Posted on June 08 2018
last month I briefly discussed the 7thCCOAs and the Federal Judge’s Order permanently enjoining Attorney General Sessions from withholding Bryne JAG Grant funding. As a refresher many Cities, Counties and local municipalities rely on the Federal JAG Byrne Grant to Fund various law enforcement needs. Last month’s entry found here.
“so-called” Sanctuary City
Full disclosure I am unreservedly and unapologetically a fan of Philadelphia and it’s Mayor, Jim Kenney. The City and it’s people are truly wonderful. They are the quintessential Salt of the Earth kind of people, earnest, hard working and welcoming. They reflect the true American Values, as in with enough grit and determination there are no limits to achieving your dream.
So when our “president” decided to attack the Philadelphia Eagles, lie about the Eagles Players and the National Anthem, none of you should have been surprised by Mayor Kenney’s response:
And yes it is a shame that our petulant & pernicious so-called President decided to wage a culture & race baiting war which (predictably) ended up overshadowing CIVIL ACTION NO. 17-3894 Philadelphia v AG Sessions
This litigation deserves more attention because it is another win for localities who continue to pursue legal action against the Trump Administration for its blatant abuse of power and unlawful actions.
CIVIL ACTION NO. 17-3894
“so called” Sanctuary Cities
From the onset of Trump’s January 2017 Executive Order, which “attached conditions” on the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG) my position has never changed. On July 25, 2017 Attorney General Sessions, executed Trump’s EO by sending the following directive to Byrne JAG recipients.
It is impermissible for the Executive Branch to retroactively place conditions, on appropriations Congress has already authorize. The claw back or retroactively attaching “conditions” of appropriations that Congress approved should be viewed as the Executive Branch Unlawful Overreach.
That’s not an opinion, it’s a matter of law & enshrined in our Constitution via the Spending Clause, Article I, Section 8, Clause 1 which reads in part (take note of 📕):
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
This was affirmed in South Dakota v Dole 483 U.S. 203 (1987) when SCOTUS held that any conditions attached to the receipt of federal funds must:
(1) be unambiguously established so that recipients can knowingly accept or reject them;
(2) be germane to the federal interest in the particular national projects or programs to which the money is directed;
(3) not violate other provisions of the Constitution, such as the First Amendment or the Due Process or Takings Clauses of the Fifth Amendment; and
(4) not cross the line from enticement to impermissible coercion, such that states have no real choice but to accept the funding and enact or administer a federal regulatory program.
The fourth criteria in this ruling is critically important. This ensures that any conditions placed on federal grant funds does not in any way violate the Tenth Amendment’s prohibition on the federal government’s “commandeering” any State/Local Government and force them to carry out federal programs. Again if Trump or Sessions would simply read the Constitution or maybe consult with Congress or Public Policy Experts, perhaps our already overburdened Federal Court system would not be bogged down with dozens of lawsuits regarding the Bryne JAG “conditions”. Of the numerous cases there is a common and well articulated argument, the Plaintiffs (States, Counties and Cities) each echo the following arguments:
The January 2017 executive order:
1) does not comport with the restrictions on the spending power that were articulated in SCOTUS’ South Dakota v Dole...
2) Executive Order violates the Tenth Amendment by mandating states and localities to enforce federal immigration law or have their Bryne JAG funds withheld.
3) the Executive Order & DOJ guidelines are an overreach and violate the APA
On June 6, 2018, ironically within days after Trump disinvited the Philadelphia Eagles from the White House, our House. The People’s House. U.S. District Court Judge Michael Baylason issued a scathing 94 page Order & Opinion. The Judge concluded that the Attorney General’s policy:
...did not serve make the city of Philadelphia safer and that Philadelphia's sanctuary cities policy was reasonable.
The conditions set forth by the AG violated the constitution because the federal government cannot use federal funds to coerce states.
I refer you to pages 5 & 6 (concurrently marked as pages 2 & 3), and yes I’m a sucker for any Judge who’s opening sentence invokes Homer and then goes on to draw comparisons. This is a literary masterpiece and exquisite legalese word porn.
