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DOJ Byrne Grant - Permanently Blocked

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Posted on October 08 2018

‘The Anti-Commandeering Doctrine:

As In the simplest of forms, the origins of the “anti-commandeering doctrine” can be found in James Madison’s, Federalist #46. See Yale Law Library’s Avalon Project, link to Federalist #46 found here.

The Influence of the State and

Federal Governments Compared


Madison opined four primary tactics for individuals and states to assert their sovereignty and to protect their rights from potential federal overreach: 

For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former.

...views will be as confined as those of the State legislatures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual States, or the preorgatives of their governments. The motives on the part of the State governments, to augment their prerogatives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members.

...refusal to Cooper with officers of the Union...should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand..

 

Subsequently there have been five separate Supreme Court Rulings that defined, affirmed and broadened the anti-commandeering doctrine. 

 

🚩Prigg v. Pennsylvania (1842):

This case surrounded the Federal Fugitive Slave Act of 1793. Justice Joseph Story held the federal government could not force states to implement or enforce the federal law.

The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.

Prigg v Pennsylvania SCOTUS summary can be found here.

 

🚩New York v. United States (1982)

The Court found that the, Low-Level Radioactive Waste Policy Amendment Act of 1985 violated the sovereignty of New York, holding:

 

“because the Act’s take title provision offers the States a ‘choice’ between the two unconstitutionally coercive alternatives–either accepting ownership of waste or regulating according to Congress’ instructions–the provision lies outside Congress’ enumerated powers and is inconsistent with the Tenth Amendment.”

Notably Justice Sandra Day O’Conner, delivered the majority ruling 6:3, in which she wrote:

As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program....While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.

New York v United States (1992) SCOTUS summary can be found here.

 

🚩Printz v. United States (1997)

Of the two previously mentioned SCOTUS cases, Printz v USA served as the defining moment of the anti-commandeering doctrine, at the heart of this case was: the Brady Gun Bill that required county law enforcement officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack argued that these provisions were unconstitutionally forced on them to essentially administer a federal program. 

Justice Scalia agreed with the arguments of Sheriffs Printz & Mack. In a 5:4 ruling, Justice Scalia referenced in part the previous New York v US some fifteen years earlier. And stated two requirements within the Brady Gun Bill was unconstitutional. 

“it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme....

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. 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. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

 Printz v US SCOTUS case summary can be found here.

 

🚩Independent Business v. Sebelius (2012):

This case centered around the Affordable Care Act (Obamacare) and whetherthe  Federal Government had/has the Constitutionality of force to states to expand Medicaid by threatening to withhold funding for Medicaid for existing programs. Justice Kennedy wrote in the majority opinion:

allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers...For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions....Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.

 Independent business v Sebelius SCOTUS case summary can be found here.

 

🚩Murphy v. NCAA (2018)

The Court held that Congress can't take ANY action that would:

“dictate what a state legislature may and may not do”

Justice Alito delivered the majority opinion and he did not mince words. The ruling was sharp and pointed:

..a more direct affront to state sovereignty is not easy to imagine.
The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States ... Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.

Murray v NCAA SCOTUS case summary can be found here.

Sanctuary Cities & Byrne JAG Grant 

As previously discussed in the Philadelphia Complaint from June 2018, found here, earlier this year in the City of Chicago et al v DOJ & AG Sessions, the 7thCCOAs opinion and entry, found here and July 2018 entry found here.

City & County of San Francisco

State of California vs DOJ/Trump

 

Given the Judges in the City of Philadelphia and City of Chicago as well as the Seventh Circuit Court of Appeals (7thCCOA) each came to the same conclusion that the Department of Justice and Trump Administration once again exceeded their authority and violated the anti-commandeering doctrine by “clawing back” funds and/or retroactively adding conditions on said funds, which were previously appropriated by Congress. In each of the previously mentioned Complaints, the Judiciary concluded that Donald Trump’s Executive Order and Attorney General Sessions’ DOJ Memoes concerning JAG Grant funds, unconstitutional.

