude that the Notice Condition is statutorily
authorized by § 10153(a)(4)’s reporting requirement,
§ 10153(a)(5)(C)’s coordination requirement, and § 10155’s rule‐
making authority for Byrne Program applications relating to
prosecution, incarceration, and release. That being the purpose for
which plaintiffs have generally sought Byrne funding, we vacate the
district court’s injunction barring any application of the Notice
Condition.
4. The Access Condition Is Statutorily Authorized
by 34 U.S.C. §§ 10153(a)(5)(C) and 10155
Title 34 U.S.C. § 10153(a)(5)(C)’s coordination requirement and
§ 10155’s rule‐making provision also authorize the challenged Access
Condition, and for much the same reason that they authorize the
challenged Notice Condition. The Access Condition requires Byrne
grant applicants to agree to have in place throughout the grant period
a “statute, or a State rule, ‐regulation, ‐policy, or ‐practice” that
ensures federal immigration officials “access” to State correctional
facilities so that these officials can meet with detained aliens (or
suspected aliens) to determine their legal status in this country. See
supra at 16 (quoting condition).
As explained in discussing the Notice Condition, when States
seek Byrne funding for programs related to the prosecution,
incarceration, or release of persons, some of whom will inevitably be
removable aliens, DHS is an “affected agency” for purposes of 34
U.S.C. § 10153(a)(5)(C). That is because a State’s incarceration of an
alien requires DHS to delay acting on its own statutory obligations to
71
arrest, detain, and remove certain aliens until the State releases the
alien. See supra at 67–69. In such circumstances, coordination
between the State and DHS is not only appropriate, but necessary, to
allow the federal agency effectively to resume its obligations when
the State has achieved its penal ones.
For DHS to be able to do so, it needs to ascertain not only when
a removable alien will be released (the object of the Notice Condition),
but also what aliens incarcerated by the State are removable. DHS
does not ask the State to provide the latter information. Rather, it asks
to be afforded access to State‐incarcerated aliens (or suspected aliens)
so that DHS can itself ascertain their potential removability before
release. That is what the challenged Access Condition ensures.37
Affording such access constitutes “appropriate coordination”
in that it allows both the State seeking a Byrne grant for purposes
relating to prosecution, incarceration, or release and an affected
agency, DHS, to carry out their respective duties with respect to
incarcerated aliens in an orderly sequence. Thus, as with the Notice
Condition, we conclude that the Attorney General is statutorily
authorized to impose the Access Condition pursuant to
§ 10153(a)(5)(C), which empowers him to determine the acceptable
form for certifying appropriate coordination, and § 10155, which
authorizes him to issue rules to carry out the coordination
37What it does not ensure is that incarcerated aliens will then agree to talk with
federal immigration authorities.
72
requirement. Accordingly, we vacate the injunction prohibiting any
application of the Access Condition.
II. The Attorney General’s Imposition of the Challenged
Conditions Was Not Arbitrary and Capricious
Plaintiffs argue that, even if the Attorney General was
statutorily authorized to impose the challenged conditions, the
district court correctly concluded that it was arbitrary and capricious
for him to do so here without considering the conditions’ negative
consequences, particularly in undermining relationships between
immigrant communities and local law enforcement. See New York v.
Dep’t of Justice, 343 F. Supp. 3d at 240–41. The conclusion does not
withstand de novo review. See Karpova v. Snow, 497 F.3d 262, 267 (2d
Cir. 2007) (holding that appeals court reviewing summary judgment
award on APA claim examines “administrative record de novo
without according deference to the decision of the district court”).
While agency action may be overturned as arbitrary and
capricious if the agency “entirely failed to consider an important
aspect of the problem” at issue, Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), a court will not
“lightly” reach that conclusion, Islander East Pipeline Co., LLC v.
McCarthy, 525 F.3d 141, 151 (2d Cir. 2008) (citing approvingly to
Patterson v. Caterpillar, Inc., 70 F.3d 503, 505 (7th Cir. 1995) (stating that
court “must be very confident that the decisionmaker overlooked
something important”)).
Here, DOJ did not overlook something important. As the
district court acknowledged, DOJ was aware of the detrimental effects
73
plaintiffs fear from the three challenged conditions. The court also
acknowledged that the weight to be given these effects as compared
to the conditions’ perceived benefits was at least arguable. See New
York v. Dep’t of Justice, 343 F. Supp. 3d at 241. The sole ground on
which the district court concluded that DOJ arbitrarily and
capriciously “ignored” these detrimental effects in imposing the
challenged conditions was its failure to mention such effects in any
proffered document. See id. (observing that documents “do not reflect
that [DOJ] in any way considered whether jurisdictions’ adherence to
the conditions would undermine trust and cooperation between local
communities and government”).
In fact, there was no need for DOJ to discuss the relative
detriments and benefits of the Certification Condition. That condition
identifies a specific statute, 8 U.S.C. § 1373, as an “other applicable
Federal law[]” for purposes of the statutory compliance certification
requirement of 34 U.S.C. § 10153(a)(5)(D). Thus, the sole question for
DOJ to decide was whether 8 U.S.C. § 1373 is an applicable law.