As sailors in Homer’s “The Odyssey” seeking to avoid the mythical sea monsters Scylla
and Charybdis as they travel to the island of Thrinacia, Philadelphia seeks to avoid having to
confront the choice between two alternatives which it finds undesirable. To Philadelphia, Scylla
represents compliance with a federal statute requiring that the City issue no guidance restricting its
police and other officials from sharing information about the immigration status of City residents,
while Charybdis represents $1.6 million that Philadelphia would use to provide vital resources to
bolster its local criminal justice prerogatives.
In Greek, this is referred to as δίλημμα—a “dilemma,” or a “double proposition”—which offers two unacceptable alternatives. Below, this Court lays out a full explanation of why Philadelphia need not make this “Hobson’s Choice,” and in any event, can steer safely to Thrinacia, accepting the $1.6 million without compromising its local objectives.
I now refer you to pages 48 and 49 (concurrently marked as pages 44 & 45), this particular paragraph encapsulates the essence of the matter of law and perilous legal footing the Trump Administration continues to double down on. Here’s a tip, when an Article III Judges uses “arbitrary and/or capricious” understand that’s basically saying unconstitutional and/or violates the constitution.
Moreover, the City contends that the DOJ violated the separation of powers doctrine by using the unauthorized conditions to deny localities their congressionally appropriated Byrne JAG funds. Finally, the
City argues that the decision to impose the Challenged Conditions was arbitrary and capricious
because the administrative record provides no satisfactory explanation for the DOJ’s decision to
deviate from its prior practice of imposing only non-substantive conditions to Byrne JAG grants.
For reasons stated below, the Court will grant Plaintiff’s Motion for Partial Summary Judgement...
And finally I refer you to pages 57 & 58 (concurrently marked as pages 53 & 54) this is where the Judge turns the DOJ counter argument on its head. In numerous prior pleadings & during the 4 day trial, the DOJ cited a 2007 DOJ-OIG Report, more importantly they attempted to twist the Report. The Judge rightfully took the DOJ to task:
Report actually observed that “many state, county and local law enforcement agencies . . . have policies that suggest they are willing to cooperate with ICE when they . . . learn that those individuals may be criminal aliens.” (2007 OIG Report, at 22-23). The DOJ cannot point to a report concluding that localities are willing to cooperate with ICE as the justification for attaching conditions to grants nine years later which require such cooperation. This makes so little sense that it demonstrates the “arbitrary and capricious” nature of the decision to impose those conditions.
Third, given the nearly ten year gap between the 2007 OIG Report and the decision to add the Challenged Conditions to the Byrne JAG Program, the Report can hardly explain the DOJ’s decision. Under the APA, “an agency must give adequate reasons for its decisions,” and the OIG Report issued a decade earlier does not lend support to the DOJ’s position. Encino, 136 S. Ct. at 2125.
And this is why I am so very fond of Mayor Kenney, I’ll let him explain it in his own words. Just in case you missed the link to the Judge’s 94 page Order & Opinion. Where the Court opined and found AG Sessions & the Trump Administration Bryne JAG unconstitutional, you can read it here. (YES it’s an open Source Link from PAED Courts)
📕for once the typo is NOT mine. Yes in our Constitution our Founding Fathers spelt defense as “defence”...should you be inclined you can read the Essay via the Heritage Foundation, link found here .
Alternatively it may come as a surprise but there are numerous errors both spelling and grammatical contained in our Constitution. See the National Archives Link to a 2012 piece written by famed historian & author Henry Bain, found here.
And yes I’m still lobbying the PAC and/or Claude to perhaps consider launching a product line of Spicy typos or Spicy “sayings”. If you haven’t figured out by now, I really do not take myself seriously and I fully own I’m prone to typos & grammatical errors. If you want to criticize my typos, highlights or grammatical errors, knock yourselves out. I won’t be mad or offended, although if that’s you’re only argument to the substance of what I’m presenting, you do understand how intellectually dishonest that is, right?
In closing if you haven’t visited Philadelphia, you really should. It’s a wonderful city, rich in history, diverse culture but most importantly the City and its leaders are welcoming to ALL people. Here’s a tourist guide of the City of Philadelphia. You should check it out and NO I am not being paid by the City.
While you're here, throw us a bone.
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