It should come as zero surprise that on October 5, 2018 (this was completely overshadowed by the Kavanaugh matter), U.S. District Judge William Orrick III concluded that the Justice Department is prohibited from imposing immigration-related conditions on the Byrne JAG Grant.

Remember the JAG Grant is strictly funded by Congress ergo it’s an appropriation.

The one data point that continues to be overlooked:

Case No. 17-cv-04642-WHO and Case No. 17-cv-04701-WHO not only challenged the 2017 Trump/Sessions Byrne JAG Conditions but they also challenged the Constitutionality 8 U.S.C. § 1373.

 

Section §1373 - “prohibits state and local governments from restricting information-sharing with the Department of Homeland Security”

 

 

 

(“Byrne JAG”) program would need to satisfy three new conditions for funding directed at state and local governments that have adopted so-called “sanctuary city” statues and ordinances. The conditions require that grant recipients (i) provide the Department of Homeland Security’s Immigration and Customs Enforcement agency (“ICE”) access to their correctional facilities for immigration enforcement purposes, (ii) provide notice to ICE of the release date for detainees, and (iii) certify their compliance with 8 U.S.C. § 1373, a statute which prohibits state and local governments from restricting information-sharing with the Department of Homeland Security.

Judge Orrick struck down a longstanding immigration law – Section 1373 of Title 8 of the U.S. Code of Laws – as unconstitutional, he wrote:

 

In agreement with every court that has looked at these issues, I find that: the challenged conditions violate the separation of powers; Section 1373 is unconstitutional; the Attorney General exceeds the Spending Power in violation of the United States Constitution by imposing the challenged conditions...the challenged conditions are arbitrary and capricious; California’s and San Francisco’s laws comply with Section 1373 as construed in this Order; California is deserving of the mandamus relief it seeks; and both parties are entitled to a permanent injunction. 

 

 

With respect to the anti-commandeering argument, the Judge did not find the DOJ’s argument persuasive, at all. His memo is well throughout and he cites many of the SCOTUS anti-commandeering cases I cited above as the underlying foundation to his rationale.

 

“one of the Constitution’s structural protections of liberty,” dividing federal and state authority “for the protection of individuals.” 
Second, it “promotes political accountability” against the backdrop that voters are unable to place credit or blame when the roles of the State and Congress are blurred. Finally, it prevents the federal government from “shifting the costs of regulation to the States.” These three concerns are relevant.

The Judge goes on to cite numerous reports and previous declarations where considerable concerns are partcularized for the undocumented community. One could easily infer that the Trump/Sessions/Neilsen’s racial animus & radical immigration policies have had unconscionable consequences. Specifically for the immigrant community and domestic violence. The fear of the immigration community is if they report a crime or become a witness that they will be targeted for deportation. Part of effective community policing is the community, irrespective of their immigration status trust you, the law enforcement. But Trump/Sessions/Nielsen’s intentionally cruel immigration policies mean those communities no longer have trust in local law enforcement. It’s perhaps an actual intended consequence that Trump wanted. When the reality is local law enforcement needs the community to trust them.

Judge Orrick then cites the aforementioned SCOTUS  cases. Specifically Printz, Murphy and New York cases, regarding the anti-commandeering doctrine. EssentiallyTrump/Sessions/Nielsen impermissible placed two conditions on the Byrne JAG Grant. The executive branch does not have the authority to override or place conditions on appropriations Congress has appropriated.

The harm that entanglement with immigration enforcement does to community trust is more than theoretical, as plaintiffs and amici have shown. To summarize just one study, the fear of police inquiring into immigration status results in a lower likelihood that Latinos will report being a victim or witnessing crimes by 44 percent, undocumented immigrants by 70 percent, and even U.S.-born Latinos by 28 percent.

  

 Judge Orrick preemptively stayed the Nationwide Injunction, pending the Ninth Circuit Court of Appeal. From the Byrne JAG Formula. Judge Orrick ORDERED the Justice Department to release $28.3 million in grant funds to the state of California and city of San Francisco forthwith, concluding that the the funding delays jeopardize public safety.