Having made that decision—which we uphold, see supra at 35–61—
nothing in the statute authorized DOJ to excuse a Byrne applicant
from certifying its willingness to comply with an applicable federal
law on a finding that the detrimental effects of compliance outweigh
the benefits. Indeed, that would be particularly unwarranted here
where the legislative history shows that Congress was itself aware of
the very detrimental effects raised by plaintiffs when it enacted
§ 1373. See supra at 19 (quoting Senator Kennedy’s acknowledgment
of mayors’ concerns that cooperating with immigration authorities
could be counterproductive). Thus, DOJ’s failure to discuss
74
detrimental effects does not show that it arbitrarily or capriciously
imposed the Certification Condition.
As for the Notice and Access Conditions, these apply only to
persons in State custody, i.e., persons found guilty beyond a
reasonable doubt of charged crimes, or persons for whom there is at
least probable cause to think that they committed crimes. Such
conditions do not put law‐abiding undocumented aliens who have
been crime victims or witnesses at risk of removal and, thus, should
not dissuade such aliens from reporting crimes or cooperating in their
investigation.38 Thus, it was hardly arbitrary or capricious for DOJ to
impose these conditions without discussing detrimental effects that
they were unlikely to cause.
Nor are we persuaded by plaintiffs’ further argument that the
challenged conditions are arbitrary and capricious because DOJ failed
38 See City of Philadelphia v. Attorney Gen., 916 F.3d at 282 (citing Philadelphia’s
rationale for policy limiting employee cooperation with federal immigration
authorities: to “foster trust between the immigrant community and law
enforcement,” which is “critical to reassure law‐abiding residents that contact with
the City government will not lead to deportation” by federal authorities (internal
quotation marks omitted)); City of Chicago v. Sessions, 888 F.3d at 279 (observing
that “City recognized . . . maintenance of public order and safety required the
cooperation of witnesses and victims, whether documented or not”); Michael R.
Bloomberg, Mayor Michael R. Bloomberg Signs Executive Order 41 Regarding
City Services For Immigrants (Sept. 17, 2003) (remarking in public speech that
“[w]hen the parents of an immigrant child forego vaccination for fear of being
reported to the federal immigration authorities, we all lose . . . . Likewise, we all
suffer when an immigrant is afraid to tell the police that she has been the victim of
a sexual assault or domestic violence”), available at https://www1.nyc.gov/office‐
of‐the‐mayor/news/262‐03/mayor‐michael‐bloomberg‐signs‐executive‐order‐41‐
city‐services‐immigrants.
75
to “display awareness that it [was] changing position” and did not
show “good reasons for the new policy.” Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2126 (2016) (internal quotation marks
omitted). DOJ did not change its position; rather, the Attorney
General exercised his authority to have Byrne grant applicants satisfy
the §§ 10153(a)(4), 10153(a)(5)(C), and 10153(a)(5)(D) requirements in
a more specific form. Even if it was necessary to show “good reasons”
for this decision, however, that is satisfied here by the 2016 IG
Report’s findings of a significant, decade‐long decline in cooperation
between local law enforcement officials and federal immigration
authorities, some achieved through policies in tension with, if not
actually violative of, 8 U.S.C. § 1373.
CONCLUSION
To summarize, we conclude as follows:
(1) The Attorney General was statutorily authorized to impose
all three challenged conditions on Byrne grant applications.
a. The Certification Condition (1) is statutorily
authorized by 34 U.S.C. § 10153(a)(5)(D)’s
requirement that applicants comply with “all other
applicable Federal laws,” and (2) does not violate the
Tenth Amendment’s anticommandeering principle;
b. The Notice Condition is statutorily authorized by 34
U.S.C. § 10153(a)(4)’s reporting requirement,
§ 10153(a)(5)(C)’s coordination requirement, and
§ 10155’s rule‐making authority;
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c. The Access Condition is statutorily authorized by 34
U.S.C. § 10153(a)(5)(C)’s coordination requirement,
and § 10155’s rule‐making authority.
(2) The Attorney General did not overlook important
detrimental effects of the challenged conditions so as to
make their imposition arbitrary and capricious.
Accordingly,
(1) We REVERSE the district court’s award of partial summary
judgment to plaintiffs;
(2) We VACATE the district court’s mandate ordering
defendants to release withheld 2017 Byrne funds to
plaintiffs, as well as its injunction barring defendants from
imposing the three challenged immigration‐related
conditions on such grants; and
(3) We REMAND the case to the district court,
a. with directions that it enter partial summary
judgment in favor of defendants on plaintiffs’
challenge to the three immigration‐related conditions
imposed on 2017 Byrne Program grants; and
b. insofar as there remains pending in the district court
plaintiffs’ challenge to conditions imposed by
defendants on 2018 Byrne Program grants, for further
proceedings consistent with this opinion.
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