 

 

One sharp criticism that Judge Orrick started is what a lot of us have had growing concerns, the Trump/Sessions/Nielsen hardline immigration policies have resulted in less reporting and community willingness to not only report crimes but to cooperate with local law enforcement.

“The evident consequence of a widespread fear of deportation within Latino communities is an underreporting of violent crimes such as domestic violence and gang-related violence,” 

 You can read Judge Orrick’s 61 page Memorandum and Order, here.

Concurrently Judge Orrick issued a Judgement and Order for the City and County of San Francisco and oddly uses a phrased I said almost a year to the date, that the DOJ is precluded from placing conditions on Appropriations Congress has appropriated and it is impermissible for the DOJ to “claw back” funds:

 

 

Similarly last month, Federal Judge Real ordered the DOJ to release the $1M in Byrne JAG Grants to Los Angeles. Essentially saying that the Trump Administration put the City of Los Angelos in an impossible choice: “

 

...”either it must certify compliance with unconstitutional and unlawful directives that impinge on the city’s sovereignty, damage community trust, and harm public safety,”

“Trying to impose such conditions is a violation of the separation of powers doctrine and ultra vires,” 

The language of the statutes gives no indication that DOJ is authorized to add civil immigration conditions to those just mentioned...Congress did not “‘grant the Attorney General the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or local governments for the failure to comply with those conditions.’”

The Court finds that balancing the equities and weighing the public interest tips the scale in favor of Plaintiff, and thus, Plaintiff in entitled to a preliminary injunction.

IT IS HEREBY ORDERED that Plaintiff’s Application for Preliminary Injunction is

GRANTED.

 

Essentially every State or City that the Trump Administration has unlawfully withheld Byrne JAG Grant funding the Judiciary found the Trump Administration and Attorney General Sessions, violated the Constitution, the APA and found their “claw back” or in most cases withholding of Grant funds unlawful.

This notion that the Trump-GOP is some how the “law and order” or “rule of law” political party is absolutely preposterous. The Trump-GOP has put in place radical and extremely onerous immigration policies which are dripping in overt racial animus and every time the Judiciary has ruled in favor of the Plaintiffs and bench slapped the taste out of the Trump Administration’s mouth. Literally the Trump-GOP has not one a single Byrne JAG Complaint. Not one. None. Zero. Zilch Nada. At some point I assume the Trump-GOP supporters will understand that they have been force feed a bucket of borscht-laced lies.

The reality is Trump traffics in fear and hate. His administration constantly pushes actual Russian Active Measures. Lying to America. Making us fear people who are brown or don’t “look like us”. Trump isn’t a Uniter. I am positive that Trump feeds off hate, he needs it like a junkie need its drug fix. Trump not only fosters an Us v Them mentallity but I’m pretty sure he enjoys it. Watching people rip each other to shreds. It’s like he gets “off” on watching people screaming racial slurs and hate at each other. Sociopaths take great joy in doing harm to others. They delight in watching others annihilate each other. Trump’s view of “make America great again” is a dog whistle. He’s actually saying, Make America White Again. 

Which is just insidious because in my America you are not judge on the color of your skin, your place of birth or your station in life. You are judge by your actions and what’s in your heart. But Trump wants all of us to hate and demonize people of color. To view non-white Americans as “others” and that they don’t belong in our Country. It saddens me that the “Christian and Evangelical” community have largely looked the other way. Their silence is tacitly condoning Trump’s racist views of “his” America. He has forever ruined the GOP. 

I do know that while history will be horribly accurate on this shit-hole of an abomination that is the Trump Administration, I know I’ll out live Trump. Meaning being slightly older than a millenial I’ll live long enough to see my America return to her magestic ways. The Country of if you work hard enough, there are no limits to your goals. With any luck the Trump name will be nothing but a joke and his ill gotten largesse will be the property of the United States of America, as in asset forfeiture because Trump is a con man and a tax cheat.  The facts, as in the REAL facts show our immigrant community isn’t an infestation of criminals. Not by a long shot. 

 

Hope Springs Eternal right? -SpicyFiles Out

 

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